Prosecutorial Misconduct: Taking the Justice Out of Criminal Justice

by Christopher Zoukis

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous.... While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.
—Former U.S. Attorney General Robert Jackson

 

In a recent case before the U.S. Court of Appeals for the Fourth Circuit, veteran judge Henry F. Floyd offered a rare public rebuke of federal prosecutors in North Carolina, who, the court found, had engaged in a pattern of misconduct.

“Mistakes happen,” Floyd wrote. “Flawless trials are desirable but rarely attainable. Nevertheless, the frequency of the ‘flubs’ committed by [the prosecutors] raises questions regarding whether the errors are fairly characterized as unintentional.”

“Yet the United States Attorney’s office in this district seems unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode faith that justice is achievable,” he added. “Something must be done.”

To demonstrate the seriousness of the violations, the appellate court ordered a new trial for federal prisoner Gregory Bartko, who had been convicted in 2010 in connection with a conspiracy to sell millions of dollars in fraudulent securities. See: United States v. Bartko, 728 F.3d 327 (4th Cir. 2013), cert. denied.

As an additional sanction, the Fourth Circuit panel said it would present its concerns to U.S. Attorney General Eric Holder, who is ultimately responsible for the actions of federal prosecutors, and to the Department of Justice’s Office of Professional Responsibility.

Judging from several decades of data demonstrating there is virtually no accountability for both state and federal prosecutors, it is unlikely that the prosecutors in the Bartko case will face sanctions for their misconduct. Indeed, prosecutors appear to enjoy special dispensation for abuses committed in the pursuit of justice – few are ever held accountable or face meaningful discipline.

This article examines the pervasiveness of prosecutorial misconduct in the U.S. justice system and the broken and inadequate means of preventing and punishing such wrongdoing. Prison Legal News has reported extensively on abuses by prosecutors, which have resulted in untold numbers of compromised trials, unfair sentences and wrongful convictions.

Prevalence of Prosecutorial Misconduct

Prosecutorial misconduct is, in the words of noted Harvard Law School professor Alan Dershowitz, “rampant.” Due to the lack of a uniform reporting body – each state has its own attorney discipline system – the number of criminal cases affected by prosecutorial abuses is unknown. Research studies have shed some light on this subject, though.

A 2003 report by the Center for Public Integrity, a nonprofit government watchdog group, examined more than 11,400 allegations of prosecutorial misconduct in appellate rulings between 1970 and 2003. In 2,012 of those cases (17.6%), misconduct by prosecutors led to dismissals, sentence reductions or reversals. Few prosecutors, however, were sanctioned for the violations cited by the appellate courts; only 44 faced disciplinary action, and seven of those cases were dismissed.

A comprehensive 2009 study by the Northern California Innocence Project examined 707 cases in which California appellate courts found prosecutorial misconduct between 1997 and 2009. Of those cases, the misconduct in 159 was deemed “harmful.” The study noted that 67 prosecutors were found by the courts to have committed multiple infractions; however, during that time period just six were disciplined.

While most criminal cases are handled by state and local prosecutors, federal prosecutors – popularly viewed as having higher ethical standards – were the subject of a six-month USA Today investigation, published in 2010, that uncovered 201 cases since 1997 in which courts found that Assistant U.S. Attorneys (AUSAs) had violated laws or ethics rules. That number did not include cases involving misconduct not officially addressed by the courts, or violations handled internally. Yet only six federal prosecutors faced discipline and none were disbarred.

An August 2010 study by the Innocence Project, “Court Findings of Prosecutorial Misconduct Claims in Post-Conviction Appeals and Civil Suits Among the First 255 DNA Exoneration Cases,” found that of the 65 cases in the study “involving documented appeals and/or civil suits addressing prosecutorial misconduct, 31 (48%) resulted in court findings of error, with 18% of findings [leading] to reversals (harmful error).”

In another report published in April 2013, ProPublica, which produces independent journalism in the public interest, analyzed 30 cases where prosecutorial misconduct contributed to the vacatur of convictions between 2001 and 2011, including a number of cases in which victims of such misconduct received monetary compensation. Only one prosecutor involved in those cases faced serious discipline. That prosecutor, Claude Stuart, was forced to resign in 2002 after repeated misconduct – including withholding exculpatory evidence and lying to a judge – resulted in the reversal of multiple convictions.

According to the Center for Prosecutor Integrity, studies over the past 50 years, including some of those cited above, indicate that in 3,625 identified cases of prosecutorial misconduct, “public sanctions [were] imposed in only 63 cases – less than 2% of the time.” And of that discipline, just 14 prosecutors were suspended or disbarred. The Center maintains a national registry of prosecutorial misconduct, available at www.prosecutorintegrity.org.

Overall, the consensus across these studies is that very few cases of prosecutorial misconduct result in disciplinary sanctions – and most sanctions amount to a proverbial slap on the wrist. Considering that reported cases of misconduct are relatively infrequent due to arcane complaint procedures, lax enforcement, and a culture of secrecy and indifference by regulatory agencies, one must conclude that the problem of prosecutorial misconduct in our nation’s criminal justice system is much greater than the official numbers reflect.

“Each year, thousands of Americans are victimized by prosecutors who overcharge, withhold key evidence, and engage in a myriad of other forms of professional misconduct,” the Center for Prosecutor Integrity stated in a 2013 report. “When these persons later seek redress, they encounter denial, resistance, and delays. More often than not, their efforts to receive even an apology end in futile exasperation.”

Types of Misconduct

The prosecutor’s role in our adversarial justice system – to obtain convictions, regardless of a defendant’s guilt or innocence – necessarily creates competitiveness in terms of winning cases. But as stated by the U.S. Supreme Court, “[W]hile he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” See: Berger v. United States, 295 U.S. 78, 88 (1935).

According to the Innocence Project and the Center for Prosecutor Integrity, the “foul blows” that prosecutors may strike can assume many forms, including:

• Charging a suspect with more offenses than is warranted

• Making race-based jury selection decisions in violation of Batson v. Kentucky

• Withholding or delaying the release of exculpatory evidence

• Deliberately mishandling, destroying or “losing” evidence

• Allowing witnesses they know or should know are not truthful to testify

• Pressuring or threatening defense witnesses not to testify

• Pressuring or threatening witnesses to testify for the prosecution

• Relying on fraudulent forensic experts

• During plea negotiations, overstating the strength of the evidence

• Making statements that are designed to arouse public indignation

• Making improper or misleading statements to the jury or court

• Failing to report misconduct by other prosecutors

Prosecutorial misconduct has many permutations. Beyond the more typical examples cited above, sometimes prosecutors simply break the law themselves, using their position of authority to further their own personal interests.

In one such case, on February 11, 2014, former Cameron County, Texas district attorney Armando R. Villalobos, once seen as a rising political star, was sentenced to 13 years in federal prison following his conviction for taking more than $100,000 in bribes. According to the U.S. Attorney’s office, his misconduct was part of a pattern of “extortion, favoritism, improper influence, personal self-enrichment, self-dealing, concealment, and conflict of interest.”

Among other abuses, Villalobos was accused of allowing Amit Livingston, a convicted murderer, to remain free without bond before reporting to prison to serve a 23-year sentence. Why? So the $500,000 in Livingston’s bond money could be released to settle a civil lawsuit filed by the family of his victim, with Villalobos receiving a $80,000 kickback from attorney fees paid in the suit.

Livingston didn’t report to prison and fled to India, where he was eventually caught.

A Focus on Brady Violations

By far, the most commonly-cited type of prosecutorial misconduct in wrongful conviction cases involves the withholding of exculpatory evidence. While many forms of misconduct can result in a conviction being overturned, so-called “Brady violations,” named after Brady v. Maryland, 373 U.S. 83 (1963), are most often reported, as the withheld evidence can lead to the reversal of a conviction or finding of innocence.

For example, Michael Morton spent almost 25 years in Texas prisons for murdering his wife, only to discover that Williamson County district attorney Ken Anderson had withheld evidence at his trial – including a transcript of a telephone conversation in which his young son said a “monster,” not his father, had beaten his mother to death and that his father was “not home” at the time. Neighbors had seen a man in a green van parked in front of Morton’s house several times before his wife’s murder.

