The Supreme Court, in Imbler v. Pachtman, rationalized its imposition of prosecutorial immunity with a little tummy rub for those who suffered the indignity of impropriety:

Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.

Somehow, this message didn’t get across.  That prosecutors are rarely subject to professional discipline is well-documented, and even the mention of their name by a court when impropriety is found results in howls of anger and protest.  Nothing new here. Nothing surprising.

But the fact that courts don’t refer prosecutorial misconduct to lawyer discipline, because it’s unseemly, doesn’t preclude someone else from doing so. In the aftermath of the no true bill on NYPD Police Officer Daniel Pantaleo for the killing of Eric Garner, many (myself included) called out Richmond County District Attorney Daniel Donovan (who has since moved on to Congress) for deliberately sabotaging his presentment.

Following the failed attempt to obtain the release of the grand jury minutes to prove Donovan’s intentional malfeasance, the NAACP did something that very rarely happened. It grieved Donovan.  It filed a complaint with the  Grievance Committee for the Second, Eleventh & Thirteenth Judicial Districts, alleging that Donovan tanked the presentment in violation of his ethical duties.

Joel Cohen and Bennett Gershman write* at HuffPo:

And so, after unsuccessfully seeking to learn what happened in the grand jury, but speculating that Donovan may have steered the grand jury to vote no indictment, the NAACP filed a complaint against Donovan with New York’s Grievance Committee alleging that Donovan violated his duty as District Attorney to investigate responsibly and in good faith the conduct of the officers in the Garner killing.

The NAACP’s complaint was not unusual. Indeed, the Grievance Committee is the agency that is authorized by law to investigate the misconduct and other ethical violations by attorneys, including prosecutors, who also are attorneys, and routinely subject to investigation and discipline by grievance committees. The NAACP complaint asked the Grievance Committee to investigate whether Donovan and his assistants in the grand jury, by failing to prosecute the Staten Island police fairly and impartially (perhaps out of loyalty to the police, with whom they must deal daily, or for other improper reasons), engaged in misconduct in violation of the rules of professional conduct.

It’s unclear what they mean by “the NAACP’s complaint was not unusual.”  That it’s not unusual to grieve a lawyer for violating the Rules of Professional Conduct, sure. That it’s not unusual for the lawyer being grieved to be a district attorney? Au contraire. That’s very unusual.  And as the Grievance Committee made clear in its response, it’s going to stay that way.

However, in what appears to be an unprecedented decision, the Grievance Committee refused to entertain the complaint (Grievance Comm File No R-1885-14). Indeed, it refused to even open an inquiry. It claimed that it was “not the appropriate forum” for the complaint, and that the matter was “not within the jurisdiction of the Grievance Committee” because the complaint was “directed at the decisions and actions of an elected public official, made pursuant to the powers and duties afforded him.”

The NAACP then asked the Presiding Justice of the Appellate Division of the New York State Supreme Court to compel the Grievance Committee to open an inquiry into how a prosecutor with such colossal power over a grand jury managed in this aggravated instance to avoid an indictment. The lawyer for the Appellate Division declined the request. He justified the refusal of the Grievance Committee to make even a preliminary determination by suggesting that it is not the role of the Grievance Committee to investigate whether a District Attorney “wrongfully” failed to secure an indictment.

Not my job. A curious reaction, given that the job of the Grievance Committee is to field grievances for ethical violations by lawyers. There’s nothing in the Rules that exempts a lawyer who sits in the District Attorney’s chair from ethics. Hell, the Supreme Court said so.

To their credit, the NAACP took its issue with Freddie Prinze’s work ethic to the next level:

Frustrated by the Grievance Committee’s abdication of ethical oversight, the NAACP sought a court order compelling the Grievance Committee to conduct an investigation into their allegations. Although the Court noted that the case is “one of first impression,” its refusal to require the Grievance Committee to conduct an ethics inquiry only added mud and confusion to the controversy.

There are, despite the wish that there wasn’t, arguments against proceeding.  The claim that Donovan trashed his own grand jury remains speculative in the absence of the grand jury transcript. We can’t say with certainty what happened behind closed doors. We can think it, believe it, but we can’t necessarily prove it. But that wasn’t the court’s problem.

The Court could have found, but did not, that the NAACP’s motion to compel a disciplinary investigation contained insufficient facts to require the Grievance Committee to proceed. The Court did not find that the NAACP made a factually insupportable claim that the prosecutor deliberately and inappropriately went soft on the police.

Why, then, did the court refuse to grant the NAACP’s relief of compelling the Grievance Committee to do its one and only job, investigate a grievance?

The Court cited a Supreme Court decision, correctly, for the proposition that prosecutors typically enjoy broad immunity from civil liability for their misconduct in order not to chill the independence of the prosecutor to enforce the law. But in that same opinion the Supreme Court also noted that prosecutors may still be held accountable to the legal community for their professional misconduct under the relevant codes of ethical conduct.

And what Supreme Court decision, of the many often conflicting, obtuse, half-assed (as in judicial modesty precludes them from reaching a decision that actually addresses the issue and doesn’t leave the legal system in a state of massive confusion for the next few decades) possibilities, justified the court’s refusal to grant relief?

That’s right, our old pal, Imbler v. Pachtman, where the Supreme Court expressly justified prosecutorial immunity by noting that they were still subject to professional discipline.

It’s ironic that only a short while ago the New York State Commission on Statewide Attorney Discipline suggested that discipline of prosecutors was being dealt with appropriately and there was no need for an independent agency to review a prosecutor’s alleged misconduct. The Report noted that the discipline of prosecutors “[should] receive the same attention and scrutiny from the disciplinary and grievance committees as any other complaint – if the committee received a complaint of prosecutorial misconduct.”

Ironic, certainly, but that’s inadequate to characterize the failure here. As much as prosecutorial immunity is fundamentally wrong, even its tepid alternative, professional discipline, is revealed as a lie, as is the typical committee whitewash by the typical committee member types officially charged with whitewashing, who hurl their platitudinous official bullshit as if nobody will ever notice that they’re all full of shit, right down the line.

Former District Attorney Daniel Donovan will get a pass for ditching the grand jury presentment “against” Police Officer Daniel Pantaleo for murdering Eric Garner. And the lesson learned by the NAACP’s effort is that we’ve been fed bullshit all along, because the claim of scrutiny of prosecutors for professional disciplinary violations is a lie.

*I’ve added paragraph breaks to the exceptionally long and needlessly tedious post. Cohen and Gershman know their stuff, but the writing was brutal.