Chicago, Illinois – August 4, 2012 Prosecutorial Oversight Symposium U.S. Department of Justice Office of Professional Responsibility NOBC Annual Conference 2012 Lyn Hardy Senior Counsel Chicago, Illinois – August 4, 2012

The Department of Justice is the largest law enforcement agency in the world, with approximately 110,000 employees and 10,000 attorneys. The Department of Justice’s Office of Professional Responsibility (OPR) investigates allegations of misconduct against Department Attorneys. To ensure that Prosecutors (and other Department Attorneys) act ethically. To promote public confidence in Prosecutors and the criminal justice system.

At the conclusion of an investigation, OPR determines whether the Department attorney: Engaged in intentional professional misconduct Engaged in reckless misconduct Exercised poor judgment Made a mistake, or Acted appropriately

Top 6 Misconduct Allegations in Investigations Opened in FY 11 Number of Allegations Percentage of Allegations in Investigations Failure to comply with DOJ rules and regulations 10 19.2% Abuse of authority, including abuse of prosecutorial discretion 7 13.5% Misrepresentation to the court and/or opposing counsel Improper remarks to a grand jury, during trial, or in pleadings 4 7.7% Failure to competently and/or diligently represent the client’s interests Failure to comply with Brady, Giglio, or Fed. R. Crim. P. 16 discovery 2 3.8%

Top 6 Misconduct Allegations in Closed Investigations with Misconduct Findings in FY 2011 Misconduct Allegation Number of Misconduct Allegations Percentage of Misconduct Allegations Lateness - Missed Deadlines 3 12.5% Failure to Diligently Represent the Interests of the Client Failure to Comply with USAM Provision 2 8.3% Unauthorized Disclosure to Media (including Privacy Act) Discovery Brady/Exculpatory Information Misrepresentation/Misleading the Court

Findings in Closed Investigations January 2001 through December 2010

Preventing Misconduct Caused by Failure to Disclose What is being done to prevent a prosecutor from failing to disclose discoverable information in criminal prosecutions? Department of Justice has approximately 10,000 attorneys, 6,300 of which are prosecutors. Over the past 10 years, the Department has filed over 800,000 criminal cases involving more than 1 million defendants.

Preventing Misconduct Caused by Failure to Disclose The Department has focused on three main areas: Clarification of Disclosure Obligation and Specific Guidance to Implement those Obligations Education Accountability

Preventing Misconduct Caused by Failure to Disclose: Clarification of Disclosure Obligation Federal prosecutors are bound by the requirements set forth in Brady, Giglio, the Jencks Act, and Rule 16. Federal prosecutors also operate under the guidance of Department of Justice internal rules and policies set forth in the United States Attorney’s Manual (USAM). In 2006, the Department revised USAM § 9-5.001, making it the Department’s policy that federal prosecutors are required to “exceed [their] constitutional obligations” in criminal disclosures and disclose information beyond that which is “material” to guilt.

Preventing Misconduct Caused by Failure to Disclose: Clarification of Disclosure Obligation In January 2010, then Deputy Attorney General David Ogden issued a memorandum that established a methodical approach to discovery obligations that prosecutors were to follow in every case to avoid lapses. Like USAM § 9-5.001, the “Ogden” memo provides for broader disclosures than required by Brady, Giglio, and discovery rules.

Preventing Misconduct Caused by Failure to Disclose: Clarification of Disclosure Obligation The “Ogden” memo provides guidance on where to look for material; what to review; and how to conduct a review. The “Ogden” memo provides guidance on the scope and timing of the disclosures. The memo has helped ensure comprehensive review and disclosure of information to defense.

Preventing Misconduct Caused by Failure to Disclose: Education In 2009, the Department began requiring annual extensive discovery trainings for all prosecutors that focuses on disclosure obligations. In 2010, the Department began requiring newly hired prosecutors to attend a “boot camp” that provides a comprehensive overview of discovery obligations.

Preventing Misconduct Caused by Failure to Disclose: Education The Department expanded training for federal law enforcement agents and other investigative personnel; 26,000 of whom were trained in 2011 alone. The Department appointed a National Criminal Discovery Coordinator to ensure high quality and consistency in training The training requirements were added to the United States Attorney’s Manual.

Preventing Misconduct Caused by Failure to Disclose: Accountability The Department requires that all attorneys report allegations of misconduct to OPR. OPR actively reviews Westlaw and newspapers for judicial opinions and articles alleging misconduct. Investigations involve review of documents and other relevant information, interviews of witnesses and subjects, and research of relevant statutes, rules, and Rules of Professional Conduct.

Preventing Misconduct Caused by Failure to Disclose: Accountability If OPR finds a Department attorney engaged in misconduct: Discipline is imposed, which can include reprimand, suspension, or termination. The Department follows federal regulations and case law for imposing discipline on the attorney. Any misconduct finding stays on the attorney’s record.

Preventing Misconduct Caused by Failure to Disclose: Accountability State Bar Referral: At the end of the disciplinary process, OPR refers the attorney to his or her state bar disciplinary organization if an ethical rule was implicated. OPR works with the state bar to provide information.