The New York Daily News and Pro Publica publish an op-ed responding to the phenomenon of prosecutorial misconduct — judges should be required to report problem prosecutors to their states' disciplinary systems:
Senior prosecutors we interviewed contend that almost all of the
instances of alleged misconduct amounted to honest mistakes or
differences of opinion on the requirements of the law. And they like to
note that cases of misconduct represent a tiny portion of the criminal
charges processed each year by courts in the five boroughs.
It's hard to know what to make of that claim. The vast majority of
convictions, more than 90 percent, are plea bargains — deals struck
outside of public view. If prosecutors are willing to violate rules at
trial, who is to say what is going on behind closed doors?
More importantly, the claim that instances of serious misconduct are few
amounts to a convenient bit of misdirection. The issue, at heart, is
not the frequency of misconduct, but the lack of consequences for
prosecutors who violate their oaths.
All of this forces us to ask: What are judges obligated to do, and should they be required to do more?
A judge in New York who learns there is "substantial likelihood" that a
lawyer has committed a "substantial violation" of legal ethics must take
"appropriate action."
A lawyer who "knows" that another lawyer has violated ethics rules so
that a "substantial question" is raised concerning the suspect lawyer's
honesty, trustworthiness or fitness must report the issue to an
appropriate authority.
Take a close look at these words and you can see pretty quickly why the
system has broken down. The words are fuzzy; they leave tremendous
discretion.
Judges have responded that their opinions are the equivalent of a misconduct report. Pro Publica and the NYDN reject that as ineffectual. And they reject an obvious alternative, requiring defense attorneys to report prosecutorial misconduct, as impractical. "Few who work regularly in the criminal courts are eager to bite the hand that plea bargains."
Although the op-ed notes that some states (not Michigan) require what the op-ed urges New York to do, a 2011 Yale Law Journal essay suggests that such rules, and the enhanced provisions of the model rules of professional conduct, have not been effective:
Given the Supreme Court’s repeated endorsement of professional
discipline as the appropriate vehicle for addressing allegations of
prosecutorial misconduct, one might suppose that state bar agencies
frequently sanction prosecutors. In fact, prosecutors are rarely held
accountable for violating ethics rules. Four years later, a study by Yet prosecutors The most recent study indicates that depressingly little has changed since 2003, at least in California. The Project’s review of the public disciplinary actions reported in the California State Bar Journal, however, revealed
Meanwhile, Legal Ethics Blog notes three California disciplinary cases against prosecutors and wonders if it is a trend. A comment is skeptical: "