ABA Section of Litigation Annual Conference, April 16 – 18,
2008:
Crossing the Line: Responding to Prosecutorial
Misconduct
Crossing the Line: Responding to Prosecutorial Misconduct
INTRODUCTION
Among lawyers, a prosecutor is in a unique position. Normally a
lawyer is free to—indeed, expected
to—zealously advocate on behalf of his or her client. Prosecutors,
however, are not simply advocates
for the government. They are also ministers of justice whose aim is
not to “win a case, but that justice
shall be done.” Berger v. United States, 295 U.S. 78, 88
(1935). As such, “[i]t is as much his duty to
refrain from improper methods calculated to produce a wrongful
conviction as it is to use every
legitimate means to bring about a just one.” Id.; see
generally Bennett L. Gershman, The Prosecutor’s
Duty to Truth, 14 Geo. J. Legal Ethics 309 (2001).
By now, the actions of Michael Nifong, the former District Attorney
of Durham County, North
Carolina, that led to his disbarment are well known. See
generally Robert P. Mosteller, The Duke
Lacrosse Case, Innocence, and False Identifications: A
Fundamental Failure to “Do Justice”, 76
Fordham L. Rev. 1337 (2007). Some argue that the situation
involving Nifong is an isolated case. Yet
prosecutorial overreaching has been an issue well before this
headline-grabbing case came along.
A recent report issued by the California Commission on the Fair
Administration of Justice referred to a
study that reviewed 2,130 California appellate cases in which a
claim of prosecutorial misconduct was
raised. Cal. Comm’n on the Fair Admin. of Justice, Report and
Recommendations on Professional
Responsibility and Accountability of Prosecutors and Defense
Lawyers (2007), available at
http://www.ccfaj.org/documents/reports/prosecutorial/official/official
report on reporting
misconduct.pdf. Of those 2,130 cases, 443 resulted in findings that
prosecutorial misconduct actually
occurred. In 53 of the 443 cases, a reversal of conviction was the
result—the rest concluding that the
misconduct was harmless error. Perhaps the most disturbing
statistic is that a follow-up study looking
at half of the cases resulting in a reversed conviction concluded
that the prosecutor was not referred to
the California State Bar for discipline, which is required under
California law. If there is a positive
aspect to the Duke Lacrosse saga, it is that Nifong’s actions and
ultimate disbarment have served to
highlight the important issue of prosecutorial misconduct and the
need for effective remedies.
Few would claim that any prosecutor intentionally sets out to seek
the conviction of an innocent
person. Rather, it is argued that prosecutorial misconduct
stems from a “win at all cost” mentality
underlying the desire to further a career, or a firm belief in the
defendant’s guilt notwithstanding
admissible evidence. See Joseph F. Lawless, Prosecutorial
Misconduct § 1:06, at 1-15 (3d ed. 2003).
Regardless of the causes, the effects of prosecutorial misconduct
are distressing. Two different studies
of persons exonerated by DNA evidence have shown that prosecutorial
misconduct played a role in
convicting an innocent person nearly half of the time. See Peter A.
Joy, The Relationship Between
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2008:
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Prosecutorial Misconduct and Wrongful Convictions: Shaping
Remedies for a Broken System, 2006
Wis. L. Rev. 399, 403 (2006). Moreover, assuming that the defendant
is factually culpable, a
conviction secured through the improper actions of a prosecutor
could be unconstitutional and, thus,
subject to reversal. The result is that the innocent are convicted
and the guilty go free, which can only
exacerbate the public’s loss of trust in the integrity of the
criminal justice system.
PROSECUTORIAL GUIDELINES
In performing their duties to seek justice, prosecutors are bound
by constitutional standards, case law
governing trial conduct, and various ethics rules and standards
pertaining to the prosecutorial function.
Rule 3.8 of the ABA Model Rules of Professional Conduct (“Model
Rules”) specifically covers the
actions and responsibilities of prosecutors. All state
jurisdictions have an ethics rule imposing special
responsibilities on prosecutors, most based on Model Rule 3.8.
Prosecutors are also guided by
standards found in the ABA Standards for Criminal Justice
Prosecution Function and Defense
Function (3d ed. 1993) (“ABA Standards”) and the
National District Attorneys Association
Prosecution Standards (2d ed. 1991) (“NDAA Standards”).
In assessing the conduct of prosecutors,
courts have oftentimes looked to the ABA Standards for guidance.
See, e.g., Miller v. North Carolina,
583 F.2d 701, 706 n.6 (4th Cir. 1978).
For years, the U.S. Department of Justice (“DOJ”) took the position
that Assistant United States
Attorneys (“AUSAs”) were exempt from state ethics rules. The McDade
Amendment in 1999 laid to
rest this argument. The amendment, attached as a rider to an
appropriations bill, provides:
An attorney for the Government shall be subject to State laws
and rules, and local
Federal court rules, governing attorneys in each State where
such attorney engages
in that attorney’s duties, to the same extent and in the same
manner as other
attorneys in that State.
28 U.S.C. § 530B(a). The Professional Responsibility Advisory
Office within the DOJ provides
advice to AUSAs regarding ethical issues and choice-of-law
matters.
EXAMPLES OF PROSECUTORIAL MISCONDUCT
“Like the Hydra slain by Hercules, prosecutorial misconduct has
many heads.” United States v.
Williams, 504 U.S. 36, 60 (1992) (Stevens, J., dissenting);
see also Joy, supra, at 402 (listing
numerous forms of prosecutorial misconduct). This article focuses
on five categories: (1) suppression
of evidence, (2) misuse of the media, (3) misconduct involving
witnesses, (4) investigative
misconduct, and (5) trial misconduct. Any specific act of
prosecutorial misconduct may fall into more
than one category. For example, knowingly presenting perjured
testimony would be misconduct
involving a witness, as well as a violation of the duty to disclose
exculpatory evidence.
Suppression of Evidence
[V]iolations of Brady are the most recurring and pervasive of
all constitutional
procedural violations, with disastrous consequences: innocent
people are wrongfully
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convicted; the reputation of U.S. prosecutors suffer; and the
absence of meaningful
legal and ethical enforcement and accountability has a corrosive
effect on the
public’s perception of a justice system that often appears to
be arbitrary, unjust, and
simply unreliable.
Bennett L. Gershman, Litigating Brady v. Maryland: Games
Prosecutors Play, 57 Case W. Res. L.
Rev. 13, 15 (2007) [hereinafter
Gershman, Litigating ].
The key holding of Brady v. Maryland is that “the
suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the
evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.” 373 U.S. 83, 87
(1963). Arguably, because a Brady violation may occur even
when the prosecutor acts in good faith,
the term “prosecutorial misconduct” in the suppression of evidence
context should be used only when
the prosecutor intentionally withholds exculpatory material.
In United States v. Agurs, the Supreme Court explained that a
prosecutor has a “constitutional duty of
disclosure” when he or she is in possession of evidence that would
deny a defendant a fair trial if that
evidence were not disclosed. See 427 U.S. 97, 108 (1976). The Court
has stressed that because a
prosecutor is in a different position to determine the
materiality of a piece of evidence than is an
appellate court, “the prudent prosecutor will resolve doubtful
questions in favor of disclosure.” Id.
The Supreme Court has clarified that the constitutional requirement
that a prosecutor disclose
evidence that is favorable and material exists regardless of
whether the defendant makes a request for
a specific piece of evidence, a general request for favorable
evidence, or no request at all. United
States v. Bagley, 473 U.S. 667, 682 (1985). When considering the
issue retrospectively, appellate
courts conclude that the duty existed when “there is a reasonable
probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine
confidence in the outcome.” Id. Moreover, a
“prosecutor has a duty to learn of any favorable evidence known to
the others acting on the
government’s behalf in the case, including the police.” Kyles
v. Whitley, 514 U.S. 419, 437 (1995).
Finally, there is no constitutional significance between
impeachment evidence and evidence that is
directly exculpatory. The key to a Brady violation is the
materiality of the withheld evidence. See
Bagley, 473 U.S. at 676–78.
Ethical rules require more than the constitutional minimum of
Brady. Although the NDAA Standards
seem to require only slightly more than the constitutional minimum,
see NDAA Standard 25.4 (“The
prosecutor should disclose the existence or nature of
exculpatory evidence pertinent to the defense.”),
the Model Rules and ABA Standards go further. Model Rule 3.8(d)
provides that a prosecutor must:
make timely disclosure to the defense of all evidence or
information known to the
prosecutor that tends to negate the guilt of the accused or
mitigates the offense, and,
in connection with sentencing, disclose to the defense and to the
tribunal all
unprivileged mitigating information known to the prosecutor, except
when the
prosecutor is relieved of this responsibility by a protective
order of the tribunal.
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Likewise ABA Standard 3-3.11(a) provides:
A prosecutor should not intentionally fail to make timely
disclosure to the defense, at
the earliest feasible opportunity, of the existence of all evidence
or information which
tends to negate the guilt of the accused or mitigate the offense
charged or which
would tend to reduce the punishment of the accused.
The commentary to ABA Standard 3-3.11 notes that this provision “is
virtually identical to that
imposed by ABA model ethical codes, [and] goes beyond the corollary
duty imposed upon prosecutors
by constitutional law.” (Footnote omitted.) See also Kyles,
514 U.S. at 437 (noting that Brady
“requires less of the prosecution than the ABA Standards for
Criminal Justice, which call generally for
prosecutorial disclosures of any evidence tending to
exculpate or mitigate”). Finally, ABA Standard 3-
3.11(c) warns that “[a] prosecutor should not intentionally avoid
pursuit of evidence because he or she
believes it will damage the prosecution’s case or aid the
accused.”
