Rachel Cannon, AUSA, is an Unethical Prosecutor
Section 1983 Blog: Blog Spin-off

Prosecutorial Misconduct and the Problems of the Middle Class

The Zhenli Ye Gon case was dismissed due to prosecutorial misconduct.  (Details here.)  How was the misconduct discovered?

Zhenli Ye Gon was a rich drug dealer whom federal prosecutors deemed unworthy of a fair trial. And so prosecutors hid evidence.  Fortunately for Ye Gon, he was able to pay lawyers to work tirelessly on his case.  If Ye Gon had been poor, the hidden evidence would never have been uncovered.

In the prosecution of former Senator Ted Stevens, prosecutors also withheld evidence.  Stevens, fortunately, was able to pay millions to Williams & Connolly.  The Duke players were able to expose the rape complaint as a hoax only after their lawyers re-reviewed thousands of pages of documents.  

Ye Gon, Stevens, and Duke have a common theme: With big budgets, every stone is unturned.  The poor and middle class are not so lucky.

I.  Finding Prosecutorial Misconduct Costs Money.

Most prosecutorial misconduct involves prosecutors withholding evidence.  Under federal law, prosecutors have a duty to hand over exculpatory evidence to the defense.  Exculpatory evidence includes witness recantations, physical evidence revealing third-party DNA, or anything else that would make it less likely that the defendant committed the crime.  

It's through withholding exculpatory evidence that prosecutors make mischief.  It's just damned easy to get away with.

How do you find out that you don't have something?  The answer is simple, but not easy.  The simple answer is: Lay down a six-figure retainer with a lawyer, and a five-figure retainer with a private investigator.  Tell them to start turning over stones, and that, yes, you know the meter is always running.  Is the simple solution easy?   

Most of the people who read legal blogs earn well-above average incomes.  How many among you could write a check for $100,000?  I couldn't.   A middle-class client making $60,000 a year is too rich for a public defender, and is lucky if he can come up with $10,000.  Thirty grand is a huge fee for most ham-and-eggs lawyers.

II.  Criminal Law's Business Models.

Most criminal lawyers fall into three categories - mills, ham-and-eggs, and white collar.  With a law mill, a client walks into an office.  A lawyer takes three-to-five grand, knowing that he won't do any work.  The lawyer pleads out the client, making a huge profit.  Also included in law mills are DUI and traffic ticket defense shops.  Write a check, and the lawyers will spend a couple of hours greasing the legal wheels to get you a better deal that you could have gotten yourself.

Most clients charged with a serious crime will go to second-category lawyers.  These are hard-working, earnest lawyers who try cases.  They view plea bargaining as something one does only after prepping a case for trial.  Yet, unlike white collar defendants, these clients can't afford huge fees.  

A solo lawyer or small firm with only a secretary, small office, and Westlaw subscription won't be able to keep the lights on for very long unless they take on a lot of smaller criminal clients charged with serious crimes.

Thus, even earnest and well-meaning lawyers can only devote so much time to any given client.  Yes, it's sad.  Yes, it's a dirty secret no one is supposed to talk about it.  Yes, it's also the reality of criminal practice.  Unless you give a public defender to everyone who requests one, any given client isn't going to get Williams & Connolly level representation.

Thus, in the majority of cases, no one will ever discover prosecutorial misconduct.  Without a private investigator or a client capable of paying for around-the-clock research, how can the missing evidence be found?

III.  Equal Justice Should Not Cost Seven Figures.

Equal justice under the law is a constitutional requirement, not a privilege one purchases for six-or-seven figures.  Yet, as most high-profile cases of prosecutorial misconduct show: Only the rich are finding the hidden evidence.  

There are some simple and easy solutions to prosecutor misconduct.

A.  Open file policies.  Most federal prosecutors get to decide whether evidence is exculpatory.  No neutral third-party reviews the prosecutor's decision.  How then is anyone to know whether the prosecutor has withheld exculpatory evidence?  This is a clear conflict-of-interest.

Judges who care about equal justice should demand that prosecutors hand over their files to criminal defendants.  Many states have so-called "open-file laws."  They work well, and are simple.  If a prosecutor has a document, the prosecutor hands it over.   Thus, a prosecutor need not decide whether evidence is exculpatory. 

B.  Name-and-shame.  If a prosecutor commits misconduct, identify the prosecutor by name.  All too often, judges will reverse a conviction for prosecutorial misconduct.  Rather than identifying the prosecutor, the judge will say, "The prosecutor committed misconduct."  Name the prosecutor.  

C.  In any case where a criminal conviction has been reversed, refer the case to the State Bar.  If a prosecutor has commited misconduct, then, by definition, the prosecutor has committed a violation ofthe Rules of Professional Conduct.  Every State Bar forbids prosecutorial misconduct.  Shouldn't judges at least refer the matter to the state bar?

IV.  No More Excuses.  

Judges, there is no longer an excuse to view prosecutorial misconduct as an unusual occurrence.  There have been over a dozen instances of high-profile misconduct in 2009 alone.  How many cases of prosecutorial misconduct escaped media attention?  

Prosecutorial misconduct is a problem.  You are able to solve it.  Will you?