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  •   Reno Ethics Push at Justice Is Still a Work-in-Progress

    By Jim McGee
    Washington Post Staff Writer
    Saturday, December 28, 1996; Page A10

    Attorney General Janet Reno came into office in 1993 with no higher priority than restoring public confidence in a Justice Department under fire from judges who had accused prosecutors of misconduct in several important criminal cases.

    Reno tripled the size of the department's internal affairs unit, abolished policies that had delayed internal investigations, appointed ethics advisers in each U.S. attorney's office and began disclosing the results of major internal investigations.

    Even so, judicial authorities say, Reno's efforts to impose professional discipline remain a work-in-progress as she begins her second term in office. Judicial allegations of professional misconduct by Justice prosecutors increased 71 percent over a three-year period, from 21 complaints in 1993 to 36 complaints in 1995, according to a new annual report by the Justice Department's Office of Professional Responsibility (OPR).

    The allegations range from abuse of the prosecutor's power during an investigation, such as making inflammatory comments to a grand jury, to unethical behavior in court, such as withholding exculpatory evidence.

    Justice Department officials assert that the increase in judicial complaints reflects greater awareness by federal judges of OPR as a way to redress grievances.

    Some outside critics, however, say the increases indicate persistent discipline problems despite Reno's efforts.

    "The reason there is an increase in judicial complaints is because the department is not teaching its people how to play fair by the rules," said Marvin Miller, a Virginia attorney who monitors prosecutorial misconduct for the National Association for Criminal Defense Attorneys. "You have to really go a long way for a federal judge to file a complaint against a federal prosecutor."

    Judicial complaints are only a portion of the allegations filed against Justice Department lawyers, albeit among those considered most credible. In fiscal 1995, the Office of Professional Responsibility closed a total of 234 misconduct investigations, including those filed by defense attorneys, inmates and other parties. Of all allegations, the number "substantiated" by OPR rose from 5 percent in 1994 to 11 percent in 1995. Five prosecutors resigned or retired while under investigation in fiscal 1995.

    Having sought to confront the issue of professional discipline with greater force and public candor, the Justice Department also has discovered that personnel rules and Privacy Act provisions make enforcement of professional standards expensive and contentious.

    "It is hard procedurally," Deputy Attorney General Jamie S. Gorelick said. "We are trying to be firm and fair, and the procedures are tough." The department, for example, is embroiled in a dispute with former assistant U.S. attorney William R. Hogan of Chicago, who contends he was unfairly fired after three trial judges – and a subsequent OPR investigation – -criticized his conduct in a major gang prosecution. One judge ruled that Hogan "deliberately concealed" exculpatory evidence that "would have destroyed his case."

    But the career prosecutor consistently has denied any wrongdoing, and his lawyers say he plans litigation before the Merit Systems Protection Board to get his old job back. "Whether [OPR] can prove their case remains to be seen," said Hogan's attorney, Thomas P. McGarry.

    Government lawyers have been given broader powers as a result of recent reforms in federal sentencing guidelines and other legislation. This has fostered concerns about how the justice system can deter prosecutorial misconduct without chilling the aggressive pursuit of criminals.

    In September, a House Judiciary subcommittee began considering tougher oversight requirements through a proposed Ethical Standards for Prosecutors Act.

    Earlier this month, in an incident unrelated to the Justice Department but nonetheless resonant for federal lawyers, state authorities in Illinois chose a more draconian response to evidence of prosecutorial misconduct.

    An Illinois state grand jury indicted three prosecutors, along with four sheriff's deputies, for allegedly conspiring to obstruct justice in a case in which an innocent defendant was sentenced to death for a 1983 murder.

    The prosecutors allegedly withheld the confession of another suspect and submitted false testimony in order to win the conviction – charges that the indicted prosecutors actively dispute. The defendant has been released from prison.

    After several years of attention from the attorney general, the backlog of uninvestigated OPR cases that Reno inherited in 1993 has been cleared, according to the OPR report, and the staff now concludes investigations even if an accused prosecutor resigns.

    © Copyright 1996 The Washington Post Company

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