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Prosecutors Who Commit Misconduct Are Rarely Disciplined

by Matt Clarke

Prosecutors have a great deal of power and discretion. They choose whether to prosecute a case, what charges to file against a defendant and what plea bargain to offer. They can influence the court when imposing sentence and can even seek the death penalty. Prosecutors are also under an obligation to present truthful evidence in court and to reveal evidence that might be beneficial to defendants.

But what happens to prosecutors who shirk those professional obligations or commit other forms of misconduct? And how frequent are cases of prosecutorial misconduct?
The Northern California Innocence Project at the Santa Clara University School of Law examined over 4,000 criminal prosecutions conducted in California between 1997 and 2009. They discovered 707 cases in which courts explicitly found that prosecutors had engaged in misconduct. Thus, the rate of prosecutorial misconduct in the study exceeded 17%.

Only six prosecutors were disciplined by the State Bar of California in the 707 cases where courts determined that prosecutors had committed misconduct. Assuming one prosecutor per case, that’s a 0.8% discipline rate. Between 1997 and 2009 there were 4,741 state bar disciplinary actions. Just 10 involved prosecutors.

“In the most populated state in the country, we have a legal system that does not hold prosecutors accountable who have abused public trust,” said Northern California Innocence Project executive director and Santa Clara University School of Law professor Kathleen Ridolfi.

One of the reasons prosecutors are not often disciplined for their misconduct is that judges, who have a legal obligation to report prosecutorial misconduct to the disciplinary committee of the state bar, rarely do so. This allows misconduct by prosecutors to become habitual. Sixty-seven of the prosecutors in the 707 examined cases committed misconduct multiple times – some as many as five times. Yet the vast majority were never disciplined.

The study was based primarily on a review of appellate court rulings and a few rulings from other courts, and the results were published in a report titled “Preventable Error: A Report on Prosecutorial Misconduct 1997-2009,” by Ridolfi and Pulitzer Prize-winning Chicago Tribune reporter Maurice Possley, who is a visiting Innocence Project research fellow. The report also noted an additional 282 California cases in which courts decided that a defendant had received a fair trial despite allegations of misconduct by prosecutors.

Of course, prosecutorial misconduct is not limited to California. From September to December 2010, USA Today published a series of articles on misconduct by federal prosecutors, noting they were rarely disciplined. In 2001 the U.S. Department of Justice (DOJ) investigated 42 complaints of prosecutorial misconduct by federal prosecutors; in 2009 there were 61 such investigations. The DOJ refused to reveal how many of the complaints resulted in disciplinary action, citing privacy concerns. But an examination of state bar records revealed that only two federal prosecutors had been briefly suspended from practicing law due to misconduct and six had been disciplined at all since 1997, the year in which Congress passed a law intended to curb abuses by federal prosecutors.
Despite such infrequent discipline, USA Today uncovered 201 criminal cases since 1997 in which judges had criticized federal prosecutors for “flagrant” or “outrageous” misconduct. In each of those cases the judges overturned convictions, dismissed charges or chastised abusive prosecutors.

Yet even when they are investigated, prosecutors are given a great deal of slack.
Disciplinary action is generally not pursued unless the investigating agency believes the misconduct was intentional or reckless. For example, the Office of Professional Responsibility (OPR), the DOJ’s internal investigatory agency, completed only 756 of the more than 7,500 investigations it initiated between 2000 and 2009, finding misconduct in 196 cases but intentional violations in only 68. The OPR refused to release information that would identify the prosecutors under investigation, even when intentional misconduct was confirmed.

“Government lawyers are likely to view the conduct most favorably to other government lawyers,” observed Ellen Yaroshefsky, head of the Jacob Burns Ethics Center at the Cardozo School of Law. “It’s human nature that you’re going to give the person the benefit of the doubt, because it could be you next. There just needs to be an independent evaluation of allegations of misconduct.”

Even when the OPR discovers intentional misconduct, the prosecutor is unlikely to be fired. Instead, reprimands, suspensions or an agreement to allow the prosecutor to resign without a black mark on his or her record tends to be the rule. The result can be that a prosecutor who is discovered committing intentional misconduct can go right back to work – as a prosecutor.

