Power Begets Privilege

When South Carolina Supreme Court Justice Donald Beatty told a meeting of the state’s prosecutors that the gravy train was over for prosecutorial misconduct, he scared a few people.  Apparently, his admonition of impending accountability was a bit more harsh than they expected:

Beatty, elected to the Supreme Court in 2007, told the audience of prosecutors they had “been getting away with too much for too long” and the high court will no longer turn a blind eye to unethical conduct such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence.

He added that “you better follow the rules or we are coming after you and will make an example,” according a summary of his comments.

“The pendulum has been swinging in the wrong direction for too long and now it’s going in the other direction,” the summary quotes him as saying. “Your bar licenses will be in jeopardy. We will take your license.”

In reaction to this, thirteen of the state’s sixteen solicitors (the South Carolina equivalent of a district attorney) signed a letter asking that Justice Beatty recuse himself from their criminal appeals, for fear that he would be biased against them when hearing their cases.

Recently, the South Carolina Attorney General joined the clarion call for Beatty to recuse himself.  As Turley notes at the link, this move “seems intended to signal other justices and judges that such criticism of prosecutors will not be tolerated.”  Turley continues:

For the record, I have long opposed judges and justices speaking publicly at many events, particularly Supreme Court justices. However, in light of past comments by our justices, this is pretty tame in comparison. Moreover, there is no complaint from prosecutors about judges publicly promising to hammer criminal defenses, stop “technicalities” from freeing defendants, or curtailing defenses.

The emphasized text is on-point and revealing.  Prosecutors are supposed to play a dual role as zealous advocates and ministers of justice.  Their job is not to get convictions but to “see that justice is done.”  In theory, prosecutors should be equally concerned with judicial bias against criminal defendants as they are with bias against themselves.

But I highly doubt that anyone will discover a case where prosecutors banded together as a professional unit to protest judges who appear biased against criminal Defendants.  Where is the outcry over judges that sentence children to life in prison, or worse yet, sell children to prison administrators?  Where was the formal letter when a Texas judge chastized a jury for acquitting a Defendant?  When has there ever been a collective action taken by prosecutors to protect the rights of Criminal Defendants from overzealous judges?

The reaction of the South Carolina Solicitors and the AG demonstrate the sense of entitlement that has become commonplace in the prosecutorial profession—which is an entitlement to commit misconduct without any professional consequences.  If this seems a bridge too far, ask yourself why it is controversial for a South Carolina judge to tell prosecutors that, if they commit misconduct, they’ll lose their license to practice law?  How is this any different than telling private attorneys who commit professional misconduct that they’ll lose their law licenses?  How did we get to a place where a private attorney can get disbarred for giving a poor client bus fare to get to the court house, but a prosecutor who commits serial perjury on warrant applications remains happily employed?

What *is* uncontroversial is that prosecutors rarely face professional discipline for their screw-ups.  The only question is what to do about it.  The reasonable solution seems to be to hold prosecutors to the same level of professional accountability as private attorneys.  Unfortunately, the nearly unanimous opposition of the South Carolina Solicitors to Justice Beatty’s admonitions suggests that prosecutors remain quite attached to the unique degree of professional privilege they’ve acquired over the years.  They don’t want to be held to the same ethical standards as private attorneys because, well, their job is hard.  And who can blame them?  Who would want more potential liability for professional screw-ups rather than less?

But if prosecutors really are serious about their role as ministers of justice, then there is no longer any excuse to continue tolerating misconduct among their own ranks.  As exoneree John Thompson put it, “mistakes can happen.  But if you don’t do anything to stop them from happening again, you can’t keep calling them mistakes.”  If the Solicitors of South Carolina are really that scared of more vigorous judicial oversight, then perhaps they should turn their glances inward and reflect on why a judge with years of experience might come to this conclusion, rather than shy away from a much-needed sea-change in how the justice system handles errant prosecutors.

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