Nifong suppressed exculpatory evidence when he did not tell
the defense team that DNA from
numerous males, none of it from any of the lacrosse players, was
found in items obtained from the
complainant during her medical examination. This evidence was
inconsistent with the complainant’s
allegations that she was raped by several of the team members. It
also contradicted her claims that she
had not had sex with anyone in over a week prior to the alleged
incident. See generally Stuart Taylor,
Jr. & KC Johnson, Until Proven
Innocent (2007).
One of the most egregious cases of a prosecutor failing to disclose
impeachment evidence occurred in
the small town of Tulia, Texas. In 1999, 38 people (36 of them
black) were arrested on drug charges
and later convicted. The only evidence used to secure their
convictions was the uncorroborated
testimony of one undercover officer with severe credibility
problems. At a hearing several years later,
a judge determined that the prosecutor had failed to turn over
evidence impeaching the officer’s
credibility, and stood silent when he knew the officer was
committing perjury. All of the defendants
were either pardoned or had their convictions overturned. See Laura
Parker, Court Cases Raise
Conduct Concerns, USA Today, June 26, 2003, at 3A. A more thorough
discussion of how
prosecutors may evade their responsibility to disclose
exculpatory evidence may be found in
Gershman, Litigating , supra.
Misuse of the Media
Ethical rules prohibit all lawyers involved in litigation or
investigations from making statements to the
media that would prejudice the matter. Model Rule 3.6(a)
provides:
A lawyer who is participating or has participated in the
investigation or litigation of
a matter shall not make an extrajudicial statement that the lawyer
knows or
reasonably should know will be disseminated by means of public
communication and
will have a substantial likelihood of materially prejudicing an
adjudicative
proceeding in the matter.
Model Rule 3.8(f), which applies specifically to prosecutors and is
meant to protect a defendant’s
Sixth Amendment right to a fair trial, is worded similarly to Model
Rule 3.6(a). It also imposes a duty
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on a prosecutor to take reasonable steps to prevent the entire
prosecutorial team from making
prejudicial statements:
[E]xcept for statements that are necessary to inform the public of
the nature and
extent of the prosecutor’s action and that serve a legitimate law
enforcement
purpose, [a prosecutor shall] refrain from making
extrajudicial comments that have
a substantial likelihood of heightening public condemnation of the
accused and
exercise reasonable care to prevent investigators, law enforcement
personnel,
employees or other persons assisting or associated with the
prosecutor in a criminal
case from making an extrajudicial statement that the prosecutor
would be prohibited
from making under Rule 3.6 or this Rule.
Standard 3-1.4 of the ABA Standards is basically an amalgam of
Model Rules 3.6(a) and 3.8(f). The
full text of Standard 3-1.4 follows:
(a) A prosecutor should not make or authorize the making of an
extrajudicial
statement that a reasonable person would expect to be
disseminated by means of
public communication if the prosecutor knows or reasonably
should know that it will
have a substantial likelihood of prejudicing a criminal
proceeding.
(b) A prosecutor should exercise reasonable care to prevent
investigators, law
enforcement personnel, employees, or other persons assisting or
associated with the
prosecutor from making an extrajudicial statement that the
prosecutor would be
prohibited from making under this Standard.
The DOJ has promulgated regulations governing the release of
information in criminal cases. 28
C.F.R. § 50.2(a)–(b). The regulations provide that very general
information about the defendant,
charging instrument, investigating agency, and circumstances of
arrest may be released. § 50.2(b)(3).
Importantly, “[d]isclosures should include only incontrovertible,
factual matters, and should not
include subjective observations.” § 50.2(b)(3)(iv). The regulations
clearly prohibit dissemination of
“any information concerning a defendant’s prior criminal record,” §
50.2(b)(4), and also list numerous
types of information or opinions that a prosecutor “should refrain
from making available.” §
50.2(b)(6). The United States Attorney Manual (“USAM”) contains
guidelines to implement the
regulations, but cautions that they “do not create any rights
enforceable in law or otherwise in any
party.” USAM § 1-7.001.
Improper extra-judicial statements include: releasing grand jury
material, commenting on the bad
character of a defendant, referring to the crime as heinous or
reprehensible, disclosing a defendant’s
confession, disclosing a defendant’s criminal record, discussing
trial strategy, opining on the
defendant’s guilt, claiming that the government’s case is strong,
and commenting on the defendant’s
lack of cooperation. See Bennett L. Gershman, Prosecutorial
Misconduct §§ 6:3–:10 (2d ed. 2007)
[hereinafter Gershman, Misconduct ]. But see 28
C.F.R. § 50.2(b)(6) (providing that a prosecutor
“should refrain” from giving an opinion as to the defendant’s guilt
and referring to the defendant’s
character or confession).
ABA Section of Litigation Annual Conference, April 16 – 18,
2008:
Crossing the Line: Responding to Prosecutorial
Misconduct
The Disciplinary Hearing Commission of the North Carolina State Bar
determined that Nifong had
violated Rule 3.6(a) and 3.8(f) of North Carolina’s Revised Rules
of Professional Conduct on at least
30 different occasions. A small sampling of the statements
include:
“[O]ne would wonder why one needs an attorney if one was not
charged and had not done anything
wrong.”
“The contempt that was shown for the victim, based on her race was
totally abhorrent. It adds
another layer of reprehensibleness to a crime that is already
reprehensible.”
“I would not be surprised if condoms were used. Probably an exotic
dancer would not be your first
choice for unprotected sex.”
“I’m not going to let Durham’s view in the minds of the world to be
a bunch of lacrosse players
from Duke raping a black girl in Durham.”
“What happened here was one of the worst things that’s happened
since I have become district
attorney.”
“They don’t want to admit the enormity of what they have
done.”
Nat’l Org. of Bar Counsel, Case of the Month (June 2007),
http://www.nobc.org/cases/0607.asp.
Nifong’s numerous statements inflamed the public, the pool
from which the jury would have been
drawn had the case gone to trial.
Misconduct Involving Witnesses
It should go without saying that a prosecutor acts unethically when
he or she suborns perjury. Such
conduct undermines the integrity of our adversarial system and, at
a minimum, violates Model Rule
3.3(a)(3), which prohibits any lawyer from knowingly offering false
evidence. Similar to the Model
Rule, ABA Standard 3-5.6(a) succinctly states: “A prosecutor should
not knowingly offer false
evidence, whether by documents, tangible evidence, or the testimony
of witnesses, or fail to seek
withdrawal thereof upon discovery of its falsity.”
Beyond the ethics of presenting perjured testimony, the knowing use
of such testimony “involve[s] a
corruption of the truth-seeking function of the trial process.”
Agurs, 427 U.S. at 104. “[A] conviction
obtained by the knowing use of perjured testimony is fundamentally
unfair, and must be set aside if
there is any reasonable likelihood that the false testimony
could have affected the judgment of the
jury.” Id. at 103 (emphases added) (footnote omitted).
This rule equally applies when a prosecutor,
“although not soliciting false evidence, allows it to go
uncorrected when it appears,” even when the
uncorrected testimony goes to the credibility of the witness.
Napue v. Illinois, 360 U.S. 264, 269
(1959).
In addition to the Tulia case discussed above, another well-known
case of a prosecutor using perjured
testimony in order to obtain a conviction occurred in the Detroit
“Sleeper Cell” terrorism trial.
Although the case was riddled with various forms of prosecutorial
misconduct, perjury played a key
role.
Central to the prosecution’s case in United States v. Koubriti, No.
01-80778 (E.D. Mich.), was a sketch
recovered from the defendants’ apartment containing the words
“Queen Alia” and “Hashemite
Kingdom of Jordan” written in Arabic. Indictment, United States v.
Convertino, No.06-cr-20173, at 3
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(E.D. Mich. Mar. 29, 2006). The government presented testimony
through a Department of State
Special Agent that he had traveled to the Queen Alia Military
Hospital in Jordan and concluded that
the sketch was almost an exact representation of the facility.
Among the agent’s assertions was that a
“very large dead tree” corresponded with a marking on the sketch
and provided certainty that the
drawing depicted the hospital. See Bennett L. Gershman, How
Juries Get It Wrong—Anatomy of the
Detroit Terror Case, 44 Washburn L.J. 327, 332–33 (2005).
Both on direct and on cross, the agent
claimed that he had not taken any photographs of the facility
because of security restrictions.
According to the DOJ, however, the truth was that the agent had
taken numerous aerial photographs of
the facility at the request of the prosecutor, Richard Convertino.
Although it appears Convertino never
received these specific photographs taken, he did obtain
photographs of the Queen Alia Military
Hospital taken by the agent’s replacement. Not only did Convertino
elicit perjury from the agent
during his direct testimony (and allow it to stand during
cross-examination), Convertino never
disclosed to the defense the photographs he eventually did receive.
Indictment, United States v.
Convertino, No.06-cr-20173, at 3–4. In an unprecedented case, the
DOJ’s Public Integrity Section
charged and tried Smith and Convertino with obstruction of justice,
perjury, and conspiracy. Id. Both
were acquitted.
