Following the egregious misconduct of Kern County prosecutor Robert Murray, where he inserted a fabricated two-line confession in an interrogation transcript, resulting in the dismissal of charges against the defendant and not much else, Glenn Reynolds raised the age-old question of what to do about prosecutorial misconduct in USA Today.
Our criminal justice system depends on honesty. It’s also based on the principle that people who do wrong should be punished. Prosecutors, however, often avoid any consequences for their misbehavior, even when it is repeated.
Worse yet, prosecutors are also immune from civil suit, under a Supreme Court-created doctrine called “absolute immunity” that is one of the greatest, though least discussed, examples of judicial activism in history. So prosecutors won’t punish prosecutors, and victims of prosecutors’ wrongdoing can’t even sue them for damages.
That leaves courts without much else to do besides throwing out charges in cases of outrageous misconduct. But if we care about seeing the law enforced fairly and honestly, we need more accountability.
Well, yeah, sure. We need more accountability. And rainbows. And unicorns. And people giving a damn. And rainbows. This is well-worn turf, and Reynolds is, of course, right, but pointing toward government to fix the problem moves us no closer to accountability, largely because the incentives that move government are strongly against fixing the problem, and government has already made the choice not to fix the problem.
Nearly 35 years ago, the U.S. Supreme Court ruled that prosecutors cannot face civil lawsuits over how they handle criminal cases in court, no matter how serious or obvious the abuses. Since then, courts have further limited the circumstances under which prosecutors — or their bosses — can be sued for civil rights violations.
Prosecutors have absolute immunity for whatever they do, no matter how wrong, in their prosecutorial function. As Reynolds correctly notes, this was judicial activism at its best, a policy decision that it was better that prosecutors not be “gun-shy” for fear of being sued than that there be accountability for misconduct.
The alternative option, according to the Supremes, was that judges sanction prosecutors for misconduct and/or they be subject to attorney discipline. The problem, of course, was that neither of these things happen, and there is no way to make them happen. It’s neither the defense lawyer’s nor the “people’s” call to make, except to the extent of electing judges who would do so. Instead, we elect judges who are endorsed by the local police union.
At A Public Defender, Gideon runs through the “viable options” available to deal with prosecutorial misconduct. While viewed from the Connecticut-centric perspective, they’re pretty much the same as always, with the same problems as always. Mostly, they just don’t happen and we can’t make them happen. The options rely on other people providing the solution.
Yet, Gid raises one point that is within our grasp.
Defense attorneys proffer the same reasons – “I have to work with this prosecutor; I have a private practice; I have to think about my clients”. They are, to some extent, legitimate. Private attorneys do have a business to run and they have to make their income somehow. They certainly don’t want to be alienating prosecutors who they have to deal with regularly.
That he couches this option in terms of private lawyers having to “make this income somehow” reflects a bit of public defender snark. Private lawyers, like public defenders, have to go back to the same prosecutor’s office on the next case, and the next, and hope that the exercise of prosecutorial discretion won’t be used as pay-back for animosity generated by the last case. File a grievance against a prosecutor and, even if proven right, the fear is that other prosecutors in the office will exact a price for the hubris.
As noble as it may be to grieve a prosecutor in the case of defendant A, it’s ignoble to put defendant B’s plea offer at risk in return, as we don’t trade off the life of one person for the life of another. Given the breadth of prosecutorial discretion, there is no way to account for payback or to challenge it.
Yet, this is the only piece within the control of defense counsel. One solution was tried by the NYSACDL when it created a prosecutorial misconduct grievance committee, to whom members could go with their grievances and, if the committee agreed, would assume the role of grieving against the prosecutor and raise the grievance with the disciplinary committee.
In its first outing, against then-Westchester District Attorney Jeanine Pirro, whose only prosecutorial skill was getting elected and giving press conferences replete with outrageous representations against defendants, the committee’s complaint received a huge yawn. The disciplinary committee responded, “nah,” and that was that.
While Reynolds and Gideon are obviously right in saying that the system lacks accountability, and that a system lacking in accountability of its prosecutors is a system without any assurance of integrity, we’re no further down the road of achieving accountability than we’ve ever been.
In the case of Robert Murray, dismissal of charges against the defendant resolves one side of the equation. The defendant was the direct victim of his fabrication of a confession, and the need for deterrence of prosecutorial misconduct trumps the concern that he was guilty and will walk. Mind you, this isn’t exactly good for society, as the potential criminal goes unpunished because the prosecutor was outrageously dishonest.
