How the Secretive 'Discipline' Process for Federal Prosecutors Buries Misconduct Cases
This October 10, 2019 article is republished with permission from The Intercept, an award-winning nonprofit news organization dedicated to holding the powerful accountable through fearless, adversarial journalism. Sign up for The Intercept’s Newsletter.
Lashawn Jermaine Johnson spent his 30s in prison law libraries. As he put it in an interview, that was “the only place you were going to find freedom” in prison. Sitting at one of a dozen desktop computers with windows overlooking a quad, Johnson dug through past convictions of the assistant United States attorney who prosecuted him for cocaine trafficking in Billings, Montana.
What he found not only set him free but called into question the convictions of many others behind bars.
James Seykora had been prosecuting federal drug cases for decades in Billings, the largest city in the state with a population just shy of 110,000. Local defense attorneys described him as a hard worker who dutifully sought the harshest penalties for drug crimes. One called him a “trained pitbull” and said “the people to blame were his bosses.” In 2004, he won an award for his sheer number of drug convictions.
But it turned out Seykora had a history of misconduct, including hiding deals he made with key witnesses in exchange for their cooperation and testimony.
In one case, Seykora gave immunity to a key government witness in exchange for taking the stand. Then, in front of a judge and a jury, he allowed the witness to swear she didn’t recall “any promises” in exchange for testifying.
In Johnson’s case, a federal judge found Seykora engaged in similar misconduct when he allowed the judge and jury to believe a key witness against Johnson, Heather Schutz, had only “bare hope” for leniency in her Las Vegas prostitution charges in exchange for her testimony. Seykora actually had promised her “personal benefit” that was a “concrete and quantified reality.”
As Johnson, who served nearly nine years for trafficking cocaine, poured through court records in the prison library, he said he found case after case in which Seykora was caught hiding deals with witnesses. Judges found the federal prosecutor had a habit of allowing juries and judges to believe people testifying for the prosecution had nothing to gain when, in fact, he had already promised them immunity, sentence reductions, and more. Despite this, Seykora was still allowed to handle federal drug prosecutions in Billings.
Johnson quickly gave the material he gathered in the law library to his attorney, who filed a motion to reverse the conviction due to prosecutorial misconduct. The Billings U.S. Attorney’s Office declined to charge Johnson again, and a judge ordered him “released from custody” in February 2015. He now lives in Las Vegas and has young children.
Seykora retired as a prosecutor in 2012 and currently is a municipal judge in Hardin, Montana, a small town of about 3,500 people and a short drive from Billings. He did not return phone calls seeking an interview.
In 2014, the Justice Department’s Office of Professional Responsibility began looking into Seykora. The OPR was established after the Watergate scandal “to ensure that Department attorneys perform their duties in accordance with the high professional standards,” according to its website.
Two years later, in 2016, while OPR was apparently still investigating Seykora’s actions, Michael Cotter, then U.S. attorney for Billings and current chief of the state’s Office of Disciplinary Counsel, apparently decided to take matters into his own hands. In a highly unusual move, Johnson’s attorney Colin Stephens said, Cotter sent letters to the defense attorneys of people Seykora had convicted to let them know about the prosecutor’s history of repeated misconduct.
Stephens said the letters essentially reopened any case Seykora had prosecuted. “We just opened Pandora’s box,” he said. “It’s a big deal when the government cheats.”
Cotter declined to discuss the case.
Given his experience, Johnson said, he wonders if it really is a big deal when a prosecutor breaks the rules. “He still gets to sit on the bench and practice his crooked law,” he said.
The DOJ’s Black Hole
An Intercept investigation into how federal prosecutors around the country are disciplined when they break the rules shows a secretive, flawed system that is not getting any better despite decades of public outcries and Justice Department promises to ensure accountability.
