The new forums will be named Coin Return (based on the most recent vote)! You can check on the status and timeline of the transition to the new forums here.
Please vote in the Forum Structure Poll. Polling will close at 2PM EST on January 21, 2025.
Prosecutorial Misconduct, Or Lawyers Behaving Badly
AngelHedgie
Registered User regular
Registered User regular
This is one of those topics that I've been meaning to toss out to D&D for some time now - what do you think of prosecutorial misconduct, and what (if anything) should be done to control it?
Put simply, prosecutorial misconduct is when a prosecutor fails to uphold his or her duty to the court to see that justice is served, and instead acts in a manner to block the ability of the accused to a full defense. Probably the most famous case that people are familiar with is the Duke rape case, where the DA, Mike Nifong, clearly withheld exculpatory evidence from the defense. But in a way, Nifong is an outlier, in that his misconduct ultimately resulted in his disbarment. More typical would be someone like Nancy Grace - who boasts of having a perfect conviction record despite being censured by higher courts three times for misconduct (and in two of those cases having the misconduct be sufficient enough for a mistrial) - and who still has her license to practice law.
So, why does it happen? Well, in part it's because prosecutors are seen to be successful by how often they win. This in turn puts pressure on prosecutors to win. Also, some prosecutors see their job as a moral crusade, and as such justify bad conduct on those grounds. The problem is that this forms strong incentives to cheat, which when factored with the lack of punishment makes it very tempting. Even worse is that when the truth comes out, some prosecutors have fought exoneration to defend their own careers.
In the end, what's the solution? Personally, I think that the higher courts and the bar need to take a much stronger stance on prosecutorial misconduct. Prosecutors that misbehave endanger the judicial system, and as such should be penalized for doing so.
Put simply, prosecutorial misconduct is when a prosecutor fails to uphold his or her duty to the court to see that justice is served, and instead acts in a manner to block the ability of the accused to a full defense. Probably the most famous case that people are familiar with is the Duke rape case, where the DA, Mike Nifong, clearly withheld exculpatory evidence from the defense. But in a way, Nifong is an outlier, in that his misconduct ultimately resulted in his disbarment. More typical would be someone like Nancy Grace - who boasts of having a perfect conviction record despite being censured by higher courts three times for misconduct (and in two of those cases having the misconduct be sufficient enough for a mistrial) - and who still has her license to practice law.
So, why does it happen? Well, in part it's because prosecutors are seen to be successful by how often they win. This in turn puts pressure on prosecutors to win. Also, some prosecutors see their job as a moral crusade, and as such justify bad conduct on those grounds. The problem is that this forms strong incentives to cheat, which when factored with the lack of punishment makes it very tempting. Even worse is that when the truth comes out, some prosecutors have fought exoneration to defend their own careers.
In the end, what's the solution? Personally, I think that the higher courts and the bar need to take a much stronger stance on prosecutorial misconduct. Prosecutors that misbehave endanger the judicial system, and as such should be penalized for doing so.
XBL: Nox Aeternum / PSN: NoxAeternum / NN:NoxAeternum / Steam: noxaeternum
AngelHedgie on
0
Posts
Courtroom work groups incentivize efficient cooperation between the judge, prosecution, and defense, usually resulting in settlements rather than trial. Misconduct normally occurs in high-profile cases where the DA wants to appear tough on crime or wants to run for higher office. I think that it's mostly a power and attention grabbing measure and a lot of jurisdictional fights are over who gets to prosecute the defendant.
I'm not sure what solution other than the one you mentioned I can add. Contrary to popular belief, Lawyers have one of the strictest rules of professional conduct. The Model Rules are amended by the ABA all the time and change constantly in response to the clever and creative ways that lawyers have of getting around them. I suppose more enforcement is the answer. However the courts and the bar provide a wide degree of discretion in order to account for mistakes due to professional judgement rather than malice.
And of course there's going to be loads of litigation, motions, and challenges by the lawyer to defend their own career. How can there not be? Reputation is still extremely important in this relatively small community and determines your career. I'm sure you've taken a Professional Responsibilities course and are aware just how much litigation there is and how often very smart and very well paid people screw up and do something plainly stupid and unethical due to something as simple as greed.
So I'll just second that.
The problem isn't just one sided.
And as said above, the Model Rules for laywers are indeed very strict on many of the issues you state are most pressing. But I'd be curious to see how many lawyers overall receive sanctions for this misconduct, vs. the number of very high profile ones that you've cited.
True. But the difference is that a prosecutor has the power of the state behind him or her. Remember that the prosecutor in Jena stated publically that he could ruin someone's life with the stroke of a pen. Yes, a defense attorney who is willing to break the rules is dangerous, but nearly so much as a prosecutor who will do anything to win.
As for judges, that's an entirely different thread - that's just a mess.
I agree that lawyer misconduct and prosecutorial misconduct is a problem, but I'm really unsure that it's as big a problem as you are making it out to be. Additionally, I don't think you can address the problem without addressing the entire system.
A better question might seem to be: how can we reform the way high profile cases are handled (by the prosecutors, media, etc) so that we can reduce this type of misconduct?
You're right that misconduct is plenty spread around, and not all of it has to do with high profile cases.
From my readings it seems that most sanctions against defense lawyers are due to incompetence or greed. There's a whole line of Supreme Court cases that define the 6th amendment right to counsel due to public defender that is racist, asleep during trial, drunk, unlicensed, or just plain jaded and apathetic. On the private criminal defense side the main problem is greed. Most criminal defense attorneys charge a flat fee up front for representation but there have been attempts to charge various forms of contingency fees, in plain violation of the Rules of Professional Conduct. Those fees, which are usually huge, create an incentive to either do anything to win or to settle the case without regard to the wishes of the client.
Even the very best and most talented lawyers fall prey to greed. See F. Lee Bailey v. Florida Bar, where Bailey was disbarred for co-mingling personal and retainer accounts, as well as other shady accounting practices. The vast majority of sanctions against lawyers are for malpractice against the client rather than damaging the system of justice.
As for judges, they are mainly overseen by a review board that is distinct from the state bar, and then only when the action is completely egregious and not a mere abuse of discretion. Sanctioning also comes from higher courts that reverse their decisions, and during election when the judge's term is up. Barring the obvious forms of corruption and bribery, both judges and lawyers must express due diligence or face sanction. Like that federal judge (knowing the law and applicable statute) suing a dry-cleaners for millions for losing his pants. The case was thrown out and the judge is being sanctioned for lack of due diligence.