And yet, it’s also not good for society as the outrageously dishonest prosecutor remains a prosecutor, remains a lawyer, remains in his job, so he can do it again. The most obvious, and likely effective, means of addressing this would be the judge treating prosecutors with the same expectation of integrity and honesty as the defense lawyer, but that doesn’t happen.
It’s unsatisfying to say, because we can’t force a judge to do his job even when it’s unpleasant and may require him to take harsh action against a prosecutor pal or (former) team member, but of all the bad options available, this seems to be the one most amenable to change. Plus, to the extent judges are elected, the one most easily subject to the will of the people.
So what are the chances it will happen? As the Second Department Disciplinary Committee said to the NYSACDL prosecutorial grievance committee, “nah.”
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I referred only to private attorneys because that’s who’s complained to me and that’s who stands to lose more. As a PD, one-two-three prosecutors may give me a hard time, but it’s not cutting into my business. Private attorneys are afraid because it could mean a loss of income for them. They’re driven by pecuniary concerns; those concerns don’t affect me.
On the whole, however, we have the same fear of retribution and effect on our client’s cases.
So private lawyers complained to you, and thus is born the motivation of the private bar? And now you’re telling me what drives private criminal defense lawyers? Maybe you need to spend some time with far better caliber private criminal defense lawyers, because the ones you talk to are misinforming you and don’t speak for me.
Just curious: is there ever a proper way to utilize inductive reasoning?
I mean, on the one hand, I’m completely with you, Scott, in that such attorneys don’t speak for me, either. And I’ve (perhaps unfortunately) pissed off my share of prosecutors. Most of them seem to eventually get over it, although so far I haven’t had occasion to try to report any of them to the bar.
On the other, I’ve certainly run into what I would consider a significant number of private attorneys who seem to fit the description laid out by Gideon, and it more than makes sense that a public defender doesn’t have that same concern because their jobs are more immune to that.
On the other hand (yes, I’ve seen Fiddler on a Roof), I’ve watched numerous public defenders essentially “dump” cases because fighting them would be harder than their normal assignment. Twice in the last week I had to restrain myself while butting in while they – another practice I’ve never liked – strong-armed their own clients in the hallway on a case that certainly sounded like it was defensible.
I guess in the end I say let Gid suggest that we’re money-grubbers, whilst we refuse to defend them against the charge of dumping clients.
After all, some do, just like some private attorneys care only about the moo-lah. (No reference to the glass of milk/side of cow post intended. Or was it?)
On the other hand (I’ve also read Octavia Butler), when is inductive reasoning appropriate?
We have a tendency (need?) to generalize from incomplete data. It makes life easier. It’s never a sound basis, but that doesn’t stop people from doing it. And even deductive reasoning has its issues, as 50.1% being X still leaves 49.9% not being X, making the generalization nearly worthless.
When our reasoning fails through induction,
Logic leaves us but one more construction.
When deduction fails too,
What are we to do?
I recommend brain liposuction!
It would seem that the scale of this problem is made by SCOTUS in its own opinion:
“For instance, here in the Orleans Parish District Attorney’s Office, junior prosecutors were trained by senior prosecutors who supervised them as they worked together to prepare cases for trial, and trial chiefs oversaw the preparation of the cases. Senior attorneys also circulated court decisions and instructional memoranda to keep the prosecutors abreast of relevant legal developments.”
Yes, that’s correct! They went to law school, passed the bar, were trained by senior prosecutors who supervised them, had trial chiefs that oversaw the preparation of the cases…and then they still got it wrong. That’s rather telling, don’t you think?
““It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.”
– John Adams
…but when it’s the prosecutor and/or the police engaged in the criminal conduct, the punishment should be twice as tough.
Connick v. Thompson was a disaster, but it’s only the latest in a long line of cases that toed the same policy line. It would be great if the Court changed, but we would all be dead if we held our breath.
Given the fears of loss of income and retribution, perhaps, then, a mandatory reporting requirement should be imposed. Here is my proposal: any time an attorney files a motion, or a brief on appeal, or a petition for writ of habeas corpus, or a petition for pardon/clemency alleging a Brady violation or prosecutorial misconduct, the attorney must cross file it with the disciplinary authority (certifying same) and the authority must investigate. This way, since the attorney is obliged to file the pleading to zealously advocate for their client, he/she can simply tell the prosecutor “hey, you know I had to give this theory a shot, and my hands are tied”.
