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Misconduct by prosecutors is rampant — how do we deter it?

by Mike Fawer, The Lens, Opinion

https://thelensnola.org/2019/04/11/misconduct-by-prosecutors-is-rampant-how-do-we-deter-it/

I have been involved in the criminal justice system for almost 60 years, initially as a federal prosecutor, but for the greater portion of my career as a criminal defense attorney in both federal and state courts. I am no longer shocked by the frequency of blatant prosecutorial misconduct, but I am sorely troubled that such conduct invariably goes unpunished, even when it’s the basis for reversals of convictions.

Judges seldom if ever refer such conduct to the appropriate professional disciplinary authority – not that it would do much good if they did – nor do district attorneys or U.S. attorneys ever see fit to publicly discipline an offending prosecutor.

In effect, prosecutors are almost totally immune to punishment for their wrongdoing. That’s what needs to change.

Experience convinces me that the misconduct in questions is the outgrowth of a prosecutorial culture that turns its back on wrongdoing, fostering a philosophy of “win at all cost,” irrespective of the damage it does to public faith in the fairness of our system of criminal justice.

That culture has been rampant in New Orleans.

Former Orleans Parish District Attorney Harry Connick drew sharp rebuke from the U.S. Supreme Court in both Connick v. Thompson and Kyles v. Whitley, rulings that identified flagrant prosecutorial misconduct.

Former U.S. Attorney Jim Letten presided over senior associates Sal Perricone and Jan Mann as they spewed an enormous volume of biased and anonymous emails into the internet, in what amounted to a kind of “virtual” jury tampering.

And now we have Orleans District Attorney Leon Cannizzaro, whose illegal use of unauthorized subpoenas to compel witness attendance at pre-trial interviews has been exposed by this publication and other media.

I have met as adversaries scores of prosecutors who are wholly honorable professionals. They have my respect, but they are not my concern. My focus is on the rogue prosecutors and how to best deter their conduct. For the skeptical, who think the pervasiveness of intentional misconduct by prosecutors is overstated, you need only Google “prosecutorial misconduct” and delve into a huge library of scholarly articles on the topic.

For present purposes, let me give you just five examples of prosecutorial misconduct in cases I have defended, each of which is documented in a judicial decision*:

1. A detective coaches an eyewitness to a homicide into lying about what she saw, but the prosecutor puts the witness on the stand anyway, knowing full well that the testimony is false.

2. A state prosecutor knowingly conceals exculpatory evidence, then argues to the jury that the lack of such evidence is proof of guilt. The result: the defendant receives a life sentence and serves 14 years in prison before a federal court identifies the misconduct and sets the conviction aside.

3. A federal prosecutor conceals that a defendant was offered a verbal promise of immunity. Forced to disclose it midway through the trial, the prosecutor lies under oath, claiming that the defendant breached his immunity. Ironically, when the conviction is reversed on appeal and the indictment dismissed, the prosecutor is permitted to step down as an assistant federal prosecutor and join the staff of the local Federal Public Defender.

4. At two retrials of a homicide case, the prosecutor produces two witnesses – one a jailhouse snitch, the other a police officer – who claims the defendant confessed his crime while being transported to jail following his arrest. The “confessions” were never mentioned during the first trial and the testimony about it by the snitch is patently perjurious.

5. Members of a federal grand jury vocally berate a federal prosecutor for seeking a felony indictment of a doctor for physically resisting an IRS agent’s seizure of a patient’s medical records. Rather than yield to the grand jury’s outrage, the prosecutor suddenly terminates the presentation and proceeds to file a misdemeanor Bill of Information against the doctor, a lesser charge that does not require a grand jury action. At the conclusion of oral argument, an appellate panel pointedly directs the U.S. attorney to dismiss the prosecution.

These are five examples of prosecutorial misconduct that are far from uncommon, and not one of these five prosecutors was sanctioned.

How can this be? The legal context of such abuse is the U.S. Supreme Court’s 1976 ruling in Imbler v. Pachtman. Thanks to their allies in state legislatures and in the judiciary, prosecutors already enjoyed “qualified immunity” from punitive civil suits.

Under the concept of qualified immunity, a prosecutor was shielded from punishment for his behavior and legal strategies if the court saw reasonable grounds to believe that the errant prosecutor was acting in good faith at the time of his or her actions. Only in the absence of such good faith was a prosecutor subject to monetary damages.

Imbler v. Pachtman pushed the protection of prosecutors even further by providing them with what’s called “absolute immunity.” Such immunity extends to anything done “within the scope of his duties in initiating and pursuing a criminal prosecution and presenting the state’s case.” As a result, virtually no act in the performance of his prosecutorial function — no matter how egregious — subjects a prosecutor to a retaliatory civil suit seeking money damages.

Why? Among several considerations, the court expressed concern that in the absence of absolute immunity, prosecutors would be overwhelmed by suits from convicted defendants. The court argued further that bar associations and a prosecutor’s superior could activate sufficient disciplinary procedures and that if civil law did not provide a recourse for the victim of extreme prosecutorial misconduct, a criminal charge could be initiated. Moreover, the court argued, susceptibility to lawsuits for misconduct would distract a prosecutor from his primary duty of enforcing the law.

