An Investigation Of Prosecutors

There is a notion deep within the criminal justice system that prosecutors, and those that assist them (police, investigators, witnesses) commit violations of ethical rules, and those violations are protected by judges, and the Bar.

We all saw the video of the Arizona cop who took a document out of a defense lawyer's file while a full courtroom looked on. We saw the judge's initial reaction of, "I'm kinda busy here."

That prosecutors rarely receive discipline is more than a lament, it's a fact. The public doesn't much pay attention to this, happier to believe that the defendant is "guilty anyway," and these violations are OK, as the greater good is served - the coveted conviction.

So yesterday's headline: California Bar Reviewing 130 Prosecutors for Possible Disciplinary Action, was almost embarrassingly responded to by lawyers across the internet.

Little will come of the investigation, other than the ruffled feathers of prosecutors everywhere. It's more symbolic than anything else. The investigation is more of a defensive move, as a result of a report that discipline of prosecutors who commit misconduct, is "lax."

The first line of defense? The report itself: The report by Northern California Innocence Project at the Santa Clara University School of Law noted the
majority of California prosecutors use fair methods
to prosecute those they believe are guilty.

Well, that's true, but does that mean that a little bit of misconduct is OK?

The numbers are a wake up call to the law and order types that believe that even with exonerations of the innnocent, everything is "just fine."

The study found that over a 13-year period,

600 prosecutors have committed misconduct
according to rulings by state and federal appellate
judges. They range from small technical mistakes to u
nfair and deceptive tactics to win cases, such as
hiding evidence. The study analyzed about 4,000
appellate court rulings from 1997 through 2009.

Sixty-seven of the 600 prosecutors committed
misconduct more than once.

Only seven of the 600 prosecutors whom the
courts found to have committed misconduct were
disciplined by the State Bar -- slightly more than 1
percent.

Prosecutors are not happy: Scott Thorpe, director of the California District
Attorneys Association, faulted the study for
exaggerating the problem of prosecutorial
misconduct.

"It dramatically overstates the problem," Thorpe
said. "They didn't quote one single prosecutor. It's
upsetting."

Upsetting.

They didn't "quote one single prosecutor?" Well, score one for us in the line publications and articles where defense attorneys are left out. Ever notice that? Read a few articles on a criminal case or issue - watch how many times a defense lawyer is quoted or mentioned, as compared to a prosecutor. It's an epidemic.

Even the Bar's appointed chief trial counsel sounds like he has little hope anything will come of this investigation:

Towery said most of the misconduct is
probably not serious enough to warrant public
reproval, suspension or disbarment.

I wonder what "not serious enough," means? Is it based on the amount of time an innocent guy spent in jail? Or is it based on whether the defendant was "really, really guilty?" Are we now applying harmless error to prosecutorial misconduct?

We'll see.

I wish the California Bar good luck in conducting a fair and throrough investigation. I hope something important comes out of it, even if there is no discipline because the allegations are too old or don't rise to anything more than allegations. These prosecutors deserve a fair and impartial investigation - their law licenses are on the line, and specious allegations are dangerous and career threatening.

Although the investigation may end with no formal discipline, the message from the California Bar is received - all lawyers are subject to the rules, even if they are only trying to put someone in jail.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter