Sniffing out misconduct can be a matter of serendipity — or luck, as Lyons' attorneys discovered.
The evidence that eventually set Lyons free came to light only because of one sentence buried in a 40-page draft of a probation officer's sentencing report. Those drafts are dense and at times ignored, but this one offered a tantalizing clue: an account by one of Lyons' accusers, a federal inmate, that differed from his testimony during the trial.
That stuck out to Robert Berry, one of Lyons' attorneys, who wondered what else he hadn't been told. His digging led to hundreds of pages of other evidence prosecutors had never disclosed.
"If it wasn't for that one sentence, he would be in prison right now, probably for the rest of his life," Berry said. "The scary part is it probably does happen every day and nobody ever figures it out."
One reason violations may go undetected is that only a small fraction of criminal cases ever get the scrutiny of a trial, the process most likely to identify misconduct. Trials play a "very important" role, said former deputy attorney general David Ogden, because they force judges and attorneys to review a case in far more exacting detail.
The number of people charged with crimes in federal district courts has almost doubled over the past 15 years. Yet the number whose cases actually go to trial has fallen almost 30%, to about 3,500 last year, USA TODAY found. Last year, just four defendants out of 100 went to trial; the rest struck plea bargains that resolved their cases quickly, with far less scrutiny from judges.
"We really should be more concerned about the cases we don't know about," said Levenson, the Loyola professor. "Many of the types of misconduct you identified could happen every day, and we'd never know about it if defendants plead out."
Deliberate violations
In a justice system that prosecutes more than 60,000 people a year, mistakes are inevitable. But the violations USA TODAY documented go beyond everyday missteps. In the worst cases, say judges, former prosecutors and others, they happen because prosecutors deliberately cut corners to win.
"There are rogue prosecutors, often motivated by personal ambition or partisan reasons," said Thornburgh, who was attorney general under Presidents Reagan and George H.W. Bush. Such people are uncommon, though, he added: "Most former federal prosecutors, like myself, are resentful of actions that bring discredit on the office."
Judges have seen those abuses, too. "Sometimes, you get inexperienced and unscrupulous assistant U.S. attorneys who don't care about the rules," said U.W. Clemon, the former chief judge in northern Alabama's federal courts.
How often prosecutors deliberately violate the rules is impossible to know. The Justice Department's internal ethics watchdog, the Office of Professional Responsibility, insists it happens rarely. It reported that it completed more than 750 investigations over the past decade, and found intentional violations in just 68. The department would not identify the cases it concluded were marred by intentional violations, and removes from its public reports any details that could be used to identify the prosecutors involved.
State records, however, offer a glimpse into what can go wrong. Three years ago, two federal prosecutors in Illinois, each with more than a decade of experience, were ordered to answer to the state Attorney Registration and Disciplinary Commission for problems that almost torpedoed a drug case. The lawyers failed to turn over information to defense attorneys that could have discredited a key witness. That tactic, the U.S. Court of Appeals for the 7th Circuit concluded, was "designed to deliberately mislead the court and defense counsel."
Both prosecutors told authorities that they knew the rules, and both admitted that they didn't turn over the evidence, according to a transcript of the hearing. One, Bradley Murphy, said he was counting on the witness to reveal the damaging information himself during his testimony. The other, John Campbell, apologized. "It's embarrassing, to say the least," he told the commission.
State records show that the Justice Department suspended both prosecutors for a day. Both also were censured by the Illinois Supreme Court.
They remain federal prosecutors.
Attorney General Eric Holder declined to be interviewed; earlier this year, he told judges that officials "must take seriously each and every lapse, no matter the cause." The head of the department's criminal division, Lanny Breuer, said, "Obviously, even one example of real misconduct is too many. … If you've engaged in misconduct, the response of the department has to be swift and strong."
In practice, however, the response — by the Justice Department and the state officials who oversee lawyers — has frequently been neither. Department records show that its internal investigations often take more than a year to complete, and usually find that prosecutors, at worst, made a mistake, even when judges who presided over the trials ruled that there was serious misconduct.
In one rare exception, the department in 2007 prosecuted one of its former attorneys, Richard Convertino, for obstructing justice in his handling of a Detroit terrorism case. He was acquitted, and he unsuccessfully accused the attorneys who prosecuted him of misconduct. The department called Convertino "unmanageable" in one court filing, but still kept its internal review of the case secret.
In the one case in which USA TODAY found that state officials suspended a federal prosecutor from practicing law, the punishment lasted only a year. In that case, Florida's Supreme Court found that Karen Schmid Cox had let a witness lie about her name during a trial, making it impossible for defense attorneys to check the witness's background. If they had, they would have found that the witness had been previously accused of lying to a judge and filing a false police report.