Based on the belated disclosure of this evidence, a DNA test on a bloody bandana found near the crime scene was matched to another suspect, Mark Alan Norwood, and Morton was released from prison in October 2011. He was exonerated two months later. Williamson County district attorney John Bradley had objected to the DNA testing. [See: PLN, Feb. 2012, p.50].

In Brady, the U.S. Supreme Court held that the “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

There are three components of a Brady violation: The withheld evidence must be favorable to the defendant because it is exculpatory or can be used for impeachment purposes; the evidence must have been suppressed by the prosecution, either willfully or unintentionally; and prejudice to the defendant must have resulted.

Even when a defendant fails to properly request favorable evidence, the government is still liable for failure to disclose certain information. Constitutional error results if favorable evidence is withheld and “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”

While nondisclosure of Brady material constitutes a violation of sundry constitutional protections and professional standards, such violations are, in the words of the Sixth Circuit, “still a perennial problem, as multiple scholarly accounts attest.”

In a case involving Abel Tavera, a defendant charged with drug offenses, federal prosecutor Donald W. Taylor was informed by a co-defendant that Tavera had no knowledge of the drug conspiracy. However, Taylor did not share that information with defense counsel. The appellate court reversed Tavera’s conviction and recommended “that the U.S. Attorney’s office for the Eastern District of Tennessee conduct an investigation of why this prosecutorial error occurred and make sure that such Brady violations do not continue.” See: United States v. Tavera, 719 F.3d 705, 708 (6th Cir. 2013).

Brady violations persist, in part, because few prosecutors face any consequences for failing to disclose evidence. The Morton case is an exception, as the former prosecutor in that case, Ken Anderson, who later became a Williamson County district judge, was arrested in 2013 and charged with criminal contempt, fabricating evidence and other offenses related to his misconduct in Morton’s prosecution and wrongful conviction.

In a September 2013 letter to Texas Governor Rick Perry announcing his resignation from the bench, Anderson made no mention of the Morton case, blandly stating that “[t]here comes a time when every public official must decide that it is time to leave public office.”

Anderson, who also surrendered his law license, pleaded no contest and was sentenced to 10 days in jail and a $500 fine on November 8, 2013. He served a total of 5 days, which pales in comparison to the 8,989 days that Morton spent in prison. In an editorial, The New York Times called Anderson’s sentence “insultingly short.”

Morton received almost $2 million in compensation plus a lifetime annuity from the State of Texas for his wrongful conviction; following a Court of Inquiry ordered by the Texas Supreme Court, Williamson County paid approximately $500,000 in legal costs and fees. The Michael Morton case is described in detail in a book titled Getting Life: An Innocent Man’s 25-Year Journey from Prison to Peace, published in July 2014.

Most prosecutors, however, manage to evade responsibility for Brady violations, even in cases that are highly publicized – such as the botched prosecution of the late Ted Stevens, a former U.S. Senator.

In 2008, Stevens was found guilty of receiving illegal financial benefits and failing to report them. His conviction was set aside before sentencing and the indictment dismissed after the Department of Justice (DOJ) admitted federal prosecutors had withheld exculpatory evidence related to statements made by the chief witness at Stevens’ trial.

U.S. District Court Judge Emmet G. Sullivan granted the government’s motion to dismiss in April 2009, and appointed a special prosecutor “to investigate and prosecute such criminal contempt proceedings as may be appropriate” against the AUSAs involved in the Stevens prosecution.

“In nearly 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case,” Judge Sullivan stated.

Although the special prosecutor found “the evidence establishes that this misconduct was intentional,” it was also legally insufficient to support a conviction under the federal criminal contempt statute, 18 U.S.C. § 401. The reason? None of the discovery orders issued by Judge Sullivan “specifically directed the prosecutors” to disclose the Brady evidence at issue. Absent a clear order from the court, it could not be proven that the prosecutors’ actions rose to the level of contempt, notwithstanding that disclosure of exculpatory evidence is a basic tenet of our criminal justice system.

Sadly, Stevens, who had steadfastly maintained his innocence, lost his bid for reelection shortly after he was convicted and died in a plane crash in 2010, the year after the charges were dismissed. The federal prosecutors accused of withholding evidence, Joseph W. Bottini and James A. Goeke, were suspended without pay for 40 days and 15 days, respectively. [See: PLN, March 2013, p.38]. Ironically, their suspensions were overturned in April 2013 after an administrative judge found the Justice Department had violated its own procedures. A third prosecutor involved in the Stevens case, Nicholas Marsh, committed suicide.

Prosecutorial misconduct occurs for a variety of reasons, but with respect to Brady violations, an inadequate oversight system to detect, review and sanction such abuses may encourage some prosecutors to take their chances by withholding evidence. Further, although Brady and its progeny decisions have routinely bemoaned the unfairness that results when prosecutors deprive a defendant of favorable evidence, post-trial appellate reviews of such violations focus on the effect the evidence might have had on the verdict, requiring the defendant to demonstrate a “reasonable probability” of a different outcome had the evidence been disclosed – a fairly subjective standard.

As stated by the U.S. Supreme Court, the “materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury’s conclusions. Rather, the question is whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’” See: Strickler v. Greene, 527 U.S. 263, 282 (1999) (prosecution’s failure to produce notes of conflicting statements made by eyewitness deemed insufficient to constitute Brady violation in death penalty case) (citations omitted).

With our results-oriented judiciary, the higher the stakes the smaller the likelihood of reversal for Brady violations.

As such, from an adversarial point of view, the temptation for prosecutors to withhold evidence can be an obvious one, as the worst-case scenario is usually a retrial and not dismissal of the charges, and sanctions are unlikely. Simply put, the manner of review of Brady violations carries little disincentive for a prosecutor who puts winning a conviction above their ethical obligation to seek justice.

“There is an epidemic of Brady violations abroad in the land,” Ninth Circuit Court of Appeals Chief Judge Alex Kozinski wrote in a dissenting opinion in December 2013. “Only judges can put a stop to it,” he added. See: United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013).

On August 21, 2013, a federal district court in Pennsylvania granted a death row prisoner’s petition for writ of habeas corpus and vacated his conviction and death sentence due to Brady violations by the prosecution that included withholding exculpatory evidence. See: Dennis v. Wetzel, 966 F.Supp.2d 489 (E.D. Pa. 2013) [PLN, July 2014, p.34].

Connick v. Thompson: An Impossible Standard

The stakes are highest in a capital murder case, and the now-infamous prosecution of John Thompson demonstrates just how far prosecutors are willing to go to stack the deck to obtain a conviction. The Thompson case is a prime example not only of how the justice system permits abuses by prosecutors, but also of how little recourse is accorded to victims of such misconduct. Indeed, even people like Thompson, who came within days of being executed for a crime he did not commit, appear to have no means of obtaining justice when prosecutors abuse their considerable power.

 

The Criminal Case

In December 1984, someone shot and killed Raymond T. Liuzza, Jr., the son of a prominent New Orleans business executive. One person who witnessed the incident described the shooter as a six-foot-tall black man with “close cut” hair.

Three weeks later, in another part of New Orleans, a man attempted to rob three siblings at gunpoint. During a scuffle, the perpetrator left his blood on the pants leg of one of the victims; a test on a swatch from the pants revealed that the robber’s blood was Type B.

John Thompson and Kevin Freeman were arrested and charged with the Liuzza murder. Their arrest came after Richard Perkins, who knew Thompson, approached the Liuzza family seeking a $15,000 reward they had publicized for information about the crime. Freeman fit the eyewitness’ six-foot, close-cut hair description; his nickname was “Kojak” because he kept his head nearly shaved. Freeman would later become a key prosecution witness at Thompson’s first trial for the murder of Liuzza.

After Thompson’s arrest, his photo (with a large afro) was displayed in the newspaper. One of the armed robbery victims saw the picture and said Thompson was the one who had robbed them; they later picked the same photo out of a photographic lineup. Thompson was then indicted for the robbery. During the investigation of the armed robbery, a crime scene technician wrote that the prosecution “[m]ay wish to do a blood test.”

District Attorney Harry F. Connick had appointed his third-in-command, Eric Dubelier, to prosecute the high-profile Liuzza case, and later named him special prosecutor in the armed robbery case. Assistant district attorneys Jim Williams and Gerry Deegan were also appointed to the prosecutorial team.

