Just last week, I wrote a lengthy column in the Law Tribune outlining the many instances of prosecutorial misconduct occurring over the last month and a half or so, all of which seemingly went unpunished. In it, I didn’t propose any ideas to eliminate the problem. Just that same day, however, news broke of yet another instance of egregious misconduct by a prosecutor in California – a man named Robert Murray – who fabricated two sentences and added them to a defendant’s statement to police:
Kern County prosecutor Robert Murray added two lines of transcript to “evidence” that the defendant confessed to an even more egregious offense than that with which he had been charged—the already hideous offense of molesting a child. With the two sentences that state’s attorney Murray perjuriously added, Murray was able to threaten charges that carried a term of life in prison.
The panel found that Murray deliberately altered an interrogation transcript to include a confession that could be used to justify charges that carry a life sentence, and distributed it to defense counsel at a time when Murray knew defense counsel was trying to persuade Palacios to settle the case.
The court cited the changes made by Murray in the transcript as follows:
(Detective): “You’re so guilty you child molester.”
(Defendant): “I know. I’m just glad she’s not pregnant like her mother.”
Murray placed the falsified admission of guilt into the English transcript translation of Palacios’ interrogation that was done in Spanish. For nine days, Murray kept quiet about his fabrication. It was only after defense attorney Ernest Hinman confronted Murray about the altered version. Murray said he meant it only as a joke to be kept between the two men.
His immediate supervisor, Kern County District Attorney Lisa Green said she was disappointed… in the appellate court ruling [PDF]. California AG Kamala Harris’ office appealed the dismissal and continues to defend it.
Instapundit (and Law Prof) Glenn Reynolds picked up on this and my prior post and wrote a powerful column in USA Today excoriating unethical prosecutors. But he too noted the problem with the current idea of sanctions: that prosecutors are immune from civil liability:
Worse yet, prosecutors are also immune from civil suit, under a Supreme Court-created doctrine called “absolute immunity” that is one of the greatest, though least discussed, examples of judicial activism in history. So prosecutors won’t punish prosecutors, and victims of prosecutors’ wrongdoing can’t even sue them for damages.
That leaves courts without much else to do besides throwing out charges in cases of outrageous misconduct. But if we care about seeing the law enforced fairly and honestly, we need more accountability.
Indeed we do. Misconduct is an area that gets prosecutors angry and swarming, because it is an allegation of dishonesty and ethical failures. It’s an incendiary topic and well it should be. When a prosecutor commits misconduct, individual defendants aren’t the only ones who lose: the ideal of justice does as well. So while it is a delicate subject, it shouldn’t be taboo. While we must be careful not to accuse every prosecutor we dislike of engaging in misconduct, we should not be afraid to stand up against those who do and demand action against them for it.
First, courts should sanction prosecutors directly and personally for misconduct. Second, legislatures need to pass laws promoting accountability — and ensuring that prosecutorial misconduct is policed by someone other than the same prosecutors’ offices that are committing it. Third, the notion of absolute immunity for prosecutors, which has no basis in the law or the Constitution, needs to be abolished.
I’m going to examine some ideas in turn now.
The first one is a bit of a mystery: why don’t judges, who hear evidence on and find prosecutorial misconduct, not immediately refer those prosecutors to the grievance committee for an investigation? Appellate opinions are replete with instances of convictions being reversed for some misconduct or other; why are these not then automatically referred by the judges themselves? The certainly aren’t afraid to do so when it comes to public defenders and defense attorneys. So why do prosecutors get a free pass? For instance, in CT, General Statute 51-84 provides:
Attorneys subject to rules. (a) Attorneys admitted by the Superior Court shall be attorneys of all courts and shall be subject to the rules and orders of the courts before which they act. (b) Any such court may fine an attorney for transgressing its rules and orders an amount not exceeding one hundred dollars for any offense, and may suspend or displace an attorney for just cause.
Further, our practice book [PDF], in Section 2-32(a)(2)(F) provides the following:
(a) Any person, including disciplinary counsel, or a grievance panel on its own motion, may file a written complaint, executed under penalties of false statement, alleging attorney misconduct whether or not such alleged misconduct occurred in the actual presence of the court. Complaints against attorneys shall be filed with the statewide bar counsel. Within seven days of the receipt of a complaint the statewide bar counsel shall review the complaint and process it in accordance with subdivisions (1), (2) or (3) of this subsection as follows:
(2) refer the complaint to the chair of the statewide grievance committee or an attorney designee of the chair and to a nonattorney member of the committee, and the statewide bar counsel in conjunction with the chair or attorney designee and the nonattorney member, shall if deemed appropriate, dismiss the complaint on one or more of the following grounds:
(F) the complaint alleges misconduct occurring in a superior court, appellate court or supreme court action and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct or finding that either no misconduct has occurred or that the allegations should not be referred to the statewide grievance committee;
Yet, as former Chief Disciplinary Counsel for the state Mark Dubois writes, it is the grievance committee’s interpretation that once a court has found misconduct and then not imposed sanctions, the SGC does not have any authority to pursue charges on its own. Assuming that interpretation is correct – and I disagree with it – it should be a simple fix: remove the clause that permits them to dismiss the complaint if an appellate court finds misconduct and doesn’t refer them to the grievance committee. In other words, make it the obligation of the grievance committee to investigate every case in which a trial or appellate court finds misconduct.