Witness coaching can also be a form of prosecutorial misconduct.
See generally Bennett L.
Gershman, Witness Coaching by Prosecutors, 23 Cardozo L. Rev. 829
(2002). Although witness
coaching has received scant attention from courts, a recent case
may cause jurists to more closely
scrutinize this issue. A Virginia lawyer, Leslie Smith, represented
William Jones, the co-defendant of
Daryl Atkins. Based on Jones’s testimony, Atkins received the
sentence of death for the murder of
Eric Nesbitt. Atkins’s case went all the way to the Supreme Court,
where the Court ruled that the U.S.
Constitution bars the execution of those with mental retardation.
See Atkins v. Virginia, 536 U.S. 304
(2002). As of early 2008, however, Virginia was still trying to put
Atkins to death, arguing that Atkins
was not mentally retarded.
Recently, Smith came forward and revealed that in 1997 prosecutors
had coached his client, William
Jones, into providing testimony that more closely aligned with
their theory that Atkins, and not Jones,
was the triggerman. Soon after the coaching had occurred, Smith
went to the Virginia State Bar’s
ethics counsel, but was told that he could not disclose information
about the coaching since it would
be detrimental to his client. Approximately ten years later,
Smith finally came forward after getting
the green light from the Virginia State Bar because Jones’s case is
now final. Because of Smith’s
account, a court in January 2008 commuted Atkins’s death sentence
to life imprisonment. See Adam
Liptak, Lawyer Reveals Secret, Toppling Death Sentence, N.Y.
Times, Jan. 19, 2008, at A1.
Investigative Misconduct
Pressure to solve a crime might lead a prosecutor to get intimately
involved in the pre-trial
investigation of a matter. See ABA Standard 3-3.1 (“[T]he
prosecutor has an affirmative responsibility
to investigate suspected illegal activity when it is not adequately
dealt with by other agencies.”).
Although the line between investigating a crime and prosecuting a
crime can be fuzzy, suffice it to say
that a prosecutor acts in an investigative capacity when gathering
facts such as staging an undercover
operation or engaging in wiretapping. See generally Gershman,
Misconduct , supra, § 1.
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Nifong committed investigative misconduct in devising the
photo array that led to the arrest of the
three lacrosse players. The accuser in the case, Crystal Mangum,
had been shown two photo arrays—
one on March 16, 2006 and another on March 21, 2006—that did not
contain any “fillers.” Every
single picture, 36 in total, that Mangum looked at was a lacrosse
player. Mangum was unable to
identify any of her alleged attackers. Then, on March 31, 2006,
Nifong suggested to the police that
Mangum be shown photographs of all 46 white members of the team at
the same time. See Mosteller,
supra, at 1398. During this procedure, which occurred on
April 4, 2006, Mangum, at the direction of
Nifong, was told that the police had reason to believe that
all of the men she was looking at were at
the party where she was allegedly raped. Again, the array contained
no “fillers.” In essence, Mangum
was told that she could not make a wrong choice. It was at this
time that Mangum identified the
players who were later charged. The direct consequence of
this investigative misconduct was the
indictment of three innocent people.
Trial Misconduct
Prosecutorial misconduct during the course of trial covers a broad
spectrum. For example, a
prosecutor may improperly: introduce evidence, assassinate
the character of a defendant, refer to the
fact that a defendant did not talk to the police or take the stand
in his or her defense, make
inflammatory statements during closing argument, or attempt to
bolster the credibility of a prosecution
witness. See generally, Lawless, supra, §§ 9–10; Gershman,
Misconduct , supra, §§ 10–11.
ABA Standard 3-5.8 and NDAA Standard 85.1 govern the scope of
closing arguments. The NDAA
Standard simply states: “Closing arguments should be characterized
by fairness, accuracy, rationality,
and a reliance upon the evidence or reasonable inferences drawn
therefrom.” NDAA Standard 85.1.
The ABA Standard goes further and specifically states that a
prosecutor should not express his or her
personal belief as to the veracity of any evidence or guilt
of the defendant. The ABA Standard also
provides that a prosecutor should not appeal to the
prejudices of the jury. See ABA Standard 3-5.8(b)–
(c).
Case law is filled with innumerable instances of improper trial
conduct—most of which is deemed
harmless. One prosecutor who repeatedly went over the line
according to appellate courts is Robert
H. Macy, the former District Attorney of Oklahoma County, Oklahoma.
See Ken Armstrong,
“Cowboy Bob” Ropes Wins—But at Considerable Cost , Chi. Trib.,
Jan. 10, 1999, at 13. Called a “true
patriot” by former Attorney General William Barr and honored
as “America’s prosecutor” by the
Oklahoma Senate upon his retirement in 2001, Macy left behind a
string of cases commenting
unfavorably on his trial conduct. Paxton v. Ward , 199
F.3d 1197 (10th Cir. 1999); Washington v. State,
989 P.2d 960 (Okla. Crim. App. 1999); Ochoa v. State, 963 P.2d 583
(Okla. Crim. App. 1998); Torres
v. State, 962 P.2d 3 (Okla. Crim. App. 1998); Le v. State,
947 P.2d 535 (Okla. Crim. App. 1997);
Duckett v. State, 919 P.2d 7 (Okla. Crim. App. 1995);
Robinson v. State, 900 P.2d 389 (Okla. Crim.
App. 1995); Hawkins v. State, 891 P.2d 586 (Okla. Crim. App.
1995); Hooker v. State, 887 P.2d 1351
(Okla. Crim. App. 1994); Howell v. State, 882 P.2d 1086 (Okla.
Crim. App. 1994); McCarty v. State,
765 P.2d 1215 (Okla. Crim. App. 1985); Cantrell v. State, 697 P.2d
968 (Okla. Crim. App. 1985)
(Parks, J., dissenting). The rebukes seem not to have had any
effect on his conduct.
The introduction of misleading (or patently false) forensic
evidence has been publicized recently. As
Professor Gershman discusses in a law review article, “[t]he
records of contemporary criminal trials
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are replete with instances of so-called ‘junk science’ finding its
way into courtrooms, and championed
by prosecutors to win convictions.” Bennett L. Gershman,
Misuse of Scientific Evidence by
Prosecutors, 28 Okla. City U. L. Rev. 17, 30 (2003). Examples
include tendering evidence of sloppy
or outright faulty lab work of otherwise reliable forensic tests,
or the presentation of “scientific”
evidence of dubious quality such as bite-mark and hair analysis.
See id. One example of faulty
forensic evidence is the FBI’s use of “compative-bullet lead
analysis.” The procedure supposedly
allowed the FBI to match fired bullets found at a crime scene with
unfired bullets in the possession of
a suspect. The FBI used the procedure for decades, but stopped
doing so in 2005 after finally
acknowledging that the technique is unreliable and misleading. It
is estimated that comparative bullet-
lead analysis played a role in convicting over 2,500 people.
See John Solomon, FBI’s Forensic Test
Full of Holes, Wash. Post, Nov. 18, 2007, at A1.
REMEDIES
To date, prosecutorial misconduct—even the most egregious—has
largely gone unchecked. See
Gershman, Misconduct , supra, at vi (“Relatively few
judicial or constitutional sanctions exist to
penalize or deter misconduct; the available sanctions are
sparingly used and even when used have not
proved effective.”). In January 1999, the Chicago
Tribune published a five-part series titled: Trial &
Error: How Prosecutors Sacrifice Justice to Win. Analyzing
thousands of cases, the newspaper found
that since 1963 at least 381 defendants had their convictions
reversed either because prosecutors
suppressed exculpatory evidence or suborned perjury. Alarmingly, of
those 381 cases, “not one of
those prosecutors was convicted of a crime. Not one was barred from
practicing law. Instead, many
saw their careers advance, becoming judges or district attorneys.
One became a congressman.” Ken
Armstrong & Maurice Possley, The Verdict: Dishonor , Chi.
Trib., Jan. 10, 1999, at 1.
Criminal Prosecutions
The criminal prosecution of a prosecutor is extremely rare.
According to the Chicago Tribune series,
“[f]ew prosecutors nationally have been indicted, and they were
acquitted or, at worst, convicted of a
misdemeanor and fined.” Ken Armstrong & Maurice
Possley, Break Rules, Be Promoted , Chi. Trib.,
Jan. 14, 1999, at 1 [hereinafter Armstrong & Possley,
Break Rules]. This statistic seems not to have
changed in the last nine years. Subsequent to the
Tribune series, two separate cases were brought
against prosecutors for acts committed in their official capacity;
neither resulted in convictions.
The first occurred in mid-1999—a case in which three former
Illinois state prosecutors were charged
with conspiring to frame a man by the name of Rolando Cruz for
murder. Cruz spent nearly 10 years
on Death Row before it became clear that the prosecution had
suppressed evidence that another person
had committed the crime and that prosecutors had conspired with
police officers to introduce a “dream
statement” of Cruz’s into evidence at his original trial and two
re-trials. A judge dismissed charges
against two of the prosecutors for insufficient evidence. (One
later became an Illinois judge—the
other, an AUSA.) A jury acquitted the third after a 28-day trial.
See Andrew Bluth, Prosecutor and 4
Sheriff’s Deputies Are Acquitted of Wrongfully Accusing a Man of
Murder , N.Y. Times, June 5, 1999,
at A9.
