Culture of Misconduct

The misplaced priorities of prosecutors

I began my term as a federal prosecutor on October 3, 1995, the day O.J. Simpson was acquitted. The approving roar of the crowd at Camp O.J. across the street from the Los Angeles federal courthouse interrupted my supervisor’s earnest lecture on our obligations as prosecutors. It did not sound like an auspicious beginning.

After the tumult died down, my supervisor read us the famous passage from Supreme Court Justice George Sutherland’s opinion in the 1935 case Berger v. United States, reminding us that our duty was not to win the case, but to see “that justice shall be done.” Veteran prosecutors across the country instruct neophytes with similar exhortations. They will commonly say, borrowing from Sutherland, that prosecutors may strike hard blows but not foul ones.

Yet state and federal prosecutors routinely fall short of this ideal. There are too many stories of convictions obtained through subornation of perjury, through suppression of exculpatory evidence, and through the willful use of unreliable, wrongfully obtained confessions.

It’s difficult enough to detect misconduct, mostly due to inadequate funding for criminal defense. But if detection is rare, redress is even rarer. Prosecutors enjoy “absolute immunity” from lawsuits, a privilege no other profession in America enjoys save for judges. In theory, state bars should sanction misbehaving prosecutors, but that is also vanishingly rare. Last September, USA Today found 210 cases in which federal prosecutors had committed ethical breaches so egregious that a federal judge personally rebuked the prosecutor, overturned a conviction, or dismissed the criminal charges entirely. The prosecutor faced serious discipline from a state bar in just one of those 210 cases. Recent studies of misconduct among state prosecutors in California have produced similar results: disturbing examples of misconduct and an even more disturbing lack of accountability.

I’ve worked as both a prosecutor and a defense lawyer. In my experience, one primary problem drives all these issues: a professional culture that values winning above all else.

Defense lawyers, of course, do their absolute best for their clients in every case, but they tend to understand that the deck is stacked against them. They can’t possibly win them all, in part because of the government’s overwhelming resources, in part because of judges’ and jurors’ tendency to defer to law enforcement, and in part because many of our clients aren’t particularly sympathetic. Defendants often actually did do something, even if it isn’t quite what the government says.

By contrast, too many prosecutorial agencies develop a culture that treats victory as the only acceptable result; any defeat is a humiliating rebuke. They simply don’t contemplate the possibility that a not-guilty verdict might be the just result. It isn’t difficult to see how this culture of victory could pressure some prosecutors to go to extraordinary, sometimes unethical means to avoid the shame of defeat.

Willful ignorance is also a problem. It takes time, resources, and leadership to train young prosecutors on new developments in the constitutional and statutory rights of criminal defendants. Some offices just don’t bother. They focus on the nuts and bolts of trials and on the taxonomy of crime, but they don’t seem as interested in keeping up to speed on the rights of the accused. Prosecutors, especially young ones, can’t be expected to respect rights they don’t understand. I’ll never forget a prosecutor telling my partner—who had just won a motion to stop the prosecutor from bullying grand jury witnesses—that he’d have to “look into this whole Fifth Amendment thing.” That prosecutor is now a judge. In a decision last March that will only make this problem worse, the U.S. Supreme Court ruled that municipalities can’t be sued for failing to properly train prosecutors, even on basic ethical obligations such as the responsibility to turn over exculpatory evidence to defense attorneys.

Prosecutors grow up, go to law school, and practice law in the context of American culture. After 40 years of “law and order” rhetoric from politicians and public officials, that culture has grown explicitly hostile to the rights of criminal defendants. Movies, television shows, and pundits portray these rights not as a check against overreaching authority but as the mechanism by which gleeful murderers and rapists escape justice “on a technicality.” (This is a canard: Federal prosecutors win 85 percent of cases that go to court, and state prosecutors win 60 percent to 85 percent. If you factor in plea bargains, conviction percentages can soar well into the 90s.)

Politicians decry judges as “soft on crime” or “black-robed tyrants” if they impose consequences on police and prosecutors who violate the rights of defendants. A vigorous defense is scorned as chicanery. We reward prosecutors with headlines and re-election for high-profile convictions but not for the cases they choose not to try for lack of evidence. Indeed, declining to bring charges in a high-profile case can be a career killer.

Fortunately, culture can cut both ways. Principled prosecutors can create a sense of professionalism that treats constitutional and statutory rights not as impediments or annoyances but as the only acceptable boundaries of conduct. I was privileged to serve under a U.S. attorney who made it clear that candor with the court and scrupulous regard for constitutional rights were essential elements of representing the United States. She set the tone for the office. The Department of Justice has started a new Professional Misconduct Review Unit, which could serve to spread similar values to other U.S. attorneys’ offices.

But ultimately, supervisors, district attorneys, and Justice Department officials answer to the public. If we as a society continue to equate justice with conviction rates and mass incarceration, the culture of misconduct is not going to change. 

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  • TJIC||

    Ken,

    Great article - but let me ask you: what are the take-home action items?

    Vote for politicians that promise to reward prosecutors for fairness, not conviction rates?

    Run for office ourselves?

    Donate to some charity?

    Between the War on Terror opening up new fronts on American citizens here and abroad, between police asset forfeiture, the Thugs in Blue lying about everything that they can't extort sex out of, and judges and legislators competing to see who can defecate on the Constitution more, it seems fairly doomed to me.

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