Mimesis Law
18 January 2020

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.

Although Judge Kopf may disagree, even if we accept that misconduct by prosecutors happen, it’s just the tip of the ice burg. Consider the case of the New Orleans Public Defender’s office:

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.

4 Comments on this post.

Leave a Reply



Comments for Fault Lines posts are closed here. You can leave comments for this post at the new site, faultlines.us

  • Jeff Gamso
    11 March 2016 at 9:30 am - Reply

    Let’s compare, shall we.

    Prosecutorial misconduct is cheating. It’s an agent of the state securing (or attempting to secure, but we don’t know about the cases where it fails since they don’t go up on appeal) convictions (or death sentences) by intentionally violating the duty to play fair.

    Ineffective assistance of counsel is error. Maybe it’s egregious, maybe it’s a missed argument or a failure to object – perhaps to the misconduct of the prosecutor. It’s not, except in the most unusual case, intentional or committed in an effort to obtain a result for the client.

    We can, if we’re so inclined, police cheating by denying the prosecutor the benefit – undo convictions, say. We don’t. Instead, well, you and I both practice in Ohio, so maybe the words of Ohio’s late Chief Justice Tom Moyer said (in dissent, I should note) in the capital case State v. Fears, 86 Ohio St.3d 329 (1999) (footnote omitted),

    “Time and time again this court has commented on the impropriety of a prosecutor’s argument throughout the course of a capital case. Time and time again we have given prosecutors the benefit of the doubt, declaring their conduct to be nonprejudicial in view of overwhelming evidence of guilt.

    “However, despite our best efforts to clarify the limits of acceptable advocacy, and our stern warnings to avoid such inappropriate conduct in the future, some prosecutors continue to unabashedly cross the line of vigorous but proper advocacy. In doing so, they taint the fairness of our criminal justice system.
    . . .
    “Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences. In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.

    “The majority opinion joins a long list of well-meaning and apparently ineffective admonishments to the prosecutors of this state. The majority clearly expresses its disapproval of the conduct of the prosecutors in this case, but provides no consequence or disincentive for the continuation of such conduct.
    . . .
    “Refusing to address the fundamental unfairness of a trial riddled with prosecutorial misconduct because a majority of this court deems the evidence of guilt to be overwhelming creates the perception that we protect the right to a fair trial only when we believe that the defendant is not guilty. However, our constitutional duty is to ensure that all defendants, regardless of guilt or innocence, receive a fair trial, and to ensure that a person accused is presumed innocent until the state, within the bounds of due process, satisfies its burden of proving beyond a reasonable doubt all of the elements of the charged offense, and the appropriateness of the imposed sentence.”

    Cathy Cook, one of the attorneys representing Fears, argued a similar case in the Supreme Court a couple of years later. She cited Fears and told the justices, “You’ve got to make them lose to make them learn.” They affirmed the death sentence in that case, too.

    • Andrew King
      20 March 2016 at 8:09 pm - Reply


      I would not go so far as you to say that all prosecutor misconduct is cheating. I think some cases are certainly more obvious than others. When a prosecutor obliquely comments on a defendant’s silence or suggests that the jury send a message, those are probably cases that look more like cheating. Unless it’s a young prosecutor making a mistake. In cases where the court is fairly convinced that the prosecutor was indeed cheating, I do not have a major problem in making them do it again and get a conviction squarely.

      Plus, I read this comment before writing my most recent article talking about putting the consequences for misconduct more squarely on the attorney themselves. There is a cost to re-try a case beyond a prosecutor’s time and pride, particularly when it comes to the victim. So, if you haven’t already, I invite you to read that and see if it gives you a different flavor at what I was driving at here.


      • Jeff Gamso
        20 March 2016 at 9:58 pm - Reply

        No, not everything that might be called “prosecutorial misconduct” is cheating. I was describing a category – “intentionally violating the duty to play fair.” The term “prosecutorial misconduct” is really a term of art, the language we use to describe whatever a prosecutor does wrong: intentional, serious, or neither.

        There was the day I stood up in the court of appeals and explained that I was talking about not prosecutorial misconduct as a term of art, but as a fact. The prosecutor had, during rebuttal closing argument in a murder case, lied to the jury. Everyone in the courtroom – judge, bailiff, court reporter, defense counsel, defendant, Sheriff’s deputies keeping an eye on the defendant – everyone but the jurors, knew it was a lie. (The prosecutor was telling the jury that the defendant had spent months in jail making up his self-defense story, when the prosecutor had, by motion in limine, kept out the evidence that he had told the same story within hours of the killing.) It was, as I said, an out and out lie.

        The court of appeals affirmed the conviction without addressing the lie. That same prosecutor was later caught excising evidence of a defendant’s mental health issues from discovery he provided in a capital case. If a defense lawyer was caught doing those things, he’d be suspended, maybe permanently disbarred. That prosecutor is not a common pleas judge, a perfect example of the joke: “What do you call a prosecutor who cheats?” “Your Honor.”

        Are there honest prosecutors who obey the rules, don’t push the envelope, act ethically? Sure. Just as there are defense attorneys who don’t. But you describe the folks on my side of the aisle as all being conflicted when we take on cases and either ramming deals down our clients’ throats or pushing them to senseless trials in the effort to pad our pockets. (Interesting that you find us prone both to force deals on our clients and also to prevent them from taking deals all in the spirit of self-dealing.) But prosecutors have, in fact, incentives for their own misconduct.

        Try this: The courts say defendants are not entitled to a perfect trial, just a fair one. And if the court believes that the evidence of guilt is strong enough, then the trial was fair regardless of any misconduct – petty or gross. But that’s not fairness. Yeah, punish the individual prosecutor who intentionally (or significantly by accident) engages in misconduct. But give the defendant a fair trial, too. Even if that means a do-over when the good judges of the court of appeals believe he’s guilty. There’s a combination that could provide some degree of real integrity to the system.

  • Don’t Blame the Prosecutor Because You Blew The Objection
    29 March 2016 at 9:05 am - Reply

    […] Mar. 29, 2016 (Mimesis Law) — When a criminal defense lawyer fails to abide by the professional rules and norms, it’s often either celebrated as zealous advocacy or excused as poor trial strategy. On the other hand, prosecutorial misconduct is often assigned a sinister motive. And my co-blogger, Jeff Gamso, went so far as to call it cheating: […]