ABA Section of Litigation Annual Conference, April 16 – 18,
2008:
Crossing the Line: Responding to Prosecutorial
Misconduct
The second such prosecution of a prosecutor is the Convertino case
discussed above. Convertino led
the U.S. government’s case in convicting two men on
terrorism-related charges in 2003. Then-
Attorney General John Ashcroft asserted that the convictions sent a
“clear message” that the DOJ
would “work diligently to detect, disrupt and dismantle the
activities of terrorist cells in the United
States and abroad.” Danny Hakim, U.S. Asks for Dismissal of
Terrorism Convictions, N.Y. Times,
Sept. 1, 2004, at A17. A little over a year later, however, the
federal government asked the court to
throw out the convictions due, in part, to prosecutorial misconduct
committed by the lead prosecutor,
Richard Convertino.
The DOJ’s Public Integrity Section eventually charged Richard
Convertino with perjury, obstruction
of justice, and conspiracy in what may be the only time that the
DOJ has ever charged an AUSA for
acts committed in his or her official capacity. Convertino was
acquitted by a jury in October 2007 and
is now seeking reimbursement for attorney fees, alleging that the
government’s prosecution of him
was vexatious, frivolous or in bad faith. Ironically, Convertino is
in essence asserting that the
prosecution against him was itself an act of prosecutorial
misconduct.
Disciplinary Actions
Each state bar has a mechanism in place for the discipline of
misconduct by attorneys licensed in that
state. Separately, federal courts may discipline attorneys who
appear before them, which may result in
the suspension or disbarment of attorneys from that particular
court. See, e.g., In re Kramer , 282 F.3d
721 (9th Cir. 2002). Further, the DOJ’s Office of Professional
Responsibility (“OPR”) has
responsibility for investigating allegations of misconduct
committed by AUSAs. It appears that these
procedures are rarely effective in dealing with prosecutorial
misconduct.
The disciplinary action against Nifong is unusual in that not only
did it result in disbarment, but
because it was initiated while charges against the Duke
students were still pending. Recently, the
Center for Public Integrity conducted a study that found only 44
instances of disciplinary actions
against prosecutors since 1970. Of those 44:
in 7, the court dismissed the complaint or did not impose
punishment;
in 3, the court remanded the case for further proceedings;
in 24, the court assessed the costs of the proceedings against the
prosecutor;
in 20, the court imposed a public or private reprimand or
censure;
in 1, the prosecutor was placed on probation;
in 12, the prosecutor’s license was suspended;
in 2, the prosecutor was disbarred.
Neil Gordon, Misconduct and Punishment: State Disciplinary
Authorities Investigate Prosecutors
Accused of Misconduct (2007),
http://www.publicintegrity.org/pm/default.aspx?act=sidebarsb&aid
=39; see generally Steve Weinberg et al., Ctr. for Pub.
Integrity, Harmful Error: Investigating
America’s Local Prosecutors (2003). A follow-up to the
Tulia case discussed above revealed that the
prosecutor, whose subornation of perjury and Brady
violations led to the wrongful convictions of
scores of people, received two years of probation. See Disciplinary
Actions, 68 Tex. B.J. 753, 758
(2005).
10
067
ABA Section of Litigation Annual Conference, April 16 – 18,
2008:
Crossing the Line: Responding to Prosecutorial
Misconduct
The OPR has the authority to determine whether an AUSA committed
“professional misconduct in the
exercise of his or her authority to investigate, litigate or
provide legal advice.” U.S. Dep’t of Justice
Office of Prof’l Responsibility, Analytical
Framework (rev. 2005), available at
http://www.usdoj.gov/opr/framework.pdf. Professional misconduct is
defined as the intentional or
reckless disregard “of an obligation or standard imposed by law,
applicable rule of professional
conduct, or Department regulation or policy.” Id. If
the OPR determines that an AUSA committed
professional misconduct, it recommends a certain sanction to
the attorney’s supervisor. Available
sanctions range from a written reprimand to removal. The OPR may
also refer the matter to the bar
disciplinary authority in the jurisdiction in which the attorney is
licensed. See U.S. Dep’t of Justice
Office of Prof’l Responsibility, Policies & Procedures,
available at http://www.usdoj.gov/opr/
polandproc.htm.
In 2001, a General Accounting Office report concluded that the OPR
was ineffective in dealing with
prosecutorial misconduct. See News Advisory, U.S. House
of Representatives, Committee on the
Judiciary, GAO Report Finds Significant Problems with Justice
Department’s Office of Professional
Responsibility (Feb. 20, 2001), available at
http://www.judiciary.house.gov/legacy/news0220.htm. A
recent highly-publicized case illustrates the problem.
Chief Judge Mark Wolf of the U.S. District Court, District of
Massachusetts found “extraordinary
misconduct by the Department of Justice in its investigation and
prosecution of members of the
Patriarca Family of La Cosa Nostra.” Ferrara v. United
States, 384 F. Supp. 2d 384, 387 (D. Mass.
2005), aff’d , 456 F.3d 278 (1st Cir. 2006). Chief Judge Wolf
found that AUSA “Jeffrey Auerhahn,
violated [his] clearly established constitutional duty to disclose
. . . before trial, important exculpatory
information that directly negated [Vincent Ferrara’s and Pasquale
Barone’s] guilt on” murder charges.
Id. The suppression of the evidence was intentional according
to Chief Judge Wolf. See id. at 393–
98. The First Circuit agreed, stating: “[T]he government’s actions
in this case . . . paint a grim picture
of blatant misconduct. The record virtually compels the conclusion
that this feckless course of
conduct . . . constituted a deliberate and serious breach of its
promise to provide exculpatory
evidence.” Ferrara v. United States, 456 F.3d 278, 293 (1st
Cir. 2006) (footnote omitted).
The OPR investigated Auerhahn and concluded that he had acted in
reckless disregard of his duty to
disclose exculpatory evidence. The sanction was a private written
reprimand. Not satisfied, Chief
Judge Wolf initiated his own disciplinary action against Auerhahn
and wrote then-Attorney General
Alberto Gonzales a letter on June 29, 2007 criticizing the OPR.
Associate Deputy Attorney General
David Margolis replied by letter to Chief Judge Wolf, asserting
that “the discipline imposed by the
Department was consistent with, correlated to, and proportional
with the findings that resulted from
OPR’s investigation.” Letter from David Margolis to The Honorable
Mark L. Wolf (Oct. 2, 2007).
Still not satisfied, Chief Judge Wolf wrote Attorney General
Michael Mukasey. In this letter, Chief
Judge Wolf noted that he assisted in the establishment of OPR, but
now has “serious questions about
whether judges should continue to rely upon the Department to
investigate and sanction misconduct
by federal prosecutors.” Letter from The Honorable Mark L.
Wolf to The Honorable Michael B.
Mukasey (Jan. 2, 2008). The letters may be found in the court files
of Barone v. United States, No.
98-11104 (D. Mass. 1998) and Ferrara v. United States, No.
00-11693 (D. Mass. 2000).
11
068
ABA Section of Litigation Annual Conference, April 16 – 18,
2008:
Crossing the Line: Responding to Prosecutorial
Misconduct
Contempt
A court could exercise its contempt powers to curb prosecutorial
misconduct that occurs in the
courtroom. However, “[a]lthough contempt is frequently used to
punish defense counsel for
misconduct, it is rarely used to punish prosecutors.” Gershman,
Misconduct , supra, § 14:9 (footnote
omitted). Even when a trial court imposes contempt on a prosecutor,
appellate courts rarely sustain
the charge. See id.; Lawless, supra, § 13.35.
Appellate Court Action
If prosecutorial misconduct violates a defendant’s constitutional
rights to a fair trial, the defendant’s
conviction might be overturned on appeal. Reversals of convictions,
however, are limited by the
harmless-error doctrine, which generally precludes relief when the
court finds that the defendant was
not fundamentally prejudiced by the prosecutorial misconduct. See
Rose v. Clark , 478 U.S. 570
(1986). The Center for Public Integrity looked at 11,452 appellate
cases since 1970 where
prosecutorial misconduct was an issue raised by the
defendant. The study revealed that in 2,012 cases
the prosecutor’s misconduct was so serious that a dismissal of the
charges, a reversal of conviction, or
a reduction in the imposed sentence was warranted. In thousands of
others, prosecutorial misconduct
was found to have occurred, but was deemed to be harmless. Steve
Weinberg, Breaking the Rules:
Who Suffers When a Prosecutor Is Cited for Misconduct? (2007),
http://www.publicintegrity.org/
pm/default.aspx?act =main; see generally Weinberg
et al., supra.
One should ask whether a reversal of a conviction adequately
sanctions a prosecutor for misconduct
since the focus is on the defendant, rather than the prosecutor.
Moreover, many have questioned
whether prosecutorial misconduct is adequately deterred when the
harmless-error doctrine is
consistently applied. For example, one commentator has asserted
that application of the rule is
“tantamount to saying that if one is obviously guilty as charged,
he has no fundamental right to be
tried fairly.” Note, Prosecutor Indiscretion: A Result of
Political Influence, 34 Ind. L.J. 477, 486
(1959); see also Rose, 478 U.S. at 588–89 (Stevens, J.,
concurring) (“An automatic application of
harmless-error review in case after case, and for error after
error, can only encourage prosecutors to
subordinate the interest in respecting the Constitution to the
ever-present and always powerful interest
in obtaining a conviction in a particular case.”).
