OPR should investigate real prosecutorial misconduct, not Secretary of Labor Alex Acosta

Prosecutorial misconduct is rampant in the criminal justice system.  From intimidating witnesses, to hiding exculpatory information, to anonymously blogging to influence jurors, to spying on criminal defense attorneys, to knowingly putting on false testimony, all the way to setting up innocent men. It’s seriously depressing.

Just as depressing as the widespread misconduct itself is the fact that nothing is being done about it. Prosecutors are immune from being sued, convictions affected by misconduct routinely get affirmed because courts find that the misconduct was not “prejudicial,” and nothing ultimately happens to the wrongdoers. They generally keep their jobs, without even a smack on the hand.

Although there’s an office assigned to look into prosecutorial misconduct, called the Office of Professional Responsibility (“OPR”), that office almost never takes any action against bad prosecutors and keeps its findings private. OPR is such a joke that it often rejects even the rare judicial finding of prosecutorial misconduct. One study showed that during a three-year period, there were 60 cases of serious judicial criticisms or findings of misconduct and yet OPR found no wrongdoing by any of these prosecutors.

Instead of taking action against bad prosecutors, it was just publicly announced that OPR will be investigating Secretary of Labor Alex Acosta for his handling of the Jeffrey Epstein case ten years ago when Acosta was the U.S. Attorney in South Florida. For those of us who care about real prosecutorial misconduct, this news is truly absurd.{mosads}

While OPR does nothing in cases in which prosecutors send innocent people to jail, it is going to rev up its engines to look at an old plea agreement that ensured that a criminal went to prison and had to register as a sex offender — because there are critics who say that the prison sentence was not long enough.

This is not prosecutorial misconduct. No judge has found misconduct; no one has alleged (nor could they) that Alex Acosta had any unethical, improper, or illegal motive when he approved of the deal that sent a sex-offender to prison. These are historically very difficult cases to win and Acosta made sure Jeffrey Epstein ended up a convicted felon.

Was the 13-month prison sentence too lenient? It sure seems like it, and it’s easy to scream about it from the sidelines, but once people hear that many of the victims either had credibility issues, were refusing to testify, or were even going to testify for Epstein, people’s views start to change. But that’s all beside the point. Striking a plea deal in good faith isn’t prosecutorial misconduct.

I should know, as I’ve spent my entire career fighting prosecutorial misconduct. Acosta on the other hand was known for being tough but ethical and fair during his time as U.S. Attorney. I can attest to this, as Acosta and I were adversaries on numerous cases during his four years in that role. Whether my client’s cases turned out well or not for them, I always found Acosta to be open-minded, engaging, fair, and tough.

If Congress and the courts care about true prosecutorial misconduct, there are a number of steps that can be taken. Allow victims of misconduct to be able to sue misbehaving prosecutors for intentional misconduct. Allow defendants to recover their attorney’s fees when misconduct occurs. Suppress evidence obtained as a result of misconduct. Reverse convictions obtained after misconduct is exposed. Once these things are done, once there is a real disincentive to committing prosecutorial misconduct, it will stop. Until then, it will be business as usual.

One thing that won’t stop real prosecutorial misconduct is going after the good guys like Acosta, a lifelong public servant, because he did what he thought was the right thing ten years ago by cutting a deal, sending a bad man to prison. All this investigation will do is politicize plea agreements and incentivize prosecutors to ignore the right thing and instead play to how the media might later spin and second-guess their professional behavior. 

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.