To this day, many federal prosecutors handling cases ranging from drug trafficking to white-collar crime walk away largely unscathed from misconduct charges, even after judges determine and describe in published opinions how they committed serious offenses, such as intentionally hiding evidence and allowing witnesses to lie to juries. But in their rulings, judges almost always omit the name of the prosecutor. And even if the prosecutor’s alleged misconduct is so grave that the OPR ends up investigating, the agency goes to great lengths to conceal anything that could possibly identify them.
Vanita Gupta, a former Justice Department official who is now president of the Leadership Conference on Civil and Human Rights, said transparency is crucial for the public to trust prosecutors who are “acting on behalf of the people.”
In its annual reports and investigative summaries — the latter is a new addition to the OPR’s site and a word-for-word copy of what’s already published in annual reports — the agency “alternates the use of gender pronouns” to shield prosecutors’ identities in every narrative of how they violated the rules and what should be done to hold them accountable.
Ellen Yaroshefsky, a legal ethics expert who serves on the New York State Committee on Standards of Attorney Conduct as well as other state ethics committees, said there is such a lack of transparency that “on the outside, we don’t know anything.”
“You really don’t know what they’re investigating,” she said.
Gupta equated it to the public’s right to know if a police officer has a history of brutality. “It’s important for people to know if there are repeat offenders,” she said.
OPR is entrusted with investigating allegations of professional misconduct of federal prosecutors, Department immigration judges, as well as law enforcement personnel that fall under its jurisdiction. The OPR decides which allegations to investigate and then determines whether or not the attorney committed professional misconduct.
According to the agency’s procedures, OPR shares its findings with the Professional Misconduct Review Unit — established by then-Attorney General Eric Holder in December 2010, after federal prosecutors intentionally hid evidence in the political corruption case against the late Sen. Ted Stevens — without making a disciplinary recommendation. PMRU can then either uphold or overturn OPR’s findings and recommend discipline such as suspension or an admonition letter.
After PMRU has reviewed the case, OPR is supposed to notify state bar authorities of any misconduct findings that involve violations of state bar rules, so those agencies and courts can take disciplinary action if needed.
But whether or not — or how — the government at any level ensures any discipline actually happens is unclear.
With nicknames like the “roach motel” and “Bermuda Triangle” — where complaints against federal prosecutors go in, but they never come out — OPR for decades has been criticized for improperly handling allegations of misconduct and not following through to ensure federal prosecutors actually are disciplined.
Yaroshefsky said the OPR is a “black hole.” The agency has its own internal standards, she said, recalling how, in 1998, H. Marshall Jarrett, then chief counsel and director of the OPR, tried to “open up the process but, unfortunately, it didn’t go anywhere.”
The Intercept reached out to all state agencies charged with disciplining attorneys. Out of those willing to talk, only a few had a record of receiving a recommendation from OPR to discipline a federal prosecutor. Most said they didn’t recall any contact from OPR. Some said they had never even heard of the federal agency.
Many states also pointed to privacy when asked for details about federal prosecutors and any discipline for misconduct. In some states, these documents would be confidential unless the state had filed formal charges — and even then, knowing the name of the prosecutor would be crucial and nearly impossible given all the redactions.
Rebecca Farmer, who was spokesperson for the State Bar of California when The Intercept called, said most state agencies are not properly tracking whether or not an attorney facing discipline is a prosecutor, which limits the ability to report on data.
“There is not a button you can check that’s like ‘prosecutor,’” she said.
Hamilton “Phil” Fox III, the disciplinary counsel of the D.C. Bar, which has a history of disciplining federal prosecutors, said in his experience, OPR “does a very thorough job,” but “there is a very elaborate chain of command,” and it “takes them a very long time.”
“After OPR issues a report, there are several bishops that have to bless that particular baby before it becomes final,” he said.
He said OPR’s turnaround time on investigations involving federal prosecutors in local D.C. courts prompted him to decide to handle those cases himself moving forward.
