TO STOP OP-ED ATTACKS ON PROSECUTORS, CALL FOR BALANCE

The New York Times is one of many publications that regularly lambasts prosecutors for misconduct.  In its latest Op-Ed, the Times suggests federal oversight for state prosecutors’ offices that “repeatedly ignore defendants’ legal and constitutional rights.”  Let’s leave aside the logistical barriers to this solution (lack of resources, identification of “bad” offices) and focus on the unbalanced approach to the issue.

It is incredibly narrow minded.  Surely there are prosecutors who engage in misconduct and overreach.  Just like there are defense attorneys who engage in misconduct and overreach.  In summary, there are rotten apples in every sector of every profession.  This should come as no surprise to anyone, anywhere.  But, the brush by which the Times paints its public picture of prosecutors is a jagged one.  Its assertions are purely partisan, using particularly scathing isolated incidents of misconduct for support.  The Editorial Board writes: “In many district attorneys’ offices, the Brady rule is considered nothing more than a suggestion, with prosecutors routinely holding back such evidence to win their cases,” and then points to a particularly blatant example of prosecutorial abuse in Louisiana, as if that outlier is representative of the many.  As a former prosecutor of over eight years at both a District Attorney’s Office and the State Attorney General, I submit the assertion that “prosecutors routinely hold(ing) back” Brady evidence (evidence that tends to exonerate the accused) is a gross exaggeration of reality.  And a one sided exaggeration.

Such claims do irreparable damage to the public perception of prosecutors, whose image has already been bloodied and bruised.  The consequences are severe: those prosecutors already toeing the line are likely more inclined to cross it and those prosecutors who work well within the bounds of justice, which is the majority of the profession, grow timid and reactionary.   This runs counter to the public good; the people are best served by a vigorous defense of its interests.

For example, there is no requirement that prosecutors present evidence tending to exculpate the accused in the Grand Jury.  One practical reason: prosecutors are unable to summarize the evidence for the jurists.  Much evidence that tends to exculpate may not be admissible (it is, for example, hearsay) or is of little evidentiary value.  Thus presenting the evidence may simply not be possible (it can’t be admitted) or its presentation would send confusing, mixed signals to the jurists.  An attack on prosecutors for failing to submit this evidence would be wrongheaded and could, if left to the devices of an inexperienced prosecutor bending to public pressure, undermine the process.  Of course, on the other hand, if the exculpatory evidence is of significant evidentiary weight, prosecutors have the discretion to present the evidence or simply not move forward with the case.  This is discretion most prosecutors routinely, to use the Times’ favorite word, employ.

But leaving the collateral damage to the side, pieces like the latest Times Op-Ed fail to push the needle for both the legal profession and the justice system as the whole.  Where is the rigorous examination of defense attorney ethics?  Misstatements on the record.  Witness intimidation.   Pushing the envelope in the court room because of a state attorney’s inability to appeal.   These are real issues too.   And while they don’t directly impact an individual’s constitutional rights in the way prosecutorial misconduct does, they serve to undermine the process in a way that affects everyone’s rights.  While opinion pieces pay no lip service to such issues, they also embolden the ethically challenged attorney: “Prosecutors are already acting with reckless disregard for the rules, why can’t I?”  The answer, of course, is that no attorney should.

The best remedy for bad apples on both sides of the aisle is not randomly doled out federal oversight of half the issue.  It is institutional accountability rendered by the ethically upright practitioners of which the majority of the profession comprises.  If you are an attorney who observes a prosecutor commit misconduct, hold his feet to the fire in front of the appropriate magistrate, and if necessary, beyond.  Vice versa for those prosecutors who witness defense attorneys acting in contravention of their ethical mandate.  Self-governance instead of one-sided lip service is the clearest path to protecting the rights and privileges of every American and for pushing the legal profession towards a greater plane of competence and respect.

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