Pressures on prosecutors
In some cases, Justice Department records and court documents suggest that prosecutors broke the rules inadvertently, often because they were inexperienced or unsupervised.
Former prosecutors from offices across the nation insist that the Justice Department never put pressure on them to cut corners — "there wasn't any pervasive attitude of win-at-any-cost," said Rick Jancha, a former prosecutor in Orlando.
But there are other pressures. For one thing, prosecutors are taking on more cases than ever. In the mid-1990s, the offices had one attorney for every 14 defendants; last year, they had one attorney for every 28. Even though most of those cases end in plea bargains, the increase can be taxing, because prosecutors often are responsible not just for conducting trials but overseeing investigations.
And prosecutors put pressure on themselves. "They're the A+ students. They're not used to losing," Levenson said.
"Prosecutors think they're doing the Lord's work, and that they wear the white hat. When I was a prosecutor, I thought everything I did was right," said Jack Wolfe, a former federal prosecutor in Texas and now a defense lawyer. "So even if you got out of line, you could tell yourself that you didn't do it on purpose, or that it was for the greater good."
Beyond that, most federal prosecutors do their jobs with little day-to-day supervision, said Michael Seigel, the second-in-command of the U.S. attorney's office in Tampa from 1995 to 1999.
And, until last year, prosecutors were not required to get regular training in ethics such as their constitutional duty to share evidence with defendants. That training is important: Many of the legal rules prosecutors must follow are complex, and not everyone agrees on the boundary between aggressive lawyering and misconduct.
Last year, Ogden, Holder's second-in-command, headed a review of problems with prosecutors' failure to turn over evidence to defendants, the issue that ultimately undermined the Lyons case. It concluded that most violations were "not the product of people who intentionally set about to cheat but … more of a lack of training and a lack of resources," said Ogden, who left the department this year. That review prompted a new requirement that prosecutors get two hours of annual training in their duty to share evidence.
'Real sloppy and lazy'
Before Bruce Hinshelwood became a federal prosecutor, he tried murder cases and those involving other high-profile crimes as a state attorney. He headed the Justice Department's Jacksonville office, and was briefly second-in-command of the middle district surrounding Tampa. Later, he tried drug cases in Orlando. In all that time, there is no indication Hinshelwood was faulted for misconduct. The Lyons case changed that.
Hinshelwood's former boss, Paul Perez, became U.S. attorney in Tampa in 2002, shortly after Lyons' trial ended. When the case against Lyons fell apart, it was his job to figure out why.
Perez said in an interview that he personally never doubted that Lyons was guilty. He said the problems came down to inattention: Hinshelwood was "an experienced but very lazy prosecutor," but didn't break the rules on purpose. He was, Perez said, "real sloppy and lazy."
Judge Presnell drew harsher conclusions. In a 2004 order, he said the Justice Department's failures in the case could be explained, "at best, by its agents' sloppy investigative work or, at worst, by their knowing failure to meet constitutional duties." He later faulted prosecutors not just for failing to turn over evidence but for "brazenly" defying court orders and presenting witnesses who were "allowed, if not encouraged, to lie under oath."
Records from the Florida Bar, which regulates the state's lawyers, show that the Justice Department investigated Hinshelwood's handling of the Lyons case, a fact the department refused to confirm for fear of invading his privacy. The department completed its report in 2007 and referred its findings to the bar in 2009, a step Justice Department policies say it takes when it finds misconduct.
Despite Presnell's rebuke and its own investigation, there is no evidence that the Justice Department ever punished Hinshelwood. He continued prosecuting cases until he retired in February 2008 to open his own law practice in Orlando.
The Florida Bar investigated Hinshelwood last year — seven years after Presnell accused him of misconduct by name in a court order — but concluded that too much time had passed to take action for what happened at the trial. It let Hinshelwood resolve the complaint by paying $1,111.80 in costs and attending Friday's ethics workshop.
"That's the extent of it?" Lyons said.
The bar opened a second investigation of Hinshelwood in July after Presnell declared Lyons innocent, an uncommon step that officials would not explain publicly.
To Lyons, nothing the bar can do would be strong enough. Hinshelwood "should suffer or go to jail," Lyons said. "The justice system not only didn't work initially in my case, it's still not working. Bruce Hinshelwood has his pension. He still works every single day. His life is not miserable. I'm not saying mine is, but it's nothing like it was before."
McCoy reported from New York. Contributing: Rhyne Piggott.
http://www.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N.htm