Another way appellate courts can address prosecutorial misconduct
is by public rebuke. In Bank of
Nova Scotia v. United States, the Supreme Court stated that
defendants should not be given a
“windfall” when they are not prejudiced by prosecutorial
misconduct. 487 U.S. 250, 263 (1988). One
way to deal with prosecutorial misconduct when the defendant’s
rights are not violated, according to
the Court, is for an appellate court to “chastise the prosecutor in
a published opinion.” Id. The
effectiveness of this remedy has been questioned as well. An
article in the Chicago Tribune series
noted that even when the prosecutor’s actions are criticized in
appellate opinions, the courts usually do
not call out the prosecutors by name. According to the article,
“[t]he granting of anonymity isn’t
mandated anywhere, but instead stems from tradition and
professional courtesy.” Armstrong &
Possley, Break Rules, supra. Moreover, even when
prosecutors are named in appellate opinions, there
is little evidence that it adversely impacts that person’s career
or future conduct. See id.; supra Part
III.E (discussing the chastising of Robert H. Macy).
12
069
ABA Section of Litigation Annual Conference, April 16 – 18,
2008:
Crossing the Line: Responding to Prosecutorial
Misconduct
Civil Liability
When being sued under federal civil rights laws, prosecutors often
assert they are immune from
liability. The law is nuanced in this area, but prosecutors can be
found liable. For example, a man by
the name of John Thompson spent 14 years on Death Row after an
assistant district attorney destroyed
exculpatory evidence. A jury in the Eastern District of Louisiana
awarded Thompson $14 million after
finding that the district attorney “was deliberately indifferent to
the need to train, monitor, and
supervise his prosecutors to comply with the constitutional
requirements concerning production of
evidence favorable to an accused.” Thompson v. Connick , No.
03-2045, 2007 WL 1200826, at *1
(E.D. La. April 23, 2007). The availability for redress under state
tort law (e.g., malicious
prosecution) varies from jurisdiction to jurisdiction.
One avenue of relief for those wrongly prosecuted by the federal
government is a Hyde Amendment
claim. See Department of Commerce, Justice, and State, the
Judiciary and Related Appropriations Act
of 1998, Pub. L. No. 105-119, § 617, 111 Stat. 2440 (codified at 18
U.S.C. § 3006A Note). This law
provides for the recovery of attorney fees for prosecutions
by the U.S. government that were
“vexatious, frivolous, or in bad faith.” To recover attorney fees,
the defendant must be a “prevailing
party.” To determine whether a defendant is a prevailing
party, courts look to the totality of the
circumstances. See, e.g., United States v. Campbell , 134 F.
Supp. 2d 1104, 1107 (C.D. Cal. 2001),
aff’d , 291 F.3d 1169 (9th Cir. 2002). Generally, a defendant
prevails when he or she “was completely
exonerated through voluntary dismissal of all charges without
sanction, dismissal by way of a motion
of judgment for acquittal or dispositive motion, or through
acquittal.” Id. at 1108. Moreover, a
defendant is a prevailing party when the government dismisses the
case with prejudice, and may or
may not be considered as such when the case is dismissed without
prejudice. See United States v.
Gardner , 23 F. Supp. 2d 1283, 1292 (N.D. Okla. 1998).
CONCLUSION
The Nifong / Duke Lacrosse saga brought to the public’s awareness
the sad and disturbing nature of
prosecutorial overreaching. While Nifong’s actions may have
been particularly egregious, it is clear
that the problem of prosecutorial misconduct is nothing new—it has
simply taken place outside of
public view for the most part. It is also clear that, to
date, there has not been an effective remedy to
this systemic problem. Hopefully something good can come out of the
tragedy of the Duke case—
public awareness of the need to hold prosecutors accountable
for misconduct, and a newfound
willingness of the courts, bar associations, and the DOJ to impose
harsher sanctions on wayward
prosecutors.
13
070
Jon Sands Steven Kalar Geoffrey Hansen Federal Public Defender AFPD
Chief Assistant Public Defender Phoenix, Arizona San Francisco,
California San Francisco, California
Chris Miles Peter Davids Jonathan Katchen R&W Attorney, FPD
Associate Assistant Attorney General San Francisco, California
Jones Day State of Alaska, Dept. of Law
The United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation
to govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall be done. As
such, he is in a peculiar and very definite sense the servant of
the law, the twofold aim of which is that guilt shall not escape or
innocence suffer. He may prosecute with earnestness and vigor–
indeed, he should do so. But, while he may strike hard blows, he is
not at liberty to strike foul ones. It is as much his duty to
refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a
just one.
Berger v. United States, 295 U.S. 78, 88 (1935)
. . . it is the responsibility of the United States Attorney and
his senior staff to create a culture where ‘win-at-any-cost’
prosecution is not permitted. Indeed, such a culture must be
mandated from the highest levels of the United States Department of
Justice and the United States Attorney General. It is equally
important that the courts of the United States must let it be known
that, when substantial abuses occur, sanctions will be imposed to
make the risk of non-compliance too costly.
United States v. Shaygan, 661 F.Supp.2d 1289, 1292 (S.D.Fla.
2009)
“The Court finds [the government’s] explanation wholly
incredible.”
United States v. Stevens, 593 F.Supp.2d 177, 181 (D.D.Ct.
2009)
Prosecutorial Misconduct 1
I. Policing the Prosecutors . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
A. Ethical Immunity Before 1998 . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . 3 B. The Citizens Protection Act of
1998, 28 U.S.C. § 530B . . . . . . . . . . . . . . 5 C. The Hyde
Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . 7 D. Criminal Contempt . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
E. Case Remedies - Mistrial, Dismissal, Jury Instruction . . . . .
. . . . . . . . . . 9
II. Winning-At-All-Costs: Prosecutorial Misconduct During Various
Phases of a Criminal Prosecution . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . 10
A. Pre-Indictment Investigation and The Grand Jury . . . . . . . .
. . . . . . . . . . 10
1. Subpoenas to Defense Counsel . . . . . . . . . . . . . . . . . .
. . 10 2. Pre-indictment Contact with Represented Witnesses . . .
11 3. Exculpatory Evidence Before the Grand Jury . . . . . . . . .
12 4. Miscellaneous Prosecutorial Misconduct Within the Grand
Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . 13
B. Brady, Due Process, and State Ethical Rules on Discovery .
. . . . . . . . . 14
C. Prosecutorial Misconduct During Trial . . . . . . . . . . . . .
. . . . . . . . . . . . . 19
1. Misconduct During Jury Selection . . . . . . . . . . . . . . . .
. 19 2. Improper Conduct During Opening Statements . . . . . . . 19
3. Ethical Problems with Government Witnesses and Trial
Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . 20 4. Improper Closing Arguments . . . . . . . .
. . . . . . . . . . . . . 21
D. Broken Promises: Breached Pleas at Sentencing . . . . . . . . .
. . . . . . . . . . 26
III. Normalizing Justice . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
A. The Proposed Expansion of Rule 16 and DOJ’s Opposition . . . . .
. . . . . 27
B. For the Defense – Commentators’ Opinions and Recommendations . .
. 29
Parting Thoughts . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 32
Introduction
Most experienced practitioners would agree that the vast majority
of federal prosecutors behave in an ethical manner, and would
further agree that federal prosecutorial misconduct has been
the exception, rather than the rule. As will be described in
greater detail below, federal prosecutorial misconduct is now
a local inquiry as well as a constitutional inquiry – after 1998,
state ethical rules now also bind federal prosecutors.
Therefore, while this outline may be a useful starting point,
counsel should be encouraged to turn to state bar rules of
professional responsibility and, if questions arise, consult an
ethics hotline.
I. Policing the Prosecutors
A. Ethical Immunity Before 1998
Before the late1990's, the system of ethical rules and restraints
that constrained any other attorney – including defense counsel –
did not apply to federal prosecutors. As will be discussed in
greater depth below, Congressman McDade’s 1998 Citizens Protection
Act (“CPA” or “ § 530B”) revolutionized the application of state
rules to federal prosecutors in ways that have still not been fully
explored. Even before Joseph McDade successfully slipped the CPA
into law, however, national discontent about the special treatment
of federal prosecutors had been brewing.
Before 1998, federal prosecutors could be sanctioned for ethical
misconduct by the federal court in which they practiced, or by the
Department of Justice. Many commentators – including federal judges
– were (and remain) dubious of the government’s ability to
self-regulate its attorneys. See, e.g., Lynn R. Singband , THE
HYDE AMENDMENT AND PROSECUTORIAL
INVESTIGATION: THE PROMISE OF PROTECTION FOR CRIMINAL
DEFENDANTS , 28 FORDHAM URB. L.J. 1967, 1978 (Aug. 2001)
(discussing the creation – and limitations of – the DOJ Office of
Personal Responsibility (“OPR.”)). In 1993, Ninth Circuit Judge
Kozinski, for example, openly questioned the failure of the United
States Attorney to supervise the ethical behavior of its
AUSAs:
How can it be that a serious claim of prosecutorial misconduct
remains unresolved – even unaddressed – until oral argument in the
Court of Appeals? Surely when such a claim is raised, we can expect
that someone in the United States Attorney’s office will take an
independent, objective look at the issue. The claim here turned
entirely on verifiable facts: A dispassionate comparison
between the transcript of the AUSA's statement to the jury
and Nourian's plea agreement would have disclosed that the
defense was right and the government was wrong. Yet the United
States Attorney allowed the filing of a brief in our court that did
not own up to the problem, a brief that itself skated perilously
close to misrepresentation.
