Ethics

Prosecutorial ethics are getting a fresh look from criminal justice reformers

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Scales of justice and a whistle

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In June 2021, Orleans Parish District Attorney Jason Williams took the unusual step of issuing an apology to Kaliegh Smith, who spent nearly 14 years behind bars for the fatal shooting of Jason Anderson—a crime Smith contends he did not commit. The decision to drop charges and not retry Smith came a few weeks after a judge overturned the 49-year-old’s second-degree murder conviction.

Smith was convicted largely based on the eyewitness testimony of Cynthia Shezbie, who later told Smith’s attorneys that prosecutors had pressured her to testify or face jail time. She also said she previously had told detectives Smith did not commit the crime and that someone else was the shooter. Shezbie received financial benefits from the prosecutors’ office for her testimony—another key fact not disclosed to Smith’s defense attorneys.

“What made the misconduct unusual was how well-documented it was,” says Richard Davis, legal director for the Innocence Project New Orleans, who helped secure Smith’s release.

“The paper trail on the misconduct was very clear. The prosecutors were personally aware of secret financial benefits for the key witness and that there was evidence implicating someone other than Mr. Smith for the crime.”

In August, Davis’ group filed bar complaints against four former prosecutors in the Orleans Parish District Attorney’s Office who had served under Williams’ predecessor, Leon Cannizzaro.

Williams has created a new civil rights division in his office to review possible instances of wrongful convictions, a move applauded by Davis and his organization.

“Reviewing the past harms of former prosecutors is incredibly important,” Davis says. “The more resources given to address past damage done by prior district attorneys, the better.”

With the renewed focus on criminal justice reform, ethics complaints involving prosecutors are making the news and taking center stage. In a high-profile complaint in May, two former assistant U.S. attorneys—Fernando Campoamor-S├ínchez and Amanda Haines—faced ethics charges that they failed to disclose information about a key witness to the defendant convicted of killing Washington, D.C., congressional intern Chandra Levy—allegations they dispute.

Special responsibilities

Observers note prosecutorial decision-making is often less scrutinized or punished by courts and professional conduct boards. But the stakes are high in criminal cases, and ethics experts say whether they are intentional or negligent, there isn’t enough focus on behind-the-scenes actions in DA offices.

According to the Innocence Project, since 1989—despite hundreds of exonerations based on unethical behavior by district attorneys—only one prosecutor has ever been jailed for prosecutorial misconduct involving a wrongful conviction. Former Williamson County District Attorney Ken Anderson served five days of a 10-day jail sentence and had his law license revoked after he concealed evidence from the defense team of Michael Morton that could have prevented his wrongful conviction in 1987. Morton served 24 years in prison before he was exonerated.

“Prosecutorial misconduct is a serious problem,” says Erwin Chemerinsky, the dean of the law school at the University of California at Berkeley. “It is impossible to measure how often prosecutors fail to disclose evidence or don’t challenge police lies. But every account is that there is a serious problem.”

Ellen C. Yaroshefsky, an ethics expert and a professor at the Maurice A. Deane School of Law at Hofstra University, agrees it is impossible to quantify instances of prosecutorial misconduct, but that it is an issue that needs to be addressed.

“We do not know whether this is an epidemic or whether it is episodic,” she says. “It is a hidden problem because 97% of defendants plead guilty, and prosecutors don’t have to disclose most evidence in these cases.”

Whatever the level of misconduct, experts say the most frequent complaint—and arguably the most damaging—is the failure to turn over potentially exculpatory evidence to the defense.

“The largest category of prosecutorial misconduct is failure to turn over Brady evidence—evidence that may be exculpatory for defendants,” Yaroshefsky explains.

“Many prosecutors complain that they are accused of intentional misconduct when much of what occurred is more about negligence. Many times when prosecutors fail to turn over potentially exculpatory or impeachment evidence, it is not necessarily intentional. Instead, it is a case where the prosecutor is negligent.”

It has been said that prosecutors are supposed to be ministers of justice, not single-minded advocates focused on racking up convictions. ABA Model Rule of Professional Conduct 3.8 imposes special responsibilities on prosecutors. Subsection (d) provides that a prosecutor shall:

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.

Obligations under Rule 3.8(d) are more expansive than the constitutional due process obligations of prosecutors under a line of cases including Brady v. Maryland (1963) and Giglio v. United States (1972). The U.S. Supreme Court in those decisions explained that prosecutors violate the due process clause if they withhold evidence from the defense in criminal cases that, if disclosed, likely would have been material to the outcome of the case. This is often called the “materiality” standard.

Some states apply the materiality standard or interpret their version of Rule 3.8(d) to mean the same thing as that standard. Other states have ethics rules with more vigor.

Ethics experts disagree over whether Rule 3.8 has had a significant impact. “Model Rule 3.8, which is the basis for the ethics rules in every U.S. jurisdiction, has served a positive influence by spelling out the special responsibilities of prosecutors,” insists Peter Joy, a law professor at Washington University in St. Louis School of Law. “Because the duties are spelled out, there have been some prosecutors disciplined for violating their duties.”

But Yaroshefsky says the rule has not made as much of an impact because many jurisdictions just don’t follow it. “These jurisdictions rely on caselaw, not ethics rules,” she says. “In many jurisdictions, the rule is the same as the law. But ABA Model Rule 3.8 is broader in scope. The law in many jurisdictions requires only the disclosure of evidence that would have affected the verdict—a materiality standard. The ethics rule is more expansive and applies to any potentially exculpatory information whether or not it is material.”

Helming reforms

Ethics experts insist a key element in reducing instances of prosecutorial misconduct is to create a culture in prosecutors’ offices that supports strict compliance with ethics rules, particularly when it comes to disclosing evidence to the defense.

The buck stops with the lead prosecutor in each office. The district attorneys are responsible for the ethical conduct of their assistant district attorneys. “Head prosecutors and prosecutors who supervise other prosecutors also have the very important duty to ensure everyone in the prosecutor’s offices understands and complies with these duties,” Joy says. “The most important reform would be for every head prosecutor to create a culture of ethical compliance in her or his office.

“This includes internal discipline for prosecutors who violate their ethical duties, such as [not] disclosing exculpatory and mitigating evidence or information. One way to help monitor that the disclosure duty is being followed is for state legislatures or state supreme courts to require open file discovery.”

Outside enforcement

Ethics experts also call for greater outside enforcement of the ethics rules when it comes to instances of prosecutorial misconduct. This means judges and disciplinary bodies must take instances of misconduct seriously when they identify it.

The legal profession is self-regulating, but in the case of prosecutorial misconduct, there have been calls for independent investigatory bodies. For example, New York has created the Commission for Prosecutorial Conduct, which will investigate complaints with the force of subpoena powers.

Yaroshefsky calls this an important step that is a model for other states for more professional accountability. “There needs to be outside enforcement,” she says. “Judges have to take action when they see that a prosecutor has withheld evidence. They need to hold a hearing and, where appropriate, sanction the prosecutor.”

This story was originally published in the December 2021/January 2022 issue of the ABA Journal under the headline: “Changing Prosecutorial Culture: Setting a model for the profession.”


David L. Hudson Jr. teaches at Belmont University College of Law. He is the author, co-author or co-editor of more than 40 books. For much of his career, he has focused on the First Amendment and professional responsibility.

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