Scott or Gideon, thoughts? [And maybe a similar requirement could be imposed for police misconduct, any time a suppression motion is filed or such.]
I like that idea, to the extent that mandatory reporting takes the personality (and hence retribution) out of the equation. But then, there’s another step that needs to happen, which is that disciplinary committees need to take such matters seriously. Given that they don’t even when the rare case appears, the likelihood that they will when they get deluged (and they will need ten times the staff to deal with the volume) remains doubtful.
Is there not a sort of ‘internal affairs’ department that investigates and prosecutes misconduct on the part of the prosecutor’s office? If not, then why not?!
The police have to have an IA department, but not the prosecutors who have incredible facility to ruin lives? I cannot help but think we need that just as much as we need one for the police. I’m thinking an independent adversary that had nothing to fear from the prosecutor’s office would be a good thing (and as you’ve pointed out, a defense attorney has a vested interest in not upsetting the apple cart, which puts both them and the defendants in a very difficult spot).
I really like the idea of a requirement of such failings and think both parties should be required to report such. Not only that, but I think the prosecutor’s office should only be given a form to fill out showing the nature of the violation, with any free form text fields only allowing a specific and concise description of the particulars of the failing. The rulings of the DA’s review board should be subjected to public scrutiny and the people on said board should be subject to popular recall and sanction for any malfeasance.
Non-lawyers tend to think there’s a “thing” out there which magically makes good stuff happen. Police have internal affairs divisions because they either choose to or their locality has a law that requires them to. Some police department do not have one.
Same is true of some prosecutor offices, which have some variation of an “official corruption” bureau, while others do not. Some will investigate internally (such as the DoJ Office of Professional Responsibility) while others will not. There is no overarching rule that covers everybody everywhere. If there should be, then every legislative body in every jurisdiction would need to enact a law to require one. You have a lot of work to do.
Police internal affairs is not something to model for lawyer grievances unless your intent is to blow smoke and ignore the misconduct.
Sidebar: I worked for both type of PDs. In the one with an IA, regular officers wouldn’t each lunch with the IA officers, but the investigations tended to be harder on the officers. In the one without (where IA cases were assigned to supervisors to investigate somewhat randomly), there wasn’t as much stigma on the investigator, but the officer generally had an easier time.
*sigh*
Please pardon my ignorance on the subject. I thought a solid IA organization was the standard, and I thought something similar was required of the DA.
I’m enlightened now, but I’m very disappointed.
Sorry, but you’re just wrong; we don’t need any more f&$*#ing rainbows.
Don’t be a rainbow hater. Friendship is magic.
Am I wrong that criminal liability might attach to prosecutorial misconduct?
No, you’re not wrong.
~~Former prosecutor Ken Anderson was released from jail today after serving just half of his 10-day sentence for contempt of court in connection with the wrongful conviction of Michael Morton. Anderson already had one day of credit for time served before he began his sentence Tuesday.~~
Austin American Statesman
Morton was sentenced to 25 years but who’s counting?
FYI: Anderson wouldn’t have gotten any time except the unicorn he was riding on during his sentencing farted.
Does this qualify for consideration here as a legitimate example of prosecutorial discipline?
Michael Byron “Mike” Nifong is a former North Carolina attorney. He was the district attorney for Durham County, North Carolina but was removed and disbarred due to court findings concerning his conduct in the 2006 Duke University lacrosse case. Wikipedia
It does. Nifong is the exception that proves the rule.
So let me get this right…judges rarely even call balks from the prosecutors mound and when they do they don’t even take their mask off and snarl and we are to believe they will start calling beanballs thrown at defendants heads and eject them from the game?
What a novel concept.
The cheap seats have been working on some new banners to hang over the rail perhaps we should incorporate a few beanball and balk banners with sheepish judges wearing ear muffs, blindfolds, and a ball gags hanging from their masks to replacie their mouth guards.
Not to worry I guess we will know when the “take a ride” game has lost all credibility when we start seeing CDL’s post youtube adds proclaming their expertise is being able to bunt the beanball and get to first base with a plea 1 out of 100 times, prosecutors start wearing jerseys of the local police departments softball teams during election cycles, and judges start wearing a foam “we are number one” hands, with the state police logo, to point at the convicted when handing down sentences.