United States v. Kojayan, 8 F.3d 1315, 1320 (9th Cir. 1993).
Prosecutorial Misconduct 3
Despite the shortcomings of self-regulation, it was the common view
that a federal prosecutor was not subject to state or local
ethical rules or restraints. This view was based on the
position that the Supremacy Clause of the United States
Constitution preempted state regulation of federal prosecutors,
practical arguments about conflicts of local state rules arising in
a national federal practice, and a healthy dose of self-interest
from the Department of Justice.
Two issues helped to sharpen the debate over the propriety of an
exemption for federal prosecutors from state ethical rules.
See Fred C. Zacharias, Bruce A. Green, The Uniqueness of
Federal Prosecutors, 88 GEO. L.J. 207, 213 (2000). The first
of these issues related to attorney contact of represented parties.
Though such contact was widely prohibited by state local rules, in
1989 Attorney General Thornburgh distributed an infamous memorandum
that purported to exempt federal prosecutors. This memorandum was
controversial both within and outside of the legal community. See
Dick Thornburgh , Ethics and the Attorney General: The
Attorney General
Responds, 74 Judicature 290 (April/May 1991) (“Given the
normally high quality of the articles in Judicature, I had hoped to
see a discussion of the Department of Justice’s policy on
contacting representing persons that was free of the near-hysteria
that has punctuated articles written by some members of the defense
bar.”)
The second debate focused on a prosecutor’s ability to subpoena
witnesses. Zacharias &
Green , supra at 212; see also Stern v. United
States District Court , 214 F.3d 4, 7 (1st Cir. 2000) (“The
1980s witnessed a dramatic increase in the number of subpoenas
served on defense attorneys by federal prosecutors. The reasons for
this trend are difficult to pinpoint, but some commentators have
linked it with heightened efforts to fight organized crime and
drug- trafficking, new forfeiture laws, and an unprecedented
expansion of the Department of Justice (DOJ).”)
In the wake of the controversy of the Thornburgh memorandum, in
1994 Attorney General Janet Reno issued formal regulations which
continued the exemption for federal prosecutors from state
ethical violations, but promised voluntary compliance with most
professional rules (the “Reno Rule.”) Zacharias &
Green, supra at 212; see also
Communications With Represented Persons , 59 FR 39910-01 (Aug. 4,
1994) (containing text of the Reno Rule regarding contact with
represented persons).
Also fueling the fire of this ethical debate were a number of
developments that sharpened the adversarial process and directly
impacted the criminal defense bar, including federal grand
jury subpoenas to defense attorneys, forfeiture of funds paid
by defendants to retained counsel, and non-discretionary sentencing
provisions in the Federal Sentencing Guidelines. See Rory K.
Little, Who Should Regulate the Ethics of Federal Prosecutors? , 65
FORDHAM L. R EV. 355, Oct. 1996; see also Note, Federal
Prosecutors, State Ethics Regulations, and the McDade
Amendment , 113 HARV. L . R EV. 2080, 2083 (2000)
(discussing three Model Rules of Ethics that prompted
national debate on state ethical limitations on federal
prosecutors).
Outside of the national limelight of this ethical debate, however,
a federal criminal prosecution was brewing – a prosecution
which led to a further attempt to formally regulate federal
prosecutors.
Prosecutorial Misconduct 4
B. The Citizens Protection Act of 1998, 28 U.S.C. § 530B
In 1992, Pennsylvania Congressional Representative Joseph McDade
was indicted with five federal counts relating to bribery. While
Congressman McDade admitted that “errors had been made,” he
denied the allegations.1 He kept his seat in office and –
four years later – was acquitted by a jury of all of the charges.
Zacharias & Green , supra at 212.
McDade complained that federal prosecutors had turned his life
“into a living nightmare” and had harassed and hounded him.2
In his role as a criminal defendant, he filed a number of motions
alleging prosecutorial misconduct – all of which were denied. See,
e.g., United States v.
McDade, No. 92-249, 1992 WL 187036, at *2 (E.D. Pa. July 30, 1992)
(discussing motion to dismiss arising from prosecutor’s alleged
conflict of interest).
Stinging from his recent personal experiences with federal
prosecutors, McDade introduced in the House of Representatives a
version of the Citizen Protection Act which would have imposed
state and local ethical rules on federal prosecutors (as well as a
number of other, wide-ranging changes). That bill was killed in
committee, and a re-introduced bill the following year also never
made it out of committee. Zacharias & Green, supra, at
214-15. Finally, in 1998 the CPA was introduced as a rider to an
appropriations bill, and was passed without ever clearing committee
– much to the chagrin of (DOJ advocate) Senator Hatch.
Id. at 215. The bill’s unique road to passage was a
source of later criticism from DOJ allies and sparked later efforts
at repeal; efforts that were unsuccessful. See, e.g., NAAUSA
Initiatives, Federal Prosecutor Ethics Act ,
http://www.naausa/org./ initiatives/ethics.htm (visited Feb. 18,
2003) (discussing congressional testimony of national AUSA
representative against CPA and describing alternative bills
proposed).
The Citizen’s Protection Act has been codified at 28 U.S.C. §
530B.3
§ 530B. Ethical standards for attorneys for the Government
(a) An attorney for the Government shall be subject to State
laws and rules, and local Federal court rules, governing attorneys
in each State where such attorney engages in that attorney's
duties, to the same extent and in the same manner as other
attorneys in that State.
(b) The Attorney General shall make and amend rules of the
Department of Justice to
assure compliance with this section.
(c) As used in this section, the term “attorney for the
Government” includes any attorney
1 http://www.nytimes.com/1992/05/06/us/top-republican-on-a-house-panel
-is-charged-with-accepting-bribes.html?pagewanted=1 (last visited
4/7/10)
2 Id.
3 The Citizen’s Protection Act is referred to as the “CPA”
or, more frequently, “§ 530B.”
Prosecutorial Misconduct 5
described in section 77.2(a) of part 77 of title 28 of the Code of
Federal Regulations and also includes any independent counsel, or
employee of such a counsel, appointed under chapter 40.
28 U.S.C. § 530B (West 2003). Section 530B has been worked into the
Code of Federal Regulations (“CFR”) and integrated into the United
States Attorney’s Manual. See, e.g., 28 CFR § 77.3 (applying 28
U.S.C. § 530B to all attorneys for the government involved in,
among other actions, all criminal investigations and proceedings);
U.S.A.M. 9-13.200 (2005) (“Department attorneys are governed in
criminal and civil law enforcement investigations and proceedings
by the relevant rule of professional conduct that deals with
communications with represented persons.”).
As will be discussed in greater depth infra, remedies for violation
of the CPA may be sparse. In one of the few published cases on the
new statute and regulations, the Eleventh Circuit rejected the idea
that a violation of a state ethical rule would support suppression
of evidence in federal court. See United States v. Lowery, 166 F.3d
1119, 1124-25 (11th Cir. 1999) (“Assuming for present purposes that
the rule is violated when a prosecutor promises a witness some
consideration regarding charges or sentencing in return for
testimony, a state rule of professional conduct cannot
provide an adequate basis for a federal court to suppress
evidence
that is otherwise admissible.”) Similarly, in United States v.
Syling , the court held that any state ethical standards would
not “override the law governing presentation of [exculpatory]
evidence at grand jury proceedings.” 553 F.Supp.2d 1187, 1192
(D.Haw. 2008). Indeed, the CFR itself provides that § 530B
“should not be construed in any way to alter federal substantive,
procedural, or evidentiary law or to interfere with the
Attorney General's authority to send Department attorneys into any
court in the United States.” 28 CFR § 77.1.
The First Circuit has flatly refused to view the CPA as an inroad
for state (or local) regulation of federal prosecutors in federal
court. See Stern, 214 F.3d at 19. In Stern, the First Circuit
rejected a local rule from the District of Massachusetts that
required judicial authorization for grand jury subpoenas of defense
attorneys. Id. Despite the clear language of the CPA, the
Court in Stern concluded that Congress did not mean to
“empower state (or federal district courts, for that matter) to
regulate government attorneys in a manner inconsistent with federal
law.” Id.
Nonetheless, other federal courts have conceded that § 530B
does extend state ethical rules to federal prosecutors.
See Jennifer Blair, The Regulation of Federal
Prosecutorial
Misconduct by State Bar Associations, 28 U.S.C. § 530B and the
Reality of Inaction , 49 UCLA L. R EV. 625, 637 (Dec. 2001)
(collecting federal authority acknowledging the extension of state
ethical rules to federal prosecutors after 28 U.S.C. § 530B). One
of the most thoughtful of these decisions is United States v.
Colorado Supreme Court , 189 F.3d 1281 (10th Cir. 1999). In
that case, the Tenth Circuit held that – in light of § 530B – a
Colorado state ethical rule prohibiting “federal prosecutors [from]
subpoenaing attorneys to divulge information on past and present
clients in connection with a criminal proceeding other than a grand
jury,” was not inconsistent with federal law in violation of the
Supremacy Clause of the United States Constitution.
Id. at 1288-89.
