Prosecutors occupy a unique and powerful position in the criminal justice system. They decide what charges to bring, what plea bargain to offer, what evidence to present at trial, and what sentence to request. In making these decisions, prosecutors must strike the difficult balance between zealously pursuing the conviction of the guilty while remaining objective so as not to overlook evidence of innocence or mitigation. As an advocate and minister of justice, “[i]t is as much [the prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

Justice, whether that be the conviction or acquittal of the accused, is the prosecutor’s only objective. Judging from recent newspaper headlines, though, it seems that all too often justice takes a back seat to the prosecutor’s desire to convict, even if that means rules are bent or broken.

The district court’s decision in the Lindsey Manufacturing FCPA criminal case, and the recent findings of the court-appointed investigator in the Senator Stevens criminal case underscore the importance of protecting the criminal justice system from prosecutorial abuse.  Without sounding sanctimonious or even unrealistic, the latest controversies surrounding prosecutorial misconduct are disheartening.  Most, if not all, of my colleagues in the US Attorney’s Office and the Department of Justice were scrupulous in adhering to ethical requirements.

That is what makes the recent events in the Stevens and the Lindsey Manufacturing cases more disheartening.  Even assuming that the prosecutors acted negligently, there is no excuse for their pattern of conduct and deceit.  Judge Matz in the Lindsey case was clearly reluctant to reach the conclusion that the prosecutors in that case acted deliberately.  He gave the prosecutors every benefit of the doubt but when the facts kept cropping up, he had no choice but to hold the government accountable. 

Just last April, the Department of Justice took the unusual step of moving to dismiss all charges against former Alaska Senator Ted Stevens after he had been convicted on seven felony counts of ethics violations. The decision came after three newly assigned prosecutors to the case discovered that notes of an interview with the government’s chief witness, Bill Allen, had never been turned over to the defense for use at trial, despite the fact that the notes revealed Allen had made certain statements helpful to Stevens’s defense. This was not the only instance of prosecutorial misconduct. Throughout trial, disclosures raised questions about the way prosecutors handled the case. And post-trial, an FBI agent who had worked on the investigation bolstered these suspicions by accusing the prosecution team of willfully concealing exculpatory evidence and conspiring to make a witness who may have been helpful to the defense unavailable to testify at trial. He also accused a fellow agent of maintaining an inappropriate relationship with star witness Allen.

Some argue that such intentional prosecutorial misconduct is the exception and not the rule. While this may be true, recent studies show that prosecutorial misconduct is a systemic reality, at least at the state and local levels of the criminal justice system. In 2003, a study conducted by the Center for Public Integrity on the conduct of local prosecutors found that, beginning in 1970, prosecutorial misconduct was cited as a factor for dismissed charges, reversed convictions, or reduced sentences in at least 2,012 cases. In 513 additional cases, appellate judges offered opinions—either dissents or concurrences—in which they found the prosecutorial misconduct serious enough to merit additional discussion. In thousands more, judges labeled prosecutorial behavior inappropriate but permitted the trial to continue or upheld convictions as “harmless error.”  And those numbers do not even begin to scratch the surface. They do not account for prosecutorial misconduct in cases not subject to appellate review, such as the vast majority of cases referred by police, which end in guilty pleas and never reach a jury, or where trial judges dismiss cases or declare mistrials. Nor do they account for any number of cases in which prosecutors may have committed undiscovered “Brady violations” by failing to turn over possibly exculpatory information to the defense.

Steps must be taken to increase transparency and improve accountability.  The cases mentioned provide examples of what can be done to achieve those goals. Studies have shown that professional discipline or other punishment for prosecutorial misconduct was rare. Adopting and enforcing clearly defined official policies and procedures and requiring prosecutors to participate in training and continuing education programs is another way to prevent misconduct.

Attorney General Eric Holder responded to the mishandling of the Stevens case by launching an investigation of the prosecutors involved in the misconduct and announcing enhanced training for all prosecutors on their discovery obligations in criminal cases.7 This should have gone a long way toward sensitizing prosecutors to this important issue and cultivating a culture in which success is measured not only by whether one wins or loses but also by whether justice was served. But Attorney General Holder’s initiative may have fallen on deaf ears.  The prosecutors in the Lindsey case clearly crossed the line and failed to follow any meaningful notion of ethics.  More must be done and it is up to Attorney General Holder to address this issue.