Thursday, December 17, 2015

Debate Intensifies Over Prosecutor Misconduct

A concern over gamesmanship undermines the obligation to confront unethical behavior when it occurs.

A recent article by Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit that presents a scathing indictment of prosecutors and, indeed, the entire criminal justice system, has prompted a point and counterpoint in a very public debate. Sally Yates, the deputy attorney general, and other Department of Justice officials have led a full-throated rebuttal defending prosecutors' conduct. Both the judge and the department cite facts, but the truth — in this instance — does not lie somewhere between the two opposing views. The Justice Department has the better part of this debate.

The much admired Justice Robert Jackson, while serving in 1940 as U.S. attorney general, famously told a meeting of federal prosecutors in the Great Hall of the Justice Department headquarters in Washington: "The prosecutor has more control over life, liberty and reputation than any other person in America. His discretion is tremendous. … With the law books filled with a great assortment of crimes; a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone."

With the law books that Jackson saw as filled then overflowing today with more crimes than he could have imagined, the conduct of prosecutors is rightly a matter of utmost concern. Although rare, instances of prosecutorial misconduct have an outsized effect on public confidence in the integrity of the rule of law as manifested in the criminal justice process. Such occurrences therefore need to be discovered and abated in real time — when doing so can make a difference. If we take nothing more than that from Kozinski's criticism, we can say that he has done our thinking about criminal justice policy a good turn.

The Department of Justice would surely acknowledge that some ­prosecutorial misconduct occurs, even as it ­rightly stands up for the vast majority who ­conduct the department's business in an ethical and professional manner.

But what can be done when the few, indeed a very few, do not?


Judicial supervision of federal prosecutor conduct is very limited. This stems, in the first instance, from the Constitution's separation of powers, vesting exclusive authority to decide what gets prosecuted with the Executive, which renders the exercise of prosecutors' discretion beyond judicial review or oversight.

The powerful federal grand jury — a function of the courts — is actually run by prosecutors and subject to almost no restraint or supervision by judges. After charges are brought, judicial review of indictments is practically non­existent because the U.S. Supreme Court has ruled that an indictment valid on its face is sufficient to call for a trial on the ­merits.

Judges clearly supervise the conduct of trials before them, but their review is generally limited to matters such as ruling on the admissibility of evidence, and prosecutorial misconduct may be irrelevant. Under the Rules of Criminal Procedure, after hearing the government's evidence a court can enter judgment of acquittal, but the standard of review presents a high obstacle to a defendant's success.

A full-blown judicial review of whether prosecutors are meeting standards in their required out-of-court duties, such as occurred in the prosecution of the late Senator Ted Stevens, is relatively rare. Likewise, paying the price of trial, conviction and then hoping to raise misconduct issues successfully on appeal has too high a cost and too little chance of success to be a meaningful remedy for prosecutorial misdeeds.

Although instances of actual prosecutorial misconduct may be rare, that is precisely why they need to be uncovered so as to abate the misconduct and remediate in real time any adverse consequences to affected parties. One relatively easy solution is more and better supervision of prosecutors. Serious misconduct involves bad judgment, and bad judgment is much less likely to occur when more than one or two individuals are involved in making it.

There are few instances of serious prosecutorial misconduct that could not have been prevented or remediated in real time by greater levels of supervision and oversight. Oversight of cases and of prosecutors is also a means to rein in overzealous overreaching by individual prosecutors who may be led astray in the competitive effort to make or win a case.


The DOJ may turn away allegations of misconduct made in the midst of on-going cases because it fears misconduct allegations becoming just another routine defense tactic. Its Office of Professional Responsibility investigates misconduct, but whether it can abate ongoing misconduct, which in real time affects both the fundamental rights of individuals and the integrity of the criminal justice process, remains in doubt.

The interests of the vast majority of prosecutors, whose commitment to justice is unquestioned, are also not helped by less than effective means of addressing real misconduct.

Separating meritorious allegations from tactical ones being used as leverage in investigations or litigation is a function judges could partially fulfill simply by listening to such allegations when made and referring facially meritorious claims to a U.S. attorney or other proper Justice Department official. The department also could be more open to hearing and acting on such allegations directly or when otherwise referred to it. The fear that giving ear to such allegations will promote baseless claims seems a rather hollow concern: Subjects of prosecution will fear retaliation for making nonmeritorious allegations, thus producing a perhaps perverse, but nonetheless effective, deterrent from making unfounded claims of prosecutorial misconduct.

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