In Wyoming, Bar Counsel Mark Gifford said everything is confidential — including whether or not the federal government has asked his agency to discipline a federal prosecutor — unless the state Supreme Court issues a public reprimand.
“I’ve been doing this job going on eight years, and I typically see 175 complaints against lawyers a year,” Gifford said. “I don’t recall seeing a complaint against a federal prosecutor.”
But now, for the first time since the OPR was created in 1975, the agency might be forced to open its files on prosecutors it has investigated. In a scathing ruling last August, the United States Court of Appeals for D.C. demanded OPR stop using “vaporous justifications” to deny requests for investigative reports on prosecutors and instead give the public access.
Nothing to See Here
An examination of OPR documents shows prosecutors continue to avoid discipline for serious misconduct despite Holder’s creation of the PMRU.
The PMRU was meant to ensure “a more efficient and uniform system” for investigating and disciplining federal prosecutors. But four years after it was created, the Government Accountability Office found the agency wasn’t following through to ensure prosecutors were disciplined; some who were supposed to be punished were getting bonuses.
Now, eight years later, a large majority of DOJ employees who face allegations of professional misconduct — including federal prosecutors — continue to retire, resign, or move on to another position before any discipline, according to OPR’s notoriously vague annual reports.
The reports scrub all identifying details, but they include narratives describing how prosecutors coerced a witness, misled the court, and failed to disclose how a star witness was implicated in the crime, among other infractions.
For instance, in one criminal case described in OPR’s 2017 annual report, a federal prosecutor failed to turn over to defense attorneys a document “containing government promises made to a cooperating witness” and then allowed that witness to testify that the “government had made her no promises in exchange for her testimony.”
OPR investigated and “concluded that the attorney acted in reckless disregard of her obligations.” The PMRU agreed, in part, saying it was “reckless disregard” to not correct the witness who lied on the stand but that the prosecutor only “exercised poor judgment” by not turning over the document showing the witness got a deal in exchange for her testimony.
In the end, the prosecutor simply left the Justice Department.
“Because the DOJ attorney had resigned from the Department before the PMRU completed its review, no discipline could be imposed,” OPR said in the report, which omitted any details that could identify the case or prosecutor.
In another case, a federal prosecutor “violated multiple obligations under the United States Constitution, federal statute and case law, DOJ policy, and state bar rules,” according to OPR’s 2013 annual report. Among other things, the prosecutor repeatedly withheld important evidence.
“The DOJ attorney’s conduct, taken as a whole, amounted to a wholesale failure of her duty to represent her client, the United States, diligently and competently, in violation of state bar rules,” the OPR concluded.
The unnamed prosecutor retired after “reviewing and commenting upon OPR’s draft report.” PMRU told the OPR to notify state disciplinary authorities of its findings. However, it’s nearly impossible to know what, if anything, happened next. Yaroshefsky said the reports and the names of prosecutors should be public.
“It’s critical to build trust in the government — we need to have more transparency and accountability,” she said. “There ought to be data available, not only when they find misconduct but also when they don’t — we need to see how many cases were reviewed, the nature of those cases, what the allegations are and result.”
A review of OPR documents shows the office historically launched most of its investigations based on judicial opinions finding egregious federal prosecutor misconduct. Between 2000 and 2010, the majority of OPR’s investigations — an average of 56 a year — stemmed from judicial opinions. But between 2011 and 2018, that number dropped dramatically to an average of about eight or nine per year.
The drop doesn’t reflect the attention judges have been giving prosecutorial wrongdoing in recent years. In the last decade, judges have been key in bringing to light cases of prosecutorial misconduct, such as the Danziger Bridge case in Louisiana.
Yaroshefsky said if it weren’t for judicial opinions, we might not know about even the most significant misconduct cases.
“Take the Stevens case that led to the independent Schuelke report, ordered by a judge, after which OPR got involved,” she said. “It’s really because the judge had undertaken it — if it had gone to OPR directly then it’s really unclear what would have happened.”
