A DISCUSSION OF LAW AND JOURNALISM

The Prosecutor’s Impunity: Part II

By Halina Schiffman-Shilo

In our last installment, LASIS investigated prosecutorial immunity, the legal safeguard that protects prosecutors from being sued. As we wrote, both legislation and case law protects prosecutors from lawsuits. And even the courts have opined that exposing prosecutors to civil suits is against public policy because it would hinder their abilities to vigorously prosecute criminals.

We also noted there have been some recent chinks in prosecutors’ armor against civil liability. But why haven’t those chinks turned into chasms? What else is going here?

Culture.

Prosecutorial misconduct doesn’t occur in a vacuum; it happens because there is an enabling environment that allows it to continue.

The 2010 Northern California Innocence Project Report noted that section 6068.7 of the California Business and Professions Code requires attorneys to report to the California State Bar instances when prosecutorial misconduct leads to a  judgment being reversed or modified. But, the Report noted despite the law, such cases are mostly never reported.

In 2012, the American Civil Liberties Union of New Jersey issued a report detailing prosecutorial misconduct occurring in the state. Like the Innocence Project report, the ACLU of New Jersey investigated what procedures were in place to discipline prosecutors who committed misconduct. It found that New Jersey does not have mandatory reporting to its state Bar Association; reporting such cases in the Garden State is optional, and rarely done.

When a new attorney is sworn in, he takes an oath to uphold the constitution and to adhere to the state’s code of ethics and professional responsibility. In addition, each state has its own mechanism for investigating and adjudicating charges of an attorney’s misconduct. Accusations are purportedly taken seriously and if the review board finds that an attorney engaged in unethical activity, the board may sanction the attorney through fines, or suspend the attorney’s license for a period of time. In extreme cases, an attorney can even be permanently disbarred for her misconduct.

In a 1997 Massachusetts case, an attorney was disbarred indefinitely for commingling his own funds with those of his client.  In a 2013 Ohio Supreme Court case, in which an attorney used his client’s bank account to pay for personal expenses, the attorney’s license was suspended for two years (though if he completed continuing legal education courses, the suspension would be reduced by half).

Yet, as the ACLU New Jersey found and reported, during the years of the study not a single prosecutor was disciplined for misconduct. In California, only six prosecutors were disciplined for misconduct during the 12 years the report covered.

So, what lessons have we learned?

Commingle your personal funds with that of your client and you can be indefinitely suspended from practicing law. Send an innocent man to prison, not even a slap on the wrist.

But perhaps something’s changing. Not the law, but something even more powerful.

It’s the culture that’s changing, and forcing change.

In the notorious 2006 Duke University lacrosse rape case, (former) prosecutor Mike Nifong was sentenced to one night in prison for criminal contempt and was also disbarred for, among others things, lying about having DNA evidence which was used to prosecute the players.

More recently, six-term Brooklyn District Attorney Charles Hynes lost his bid for re-election in the Democratic primary (though that hasn’t stopped him from running as a Republican). As we’ve previously reported, his office has been plagued by complaints of prosecutorial misconduct, from the wrongful conviction of Jabbar Collins, to the more recent accusations of prosecutorial misconduct surrounding cases investigated by veteran Brooklyn Detective Louis Scarcella.

Though we don’t know for sure what stopped voters from supporting Mr. Hynes, it’s probably safe to say that the accusations didn’t help.

And that’s the thing about culture: it can change. If enough people take action and make their voices heard, whether it be through votes at the ballot, or protests at the courthouse, public pressure during the high profile cases can percolate down to have an impact in low profile, or even no profile, cases.

Prosecutorial misconduct is not going to stop on its own. But if enough people tune in to these issues and start demanding change, the culture will shift.

Mahatma Gandhi said, “A nation’s culture resides in the hearts and in the soul of its people.” Maybe it’s time for the people to speak up.

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