In a “strategic move,” the prosecutors successfully petitioned the Orleans Parish Criminal Court to switch the order of the trials so Thompson would be tried for the armed robbery first (even though the robbery had occurred after Liuzza’s murder). Two days before the trial, the bloody swatch from the robbery was identified as being blood Type B; Thompson’s attorneys were not advised of the test results. On the first day of trial, Deegan checked out the bloody swatch from the evidence file and it was never returned.

The strategic value of reversing the order of the trials was two-fold. A robbery conviction would likely keep Thompson from testifying on his own behalf at the later murder trial, because the conviction would be disclosed to the jury if he testified. Further, the robbery conviction could be used to increase the likelihood of a death sentence in the murder case.

The blood test evidence was not mentioned at the armed robbery trial. Based “solely on the descriptions” of the robber by the three victims, Thompson was convicted and sentenced to 49.5 years in prison without parole – the maximum sentence.

During pretrial proceedings in the armed robbery case, Thompson’s attorney had filed a Brady motion seeking access to all evidence “favorable to the defendant” and “material and relevant to the issue of guilt and punishment,” as well as “any results or reports [of] scientific tests or experiments.” When Thompson’s attorney went to inspect the evidence he was unaware of the bloody swatch, which had been checked out by the prosecution.

A month later, Thompson was tried for the Liuzza murder.

As with the blood evidence at the armed robbery trial, the prosecutors did whatever they could to prevent Thompson from accessing evidence helpful to his defense in the murder case. First, they did not disclose available audiotapes of Perkins’ calls to the Liuzza family seeking a reward, which would have rebutted the prosecution’s claim that there was no “direct evidence” that reward money had motivated any of the witnesses.

Second, the prosecutors withheld a police report that could have contradicted Freeman’s trial testimony, depriving Thompson of key impeachment evidence.

Third, they withheld police reports of the initial eyewitness’ description of the shooter as being six-foot with “close cut” hair. This would have provided Thompson with much-needed information suggesting that Freeman, a.k.a. “Kojak,” had committed the crime.

Thompson was found guilty of first-degree murder. Since he was already serving a de facto life sentence for the armed robbery charge, the prosecution urged that “the only way to punish him for murder was to execute him.” The jury sentenced him to death.

Fourteen years after his murder conviction, Thompson had exhausted all of his appeals. His execution was scheduled for May 20, 1999. In April, in a last-ditch effort to save Thompson’s life, an investigator once again reviewed the evidence file and found a microfiche copy of the crime lab report containing the blood type from the evidence in the armed robbery case. Thompson was then tested – his blood was Type O – and after his attorneys presented this evidence to Connick’s office, a stay of execution was ordered.

In the ensuing investigation, it was learned that in 1994, prosecutor Deegan had confessed to a former colleague that he had “intentionally suppressed” the blood type evidence. Deegan made the confession only after learning he had cancer, and he later died. The colleague, Michael Riehlmann, himself a former Orleans Parish prosecutor, did not tell anyone about the confession until after Thompson’s stay of execution. Three other prosecutors were aware of the blood evidence but did not disclose it to defense counsel.

Thompson’s conviction in the armed robbery case was vacated upon the state’s motion, and he was not retried.

Connick then convened a grand jury, ostensibly to consider charges related to the concealment of the blood type evidence. He terminated the grand jury after one day, however, leading John Glas, the assistant district attorney prosecuting the concealment case, to resign in protest.

Thompson filed a motion for post-conviction relief on the murder charge and, in 2001, his death sentence was changed to life imprisonment on the grounds that the wrongful armed robbery conviction had been used as evidence in the capital sentencing proceedings. The Louisiana Court of Appeals reversed Thompson’s murder conviction in 2002 but did not address the merits of his Brady violation claims. See: State v. Thompson, 825 So.2d 552 (La. Ct. App. 2002).

Not satisfied with this outcome, District Attorney Connick retried Thompson for the Liuzza murder. This time Thompson testified in his own defense and was able to use at least ten new pieces of evidence that had not been available during the first trial. They included the police reports describing the assailant’s “close cut” hair, reports about informant Perkins’ meeting with the Liuzza family and seeking a reward, audio tapes of those meetings and inconsistent statements made by Freeman, the probable shooter.

Additionally, numerous other witnesses testified who had not been disclosed by the police at the first trial. Even considering transcripts of Freeman’s original trial testimony – he had been killed in the interim – the jury deliberated only 35 minutes before returning a verdict of not guilty. Thompson was then released from prison, having served more than 18 years.

 

The Civil Case

In 2003, Thompson filed a civil rights action under 42 U.S.C. § 1983, alleging that Connick, other officials in his office and the District Attorney’s office itself had violated his constitutional rights. He alleged state law claims, including malicious prosecution, in addition to § 1983 claims of wrongful suppression of evidence and conspiracy.

Prior to a February 2007 trial, all claims were dismissed except one alleging that Connick and the District Attorney’s office were liable for having an unconstitutional Brady policy and being “deliberately indifferent” to Thompson’s rights and the need to adequately train and supervise employees making Brady determinations. The jury found for Thompson, awarding him $14 million in damages, and the district court awarded around $1 million in attorney fees. [See: PLN, Oct. 2007, p.22].

The Fifth Circuit affirmed the judgment in December 2008. In doing so, the appellate court rejected Connick’s argument that establishing “deliberate indifference” requires evidence of a pattern of misconduct. The Court of Appeals held that deliberate indifference could be established when “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.”

The Fifth Circuit granted rehearing en banc and affirmed the judgment in an evenly-divided decision. In four separate opinions, the appellate court disputed whether Thompson could establish municipal liability on a failure-to-train theory based on the “single” Brady violation in his case, without proving a prior pattern of similar violations that is typically required to find municipal liability – although the court acknowledged “that Thompson has suffered a horrible wrong inflicted by agents of the government.” See: Thompson v. Connick, 578 F.3d 293 (5th Cir. 2009).

The U.S. Supreme Court granted certiorari and reversed the Fifth Circuit in a 5-4 decision, overturning the $14 million jury award. See: Connick v. Thompson, 131 S.Ct. 1350 (2011) [PLN, Aug. 2011, p.30].

In sum, the Court reversed the judgment on the basis that Thompson failed to prove that Connick had actual or constructive notice of, and was therefore deliberately indifferent to, a need for adequate Brady training. A “pattern of similar constitutional violations” by untrained employees was necessary to demonstrate deliberate indifference for purposes of a failure-to-train claim. It mattered not that Connick and his office had been taken to task on numerous occasions for Brady violations – even by the Supreme Court itself in a previous case, Kyles v. Whitley, 115 S.Ct. 1555 (1995).

Nor did it matter that the District Attorney’s office had failed to offer any formal Brady training to its prosecutors, because, as Justice Clarence Thomas wrote, “all attorneys must graduate from law school or pass a substantive bar examination ...
[t]hese threshold requirements are designed to ensure that all new attorneys have learned how to find, understand, and apply legal rules.” Formal training also was not needed because “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.”

The majority opinion indicated the Supreme Court had great confidence in the ability of prosecutors to monitor themselves and in the legal profession to punish those who violate ethical standards.

Ultimately, Thompson could not satisfy a failure-to-train theory of liability based upon a single Brady violation. “Thompson needed to show that Connick was on notice that, absent additional specified training, it was ‘highly predictable’ that the prosecutors in his office would be confounded by those gray areas and make incorrect Brady decisions as a result.” The Supreme Court concluded he did not make that showing, and therefore reversed the judgment and jury award.

In doing so, the Court created a virtually impossible standard of proof for those who sue municipalities for prosecutorial misconduct: one must not only prove a violation of constitutional rights, but that the violation was part of a pattern of such misconduct. This effectively gives municipalities a free bite – or several free bites – at the prosecutorial misconduct apple before they can be held liable. And notably, municipalities are often the only defendants that victims of prosecutorial misconduct can sue, since prosecutors have absolute immunity for conduct related to their prosecutorial duties.

Only one prosecutor was disciplined in Thompson’s case – Michael Riehlmann, who was cited for not reporting Deegan’s confession about suppressing the blood type evidence in a “reasonable time.” The Louisiana Attorney Discipline Board recommended a six-month suspension but the state Supreme Court imposed only a public reprimand.