For example, Stephen Kunz, a former Tampa-area federal prosecutor, suspected the parents of five-month-old Sabrina Aisenberg were involved in her disappearance. Their home was bugged for three months. Kunz told a federal grand jury and magistrate judge that the mother was heard telling the father, “The baby’s dead and buried.... The baby’s dead no matter what you say – you just did it.” The parents were indicted for conspiracy and lying to federal agents. The only problem was that those damning words were nowhere on the surveillance tapes.

After a federal judge listened to the tapes and found no such statement, he ruled they were inadmissible. The DOJ ultimately dropped the charges against the Aisenbergs and the court ordered the government to pay $1,494,650 to cover their attorney fees.

What happened to Kunz? An OPR investigation concluded that he recklessly tried to inflame the grand jury, but rejected allegations that his decision to charge the parents was done in “bad faith” or “vexatious.” He was admonished by the Florida Bar, stripped of his supervisory position and transferred to the civil division. Then he resigned. But Kunz wasn’t unemployed for long. He took another job several hundred miles away in Tallahassee – as a federal prosecutor.

“It’s just astonishing to me that the system over there just flouts federal appellate court findings – in some instances even disagreeing that it’s misconduct at all, let alone how serious it is,” said Miami attorney Richard Strafer, who conducted a review of the Aisenberg case for the ACLU.

The lack of transparency or accountability in the OPR is cited by many as exacerbating the problem of prosecutorial misconduct. But the OPR has ignored repeated calls for greater transparency. In 1978, Congress called for the OPR to make the results of its investigations public. Attorney General Janet Reno released the results and prosecutors’ names during the Clinton presidency. That practice ended when Reno left office after President George W. Bush was elected. The OPR now claims that the Privacy Act of 1974 precludes the release of misconduct information, and the agency even asks judges to expunge their findings of misconduct from pubic records in some cases.

“OPR is a black hole. Stuff goes in, nothing comes out,” remarked National Association of Criminal Defense Lawyers president Jim E. Lavine. “The public, the defense attorneys and the judiciary have lost respect for the government’s ability to police themselves.”

U.S. District Court Judge Mark Wolf apparently agreed when he cited “extremely serious government misconduct” by a federal prosecutor during an organized crime case. In a letter to then-Attorney General Michael Mukasey, Judge Wolf said the prosecutor’s conduct “raises serious questions about whether judges should continue to rely upon the Department to investigate and sanction misconduct by federal prosecutors.”

The solution to this problem seems obvious – have an independent agency that is not a part of the Department of Justice conduct prosecutorial misconduct investigations, impose meaningful discipline when allegations of abuse are sustained, and publicly disclose the results of such investigations.

A better solution would be to prevent prosecutorial misconduct in the first place. To do so requires looking into the motivation that prosecutors have to commit misconduct. One contributing factor is the crushing caseloads they face. Federal prosecutors, who had an average of 14 cases in the mid-1990s, now average 28 cases. Such heavy caseloads, added to the achievement-oriented personalities of those who tend to take jobs as prosecutors, make for a dangerous mix.

“They’re A+ students. They’re not used to losing,” said former federal prosecutor and current Loyola Law School professor Laurie L. Levenson. So an overworked prosecutor might rationalize cutting a few corners. After all, they’re the good guys, right?

“Prosecutors think they’re doing the Lord’s work, and that they wear the white hat. When I was a prosecutor, I thought everything I did was right,” said Jack Wolfe, a former prosecutor from Texas. “So, even if you got out of line, you could tell yourself that you didn’t do it on purpose, or that it was for the greater good.”

While some prosecutors may delude themselves that the “end justifies the means” when they commit misconduct to win a case, that is simply hypocritical – it’s the same argument used by many defendants to justify the crimes they committed.

Thus, the best way to prevent misconduct may be to ensure that prosecutors receive better training, including reminding them that they are not above the law, while providing independent oversight and strictly and publicly disciplining prosecutors found guilty of misconduct. Even better is allowing those harmed by prosecutorial misconduct to sue for monetary compensation for the harm and losses they suffer, and permanently disbar abusive prosecutors to prevent them from harming others.

Sources: USA Today, National Law Journal,

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