In OPR’s annual reports, the office used to describe some of its closed investigations and what, if any, discipline it recommended. Among the most severe penalties included in these examples — and there is no way to know what examples are not included — is a 14-day suspension without pay for a prosecutor who “engaged in intentional professional misconduct” by “making threats to have the defendant arrested and forced to take a ‘perp walk,’” among several other infractions. Unlike the previous ones, the 2018 annual report omits any details of how PMRU handled discipline in individual cases.
It’s next to impossible to know which federal prosecutors the OPR has found guilty of misconduct, what discipline it recommended, and what, if any, discipline authorities actually imposed. The most severe professional penalty for prosecutorial misconduct is disbarment. A 1976 Supreme Court decision ruled that prosecutors are immune from any civil action, even in the worst cases of misconduct.
Under the Freedom of Information Act, The Intercept has been regularly requesting reports and other information about closed investigations in which the OPR found a federal prosecutor committed misconduct. Each request has resulted in heavily redacted documents or the same blanket denial the D.C. appeals court recently criticized.
Only about a month before the D.C. ruling last year, The Intercept submitted a FOIA request to OPR for copies of all closed investigative reports from 2017 in which the agency determined a prosecutor committed misconduct. In response, OPR’s special counsel Lyn Hardy sent 39 pages describing nine cases in which the agency determined federal prosecutors had committed professional misconduct it found “intentional” and “reckless.” The agency redacted the documents extensively — including what appear to be dates — leaving one page with nothing but white spaces and another with only 10 words.
The Intercept’s survey of state disciplinary bodies, however, turned up a handful of recent and ongoing actions against federal prosecutors — some well publicized.
In Louisiana, for instance, the state disciplinary board disbarred a federal prosecutor, Sal Perricone, in December 2018 after misconduct in the case forced a judge to reverse the convictions of five police officers a jury had found guilty of shooting, killing, and injuring unarmed people on the Danziger Bridge in New Orleans after Hurricane Katrina.
Court records show the federal OPR completed its investigation into Perricone and his colleague, Jan Mann, in December 2013 and found they had committed intentional misconduct when they posted about the case anonymously — during the trial — in the comments section on a newspaper website.
However, Rep. Cedric Richmond of Louisiana said the report “illustrated that a greater level of oversight is necessary to avoid any future impropriety.”
In November 2012, Richmond wrote a public letter to Holder criticizing the OPR for its “slow pace and possible major oversights” investigating into the Perricone misconduct case.
Richmond introduced a bill in May 2015 that would transfer oversight of federal prosecutors from the OPR, which is within the Justice Department, to the Office of Inspector General. The bill didn’t pass, but he has introduced it in every session since then. In January 2019, the House passed the legislation and sent it to the Senate.
The Intercept also requested records concerning investigations into Seykora. OPR issued a typical “Glomar response,” neither confirming nor denying the existence of such an investigation even though it is a matter of public record in the Montana Supreme Court.
In September 2018, the state Office of Disciplinary Counsel ruled that Seykora must pay a $313 fine and face a public letter of reprimand. In its ruling, the disciplinary counsel stated that the public letter and fine “adjudicates” Seykora from similar accusations as an assistant U. S. attorney.
“You know it’s a slap on the wrist, I guess,” Stephens said. “It’s a really light one.”
Johnson was dismayed.
“How could someone get away with this for so long?” he asked from his home in Las Vegas. “I lost eight and a half years of my life, and I’m still trying to get back into society with this institutionalized mind.”
This article by Brooke Williams, Samata Joshi and Shawn Musgrave was originally published by The Intercept (theintercept.com) on October 10, 2019; republished with permission from The Intercept, an award-winning nonprofit news organization dedicated to holding the powerful accountable through fearless, adversarial journalism. Sign up for The Intercept’s Newsletter. Copyright, First Look Media Works, Inc.