Asked by a Huffington Post reporter whether any prosecutors had ever said they were sorry for his wrongful conviction, Thompson responded, “Sorry? For what? You tell me that. Tell me what the hell would they be sorry for. They tried to kill me. To apologize would mean they’re admitting the system is broken.... That everyone around them is broken. It’s the same motherfucking system that’s protecting them.”

Less than a year after the Supreme Court’s ruling in Connick v. Thompson, the Court found Brady violations by the Orleans Parish District Attorney’s Office in another prosecution. In that case, the Court reversed the murder convictions of a defendant based on claims that prosecutors had withheld material evidence. See: Smith v. Cain, 132 S.Ct. 627 (2012).

ABA Model Rule 3.8

The American Bar Association’s Model Rules of Professional Conduct are widely recognized as the touchstone of ethical behavior for attorneys. Model Rule 3.8, “Special Responsibilities of a Prosecutor,” has been adopted by 49 states, Guam, the U.S. Virgin Islands and the District of Columbia. California is the only state to not adopt a similar rule.

While the ABA’s Model Rules apply equally to all attorneys, Rule 3.8 is notable because it’s the only rule specific to prosecutors. As such, most commentators view Rule 3.8 as the starting point for prosecutorial ethics.

Rule 3.8 defines “special” ethical duties applicable to prosecutors, including the following, among others. The Rule provides that prosecutors shall:

• Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

• Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

• Except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused;

• When informed of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall promptly disclose that evidence to an appropriate court or authority and, if the conviction was obtained in the prosecutor’s jurisdiction, promptly disclose that evidence to the defendant unless a court authorizes delay, and undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit; and

• When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

Model Rule 3.8 imposes disclosure obligations that are “separate from and broader than the Brady constitutional standards,” as the ABA noted in an amicus brief filed with the Supreme Court in Smith v. Cain.

With this in mind, Rule 3.8 would seem to require prosecutors to adhere to a heightened standard of conduct. Yet this is only in theory because, as a 2011 Yale Law Journal Online article notes, the Rule’s “vague terminology undermines its efficacy and enforceability in practice.”

For example, “Rule 3.8’s prescriptive force is [] greatly diminished by its failure to address many important aspects of the prosecutorial function,” including plea bargains. More than 90% of federal criminal prosecutions are resolved through guilty pleas [see: PLN, Jan. 2013, p.20]; however, Rule 3.8 fails to address prosecutorial conduct during plea negotiations.

“In sum, Model Rule 3.8 promises on its face more than it delivers in practice,” the Yale Law article concludes. “While there are many instances of prosecutorial misconduct that clearly fall within its ambit, the Rule fails to address some of the more significant aspects of the prosecutor’s justice-seeking role.”

Even if flawed, Rule 3.8 is still one of the few existing tools for curbing prosecutorial misconduct. Indeed, Innocence Project co-founder Barry Scheck and former federal judge Nancy Gertner co-authored an article recommending that defense attorneys specifically cite Model Rule 3.8 when filing pretrial motions for disclosure of evidence, accompanied by a proposed order mandating such disclosures.

Yet in spite of Rule 3.8, state bar requirements, and Brady and other case law related to prosecutorial misconduct, abuses by prosecutors continue to occur.

The Trayvon Martin Case

Most people are familiar with the Trayvon Martin case, in which Florida neighborhood watch captain George Zimmerman was prosecuted for shooting and killing Martin, 17, as the teenager was walking back to his house. Zimmerman was acquitted of murder and manslaughter charges on July 13, 2013.

Not as many people are aware of allegations of prosecutorial misconduct raised in connection with the Trayvon Martin case.

According to a lawsuit filed by Ben Kruidbos, a former employee of Florida State Attorney Angela Corey, who oversaw Zimmerman’s prosecution, he was fired by Corey after testifying on behalf of Zimmerman in regard to Brady material he believed should have been disclosed. Kruidbos, terminated from his job as director of information technology for the State Attorney’s office, testified at a pretrial hearing that he was “shocked” that prosecutors had not turned over to Zimmerman’s attorneys evidence of photos and text messages he had recovered from Martin’s cell phone.

The photos included images of a pile of jewelry on a bed, underage nude females, marijuana and a hand holding a semiautomatic weapon, plus a text message concerning a gun transaction. They appeared to fall under Florida’s Brady-based disclosure rules, and Kruidbos said he emailed them to Corey’s lead prosecutor in the Martin case. Concerned that the prosecution had not shared the photos and texts with the defense team, Kruidbos directed his attorneys to contact Zimmerman’s lawyers concerning the withheld evidence. The defense finally received the evidence shortly before Zimmerman’s trial began.

While the photos were ultimately ruled inadmissible by the judge because there was no proof that Martin himself took the pictures, the failure to disclose that evidence prompted Zimmerman’s attorneys to move for sanctions against Corey and the prosecution team. Florida Bar rules require that the prosecutor “make timely disclosure of all evidence known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”

After contacting Zimmerman’s attorneys, Kruidbos was initially placed on leave and then fired, with his termination letter accusing him of “deliberate, willful and unscrupulous actions.” He then filed a $5 million whistleblower suit against the State Attorney’s office.

Corey filed a counterclaim against Kruidbos in February 2014, stating he had been terminated for violating policy by deleting files and sharing information during a pending case. See: Kruidbos v. Corey, Fourth Judicial Circuit Court (FL), Case No. 16-2013-CA-007407.

Kruidbos’ lawsuit alleges conduct that appears to constitute a clear violation of the prosecution’s Brady obligation to share evidence with the defense. However, Zimmerman’s legal team announced in March 2014 that it was dismissing the motion for sanctions against Corey and lead prosecutor Bernie de la Rionda.

Kruidbos’ suit remains pending. His attorney, Wesley White, a former employee of the State Attorney’s office himself, said Kruidbos’ firing sent a message to other employees to not disclose wrongdoing by prosecutors. “If they do speak to an attorney, then they are dead,” he remarked. “[The] State Attorney’s office will do whatever is necessary to not only terminate them, but destroy their reputations in the process.”

Prosecutorial Misconduct in Miami

At the southern end of Florida, prosecutorial misconduct is alive and well in the federal courts, too. Several high-profile criminal cases in the U.S. District Court for the Southern District of Florida involving Assistant U.S. Attorney Andrea G. Hoffman have come undone due to her misconduct; as a result, several Columbian nationals charged in large-scale, multi-national drug investigations are headed home.

Fifty-six Columbians were arrested in multiple investigations – Operation Seven Trumpets, Operation Under the Sea and Operation BACRIM (Bandas Criminales) – that resulted in the seizure of 20 tons of cocaine and heroin, millions of dollars in cash, 21 airplanes and even 12 submarines. The arrests were hailed at a press conference that included the President of Columbia. Due to Hoffman’s wrongdoing, some of those cases have fallen apart.

First, defendants John Winer and Jose Buitrago no longer faced sentences of life without parole after U.S. District Court Judge Marcia Cooke held that Hoffman had withheld key evidence from the defense, including cash payments made by the DEA to Columbian officers. After Hoffman changed her story about her knowledge of the payments and offered a tepid apology, Judge Cooke said she believed the government knew about the payments but did not disclose that information to defense counsel.

“The prosecutor was ethically and legally bound to turn the information over,” she stated in May 2013. “This does not make sense to me. This is all you do. Answer this: Why does the government get a pass?”

Hoffman had no answer. A deal was then struck for Winer and Buitrago to plead guilty to a lesser conspiracy charge; they were sentenced to 36 months in prison with two years’ pretrial credit, and subsequently released.

Operation Seven Trumpets suffered other setbacks due to Hoffman’s misconduct. Defendant Daniel Bustos had arranged to purchase “inside information” from another defendant in the drug case, Fabian Cruz, that he could use to testify against Winer and Buitrago in exchange for a lighter sentence. Hoffman had been prepared to let Bustos testify until the defense team uncovered the scheme and Judge Cooke ordered Hoffman to produce a letter, which she had not disclosed to the defense, indicating that Bustos was buying information from Cruz.

Further, Hoffman was forced to drop charges against defendant Carlos Ortega-Bonilla on August 31, 2013 after investigators proved he was not a participant in the case, notwithstanding Hoffman’s argument that she had a secret witness implicating him.