Reynolds’ second suggestion: that “legislatures need to pass laws promoting accountability — and ensuring that prosecutorial misconduct is policed by someone other than the same prosecutors’ offices that are committing it” is also an important one. As I mentioned in my last article, a kernel of an idea was raised in the legislature this year – one that has gone nowhere and I suspect won’t go anywhere. But what if there were a way to legislate accountability?
There already exists a state statute that authorizes the Division of Criminal Justice to remove prosecutorial officials – Section 51-278b:
Sec. 51-278b. Removal of prosecutorial officials. Procedure.
(b) No deputy chief state’s attorney, state’s attorney, assistant state’s attorney or deputy assistant state’s attorney may be removed from office except by order of the Criminal Justice Commission after due notice and hearing. A recommendation for removal from office may be initiated by the Chief State’s Attorney or the appropriate state’s attorney.
(c) The Criminal Justice Commission may discipline for just cause after due notice and hearing by reprimand, demotion or suspension with or without pay from his office up to fifteen days, a deputy chief state’s attorney or state’s attorney. A recommendation for discipline may be initiated by the Chief State’s Attorney. The Chief State’s Attorney may discipline any assistant state’s attorney or deputy assistant state’s attorney who assists him or the appropriate state’s attorney may discipline any assistant state’s attorney or deputy assistant state’s attorney who assists him, for just cause after due notice and hearing by reprimand, demotion or suspension with or without pay from his office up to fifteen days.
In Connecticut there is the Chief State’s Attorney who does all the administrative stuff and is the face of the division. Then each “county” or judicial district has its own heads – the State’s Attorneys and then each State’s Attorney has his staff – the line prosecutors. It seems that only the the heads of offices have the power to discipline and reprimand staff attorneys and that the Chief State’s Attorney and the Division of Criminal Justice have no such power – the bold portion above.
This, too, is an easy fix. Change that to permit the Chief State’s Attorney’s Office or the Division of Criminal Justice to investigate and discipline any prosecutor in their employ. But this would only apply to those cases in which a supervisor decides to pursue an investigation. This too must be fixed by amending the statute to require an investigation when any judge makes a finding of misconduct by a prosecutor1.
In order to ensure greater accountability, I would also amend that statute to require that the Chief State’s Attorney shall maintain records of any investigation, any discipline as a result of that investigation and if none, a reason for that. I would also require a report to a legislative commission the results of such investigations on a yearly basis. This report should also be made available to the public.
Then, of course, there is the notion that those who observe the misconduct, who are affected by it, those who are the subjects of it, should also take the initiative and refer misbehaving attorneys to the grievance committee.
The reality is that defendants aren’t going to start filing grievances against prosecutors on their own, despite their lack of reluctance to file grievances against their own lawyers. We, defense attorneys, cannot seriously harm them. Filing grievances against us is also a delay tactic and a way to get a disagreeable attorney off a case. But filing one against a prosecutor? That could have serious repercussions – in terms of the charge, or the sentence offered. No defendant wants to take that risk.
Defense attorneys proffer the same reasons – “I have to work with this prosecutor; I have a private practice; I have to think about my clients”. They are, to some extent, legitimate. Private attorneys do have a business to run and they have to make their income somehow. They certainly don’t want to be alienating prosecutors who they have to deal with regularly.
But it all goes back to how we view rogue prosecutors who engage in misconduct. Do we view them as a systemic problem and are we afraid that all prosecutors will support that unethical one no matter the circumstances or do we view it as a cancer to the profession and the system and treat it as a serious, but not systemic problem and try to weed out the ones who are poisoning the rest?
That’s why it’s critical that the overwhelming number of prosecutors – the good, honest, ethical ones – stand up and condemn those who engage in misconduct. That they don’t take the attitude that an attack on one prosecutor is an attack on all. That they recognize that just like there are good and bad defense attorneys, there are good and bad prosecutors.
There are many examples of misconduct that occur in trial courts, either during pretrial negotiations or during trial that never make it into an appellate decision. These prosecutors are free to reoffend. Someone needs to put a stop to it. How else do we say with a straight face that we are champions of justice and individual rights?