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. In 1999, Chicago Tribune reporters Maurice Possley and Ken Armstrong identified 381 homicide cases nationally in which Brady violations produced conviction reversals. Not a single prosecutor in those cases was publicly sanctioned. Four years later, a study by the Center for Public Integrity found 2012 appellate cases between 1970 and 2003 in which prosecutorial misconduct led to dismissals, sentence reductions, or reversals. Yet prosecutors faced disciplinary action in only forty-four of those cases, and seven of these actions were eventually dismissed. The most recent study indicates that depressingly little has changed since 2003, at least in California. The Northern California Innocence Project identified 707 cases between 1997 and 2009 in which courts made explicit findings of prosecutorial misconduct, 159 of which were deemed harmful. The Project’s review of the public disciplinary actions reported in the California State Bar Journal, however, revealed a mere six—out of a total of 4741—that involved prosecutorial misconduct.
Meanwhile, Legal Ethics Blog notes three California disciplinary cases against prosecutors and wonders if it is a trend. A comment is skeptical: "same way that the sighting of a northern hairy-tailed wombat would be a trend."