Another defendant, William Gil-Perenguez, was also freed after a fellow prisoner, Neixi Garcia Lamela, told him “DEA agents and Hoffman pressured me to implicate you, but I refused because I knew I would be fabricating testimony to implicate an innocent person.” Federal judge Donald Graham later freed Gil-Perenguez after finding that he had been wrongly identified in wiretaps. Gil-Perenguez filed suit, but the Eleventh Circuit upheld the dismissal of his complaint because the claims arose in a foreign country. See: Gil-Perenguez v. United States, 49 Fed.Appx. 781 (11th Cir. 2011), cert. denied.

Charges against two other Columbians, Luis Alfonso Rubiano Ramos and Jose Mejia Cortez, also were dismissed.

In an unrelated earlier case involving an award of $601,795.88 in attorney fees and costs against the federal government, U.S. District Court Judge Alan S. Gold publicly reprimanded Hoffman and another prosecutor, Sean Paul Cronin, for “acting vexatiously and in bad faith” in prosecuting Dr. Ali Shaygan, who was acquitted of federal charges of overprescribing medications.

“These events are profoundly disturbing,” wrote Judge Gold. “They raise troubling issues about the integrity of those who wield enormous power over the people they prosecute.... Our system of criminal justice cannot long survive unless prosecutors strictly adhere to their ethical obligations; avoid even the appearance of partiality, and directly obey discovery obligations and court orders.”

The public reprimands and award of fees and costs were later reversed by the Eleventh Circuit, which found the district court had violated Hoffman and Cronin’s due process rights. See: United States v. Shaygan, 661 F.Supp.2d 1289 (S.D. Fla. 2009), vacated, 652 F.3d 1297 (11th Cir. 2011), cert denied.

Hoffman remains employed in the appellate division of the U.S. Attorney’s office for the Southern District of Florida.

Appellate Ruling in Lopez-Avila

The Ninth Circuit Court of Appeals had strong words about prosecutorial misconduct in a criminal case involving Aurora Lopez-Avila, a Mexican national and low-level drug offender. The Assistant U.S. Attorney in that case, Jerry R. Albert, was found to have intentionally misrepresented testimony from a plea hearing during Lopez-Avila’s trial. Circuit Judge Donald Walter told a news reporter that he was “surprised to hear” Albert was still a prosecutor, but apparently not surprised enough to do much about it – even though he said Albert’s conduct “was the worst [he’d] ever seen from an Assistant U.S. Attorney.”

The Court of Appeals issued an amended decision after the U.S. Attorney’s office asked the Court to remove Albert’s name from its original ruling. In the amended opinion, the appellate court noted: “The Department of Justice has an obligation to its lawyers and to the public to prevent prosecutorial misconduct. Prosecutors, as servants of the law, are subject to constraints and responsibilities that do not apply to other lawyers; they must serve truth and justice first. Their job is not just to win, but to win fairly, staying within the rules.That did not happen here.... When a prosecutor steps over the boundaries of proper conduct and into unethical territory, the government has a duty to own up to it and to give assurances that it will not happen again. Yet, we cannot find a single hint of appreciation of the seriousness of the misconduct within the pages of the government’s brief on appeal.” (citations omitted).

Regardless, “it is not our task to conduct a thorough investigation of Albert’s conduct for disciplinary purposes,” the Ninth Circuit wrote. “However, we do not need a record greater or different than we have here to determine that Albert should not have misrepresented the transcript’s question. Accordingly, we are in a position to do three things to ensure that this matter is handled properly following this disposition: we remand the case to allow the district court to consider dismissal with prejudice of the indictment as an exercise of its supervisory powers and to prevent other misconduct in the future; we instruct the district court to consider disciplinary options also pursuant to its supervisory powers; and we note that the Office of Professional Responsibility within the Department of Justice has the responsibility of investigating allegations of misconduct by federal prosecutors.” See: United States v. Lopez-Avila, 678 F.3d 955 (9th Cir. 2012).

Following remand, the district court dismissed all charges against Lopez-Avila. Noting that “dismissal under the court’s supervisory powers for prosecutorial misconduct requires (1) flagrant misbehavior and (2) substantial prejudice,” the district court found dismissal was appropriate due to Albert’s “direct misrepresentation to the court.”

Albert subsequently received a reprimand from the state presiding disciplinary judge on June 17, 2013, and was assessed $1,200 for the costs of the disciplinary proceeding. He is no longer employed by the U.S. Attorney’s office.

New Orleans Prosecutors Resign

U.S. District Court Judge Kurt Englehardt set aside the convictions of five New Orleans police officers involved in the infamous Danziger Bridge killings in the aftermath of Hurricane Katrina, when officers shot and killed two unarmed citizens and wounded four others. The court took this action after it was revealed that prosecutors from the local U.S. Attorney’s office and the Department of Justice’s home office had attempted to create adverse pretrial publicity in the case, perhaps to contaminate the jury pool, through anonymous Internet postings. They had also leaked information about the case to the news media.

One of the postings, for example, referred to New Orleans police officers as “a collection of self-centered, self-interested, self-promoting, insular, arrogant, overweening, prevaricating, libidinous fools ... who, when not having sex with each other, [are] beating, burning and abusing the citizens. Thank God for the Feds – can you imagine New Orleans without a Federal presence?”

When it was discovered that some of the postings could have only come from the prosecution’s files, Judge Englehardt took the extraordinary step of vacating the police officers’ convictions for civil rights violations on September 17, 2013 and granting a new trial. In a 129-page opinion, he wrote that the prosecutors had violated federal regulations, court rules, bar disciplinary rules and Department of Justice policies, and said the case had been compromised by “grotesque prosecutorial misconduct.” Judge Englehardt stated he would be referring the matter for disciplinary proceedings against the prosecutors and their superiors, demonstrating that at least some in the judiciary are concerned about misconduct. The prosecutors accused of the inappropriate online postings were senior litigation counsel Sal Perricone and AUSA Jan Mann. See: United States v. Bowen, 969 F.Supp.2d 546 (E.D. La. 2013).

In December 2012, U.S. Attorney Jim Letten, who was in charge of the New Orleans office, resigned due to the scandal. On July 28, 2014, the chief judge for the U.S. District Court for the Middle District of Louisiana held that Perricone (a former FBI agent) and Mann could no longer practice law in that court. Perricone has appealed the restriction, arguing that because he was on prescription medication at the time, he could not remember his inappropriate Internet comments.

Mann and Perricone left the U.S. Attorney’s office in 2012 and agreed not to practice in federal court in the Eastern District, which includes New Orleans; however, they are still able to practice in other federal districts.

A Failed Disciplinary System

Prosecutorial misconduct has become commonplace in our criminal justice system primarily because the disciplinary process purporting to address such violations is ineffectual and deeply flawed.

In Connick, one of the Supreme Court’s justifications for prohibiting most lawsuits against municipalities for prosecutorial misconduct was that the disciplining of rogue prosecutors is already being addressed. “An attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment,” the Court stated.

Yet while it’s true that prosecutors are subject to professional discipline, the cases in which they are actually brought before disciplinary tribunals and sanctioned are exceedingly rare. In fact, some commentators assert that such discipline isn’t really occurring at all. As noted above, of the thousands of documented cases where prosecutorial misconduct was found by the courts, only a fraction have resulted in disciplinary proceedings.

Why does the disciplinary system fail to address prosecutorial misconduct in a meaningful way? The reasons are several. First, most bar associations and other agencies charged with attorney discipline do not usually initiate investigations themselves. Rather, aggrieved members of the public or others involved in the justice system file a formal complaint that may or may not result in an investigation.

 

Public Complaint Process

With respect to the public, complaints often come from those who claim to have been wronged by the prosecutor. The process for initiating complaints can be inconvenient and complex. For example, twelve states do not offer a complaint form that can be downloaded, printed and mailed. Only four states – Arizona, Minnesota, Nevada and Virginia – allow the submission of complaints online. Kentucky and New Hampshire require that a complainant file a notarized statement.

Several states go to great lengths to discourage complaints against attorneys, such as Georgia, which requires that a complainant first go through a mediation process. In other jurisdictions the complaint form itself can be complicated; adding to the confusion, the forms often are not designed for complaints against prosecutors, but rather intended for disputes between private attorneys and their clients.