Prosecutorial Misconduct 6
The ultimate impact of § 530B on federal prosecutors remains an
open question – one commentator has discovered that during a
year-and-a-half long period only one federal prosecutor was
disciplined out of the 1767 lawyers punished by ten state bar
organizations. Blair, supra, at 641 (“If punishment for
prosecutors was previously “lax,” one federal prosecutor
disciplined out of the 1767 lawyers punished by ten state bar
associations from April 1999 until December 2000 does virtually
nothing to increase the regulation of unethical behavior by federal
prosecutors.”)
Courts appear reluctant to file a complaint with a state bar
organization. Currently, at least one federal prosecutor is in
state disciplinary proceedings after allegedly withholding
exculpatory evidence in a case.4 The district court judge on
that case filed the letter of complaint with state bar counsel
after learning that DOJ had only issued a written reprimand to the
prosecutor.5 Another district court judge has reserved
the right “to impose any further sanctions and/or disciplinary
measures as may be necessary against [the federal prosecutors]
after reviewing the results of the Justice Department’s
investigation.” United States v. Shaygan, 661 F.Supp.2d 1289, 1325
(S.D. Fla 2009).
C. The Hyde Amendment
Another champion of ethical restraints on federal prosecutors has
been Congressman Hyde. In 1997, his infamous “Hyde Amendment”
exposed the federal government to civil liability for criminal
lawsuits that are vexatious, frivolous, or in bad faith:
Attorney Fees and Litigation Expenses to Defense
Pub.L. 105-119, Title VI, § 617, Nov. 26, 1997, 111 Stat. 2519,
provided that: "During fiscal year 1998 and in any fiscal year
thereafter, the court, in any criminal case (other than a case in
which the defendant is represented by assigned counsel paid for by
the public) pending on or after the date of the enactment of
this Act [Nov. 26, 1997], may award to a prevailing party, other
than the United States, a reasonable attorney's fee and other
litigation expenses, where the court finds that the position of the
United States was vexatious, frivolous, or in bad faith, unless the
court finds that special circumstances make such an award unjust.
Such awards shall be granted pursuant to the procedures and
limitations (but not the burden of proof) provided for an award
under section 2412 of title 28, United States Code. To determine
whether or not to award fees and costs under this section, the
court, for good cause shown, may receive evidence ex parte and in
camera (which shall include the submission of classified evidence
or evidence that reveals or might reveal the identity of an
informant or undercover agent or matters occurring before a grand
jury) and evidence or testimony so received shall be kept under
seal. Fees and
4 See “Boston AUSA Faces Judicial Panel Over Alleged
Misconduct,”
http://www.mainjustice.com/2010/01/22/boston-ausa-faces-judicial-panel-regarding-alleged-mis
conduct/ (last visited 4/9/10).
5 Id.
other expenses awarded under this provision to a party shall be
paid by the agency over which the party prevails from any funds
made available to the agency by appropriation. No new
appropriations shall be made as a result of this provision.
18 U.S.C. § 3006A, stat. history (West 2003).
Like § 530B, the Hyde Amendment had its origins in the eight-year
prosecution of Congressman McDade. See Singband, supra at
1981-82; see also United States v. Gilbert , 198 F.3d
1293, 198-99 (11th Cir. 1999) (tracing legislative history of the
Hyde Amendment). The Hyde Amendment has had some recent success in
federal courts. See id. at 1986-88 (collecting
Hyde Amendment cases). See also United States v.
Aisenberg , No. 899-CR-324-T23 MAP, 2003 WL 403071, *39 (M.D.
Fla. Jan. 31, 2003) (“Pursuant to the Hyde Amendment, the
Aisenbergs are entitled to a reasonable attorney's fee in the
amount of $2,680,602.22 and other litigation expenses in the amount
of $195,670.32.”); United States v. Shaygan, 661 F.Supp.2d 1289,
1324 (S.D.Fla 2009) (attorney’s fees and costs in the amount of
$601,795.88 awarded to the defendant); United States v. Claro, 579
F.3d 452, 456 (5th Cir. 2009) (noting the district court awarded
and government paid $391,292.29 in attorneys fees pursuant to Hyde
Amendment);
United States v. Adkinson, 247 F.3d 1289 (11th Cir. 2001)
(determining that defendants were entitled to attorneys fees where
government included bank fraud in conspiracy indictment with
knowledge that it was precluded by controlling precedent). See also
Brown v. United States, SA- 03-CV-0792-WRF (W.D.Tex. 2007)(wherein
parties reached settlement agreement and government agreed to pay
plaintiff $1,340,000 to settle plaintiff’s complaint filed under
the Federal Tort Claims Act based on nature of government’s
criminal investigation and prosecution of plaintiffs).
The Hyde Amendment certainly heightened the sensitivity of the DOJ
to charges of vexatious prosecution. See Elkan Abramowitz, Peter
Scher, The Hyde Amendment: Congress
Creates a Toehold for Curbing Wrongful Prosecution, THE
CHAMPION (Mar. 1998) (discussing aggressive DOJ stance against
Hyde Amendment before its adoption). The courts’ recent awards
suggest that the federal defense bar should continue to push for
such recourse against the government for wrongful prosecutions.6
See also Dick DeGuerin, Neal Davis, If They Holler,
Make ‘Em Pay . . . The Hyde Amendment , THE
CHAMPION (Sept./Oct. 1999).7
6 Larry Breuer, head of DOJ’s Criminal Division, speaking at
the ABA’s white collar crime conference, called on the defense bar
to refrain from terming discovery violations as endemic stating
that “nothing could be further from the truth.” He criticized those
who “think it is acceptable to use motions for sanctions, or
threats of OPR referrals, as a way to gain some sort of strategic
litigation advantage.” http://www.mainjustice.com/2010/02/25/
breuer-tells-white-collar-bar-to-ease-up-on-prosecutors/
(last visted 4/12/10).
7 This Champion article is an excellent starting point for
any Hyde Amendment litigation, and includes a useful check-list for
defense counsel to review before initiating a Hyde Amendment
petition.
Prosecutorial Misconduct 8
D. Criminal Contempt
The five DOJ employees who prosecuted Senator Ted Stevens in United
States v. Stevens
are currently the subject of criminal contempt proceedings
instigated by U.S. District Court Judge Emmet Sullivan based in
part on allegations of Brady and Giglio violations.8
Judge Sullivan appointed a special counsel to examine the
conduct of the prosecutors after the Justice Department moved to
dismiss the case with prejudice. The DOJ’s Office of Professional
Responsibility is conducting a simultaneous investigation. Both
reports are due to be completed in the near future.
E. Case Remedies - Mistrial, Dismissal, Jury Instruction
Unethical behavior or improper methods by the prosecutor may result
in a mistrial or a reversal of a conviction where the methods “so
infect the trial with unfairness as to make the resulting
conviction a denial of due process.” Darden v.
Wainwright , 477 U.S. 168, 181 (1986). In United States v. Ted
Stevens, the government itself motioned to set aside the verdict
and dismiss the case with prejudice based on
admitted Brady violations. The judge voided the
conviction. In United States v. Chapman, the district court
determined that the prosecutor violated both Brady and
Giglio and the district court declared a mistrial. 524 F.3d
1073, 1083- 84 (9th Cir. 2008).9 Following a hearing on the
matter, the district court judge dismissed the indictment with
prejudice. Id. In United States v. W.R. Grace, CR
05-07-M-DWM (D.Mt 2009), based on the
government’s Brady and Giglio violations, the court
explained to the jury why the government would not be permitted to
do any redirect examination of one of the government’s main
witnesses and why they should view “any proof offered by [that
main
witness] with skepticism.” See Appendix A W.R. Grace Jury
Instruction . The court instructed the jury, in part, that, “the
Department of Justice and the United States Attorney’s Office have
violated their constitutional obligation to the defendants and they
have violated orders of the court.” Id.
At the appellate level, “review of prosecutorial misconduct . . .
consists of a two part test: first, was the prosecutor’s conduct
actually improper; second, did the misconduct, taken in the context
of the trial as a whole, violate the defendant’s due process
rights.” Andrew M. Hetherington , Prosecutorial
Misconduct , 90 GEO. L.J. 1679 (May 2002). In evaluating the
seriousness of the misconduct, courts will find “harmless error if
the misconduct was not severe, effective curative measures were
taken by the trial court, or if the weight of evidence made
conviction certain absent the improper conduct.” Id. at
1689 (footnotes omitted). Some courts will additionally “consider
whether the misconduct was deliberately or accidentally made [and]
the extent to which the defense was able to counter the improper
conduct with rebuttal, or both,
8 http://www.mainjustice.com/2009/10/21/welch-to-step-down-as-public-integrity-chief/
(last visited 4/9/10).
9 On appeal, the Ninth Circuit held that the mistrial was
supported by a valid determination of manifest necessity and thus,
a retrial of the defendant would not violate the Double Jeopardy
Clause. Chapman, 524 F.3d 1073, 1083-84 (9th Cir. 2008)
Prosecutorial Misconduct 9
to their evaluation of the seriousness of misconduct.”
Id.
The one, universal lesson from all authority regarding remedies for
prosecutorial misconduct is the need to object to preserve the
error. Timidity in the face of prosecutorial misconduct will injure
the client on later appellate review, where the (nearly
insurmountable) plain error standard will be applied.
II. Winning-At-All-Costs: Prosecutorial Misconduct During
Various Phases of a Criminal Prosecution
With the McDade and Hyde laws in hand and remedies in mind, we turn
to examples of prosecutorial misconduct as they arise during
various stages of a criminal prosecution and investigation.
