Prosecutors Have No Immunity From Ethics

Let’s be clear up front. The Code of Professional Responsibility, or whatever it’s called in your jurisdiction, is a minimal floor of ethical responsibility for the legal profession. It’s not very demanding. It doesn’t ask much of us. It barely scratches the surface of actual ethics, and it takes so little to comply. So expecting lawyers who happen to work for a governmental entity and call themselves prosecutors to adhere to it really isn’t much to ask.

Yet, as the New York Times editorial says, they’re treated as if they’re untouchable.

Prosecutors are among the most powerful players in the criminal justice system. They can send a defendant off to years in prison, or even to death row. Most wield this power honorably. Yet, when prosecutors don’t, they rarely pay a price, even for repeated and egregious misconduct that puts innocent people behind bars.

Historically, prosecutors aren’t grieved. Courts that find egregious misconduct often omit the names of the prosecutors who committed it, no less refer them for discipline. Defense attorneys fear retaliation from their buddies in the prosecutors’ offices in future cases, so they take don’t grieve.

Years ago, when Dan Arshack was president of the New York State Association of Criminal Defense Lawyers, a committee was formed to grieve prosecutors to insulate lawyers from retaliation. The first grievance it filed was against then-Westchester County District Attorney Jeanine Pirro for an outrageous press conference to announce the prosecution of definitely guilty defendants. The departmental grievance committee summarily trashed it, no cause to pursue. After that happened each time, the committee gave up. Why grieve when it went nowhere?*

A group of law professors got together to try again.

New York City offers a prime example of a problem endemic to the nation. Consider the city’s official reaction to the barrelful of misconduct in Queens that a group of law professors recently brought to light. As The Times reported last month, the professors filed grievances against 21 prosecutors in the borough — for everything from lying in open court to withholding key evidence from the defense — and then posted those grievances to a public website.

These weren’t close calls. In every instance an appeals court had made a finding of prosecutorial misconduct; in many cases the misconduct was so severe that it required overturning a guilty verdict and releasing someone from prison. Three men wrongfully convicted of a 1996 murder were exonerated after 24 years behind bars. But that rectified only the most glaring injustice. To date, none of the prosecutors have faced any public consequences. Some are still working.

Granted, this oversimplifies the problems and conflates many issues. Nor does the NYT saying “these weren’t close calls” make them a violation of the Code, even if the Times, the prawfs and the activists who joined them feel otherwise. But the reaction from the New York City Corporation Counsel to these grievances, regardless of the merit of the grievances, was outrageous.

In a letter to the committee that handles misconduct charges, New York City’s top lawyer, known as the corporation counsel, accused the professors of abusing the grievance process “to promote a political agenda” and of violating a state law that requires formal complaints about lawyers’ conduct to be kept secret unless judicial authorities decide otherwise. (They virtually never do.) The grievance committee agreed to punish the professors by denying them access to any future updates on their complaints — even though state law requires that complainants be kept informed throughout the process. The upshot is that the committee could dismiss the complaints tomorrow and no one would know.

The process in New York is that grievances are confidential unless and until they result in a public outcome, such as a public admonition or disbarment. There are lesser outcomes, such as a private admonition, essentially a warning of “don’t do this again.” The rationale is that grievances can ruin a lawyers career, and shouldn’t unless the conduct was sufficiently wrong as to justify public recognition.

The Times notes that prosecutors don”t have law practices. They work for the government and, thus, the concern over being publicly outed is different.

In theory, the secrecy law exists to protect lawyers from being smeared by frivolous complaints, but that rationale makes no sense when applied to prosecutors, who are public officials doing the state’s work. In the Queens cases, their misconduct is already a matter of public record. Even if it weren’t, there is no principled reason to prevent the public airing of complaints — not to mention public hearings — against officials who have the power to send people to prison. Certainly the defendants they face off against in court don’t enjoy such privileges.

Missing from this analysis is the fact that most prosecutors aren’t “lifers,” but young lawyers doing a few years as assistant district attorney to get some courtroom time and maybe a few trials under their belt before striking out on their own. So while they don’t have practices to protect at the moment, there is a good chance they will in the future.

But here’s the kicker So what? It takes almost nothing for a prosecutor to toe the ethical line. Be honest. Don’t cheat to win. Don’t suborn perjury, hide the Brady or lie in court. And if they can’t manage to do this, then they need to be disciplined, maybe even disbarred, as they lack the minimal ethics required to be a lawyer. And they should never forget, their current job may be prosecutor, but they are still lawyers.

The problem isn’t that the mechanisms to make this happen don’t exist. Even the lawprofs, to their credit, fought back against Corp. Counsel’s efforts to silence them and hide the body. The disciplinary committees are there. The Code is there. The authority is there. The only thing missing is the will to do it.

Lawyers adore wrapping ourselves in lofty language. For some of us, living up to those words matters, not because we fear discipline if we don’t but because we believe in the ideals, even if we sometimes fall short. Like prosecutors, who may feel internal office pressure to win or feel some justification to do anything necessary to convict the bad dude, criminal defense lawyers are often pressured by our clients to engage in unethical conduct. But then, if we do so, a disciplinary committee will happily nail us to the wall. We get no break.

Nor should prosecutors. Disciplinary committees, do your job. Prosecutors aren’t special. They’re lawyers. If they engage in unethical conduct, they deserve to be disciplined just like any other lawyer.

*Prawf and criminal defense lawyer Lara Bazelon tried to do it in California. The upshot was that her grievances were ignored.

9 thoughts on “Prosecutors Have No Immunity From Ethics

  1. Bryan Burroughs

    Begging the question a bit with the “so what, don’t cheat” line of discussion. Maybe there’s a principled reason behind the rules, and such a principle should accrue to both lawyers in private practice as well as public prosecutors. There are certainly arguments for and against it, but “if you haven’t done anything wrong then you have nothing to hide” isn’t one of them.

    1. SHG Post author

      There are three separate things involved, and it appears you may have conflated them. There is the “don’t be unethical” piece, the “grievance committee should address prosecutorial ethics” piece and there is the “keep grievances confidential until public sanction is warranted” piece. Each is an issue, but a separate issue.

  2. B. McLeod

    It is an interesting phenomenon wherein appellate courts call out a prosecutor for misconduct in a published opinion, but no further formal proceedings ever occur.

    The appellate judges are all licensed lawyers as well. They are subject to the ratfink rule as much as any of us. Perhaps they view the opinions as “reporting” the misconduct, but the disciplinary authorities don’t recognize it, due to absence of a formal complaint.

    Or, maybe the judges and disciplinary officials do nothing further because the opinion is the functional equivalent of a public reprimand, and that is the limit of where they would be willing to go in formal proceedings anyway.

    I have been told by colleagues who have participated in the judicial selection process that a nominee for the appellate courts here is dead on arrival if they have been spanked like this in an appellate opinion. So, it isn’t necessarily on a par with consequences a defense attorney might experience, but it is something.

    1. SHG Post author

      I can’t answer for why judges who find prosecutors to have engaged in unethical conduct don’t report it to the disciplinary committee. I suspect, as I suspect you do, that they believe condemning them in a decision (even if unnamed) is enough. Obviously, it’s not. Does that put them in violation of the snitch rule as lawyers, or are they only subject to the Code of Judicial Conduct and not Professional Responsibility?

      1. B. McLeod

        Logically, they should still be subject. My old ethics professor, who was also a trial level judge for decades, held that once a person takes the oath and accepts the license, he or she is subject to the professional rules until death or disbarment.

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