Understand that absolute prosecutorial immunity is a judicially created doctrine first given life in the Supreme Court’s 1976 opinion. In light of what can be viewed as an epidemic of prosecutorial misconduct, I would argue, as do many others, that, it’s time to reexamine the underpinnings of that 1976 decision. It simply does not bear up under scrutiny.

First, the fear of opening prosecutors to a flood of civil lawsuits is already minimized by the courts having constructed serious hurdles for any plaintiff seeking civil damages against a prosecutor.

Second, the court’s suggestion that the use of disciplinary sanctions by bar associations would suffice to deter the errant prosecutor is nonsensical. Nationwide, bar associations simply do not pay serious attention to patently unethical behavior by prosecutors.

Third, the court’s suggestion that criminal sanctions exist for extreme cases of prosecutorial wrongdoing is unrealistically sanguine. To my knowledge, there has not been a single instance on the state or federal level of a prosecutor being subject to criminal prosecution for his or her performance.

Fourth, to suggest, as the court did, that internal mechanisms sanction misbehaving prosecutors is to engage in fantasy. In a prosecutorial culture that turns a blind eye to such conduct, internal accountability is simply nonexistent.

Finally, the Imbler court’s concern about distracting a prosecutor from his duties was not rooted in the real world. The argument was that anything short of absolute immunity would cause “a deflection of the prosecutor’s energies from his public duties and would give rise to the possibility that he would shade his decisions instead of exercising the independence of judgement required by his public trust.”

In my experience as an assistant U.S. attorney, and in discussions with former assistant DAs, I cannot recall anyone ever mentioning the possibility of being sued, let alone considering it as a factor in making everyday prosecutorial decisions. No professionally honest prosecutor would let the unlikely potential of civil liability affect his independent judgement. As for the rogue prosecutor, if such fear deters his willingness to do wrong, all the better.

How, then do we construct a meaningful mechanism for deterring prosecutorial misconduct?

In my view, the focus should not be primarily on the individual wrongdoer but on the figure in charge, the local district attorney or, the U.S. attorney and the office he leads. I propose a shift in the focus of the discussion. What follows is a starting point, combining a variety of deterrent mechanisms to deal with the problem of prosecutorial misconduct.

1. By statute, eliminate absolute prosecutorial immunity and instead cloak the prosecutor in qualified immunity for all of his actions. The existing hurdles a plaintiff must overcome to secure a civil money judgement are already sufficiently limiting to prevent the tsunami of cases the Imbler court feared.

2. Make the office of the local district attorney or U.S. attorney responsible for any civil monetary award. Each has a budgetary allotment which would be directly impacted by the monetary judgement. (Under existing federal criminal law, a prosecution brought in “bad faith” may subject the local Office of U.S. Attorney, and it alone, to paying any monetary judgement for attorney fees and expenses awarded as a result of such bad faith prosecution.) I would even go so far as to consider holding the individual district attorney or U.S. attorney at the time of the wrongdoing individually responsible. (This would surely promote more vigorous internal review of ethical breaches.)

3. Compel the local parish and federal prosecution offices to implement an internal disciplinary mechanism for review of all ethical breaches by prosecutors reflected in all court opinions. Further, mandate that any and all such breaches be referred to the bar association’s disciplinary counsel.

4. Obligate the local and federal prosecuting offices to formally advise the media and the public in a timely fashion of such reported ethical breaches, their referral to disciplinary counsel and what, if any, internal sanctions have been imposed.

It’s worth noting that these reforms would, among other things, speed up punishment for prosecutorial misconduct; moreover, they would put the spotlight on the district attorneys and U.S. attorneys in charge of those offices, requiring that they “own” the malfeasance.

Even in those rare instances when prosecutorial misconduct results in a monetary judgment, there is normally a considerable delay — years or even a decade — before the penalty is assessed. In my experience, the tenure of district attorneys and U.S. attorneys, far exceeds the tenure of a line prosecutor. Given the normal delay in securing a monetary judgement, it is far more likely that the district attorney or U.S. attorney under whose auspices the wrongdoing occurred will still be in office.

District attorneys and U.S. attorneys are typically a politically ambitious group, more attentive to their public reputations than the lower-profile line prosecutors. That makes the top officeholders more likely and able to deter wrongdoing at the front end.

If our goal is to mitigate widespread prosecutorial misconduct, let’s put the onus on the individual most responsible for a culture that breeds professional misconduct. 

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*Cases referenced:

1. State v. Curtis Kyles(Orleans Parish, 1986) – initial trial

2. Douglas DiLosa v. Cain (e.d. La. 2000) 379 F3d 259 (5th Circuit 2002)

3. U.S. v. David Mark 795 F 3d (9th Circuit 2015)

4. State v. Curtis Kyles (Orleans Parish, 1997, 1998) – 2d and 3d retrials

5. U.S. v. Herman Walker (5th Circuit 1981) No opinion issued

New Orleans resident Mike Fawer is among Louisiana’s most prominent criminal defense attorneys. His autobiography, From the Bronx To The Bayou; A Defense Attorney‘s Odyssey, From Charles Evers to Edwin Edwards and Beyond, was recently published. For more information about the book, go to the website bronxtothebayou.com

This article was originally published April 11, 2019, on The Lens (thelensnola.org); reprinted with permission. Copyright, TheLensNola.org: Investigative Journalism New Orleans

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