Public Defense

Ethical violations: A reluctance to report

By Gideon

In the comments to my post about prosecutorial immunity yesterday, John raised an interesting point. He writes:

At the VERY least, why do we not see prosecutors grieved, disciplined, reprimanded, made to take remedial ethics classes, etc. when THEY do something unethical? Is it our fault? Should we (defense attorneys) be filing grievances against prosecutors who (as in a case I have pending now) withhold exculpatory information? Should judges (a lot of them former prosecutors here in CT) be taking the lead in seeking sanctions? Why should they not be held accountable?

In a case involving clear prosecutorial misconduct, such as hiding Brady or Giglio material or offering knowingly false testimony to secure a conviction, where a conviction is reversed, does it mean that a prosecutor has violated the Rules of Professional Conduct and if so, do we have a duty to report that to the Grievance Committee?

I think the answer is pretty clear, as I demonstrated in my response to his comment. Yes, there is an ethical violation and yes, there is a duty to report. But stories of such reporting are very scarce. In fact, it seems as though it almost never happens. The Duke lacrosse team case is the only one I can come up with in recent memory where a prosecutor was disbarred (or even reprimanded!) for an ethical violation. Perhaps something will happen as a result of Tim Masters’ exoneration, but even there two of the prosecutors are now judges (IIRC), so it will be an uphill battle.

What if there is no conviction yet, but you discover that a prosecutor has willingly and knowingly withheld exculpatory information. Obviously, you first turn your sights on exonerating your client and getting any charges dismissed, but when that is done, do you file a grievance? I’ve never heard of it happening. Perhaps some more experienced readers can fill in the blanks.

This reluctance to report is not limited to prosecutorial misconduct impropriety alone. Every one of us has seen clear instances of incompetence of fellow counsel in the courtroom. Yet, the question is almost never asked: Is that grievable and do I have a duty to report it?

Why this reluctance? Is it because we work alongside these people on a daily basis and have to interact with them regularly? Is it because we are afraid to “piss off” the prosecutor, who will have the fate of tomorrow’s client in his/her hands? Will the prosecutor seek revenge by taking it out on the obviously guilty client next week? Are we violating some sacred bond between members of the profession by considering reporting a fellow attorney for an ethical violation? Is it just easier to turn a blind eye?

One of the first polls I put up on this site was “Would you ’snitch’ on another attorney?” The options were “Always”, “Never” and “Only if it was really bad”. An overwhelming majority chose “Only if was really bad” (65%). Granted, the sample size was really small - 20 votes. In fact, I asked this very same question nearly one year ago [weirder still is that in April 2007, I also had a post about videotaping interrogations. Go figure]. So maybe it is time for another vote on that poll.

Why do you folks think this is? Or am I way off and are these not “reportable” offenses? Or am I off further still and do people actually report such actions?

[PS: Scott, this is my 5th post today. No more complaining.]

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Full post as published by A Public Defender on April 14, 2008 (boomark / email).