Thursday, July 31, 2008
Policing prosecutorial misconduct
In a short note about prosecutorial misconduct (stemming from a panel discussion on the Duke lacrosse non-rape case), Glenn Reynolds writes this:
I disagree, though, with the idea that replacing elected prosecutors with appointed prosecutors would fix the problem. As with elected vs. appointed judges, it doesn't get rid of the politics, just make it less transparent. And I suspect that situations like that obtaining in Britain, where burglars face little risk of prosecution while homeowners who defend their homes against burglars are targeted by authorities, could possibly prevail in a system of elected prosecutors.
I agree, assuming Glenn meant "could not possibly prevail" in the last line. However, I have long wondered whether we would not benefit from a rule that banned prosecutors for running for other offices for some period after leaving their prosecutorial job. That is, my loose impression is that some of the most high-profile excesses (think Giuliani and Spitzer) come from prosecutors who want to build their name in the service of some higher political ambition. If we passed a rule that prosecutors could not run for any non-prosecutorial elective political office for, say, five years after leaving the prosecutor's office (or the attorney general's office), prosecution might lose its appeal as anything other than an end in itself. That might mean that prosecutors would care more about their reputations as lawyers than as politicians, which in turn might temper the really offensive abuses.
5 Comments:
By 
Purple Avenger, at
Thu Jul 31, 08:32:00 PM:
How about if you frame someone and/or withhold or suppress exculpatory evidence, you get sent to Club Fed for 20 years?
That'll put a damper on their political aspirations.
The reason mailmen are relatively safe even in the worst neighborhoods is that every scumbag on the street knows the Feds land on you like a ton of bricks in a hurry for jacking the mailman. You will do a hard 20 years for robbing a mailman.
The penalty for subverting the legal system should be so harsh that nobody in that position of power would dare. Supplement that with high dollar rewards for whistle blowers.
By 
, at
Thu Jul 31, 10:45:00 PM:
Hogwash. The authorities did in fact come down on Nifong like a ton of bricks – and appropriately so.
Prosecutors are second-guessed more than members of any other profession. Nifong’s misconduct was scurrilous, but it occurred only because he lacked the extraordinary courage it takes to stand up to such public pressure. Had he done the right thing and refused to file charges in the absence of evidence that warranted it, he’d have faced withering criticism from the left that would have left his political career in ruins. Either way he was finished.
The claim that prosecutors often file false charges for political gain is a canard. It isn’t exactly as though there is a shortage of guilty criminals to prosecute. Running for dogcatcher is a better career move for a politician. Despite the ubiquity of lawyers in the political arena, when did a prosecutor ascend to the top of the political ladder? Tom Dewey was the last one even to come close.
Nifong’s misconduct was notorious in large part because of its rarity. Prosecutors daily withstand pressure to file inappropriate charges. And when they file appropriate charges, they are falsely accused of misconduct in something approaching 100% of the cases in which they prevail at trial (and a similar portion of the cases in which they do not prevail). A claim of prosecutorial misconduct is a convicted criminal’s last appeal when all other claims fail, and in a legal system which provides the convicted criminal with no end of appeals, it is a claim that sooner or later is always made. These claims rarely prevail because they rarely have merit. And they sometimes prevail without merit, decades after the memories of witnesses and the will of victims have faded.
Prosecutors are by law held to a higher ethical standard than any other lawyers. The case reports are full of disciplinary proceedings taken against prosecutors for actions that would earn any other lawyer nothing but the highest judicial praise. Yet you do not hear them complaining about that higher standard, because as a rule they live up to it and are proud to do so.
By , at
Fri Aug 01, 07:24:00 AM:
To be really effective, the ban on prosecutors seeking public office would have to be augmented by a ban on prosecutors taking lucrative positions at large law firms. As chronicled on Houston's Clear Thinkers, many members of the Enron Task Force have taken positions in large firms, positions that they would not have been qualified for but for their service as prosecutors and the publicity they generated for themselves while prosecutors.
By Georg Felis, at
Fri Aug 01, 12:32:00 PM:
“but it occurred only because he lacked the extraordinary courage it takes to stand up to such public pressure.” ???
There is a great deal of difference between somebody swept up in the mob, and the man in front who is pointing at the castle and selling torches. Nifong as a prosecutor had a moral responsibility to remain neutral and pursue charges only where the evidence supported them. Instead he led the charge, holding news conferences where he unabashedly poured gasoline on the fire, broke even the most basic rules of prosecution involving line-ups, DNA evidence and discovery. He deserves every bit of public scorn he has received, and should be studied by every up and coming prosecutor as a perfect example of what not to do.
Without some sort of Inspector General, the press is *supposed* to act as the neutral look-over-the-shoulder observer, the small child that points out that the emperor really has no clothes (something somewhat lacking in Durham). Even appointees shake in their shoes when 60 Minutes plans on doing a show on how you are doing your job.
By Purple Avenger, at
Fri Aug 01, 05:44:00 PM:
The authorities did in fact come down on Nifong like a ton of bricks – and appropriately so.
Yea, that one day in jail was real hard time compared to say 20 years in Club Fed.
