Attorney Misconduct: Speck Of Sawdust & A Plank In The Eye
Mar. 11, 2016 (Mimesis Law) — In a relatively rare occurrence, the Supreme Court reversed a death penalty conviction and on a Brady claim no less. My co-blogger Greg Pickett discusses both the facts of Michael Wearry’s case and the misconduct of the prosecutor here and makes the following comment:
While this appears to make the decision a 6-2 case, one should note that Alito’s objection was not that the conviction was overturned, he freely conceded that the facts could well require that result, but that in his opinion it was a procedural mistake not to have full briefings and oral argument on the matter.
In other words, Justice Alito wanted to make sure that the Court was fair to the prosecutors, to give them every chance they needed to argue their case.
In other words, to give them the fair treatment that they refused to give Michael Wearry before they took away fourteen years of his life, and that they refused to give him while they were attempting to take his life from him.
There is a simple solution.
Require that prosecutors comply with the law, and hold them accountable when they don’t.
*No prosecutors were harmed during the creation of this opinion or this post.
It’s not the first time prosecutors have been accused of misconduct, and it doubtfully will be the last. Indeed, five years ago, USA Today reported on its LEXIS search had a major story on the issue. Former Manhattan ADA Nate Burney and Scott Greenfield wrote on the issue and reached a similar conclusion. Scott wrote this:
This nugget contains one of the most insidious implications of the article, that only the innocent are entitled to a fair trial, free from prosecutorial misconduct. Years ago, Daily News newspaper columnist Murray Kempton wrote, “there they go again, framing the guilty.” These words have rung in my ears ever since.
“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 federal prosecutor in Texas and now a defense lawyer. “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.”
Burney, the former prosecutor, agrees:
The most insightful explanation here is the observation that the end justifies the means. Breaking the rules is fine if, at the end of the day, it ensures that the criminal gets convicted.
Sadly, few members of the public would disagree with this, since the guilty are bad and deserve whatever happens to them. Prosecutors agree. Cops and Agents agree. Judges agree. The public agrees. No harm, no foul, as determined by the outcome.
In another post, Prosecutor + Misconduct = ?, Scott writes
I’ve often discussed the failure of courts to use their fiat as a disincentive to prevent prosecutorial misconduct. It’s not like anyone seriously suggests that courts will impose meaningful sanctions against the government for misconduct, but at least affirmatively call the government out for its ironic violation of the law while prosecuting the defendant for his alleged violation of the law. Here, the court has made an active choice to relieve the prosecution, which it found to have engaged in misconduct, from any consequences, even the most trivial internal ones levied by the grocery clerks. Well, that will certainly serve to restore faith in the system and cause prosecutors everywhere to shake in their boots.
Because we don’t have enough lawyers on staff, the week I passed the bar in 2013, I began representing people facing mandatory life sentences on felony charges. In Louisiana, people with as few as two prior nonviolent felony convictions can face mandatory life imprisonment on charges as minor as possession of a syringe containing heroin residue or, until recently, possession of a single joint. Defendants who cannot afford to make bond can sit in jail for 60 days while the district attorney decides whether to arraign them. An unconstitutionally high caseload means that I often see my new clients only once in those two months. It means that I miss filing important motions, that I am unable to properly prepare for every trial, that I have serious conversations about plea bargains with my clients in open court because I did not spend enough time conducting confidential visits with them in jail. I plead some of my clients to felony convictions on the day I meet them. If I don’t follow up to make sure clients are released when they should be, they can sit in jail for unnecessary weeks and months.
Oh myyy. And a 1995 study of habeas petitions showed that in about half of petitions filed, ineffective assistance of counsel claim was raised, while prosecutorial misconduct was raised less than a third as often. As the study notes, the inmates themselves often file the petitions, suggesting a greater dissatisfaction with their own attorney than the attorney actively arguing for conviction. Talk about getting no respect at all. If an overzealous focus on conviction is the failure of prosecutors, then it appears that inattention to a defendant’s case is the public defender’s failure. Whatever the motive, it’s all misconduct.
On either side of the case, the attorney misconduct is mostly attributable to the principal-agent problem. As many of the posts, cases, and studies linked above demonstrate, the consequences for attorney misconduct is born by the principal and not the agent. Defense counsel sleeps through trial, defendant is convicted and maybe there is a retrial—or not. Or, like in Wearry’s case, the prosecutor who commits a Brady violation becomes a judge, and it falls to others to clean-up the mess.
Ultimately this is because, in both types of misconduct, it is only prejudicial conduct that usually matters. In other words, the attorney misconduct had to have been so excessively bad that a judge concludes that the outcome would have been different. And it is unlikely that the judge, particular any judge involved with the post-conviction litigation is going to find the misconduct so gross as to require a new trial.
Mostly, this is due to hindsight bias. The thinking probably goes like this:
12 jurors believed the evidence and the defendant has been found guilty, so why do this again to reach the same result? When I look at the record, I see plenty of evidence that the outcome would be the same. Plus, the other judge was there, we watched it, couldn’t have too bad. Denied.
At least for these reasons, reversal of a conviction is a bad metric to use to determine whether misconduct is a problem. On the other hand, requiring that attorneys have skin in the game, would help resolve the principal-agent problem. For example, requiring mandatory reporting as part of the case disposition would put lawyers on the hook for their own misconduct. For example, and a particularly harsh example it is, in immigration cases, Lozada requires ineffective attorneys be reported as a prerequisite for hearing a motion for re-opening. For misbehaving defense counsel, attorneys can be removed from appointed lists. Similarly, judges might have to disqualify prosecutors from hearing certain cases.
In addition, complaints can be made to the bar association that handles discipline. Both the prosecutors and defense attorneys usually know who among their numbers are bad attorneys and who has engaged in misconduct. Attorneys everywhere have stories about bad attorneys and misconduct. Why not tell it someone who can do something about it?
Yet, administrative punishment, removal from appointment lists, and removal from cases for attorney misconduct seems all too rare. Despite that rarity, we expect that when the stakes are highest, e.g. the reversal of a conviction, that will be the time that the judge ‘gets it right’ and absolves us from any individual responsibility. And all those other times without a reversal, we can blame the system and how it fails.
It’s not any one person’s problem; it’s everyone’s problem, and thus no one’s problem.