Many states have statutes of limitations for complaints, some computed from the time that an incident occurred – even though prosecutorial misconduct, such as concealing evidence, may not be discovered for years or even decades. As one example, New Hampshire allows for only a two-year period computed from the date of the misconduct, making many, if not most, incidents of prosecutorial misconduct unchallengeable through the complaint process.

While other states compute statutes of limitations from the time when the misconduct was discovered, some statutes can be confusing and conditional upon various timing events, as in North Carolina, where the statute of limitations for attorney misconduct is three years unless the violation involved “felonious criminal conduct.”

Further, many states conduct disciplinary proceedings in secret, impose strict confidentiality on complainants and require preliminary investigations that dictate whether a complaint will proceed at all. Even when a violation is found, an investigation may be terminated as a matter of resource allocation. Florida advises the public that the investigation of a complaint “frequently has deterrent value in and of itself,” allowing for dismissal of complaints on that basis alone. This is equivalent to saying that criminal charges serve as a deterrent even if the charges are dropped and the accused set free.

Notably, many states consider the complainant to be a witness to the disciplinary process and not a party, leaving no recourse to appeal an adverse finding or dismissal of a complaint. Twenty-three states do not afford a complainant the right to appeal the initial dismissal of a bar investigation. And if a complaint makes it through the preliminary proceedings, formal action before a disciplinary tribunal is conducted by the bar, leaving the complainant out of the process entirely.

Further, the protracted length of formal proceedings can take its toll. In Louisiana, where John Thompson was victimized by prosecutorial misconduct, the average time between the filing of a complaint and the issuance of a decision is over three years.

 

Government Oversight

As for government watchdog agencies, notwithstanding statutory and regulatory duties to investigate prosecutorial misconduct, the culture tends to be restrictive – and secretive. For example, the Office of Professional Responsibility (OPR), the U.S. Department of Justice’s internal agency for attorney discipline, routinely refuses to release the names of prosecutors who have committed wrongdoing.

The OPR has repeatedly ignored calls for more transparency, arguing that the Privacy Act of 1974 precludes the release of such information. “OPR is a black hole. Stuff goes in, nothing comes out,” said Jim E. Levine, former president of the National Association of Criminal Defense Lawyers. “The public, the defense attorneys and the judiciary have lost respect for the government’s ability to police itself.” [See: PLN, Aug. 2011, p.12].

According to the OPR’s 2013 annual report, the agency received 819 complaints that year and opened 126 investigations or inquiries. It also resolved 122 cases in 2013, which included complaints from previous years. Of the 122 investigations and inquiries closed in 2013, the vast majority were dismissed upon a finding of no merit to the allegations. Only 18 cases resulted in a finding of professional misconduct – up from 14 in 2012.

In March 2014, the Project on Government Oversight reported that over a 12-year period, from fiscal year 2002 through 2013, the OPR had documented 650 infractions committed by federal attorneys and other Department of Justice employees. More than 400 of those violations were considered serious, involving reckless disregard to or intentional violation of a law, rule or ethical standard. The OPR does not consider lesser infractions, such as exercising poor judgment and making mistakes, to constitute misconduct.

 

Reporting by Defense Attorneys

Relying on defense counsel to report prosecutorial misconduct has not resulted in consistent results, either. The disincentives are many. First, most misconduct proceedings related to criminal cases cannot begin until after the case has been resolved. At that time, a defense attorney’s representation of his or her client is usually over, leaving the lawyer without compensation for the time and effort required to pursue a disciplinary complaint.

Second, many defense attorneys are hesitant to file complaints against prosecutors they must deal with on a day-to-day basis, and who will be opposing them in future cases. This is especially true in rural areas, where making enemies in the only courthouse in town is not an attractive proposition.

Lastly, with more than 90% of all criminal cases being resolved through plea bargains, when misconduct occurs it may be used as a bargaining chip during plea negotiations, precluding a formal complaint. In short, reliance on the defense bar to report prosecutorial misconduct is an inadequate means of oversight.

 

Judicial Disciplinary Referrals

Many judges, notwithstanding well-defined duties to report known incidents of misconduct, seem hesitant to report prosecutors for disciplinary proceedings – as indicated by the relative dearth of disciplinary complaints filed by the judiciary. The fact that many judges are former prosecutors themselves may also be a contributing factor.

Moreover, despite Judge Henry Floyd’s complaint that “something must be done” about recurring wrongdoing by prosecutors, many judges seem content with allowing others to handle the dirty work of disciplinary complaints, vacating convictions when necessary due to the taint of misconduct but infrequently referring cases for disciplinary action.

In its ruling in the Lopez-Avila case, while noting that various disciplinary options were available, the Ninth Circuit stated: “[I]t is not our task to conduct a thorough investigation of [AUSA] Albert’s conduct for disciplinary purposes,” and “We recognize that this court is not the proper venue for direct discipline of Albert, so we will not state here that the blow struck by him necessarily was one so foul as to require some form of official sanction.”

Further, judges may choose to focus on other issues in post-conviction appeals rather than allegations of prosecutorial misconduct. For example, in September 2014, the Texas Court of Criminal Appeals reversed the murder conviction of Hannah Ruth Overton. Overton had been sentenced to life without parole for the death of her 4-year-old foster child, which was caused by hypernatremia (a salt overdose); on appeal she raised claims of ineffective assistance of counsel and prosecutorial misconduct, the latter related to a Brady violation.

In reversing Overton’s conviction, the appellate court based its decision on the ineffective assistance of counsel claim and, therefore, wrote “there is no need for us to address the second issue of whether the State failed to disclose exculpatory evidence.” In fact, the majority did not mention any details related to the Brady claims, though they were described in a concurring opinion.

Judge Cathy Cochran, concurring, wrote that Overton’s Brady claims included “the alleged withholding of records showing the low sodium content of [the child’s] vomit when he was brought to the Urgent Care Center.... [and] the purported failure to disclose ... medical records and knowledge that [the child] suffered from undiagnosed cognitive deficiencies that caused him to have temper tantrums, throw feces, and eat inappropriate items, such as salt.”

Judge Cochran also noted: “At the habeas hearing, the lead prosecutor conceded that, during this 2007 trial, she was an alcoholic who was also taking prescription diet pills that affected her memory. She was later fired by the District Attorney ... for unrelated ethical violations. During the habeas hearing, the prosecutor repeated seventy-two times that she did not recall or did not know the answers to questions concerning the investigation or trial of applicant.”

The prosecutor accused of misconduct in the case was not identified in the court’s ruling. She was former assistant district attorney Sandra Eastwood. See: Ex parte Overton, 2014 Tex.Crim.App. LEXIS 971 (Tex.Crim.App. Sept. 17, 2014).

 

Prosecutorial Self-Policing

Relying on prosecutors to police themselves has not been successful. A 2013 white paper by the Center for Prosecutor Integrity, titled “An Epidemic of Prosecutor Misconduct,” noted that prosecutor associations, such as the National District Attorneys Association (NDAA), have failed to adequately address the issue of misconduct. The paper stated that “A search of the NDAA website using the search terms ‘prosecutorial misconduct’ or ‘prosecutorial error’ fails to identify a single office, program, or even publication that is devoted to rectifying this problem.”

The same can be said of the National Association of Attorneys General (NAAG), which in 2012 adopted a resolution urging courts, when reviewing the conduct of prosecutors, to differentiate between “errors” and “prosecutorial misconduct,” calling the latter a “term of art in criminal law.”

Former federal prosecutor Mary Judge Darrow, fired from the North Carolina Eastern District office in 2004, later won $170,000 in a discrimination suit against her former employer. She said she had been criticized by her supervisor for giving too much discovery material to defense attorneys. “For some reason, that was wrong,” she stated.

A few district attorneys’ offices have established Conviction Integrity Units (CIUs), also known as Conviction Review Units, to examine potential wrongful convictions, new evidence and allegations of misconduct. The first CIU was created in 2007 in Dallas County, Texas following a number of exonerations. Other units have been established in Houston, Texas; Santa Clara, California; Cook County, Illinois; Baltimore, Maryland; Wayne, Michigan; Cuyahoga County, Ohio; Philadelphia, Pennsylvania; and Brooklyn and Manhattan in New York.

The Manhattan CIU reportedly investigated 140 cases from 2010 to April 2014, re-examined at least a dozen of those cases and agreed to vacate three convictions.

Some Conviction Integrity Units only review wrongful convictions after the fact, rather than trying to prevent them in the first place; others do not review cases where the defendant pleaded guilty, even though prosecutorial misconduct may have induced a guilty plea; and some lack public transparency. Plus, of course, such units are typically staffed and overseen by prosecutors, who review convictions obtained by their colleagues.

Legislative Reforms

There have been various legislative efforts to address prosecutorial misconduct. In May 2013, on the 50^th anniversary of the Brady decision, Texas lawmakers passed Senate Bill 1611, also known as the “Michael Morton Act.”

The bill not only expands the discovery obligations of prosecutors in criminal cases, it takes the additional step of adopting the ethical rule standard of requiring Texas prosecutors to timely disclose all information that “tends to negate guilt or mitigate punishment.” The bill had the support of both the Texas District and County Attorneys Association and the Texas Criminal Defense Lawyers Association, and was signed into law by Governor Rick Perry on May 16, 2013.

It is hoped that codifying these requirements, instead of allowing prosecutors to simply “interpret” their Brady obligations and other legal precedents, will ensure the disclosure of exculpatory and mitigating evidence to defendants. The law provides a framework for defense attorneys to move for contempt citations, bar discipline and other sanctions.

Texas also passed another bill as a result of Morton’s wrongful conviction, the Prosecutor Accountability Act (Senate Bill 825), enacted in June 2013, which provides for at least some discipline when a prosecutor violates his or her ethical requirements. While relatively mild in its scope – in some cases, public censure is the only sanction – the bill is seen as a step in the right direction, which is more than most other states have done.

At the federal level, there have been attempts to make the Brady disclosure rule a statutory requirement and otherwise address prosecutorial misconduct. In March 2012, U.S. Senator Lisa Murkowski and a bipartisan group of co-sponsors introduced S.2197, the Fairness in Disclosure of Evidence Act.

The bill sought to clarify implementation of the Brady rule, and was the culmination of a lengthy fight by the National Association of Criminal Defense Lawyers (NACDL) to codify Brady’s requirements and correct two important misunderstandings of the Brady rule. First, that “favorable” evidence and not merely “exculpatory” evidence is required to be disclosed under Brady.At least in the federal courts, prosecutors would have to turn over anything “favorable” to the defense whether or not it is “exculpatory.” Such statutory language would, according to NACDL, require agencies like the Department of Justice to change its focus to evidence that, in the words of the proposed bill, “may reasonably appear to be favorable to the defendant.”

Second, the Act would help to abandon the “materiality” requirement for Brady evidence applied by many prosecutors. As indicated in Connick and other decisions, some prosecutors take it upon themselves to weigh the relative evidentiary value (materiality) of disclosable information when deciding whether or not to provide it to the defense.

Third, the Fairness in Disclosure of Evidence Act would cover all “information” favorable to the accused without regard to the prospective admissibility of that information. Brady itself involved only a sentencing proceeding where the rules of evidence generally do not apply.

Fourth, the Act would require disclosure of favorable material “without delay after arraignment and before the entry of any guilty plea.” Later-discovered material must be disclosed as soon as “is reasonably practicable.” No triggering demand by defense counsel is required. The Act would supersede any timing provisions for other disclosures, such as the Jencks Act, 18 U.S.C. § 3500, which allows prosecutors to withhold Brady material contained in the statements of a witness until the witness has completed his or her direct examination.

Further, the Act would allow for the recovery of costs and other appropriate remedies from the prosecution upon a finding of non-compliance with discovery obligations, irrespective of the outcome of the case.

While the Fairness in Disclosure of Evidence Act died in committee at the end of the 112th Congress, it may be reintroduced in future sessions.

In March 2014 Senator Murkowski introduced the Inspector General Empowerment Act (S.2127), which would move investigations involving misconduct by DOJ attorneys and law enforcement personnel from the Office of Professional Responsibility to the Office of the Inspector General. Attorney General Holder has expressed opposition to the bill, preferring to keep prosecutorial misconduct investigations at the OPR.

Remedial Recommendations

There are no easy fixes that will change the tacit, and sometimes not-so-tacit, tolerance of prosecutorial misconduct in our nation’s criminal justice system. However, recent efforts to identify and prevent such violations have at least paved the way for additional reforms.

 

Statutory Solutions

Legislative efforts like those in Texas, and proposed in Congress, are perhaps the most significant steps that can be taken to address issues related to Brady violations and other prosecutorial misconduct. As a 50-year series of Supreme Court decisions has done little to change the culture of resistance to constitutional evidence disclosure standards, compliance needs to be mandated by statute.

Undoubtedly, such efforts will be met with opposition by district attorney associations and law enforcement groups, but the reality is that decades of allowing prosecutors to make evidence disclosure decisions based on their own standards and internal policies, and to self-police those disclosures, has been a failure.

Adopting uniform disclosure obligations via statutory provisions will ensure that all parties involved in criminal proceedings have concrete expectations with respect to disclosure of evidence, which will allow for a more streamlined review process when violations occur.

Likewise, mandatory reporting of prosecutorial misconduct should be required by statute and not solely addressed through professional standards, which lack the force of law and statutorily-imposed penalties.

In May 2014, New York lawmakers introduced a bill that would create an independent state watchdog commission on prosecutorial conduct, to review allegations of misconduct and impose discipline when ethical violations are found.

“I think it would be helpful to both prosecutors and the public to have more confidence in the system,” said Senator John DeFrancisco, the bill’s sponsor. The legislation, S6286A-2013, remains pending in committee. Other states would do well to consider a similar approach.

 

Open File Discovery Rules

Perhaps the fastest way to address the problem of prosecutorial non-compliance with evidence disclosure obligations is the widespread adoption of an “open file” discovery process. In some jurisdictions, district attorneys’ offices simply open their files so defense counsel can examine all of the evidence and information in a case. While the potential for abuse still exists in open file discovery – there are numerous cases in which unscrupulous prosecutors have withheld evidence – most observers agree that open file discovery is more effective than leaving it to individual prosecutors to makesubjective Brady assessments.

 

Education on Ethical Obligations

In its Connick decision, the Supreme Court’s rationale for requiring a pattern of misconduct to prove a failure-to-train claim as a means of imposing municipal liability included a reference to the law school education, bar examinations and professional training that all attorneys are presumed to have received. Sadly, the Court’s reliance on such education and training appears misplaced.

Indeed, some law schools do not even require criminal procedure as mandatory coursework. The Tulane University Law School in New Orleans, wherethe Connick case originated, requires students to take Criminal Law. However, the Constitutional Criminal Procedure course at the school is an elective.

In no area of the law does an individual attorney have more effect on other peoples’ lives than in the role of prosecutor, and it is therefore essential to ensure that prosecutors receive sufficient training on their professional and ethical obligations. For those who claim that prosecutors already receive education and training in those areas, it is apparent from the examples of misconduct cited in this article that the current syllabus is inadequate.

Methods to implement such a requirement include via bar certifications to practice as a prosecutor, or through statutory provisions or local court rules.

 

Greater Transparency

The practice of keeping attorney disciplinary proceedings secret is perhaps the greatest barrier to improving the accuracy and fairness of – and public confidence in – our nation’s criminal justice system. In no other area of public service is there such a lack of transparency. This institutional secrecy extends to the judiciary, as many court rulings that address prosecutorial misconduct purposefully do not mention the name of the prosecutor involved.

United States v. Olsen, for example, in which Chief Judge Alex Kozinski voiced a strongly-worded dissent, involved allegations that a federal prosecutor had failed to disclose that a forensic analyst who handled evidence in the case was under investigation for misconduct which had already resulted in three wrongful convictions. Yet the Ninth Circuit’s ruling never identified the prosecutor – Assistant U.S. Attorney Earl Hicks.

It is perhaps ironic that those who run for public office are often required to disclose detailed information about their personal life, finances and potential conflicts of interest, yet when it comes to prosecutors who engage in misconduct, such violations of the public trust are deemed too “sensitive” to reveal to the public. Requirements to disclose prosecutorial wrongdoing can only improve the public’s trust and faith in the justice system.

After all, the transgressions of criminal defendants are public record; why should violations by those who prosecute them be any less transparent? Disciplinary proceedings need to be open to the public, which in itself would provide a deterrent effect to prosecutorial misconduct. Many state bar disciplinary boards also impose private sanctions that are not publicly reported, such as private reprimands or admonishments, which are insignificant punishments.

