The Way We Were

Remember the good old days, when prosecutorial misconduct was dealt with by just a wink and a wrist slap? No, not last week, but 20 years ago. Truth be told, there wasn’t even a wrist slap back then. And barely a wink. Because of this, the  Supreme Court of Oklahoma has decided to apply the rule of lenity to the misconduct of former assistant district attorney Robert Bradley Miller, even though the state bar association would disbar him.

Via Jonathan Turley :


The Oklahoma Supreme Court has rejected a request from the state bar association to disbar Robert Bradley Miller, former assistant district attorney for Oklahoma County, and given him just a suspension from practicing law for 180 days and court costs for egregious misconduct in two capital cases twenty years ago. We have often discussed the lack of deterrence for prosecutors who are rarely disciplined for conduct leading to reversals or false convictions. In this case, the bar wanted Miller out of its ranks for hiding a key deal with a witness and using falsified subpoenas to coerce cooperation from other witnesses.
And what caused them to pare down disbarment to 180 days (plus court costs. Don’t forget about the court costs.)?


The novel defense — accepted by the state Supreme Court — was that lots of prosecutors acted abusively back then.
Well, not exactly the defense, but the argument in mitigation of punishment. It’s not that it wasn’t wrong for a prosecutor to lie, cheat and steal his way to convictions, even in capital cases, but that it just wasn’t such a big deal 20 years ago.


Hindsight is 20-20. Instances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension.40 Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct. Reprehensible though Miller’s conduct may have been, and even if such misconduct is punished more harsly [sic] when it occurs now, Miller’s actions took place decades ago and it would be unfair to hold him to a harsher standard than he would have been subjected to when his actions took place.
Hindsight is what courts do. It’s the only thing courts do, in fact. And they’re awfully good at it when the target of their scrutiny is the conduct of a criminal defendant. Yet, I can’t remember a single decision using such a trite phrase to excuse a criminal defendant for his trespasses.  Funny how that changes when the question is how to punish a prosecutor.

Yet, the rationale of the court is one of lenity, that the nature of punishment for a wrong ought to be considered in the context of the time. While this is truly a sad commentary of the time, when judges didn’t get too bent out of shape by egregious misconduct as long as the judge was satisfied with the outcome (hey, he was guilty anyway, right?), the argument of lenity isn’t entirely wrong. 

The problem here, however, is that it has been misapplied.


Make no mistake, if this conduct were to happen today, the punishment would have been much more severe. This is not to say that the Court condones his conduct, merely that we are not inclined to apply the harsher standards of today to conduct that occurred at a time when it was punished lightly, if at all.

Really?  Would the punishment really have been much more severe, because if that’s the case, where are you hiding the bodies?

The decision suggests that prosecutorial misconduct was somehow shrugged off way back when, but offers nothing to support this facile assertion.  The same rhetoric about misconduct was used then as it’s used now, with pretty much the same results. Indeed, imagine a court 20 years from now citing to this decision as a justification for not disbarring a prosecutor who concealed exculpatory evidence today, but was only revealed to be scum 20 years from now. See how that works?

For a brief, glorious moment during the Warren Court, there was an effort made to level the playing field, and as part of their effort, there was law the required the prosecution to play fair.  The 1963 Brady decision, despite the glaring holes that haunt us today, includes all the right rhetoric about how concealment by the prosecution undermines the integrity of the legal system.  So if it was bad enough in 1963 to warrant the Supreme Court’s creation of a constitutional mandate of disclosure, it wasn’t bad enough back then to compel a little more than a hand-smack?

That’s not how I remember the glory days.

But then, it was 20 years ago. It’s not like a defendant convicted due to prosecutorial misconduct would have to spend those 20 years in prison for what Robert Bradley Miller did, making the price his victims paid 40 times greater, at a minimum, than the very stern words of the court plus a six month vacation.  Oh wait.



3 comments on “The Way We Were

  1. Jack

    I wonder if they end up solving some cold-case lynching of an African American from the 40s by a young klansman instead of being sent to prison for the remainder of his life, he will get a pat on the back because, that’s how it was done back then…

  2. SHG

    Without checking, I couldn’t say, but then at least they would know what they were talking about. Just not in a good way.

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