Today's New York Times Week in Review section features an article on local prosecutors and how their ethical misconduct is dealt with by the lawyer discipline system, the profession's disciplinary system.
The case of the Duke lacrosse prosecutor, Michael B. Nifong, is, of course, the occasion for this article. Mr. Nifong was disbarred for withholding evidence from the defense and misleading the court.
Sanctions for prosecutorial misconduct are rare. But the question is, Why? Is it that there is so little prosecutorial misconduct, as many district attorneys insist? Or is it that prosecutorial misconduct does not lead to sanctions, especially the most serious sanction, disbarment.
Former prosecutor Bennett L. Gershman, author of Prosecutorial Misconduct, is quoted as saying, 'a prosecutor's violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by the courts, and almost never by disciplinary bodies.'
According to the Times article, the Chicago Tribune analyzed 381 murder cases in which the defendant received a new trial because of prosecutorial misconduct. None of the prosecutors in these cases were convicted of a crime or disbarred.
According to law professor Samuel R. Gross, there have been about 120 death-row exonerations since 1976. 'I don't know of a single case of discipline against a prosecutor who engaged in misconduct that produced a wrongful conviction and death sentence, and many of the cases involve serious misconduct.'
What was different about the Nifong case? First of all, the national publicity. But more important was Nifong's confession of intentional wrongdoing. It is extremely difficult to prove intentional wrongdoing. Therefore, almost any prosecutor who argues that his or her act was the product of carelessness or oversight will not be disciplined, or will get nothing but a reprimand. Nifong owned up to what he did, and paid for it.
If this is what happens when people's lives are at risk, you can imagine what happens when only money and reputations are at risk. In my experience, municipal attorneys do not seem to feel any pressure to hold back from acting in unethical ways, such as misrepresenting laws and falsely impugning people's reputations.
Municipal attorneys are a keystone of municipal ethics program. In many cases, they write and interpret ethics laws, are involved in ethics training, and act as important ethical role models.
It appears that the lawyer discipline system is a serious weakness in municipal ethics programs. I intend to do more research on the disciplinary response to ethical misconduct on the part of municipal attorneys, and related issues, and I would very much like to hear from municipal attorneys and others about this issue.
A Miscellany
How Much of a Company Must an Official Own Before There Is a Conflict of Interest? - A Story from Missouri
Legislative Immunity: The Constitutional Approach in R.I. and the Discipline Clause
Two Explanations of Why Ethics Laws Provide Only Minimum Standards
The Conflicts of Local Government Employees Running for or Holding Elective Office