Pace University Law Professor Bennett Gershman wrote an article for The Daily Beast last month about consideration the state of New York is giving to creating a Commission of Prosecutorial Conduct which would have the authority to investigate and discipline state prosecutors for misconduct.


This past April, Wyoming College of Law Professor Daniel E. Singleton published a piece in Wyoming Law Review that called for a “higher standard” of sanctions to be imposed for “Brady violations” by prosecutors.


Violations Excessive, Sanctions Rare


“Brady violations can be intentional—arguably malicious. More often though, the violations are accidental: the prosecutor overlooks some minutiae of the case. Either way, prosecutors must be put on notice and held accountable for their actions. Thus, something akin to criminal sanction would constitute an appropriate deterrent because, in effect, such a sanction would raise the stakes for prosecutors throughout the justice system. While the standard remedy for a Brady violation is a new trial or a continuance, courts should ‘not follow the general rule if the remedy will likely result in further prejudice to the defense.’


“This article advocates stiffer penalty for Brady violations than are currently in effect. Although every state has adopted professional rules of conduct and rules of criminal procedure, violations are excessive. However, disciplinary charges and meaningful sanctions are rarely applied. While the courts’ and advocates’ goal is to prohibit Brady violations, thus far they have failed to meet that goal—largely due to lack of enforcement. At present, existing incentives are insufficient to induce abstention from Brady-type misconduct.”


here, here!!!


Ninth Circuit Court of Appeals Judge Alex Kozinski, a Reagan appointee, recently published a piece in the Georgetown Law Journal exhaustively examining the flaws and errors in our justice system, including prosecutorial misconduct. Judge Kozinski had this to say about “prosecutors fair play”:


“The Supreme Court has told us in no uncertain terms that a prosecutor’s duty is to do justice, not merely obtain a conviction. It has also laid down some specific rules about how prosecutors, and the people who work for them, must behave—principal among them that the prosecution turn over to the defense exculpatory evidence in the possession of the prosecution and the police. There is reason to doubt that prosecutors comply with these obligations fully. The U.S. Justice Department, for example, takes the position that exculpatory evidence must be produced only if it is material. This puts prosecutors in the position of deciding whether tidbits that could be helpful to the defense are significant enough that a reviewing court will find it to be material, which runs contrary to the philosophy of the Brady/Giglio line of cases and increase the risk that highly exculpatory evidence will be suppressed. Beyond that, we have what I described elsewhere as an ‘epidemic of Brady violations abroad in the land,’ a phrase that has brought much controversy but brought about little change in the way prosecutors operate in the United States.”


This past July we posted a piece about the Texas State Bar taking action against four prosecutors for flagrant misconduct. That marks a sea change in this state for prosecutors being brought to account for their misdeeds. It may indicate a trend.


Danger to Public and the Profession


Just last month the Open Blog, a Pennsylvania blog dedicated to prosecutorial misconduct issues, reported that the Pennsylvania Supreme Court disbarred a former Venango County prosecutor who was found to have engaged in misconduct in three cases. In its exhaustive findings, the court’s disciplinary board found that James Paul Cartone had violated seven ethic rules, adding that the prosecutor was “a danger to the public and the profession.”


And the Open Blog reported that on July 20, 2015, the Third Circuit Court of Appeals ruled that David Munchiniski’s lawsuit against two former prosecutors, Ralph Warman and Gerald Solomon (who are now senior judges in Fayette County) “accused of destroying a tape in which a key witness said he had no knowledge of the crime that Munchiniski was wrongfully convicted of …”  could go forward. The witness, Richard Brown, later testified he was an “eyewitness to the murder.”


Munchiniski spent 27 years in a Pennsylvania prison before his conviction was reversed by the Third Circuit and a lower court judge dismissed the charges against him “with prejudice.” He then filed a lawsuit against Warman and Solomon, charging that they concealed evidence they knew would prove his innocence. Remarkably, this evidence included that the prosecutors knew Brown was actually in Oklahoma, not Pennsylvania, at the time of the crime. The duo also withheld evidence that an “alternate suspect” later confessed to the crime before he died in prison.”


The awareness that some prosecutors routinely violate ethical rules by either withholding or concealing exculpatory evidence seems to be growing across the country. Prosecutorial misconduct is a subject we have discussed at some length here. For example, in 2012, we reported about how prosecutorial misconduct goes unpunished; and, in 2010, we reported that prosecutorial misconduct is a scourge on the criminal justice system.


Ironically, in 2012, we reported about a study created by the Texas District and County Attorneys Association (TDCAA) titled “Setting the Record Straight on Prosecutorial Misconduct.” The group was upset with recent studies documenting prosecutorial misconduct not only in Texas but across the Country.


As it turned out, while group was chastising those exposing misconduct, its own Training Director in Austin, Erik A. Nielsen, published a piece in the July-August 2012 edition ofThe Prosecutor, about the need to teach state prosecutors about their ethical duties. Mr. Nielsen wrote:


“May you be blessed to live in interesting times. (Or is it cursed?) Whichever way the old proverb cuts, we are living in a very interesting time for prosecutors. Whether it’s due to the prevalence of the 24-hour news cycle which requires any “new” news as fast as possible, or the immediate dissemination of information (and misinformation) through the Internet, blogs, and other social media, or other factors, one thing is certain: Any bad acts (whether intentional or not) taken by a prosecutor are increasingly ascribed instantly to all of his brethren. In short, when one of us fails to act ethically, legally, or morally, it casts a shadow on us all. So what can we do? 

“Although the entire answer is wide-reaching and complex—and rest assured, TDCAA has been and is currently working with our members on this complicated issue—one facet of the answer is quite simple: Every prosecutor must understand and uphold her legal, statutory, and ethical duties to ensure a just result. With every defendant, witness, and victim. In every case. 

“But where can prosecutors look for guidance? Virtually every Texas prosecutor knows one sentence from the Texas Code of Criminal Procedure art. 2.01 by heart: ‘It shall be the primary duty of all prosecuting attorneys … not to convict, but to see that justice is done.’ In fact, it’s been quoted on the masthead of the publication you’re holding for decades. But that is only the starting point for a Texas prosecutor’s ethical and legal duties. Perhaps less well-known is the final line of art. 2.01 that directly follows the aforementioned quote: ‘They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.’ This duty directly echoes the other major guide that prosecutors should use to set their ethical compass, the seminal case of Brady v. Maryland. Using these guidelines as a foundation for their conduct, Texas prosecutors can ensure justice in each and every case.”


In effect, the TDCAA was forced to school prosecutors about what any law student knows: prosecutors and defense attorneys alike have very specific and well-defined ethical rules they must follow. The fact that the TDCAA had to create this presentation was recognition that the 2012 studies finding massive prosecutorial misconduct in the state were truly accurate.


We are hopeful that the increasing awareness of the prevalence of prosecutorial misconduct will produce more accountability for that misconduct.