Additionally, in order to promote transparency, agencies that handle complaints involving prosecutors should be independent and not under the authority of the district attorney’s office or U.S. Attorney’s office on the state and federal levels, respectively.

As stated in the 2011 Yale Law Journal Online article on prosecutorial misconduct: “The lack of any external oversight of prosecutors’ offices creates an environment in which misconduct can go undetected and undeterred.”

 

Motions for Ethical Disclosures

As mentioned above, there appears to be little downside in promoting a campaign for defense attorneys to file pretrial motions asking courts to require prosecutors to confirm their compliance with ethical and regulatory obligations.

One critic of the current system that fails to adequately address prosecutorial misconduct has suggested the use of “Brady colloquys” by the judiciary. Jason Kreag, a visiting assistant professor at the University of Arizona’s James E. Rogers College of Law, proposes that judges engage in a standard practice of questioning prosecutors about their compliance with evidence disclosure requirements, on the record in open court, during pre-trial hearings and before plea hearings. As Kreag notes, “judges could implement a Brady colloquy today without the need for additional legislation or ethical rules.”

Judge Kozinski stated in his dissenting opinion in United States v. Olsen that “[s]ome prosecutors don’t care about Brady because courts don’t make them care.” A judicially-imposed Brady colloquy in open court would help make prosecutors care, as it would require them to affirm that they have complied with their ethical obligations, thereby creating a record that can be used to easily impose discipline if misconduct is later revealed.

 

Case Reviews after Misconduct Findings

After a prosecutor is found to have engaged in misconduct by a disciplinary board or other investigative agency, due diligence demands a review of other cases in which the prosecutor was involved.

While rare, that is what occurred in the Michael Morton case, when Williamson County district attorney Jana Duty agreed in November 2013 to allow an independent review of every case handled by former prosecutor Ken Anderson, whose wrongdoing sent Morton to prison for over two decades. The review will be conducted in conjunction with the Innocence Project, and include other cases in which the Williamson County DA’s office successfully objected to DNA tests requested by defendants claiming they were wrongfully convicted.

 

Curtailing Absolute Immunity

In most cases, prosecutors have absolute immunity for actions taken within the scope of their prosecutorial duties; they cannot be held civilly liable. In theory, this is to protect prosecutors from vexatious and frivolous litigation that would distract them from their responsibilities and make them less inclined to vigorously prosecute criminal cases.

The judicially-created doctrine of prosecutorial absolute immunity was established in Imbler v. Pachtman, 424 U.S. 409 (1976), a death penalty case in which a prosecutor was accused of suppressing evidence and knowingly using false testimony.

The Supreme Court has called absolute immunity “a balance of evils,” and stated it is “better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” See: Van de Kamp v. Goldstein, 555 U.S. 335 (2009).

Prosecutors wield an enormous amount of power. They decide who to charge and what charges to bring, including whether to seek sentence enhancements, as well as what plea bargains are offered and any conditions that attach to plea deals. But with power comes responsibility, and prosecutors should not enjoy absolutely immunity unless they are absolutely unable to engage in wrongdoing.

Indeed, the doctrine of absolute immunity may actually contribute to misconduct, as prosecutors do not fear the prospect of civil liability and damage awards should their violations be discovered. Abolishing or limiting absolute immunity would force prosecutors to consider the consequences of their actions relative to their personal accountability.

It is obvious from both the examples cited in this article and numerous court decisions that prosecutors are not immune to ethical violations, deliberate wrongdoing and even criminal behavior. Thus, they should not be afforded the benefit of absolute immunity.

It is worth noting that absolute immunity does not extend to prosecutors when they engage in conduct unrelated to their official prosecutorial duties – such as investigative or discretionary activities. For example, one such case involved comments made by a prosecutor during a press conference. See: Buckley v. Fitzsimmons, 113 S.Ct. 2606 (1993).

The distinction as to what conduct is entitled to immunity can be complicated due to various loopholes, however, as discussed in a recent Seventh Circuit decision that found a prosecutor was not entitled to absolute immunity for fabricating evidence before a defendant’s indictment and then prosecuting the defendant, who was eventually exonerated after serving 17 years in prison.

In a fairly technical ruling, the Court of Appeals explained that “A prosecutor cannot retroactively immunize himself from conduct by perfecting his [investigatory] wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity.” See: Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014).

In a 2014 report, the Center for Prosecutor Integrity suggested replacing prosecutorial absolute immunity with qualified immunity – a lesser form of immunity defense commonly applied to other government actors.

Another alternative to curtailing the absolute immunity granted to prosecutors in civil cases is to file criminal charges against prosecutorswho engage in egregious misconduct – particularly misconduct that results in wrongful convictions. That was the suggestion of Dallas County district attorney Craig Watkins, who has proposed the increased use of criminal charges to sanction abusive prosecutors; for example, criminal contempt of court.

But then who would prosecute those prosecutors? Presumably, other prosecutors.

Conclusion

The pervasiveness of prosecutorial misconduct is a problem that requires immediate attention by lawmakers, the judiciary, and the professional watchdog organizations and tribunals charged with overseeing attorney discipline, as well as by prosecutors themselves.

Legislative efforts such as theFairness in Disclosure of Evidence Act are a positive development, though they tend to focus on Brady-related issues and do not reach other forms of wrongdoing. Ultimately, the reporting and redress of prosecutorial misconduct must come from those within the criminal justice system, including judges and defense attorneys, such as through the enforcement of a stronger version of ABA Model Rule 3.8 and similar regulations.

Meaningful disciplinary proceedings, also a useful tool, have been under-utilized, and a change in the “conviction at any cost” culture among prosecutors must be realized through better professional training and education. Only then will we be able to truly address this pervasive problem that serves to undermine public confidence in our criminal justice system – where the emphasis should be on “justice,” not conviction rates.

Yet from the viewpoint of those victimized by abusive prosecutors, including those who have been wrongly convicted and imprisoned, disciplinary sanctions such as reprimands, censures and suspensions provide little comfort. Michael Morton spent nearly 25 years in prison; John Thompson was almost executed. And there are many other examples of prosecutorial misconduct that has put innocent people behind bars or on death row.

Ultimately, a change in the adversarial nature of our criminal justice system is needed. Such change is possible, but only if an honest effort is made by everyone involved, beginning with how prosecutors view their own role, responsibilities and ethical obligations.

As stated by Thompson: “It’s about a system that is void of integrity. Mistakes can happen. But if you don’t do anything to stop them from happening again, you can’t keep calling them mistakes.”

 

Sources: ABA Journal; American Bar Association Model Rule of Professional Conduct 3.8 (2008); American-Statesman; Arizona Star; Associated Press; Daily Business Review; Houston Chronicle; http://allthingscrimeblog.com; http://jacksonville.com; http://news.yahoo.com; National Law Journal; New York Daily News; The New York Times; “Preventable Error: A Report on Prosecutorial Misconduct in California, 1997-2009,” by the Veritas Institute (October 2011); “Prosecutor Misconduct,” 2d. ed., by Bennett Gershman; “Prosecutor Misconduct: Law, Procedure, Forms,” by Joseph F. Lawless (2011); The Champion; “The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct,” by David Keenan, et al., 121 Yale Law Journal Online 203 (October 2011); Texas Tribune; National Registry of Exonerations; USA Today; Washington Examiner; www.alternet.org; www.fbi.gov; www.huffingtonpost.com; www.law.com; www.nationalreview.com; www.newsobserver.com; www.prisonlawblog.com; www.propublica.org; www.prosecutorialaccountability.com; www.reuters.com; www.sptimes.com; www.star-telegram.com; www.stopthedrugwar.org; www.times-standard.com; www.prosecutorintegrity.org; www.innocenceproject.org; www.watchdog.org; http://gritsforbreakfast.blogspot.com; www.law.umich.edu; “The Brady Colloquy,” by Jason Kreag, 67 Stan. L. Rev. Online 47 (Sept. 2014); www.abcnews.go.com; www.economist.com; www.federalcriminalappealsblog.com; www.nola.com; Los Angeles Times; www.syracuse.com; www.justice.gov/opr; www.pogo.org; Tulsa World; www.bronxbureau.org; www.ksl.com; Commercial Appeal

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