The Prosecutorial Mindset

In the Fall 2012 issue of the Washburn Law Journal, Monroe H. Freedman and Charles E. MacLean, academics both, had a battle royal on the topic of prosecutorial misconduct.

In Freedman’s article, he makes a vigorous case that Prosecutorial misconduct is both widespread and unaddressed.  He drops this withering salvo on page 2:

One of the two greatest scandals in lawyers’ ethics is the general failure of disciplinary authorities and courts to take appropriate remedial action against prosecutors who violate both the constitutional rights of criminal defendants and the prosecutors’ own ethical obligations. For example, a computerized review has shown that there have been only 100 reported cases of professional discipline of federal and state prosecutors in the previous century—an average of only one disciplinary case per year. Moreover, these cases are not limited to violations of the rights of criminal defendants but include cases of bribery, extortion, conversion, and embezzlement of government funds. As one federal judge observed, “When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith.” And Professor Bennett Gershman, the leading authority on prosecutorial misconduct, has concluded that discipline of prosecutors is “so rare as to make its use virtually a nullity.

Ouch.  MacLean isn’t having it though.  He finds fault with Freedman’s anecdotes, such as United States v. Aguilar, wherein the prosecutors:

engaged in a series of improper and/or unethical behavior, including (1) falsifying entries in search warrants and, on at least six warrant applications, conducting searches of premises not enumerated in issued warrants, (2) proffering false and misleading grand jury testimony by a named FBI special agent, (3) failing to produce and withholding grand jury testimony and related discoverable evidence, (4) wrongfully obtaining certain privileged marital communications, and (5) exceeding the court’s relevance rulings by eliciting irrelevant testimony.

I will return to the bolded text in a moment.  While Freedman cites the court’s mere dismissal of the case as evidence of reluctance to hold prosecutors accountable, MacLean dismisses Freedman’s concerns:

That is a woeful record, to be sure. However, the trial court in Aguilar acted wisely and decisively when it suppressed the tainted evidence during the trial and eventually dismissed the indictment without leave to re-file.  As the court noted in conclusion, the government team “should not be permitted to escape the consequences of [its mis-]conduct. By not allowing [the government] to benefit from a ‘do-over,’ the Court hopes that this ruling will have a valuable prophylactic effect . . . . For the foregoing reasons, the convictions . . . are vacated and the . . . Indictment is dismissed.”

Well, sure the court acted wisely.  It was the right decision.  There was blatant misrepresentations and misconduct by the prosecutor, including six instances of purgery on warrant applications.  This is the sort of stuff that gets attorneys in private practice disbarred.  But apparently, simply dismissing a case is enough for MacLean:

Aguilar does not stand for the proposition that judges are reluctant to hold prosecutors to task for misconduct. On the contrary, it stands for quite the opposite. There is no denying that the court’s findings disclose a consistent series of various types of misconduct by the prosecutors and other government agents. Some prosecutors push the envelope too far; sanctions alone will not put an end to that. But good prosecutors learn from other prosecutors’ mistakes, as well as from court decisions, whether the courts suppress evidence, dismiss the charge or case, enforce the double jeopardy bar, or impose sanctions against the prosecutor’s attorney license.

There are two points to make here.  First, the idea that judges will impose sanctions against prosecutors’ attorney licenses is not supported by any evidence to date.  The 2010 Ridolfi-Possley study, for example, showed that less than 1% of reported cases of misconduct resulted in professional discipline for the prosecutors in California.  As Freedman suggests in his article, virtually every scholar who studies the topic inevitably discovers a shocking dearth of instances of ethical discipline for wayward prosecutors.  It is rare enough to be negligible.

Second, MacLean’s discussion of “good prosecutors” learning from bad prosecutors’ mistakes is irrelevant.  Good prosecutors are not the ones we are concerned about.  Good prosecutors care about the Constitutional rights of Defendants.  Good prosecutors attend CLE’s and re-read Brady to make sure they are complying with their legal and ethical obligations.  Good prosecutors care less about getting “scumbags off the street,” and more about making sure they do an honest job, disclose evidence to defendants, and uphold the Constitution.

Good prosecutors already do all of this—even when that means they have to let the bad guy go free, because they know that Constitutional rights are bigger than any one case.  They know that making exceptions for bad people creates case law that inevitably reaches “not-so-bad” people.  As Thomas Paine wrote nearly three centuries ago:

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.

So the issue at hand is not about making good prosecutors better.  It is about what happens when malicious or incompetent prosecutors make repeated or big mistakes.

I want to drive home how absurd MacLean’s argument is here.  The prosecutors in Aguilar committed perjury on six warrant applications.  Perjury is generally considered a felony offense in most jurisdictions.  That is six felony-level offenses.  Perjury also involves making a knowing misrepresentation to the Court, in addition to engaging in deceitful conduct.  This is the kind of stuff that State Bars regularly deny applicants admission for.  But a prosecutor does it, and a mere dismissal is viewed as appropriate medicine?

This is a good example of why prosecutors’ offices are institutional incompetent to be judges of their own ethical obligations.  Just as prosecutors regularly interpret Brady to mean that they don’t have to disclose relevant evidence to the Defendant’s lawyer, they also convince themselves that a light slap on the wrist (e.g. getting one of your cases dismissed) is an appropriate sanction for committing serial perjury.  How any honest prosecutor good make MacLean’s argument with a straight face is beyond me.  Particularly when the misconduct at hand is criminal in nature.

Obviously there are plenty of honest prosecutors.  Indeed, I’m sure that the majority of prosecutors are honest and genuinely want to uphold the law and respect defendants’ constitutional rights.  But when it comes to holding bad prosecutors accountable, the system does not work, and it has not worked for some time.  Aguilar demonstrates, rather than undermines that proposition.

With all that being said, it’s probably true that professor Freedman over-used anecdotal evidence to make his point.  But MacLean’s attempt to undermine Freedmans’ Aguilar anecdote only demonstrates the point that Freedman was trying to make in the first place: prosecutors are rarely punished in accordance with the wrongs—both legal and ethical—they commit.  When a prosecutor can commit six instances of perjury by falsifying statements on a warrant application and escape without even a mark on their professional license, something is wrong.  And it’s not with Freedman’s anecdotes.

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