A. Pre-Indictment Investigation and The Grand Jury
1. Subpoenas to Defense Counsel
Grand jury misconduct was one of the ethical issues that sparked
the McDade revolution, and yet five years after § 530B was enacted,
it still remains an unsettled issue. One of the most controversial
aspects of grand jury practice has been the issuance of a grand
jury subpoena to defense counsel, to secure information about a
counsel’s client. The American Bar Association has promulgated
model ethical rules that limit this type of grand jury subpoena.
See Appendix B,
ABA Model Rule of Professional Conduct 3.8(e). Because the
ABA Model Rules have been adopted in many states, after § 530B the
issue is ripe for conflict in federal court. State ethical rules in
Colorado provide a good example of the problem.
Grand jury subpoenas to defense counsel on the subject of their
representation are prohibited by Colorado state ethical
rules. See Appendix C , Colorado State Rule of
Professional
Conduct 3.8, Special Responsibilities of a Prosecutor.10 The
federal government’s policy of
10 Because this state rule is based on rules from “ABA
Standards of Criminal Justice Relating to the Prosecution
Function,” the conflict between this state ethical rule and federal
action is likely to arise more frequently. A non-exhaustive list of
states that have adopted Model Rule 3.8, Special Responsibilities
of a Prosecutor, (or a substantially-similar rule), includes
Arizona, Colorado, Arkansas, Connecticut, Delaware, Indiana,
Kansas, Maryland, Michigan, New Jersey, Massachusetts, Rhode
Island, South Carolina, and West Virginia. California is
currently proposing such an adoption. See, e.g.,
http://calbar.ca.gov/calbar/pdfs/public-comment
/2009/Revision-Rules-Professional-Conduct-11-Rules_11-13-09.pdf
(comparing and contrasting other states’ adoption and California’s
proposed changes) (last visited 4/9/10); Arizona v.
Talmadge, 999 P.2d 192, 197 (Az. S. Ct. 2000) (discussing E.R. 3.8,
Arizona Rules of Professional Conduct); Colorado v. Mucklow, 35
P.3d 527, 534 (Co. S.Ct. 2000) (discussing Colo. RPC 3.8(d));
Arkansas R. Prof. Conduct 3.8 (West 2002); Connecticut Rule Prof.
Conduct 3.8 (West 2002); Del. R. Prof. Conduct 3.8 (West 2002);
Indiana R. Prof. Conduct 3.8 (West 2003); Kansas v. Dimaplas,
978 P.2d 891, 894 (Ka. S.Ct. 1999); Md. R. Prof. Conduct 3.8
(West
Prosecutorial Misconduct 10
forcing defense counsel to testify regarding their clients thus
became an issue for the Tenth Circuit. See United States v.
Colorado Supreme Court , 189 F.3d 1281, 1284 & n.3 (10th
Cir. 1999).
The Tenth Circuit noted that before § 530B (McDade’s Citizen
Protection Act) was adopted there had been a circuit split on the
issue of federal grand jury subpoenas to defense counsel, over
state ethical prohibitions. See United States v. Colorado Supreme
Court , 189 F.3d 1281, 1284 & n.3 (10th Cir. 1999)
(discussing contrary authority permitting, and striking, local
rules limiting federal government grand jury subpoenas of defense
counsel). In Colorado
Supreme Court , the Tenth Circuit managed to avoid the grand
jury issue because that particular aspect of the Colorado state
rule was not appealed. Id. at 1284.
The short, and unsatisfying, answer is that there is now no
definitive authority on whether § 530B extends state ethical
prohibitions on grand jury subpoenas to defense counsel. See
Brenner & Shaw, Federal Grand Jury: A Guide To Law And
Practice, FED. GRAND JURY § 13.5 (discussing conflicting
authority on issue and Department of Justice Guidelines).
If faced with such a subpoena, the first step should be to turn to
state ethical rules to see whether they prohibit such action
(likely to be found in Rule 3.8, adopted from the ABA Model
Rule). Defense counsel will then need to argue that this state
ethical rule has been extended to the federal prosecutor by virtue
of 28 U.S.C. § 530B, and that this statute trumps any Supremacy
Clause issues.
2. Pre-indictment Contact with Represented Witnesses
Does a federal prosecutor violate state ethical rules when he or
she speaks to a represented witness before indictment? That was the
question before the Ninth Circuit in one of the lead cases on the
subject, United States v. Talao, 222 F.3d 1133 (9th Cir. 2000). In
Talao, a federal prosecutor spoke to an employee of a corporation
that was represented by counsel – before indictment, and
while that corporate counsel was banging on the door of the
interview room. Id. at 1136. The district court held
that the prosecutor had violated California ethical rule 2-100,
prohibiting contact with represented persons. Id. at
1136. The Ninth Circuit reversed, but not before articulating
several important rules regarding federal prosecutors, ethics, and
contact with represented persons.
As an initial matter, it was by no means clear
that pre-indictment contact with represented
persons was prohibited. The Court turned to the Second Circuit’s
decision in United
States v. Hammand , 858 F.2d 834 (2d Cir. 1988), and concluded
that there was no bright-line
2002); Michigan R. Prof. Conduct 3.8 (West 2003); New Jersey
v. Torres, 744 A.2d 699, 708 (N.J. S. Ct. 2000) (discussing R.P.C.
3.8); In re: Grand Jury Investig., 15 Mass. L. Rptr. 354
(Super. Ct. Mass. 2002) (mem.) (discussing Mass. R. Prof. Conduct
3.8(f)); RI Rule Prof. Conduct 3.8 (West 2002); South Carolina v.
Quattlebaum, 338 S.E.2d 105, 109 (S.C. S. Ct. 2000) (discussing
South Carolina R. Prof. Conduct 3.8); West Va. R. Prof. Conduct 3.8
(West 2002).
Prosecutorial Misconduct 11
categorical rule on the issue. Id. at 1139. The Ninth
Circuit concluded that in the pre-indictment procedural
context of the Talao case, there were “fully defined
adversarial roles”11 that triggered the ethical prohibition.
Id.
The Court also was not troubled by the controversy over DOJ’s
previous position and the Thornburgh memorandum, which permitted
contact with represented witnesses. Id. at 1139-40. The
Ninth Circuit flatly concluded that 28 U.S.C. § 530B made state
ethical rules applicable to federal attorneys, which “dissipated”
any previous dispute. Id. at 1140.
The Court in Talao ultimately let the prosecutor off of the
ethical hook, however, because it concluded that in the unique
circumstances of a disgruntled employee seeking to distance herself
from corporate counsel – an employee who was alleging subornation
of perjury by the lead defendant – Rule 2-100 did not preclude
contact. Id. at 1140.
The Talao case is notable because it un-hesitantly extends
state ethical rules to federal prosecutors, extends the
prohibition of represented-witness contact to the pre-indictment
context, and it suggests that under a less-unique factual setting
the disciplinary referral would have stood.
3. Exculpatory Evidence Before the Grand Jury
Consider the following hypothetical: The defendant is charged with
being a felon in possession of a gun, in violation of 18
U.S.C .§ 922(g)(1). During his arrest, his girlfriend
protests that it was her gun, and that the defendant was
unaware that the weapon was in the house. Need the AUSA present the
girlfriend’s exculpatory statement to the grand jury before
indictment?
The federal rule – before § 530B – has been that a federal
prosecutor need not present exculpatory evidence to the grand jury.
See United States v. Williams , 504 U.S. 36, 52 (1992) (“Imposing
upon the prosecutor a legal obligation to present exculpatory
evidence in his possession would be incompatible with this
[grand jury] system.”) Yet, despite the Williams rule, the
United States Attorneys Manual states that when an AUSA “is
personally aware of substantial evidence that directly negates the
guilt of a subject of the investigation, the prosecutor must
present or otherwise disclose such evidence to the grand jury
before seeking an indictment against such a person.” U.S.A.M. §
9-11.233 (2008). The Manual also states that an indictment should
not be dismissed for a violation of this policy, but appellate
courts may refer prosecutors to the DOJ Office of
Professional Responsibility for review if they violate the
policy. Id.
Since enactment of § 530B, a district court has held that any state
ethical standards requiring the presentation of exculpatory
evidence would not “override the law governing
11 The case had already undergone a civil investigation, a
qui tam action, an corporate counsel had already initiated
settlement discussions with the government. Talao, 222 F.3d at
1139.
Prosecutorial Misconduct 12
presentation of [exculpatory] evidence at grand jury
proceedings.” United States v. Syling , 553 F.Supp.2d 1187,
1192 (D.Haw. 2008). The district court’s opinion did not address
any prosecutorial obligations created by the United States
Attorneys Manual.
4. Miscellaneous Prosecutorial Misconduct Within the Grand
Jury
If it is true that an experienced prosecutor can get a grand jury
to indict a ham sandwich, then why would an AUSA cut corners to get
an indictment? While unethical behavior before a grand jury seems
particularly unnecessary, it nonetheless occurs. A good summary of
prohibited acts can be found in United States v. Samango, 607 F.2d
877 (9th Cir. 1979).
In Samango, an indictment was dismissed by a federal district judge
in Hawaii. Id. at 878.12 Samango was a witness
called before the grand jury relating to a cocaine importation case
from Tahiti. Id. The AUSA informed the grand jury of
his dissatisfaction with Samango’s performance under a
non-pro