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A call for prosecutorial accountability—A Commentary by Deborah Jane Cooper ’13

The following commentary was published in The National Law Journal on December 12, 2011.

A call for prosecutorial accountability
By Deborah Jane Cooper ’13

Recently, in the wake of one of its most controversial recent decisions, Connick v. Thompson, the U.S. Supreme Court heard oral arguments in another case involving alleged prosecutorial misconduct stemming from the Orleans Parish District Attorney's Office in Smith v. Cain. Last term, the Supreme Court famously limited municipal civil liability for prosecutors in Connick. In justifying this holding in part by stating that prosecutors are "personally subject to an ethics regime designed to reinforce the profession's standards," the Court pointed to the existence of the American Bar Association (ABA) and state grievance mechanisms that set ethical standards for prosecutors and discipline them when they break the rules.

New research analyzing the policies and procedures for disciplining attorneys in each state and in the District of Columbia shows that prosecutors are rarely held accountable when misconduct occurs. While the Supreme Court's Connick decision severely limits the liability prosecutors face for misconduct, and closes one of the few remaining possible channels of civil prosecutorial liability, the existing "ethics regime" the Court entrusts does not currently protect against or regularly sanction instances of prosecutorial misconduct.

Inspired by the Connick decision, students from the Liman Prosecutorial Misconduct Research Project at Yale Law School examined the basis of the reliance on current attorney-sanctioning mechanisms. The resulting investigation of the disciplinary procedures in various states found that the process and results are largely inadequate for investigating claims of misconduct and holding prosecutors accountable.

There are significant barriers to utilizing state grievance procedures to discipline prosecutors, both in terms of the processes themselves, as well as professional disincentives to do so. The result is limited accountability for prosecutors who engage in misconduct. However, the new research has yielded a series of recommended reforms to make the system more transparent, responsive and efficacious.

Rule 3.8 of the ABA's Model Rules of Professional Conduct forms one of the cornerstones of prosecutorial professional responsibility and defines the unique obligations of prosecutors. With the exception of California, every state and the District of Columbia has adopted some form of the Model Rules and, through the states' courts of last resort, has defined the bodies and procedures to hold attorneys accountable to them. The variation in adoption of the Model Rules has resulted in different requirements from state to state that are almost uniformly less exacting than the Model Rule. More uniform adoption would improve consistency and clarity.

When the rules are broken, in most states, discipline falls to state bar associations, which investigate claims of misconduct. As the Liman Project found, the structures and regulatory bodies that hold attorneys accountable are unnecessarily secretive and complex. Prosecutors are rarely sanctioned through these mechanisms.

For example, troublingly, the only prosecutor sanctioned by Louisiana's attorney grievance system for his role in the case of John Thompson was not involved in prosecuting Thompson or directly involved in the Brady violations that led to his wrongful conviction. He was the attorney who brought the violations to the attention of Louisiana's Office of Disciplinary Counsel after learning of them from a colleague, evidencing the ineffectiveness of Louisiana's disciplinary mechanisms when prosecutorial misconduct is at issue.

Psychologists Ann Tenbrunsel and David Messick, in a 1999 article in Administrative Science Quarterly, studied the effects of sanctioning systems on decisions and cooperation, finding that "a weak sanctioning system can actually decrease cooperation, decrease expectations of cooperation, and influence perceptions of the situation," promoting a focus on a cost-benefit analysis of the decision rather than an ethical analysis. A strong sanctioning system predicted the highest level of rule compliance. How do we create strong sanctioning systems in the context of prosecutorial accountability?

Several key reforms would strengthen the professional-responsibility regime that affects prosecutors. These include recommending that the ABA begin a dialogue with states and the Department of Justice about expanding Rule 3.8 to more completely address prosecutors' full range of responsibilities, including discretion in investigating and charging crimes and in negotiating pleas. State supreme courts should control the states' disciplinary processes, with an active and substantial role for laypersons. Any interested party should be able to bring a grievance alleging prosecutorial misconduct, and claims should be easily filable online. State grievance agencies need to be properly resourced — both financially and with experienced investigators knowledgeable in the intricacies of criminal justice and the role of prosecutors.

Additionally, disciplinary committees should institute automatic filing of ethics complaints, triggered whenever a court finds that a prosecutor has behaved unethically. State grievance committees should undertake regular and randomized auditing of cases to increase the likelihood that prosecutorial misconduct will be discovered and remedied. Transparency of process is important; it both legitimizes and informs.

The Supreme Court's Connick decision serves as a call to state supreme courts and bar associations. Although it is one of the few mechanisms that address prosecutorial misconduct, the bar complaint system is currently underutilized and largely ineffective as a regulatory authority for disciplining prosecutorial misconduct. A few key reforms would better define the ethical requirements that reflect the prosecutor's mandate to seek justice, work to deter misconduct, and make it easier to hold prosecutors accountable when misconduct occurs.

Deborah Jane Cooper is a second-year law student at Yale Law School. Along with David Keenan, David Lebowitz and Tamar Lerer, she co-authored "The Myth of Pros­ecutorial Accountability After Connick v. Thompson," 121 Yale L.J. Online 203 (2011).