With the Second Circuit’s recent reversal of the insider trading convictions in the Squawk Box case, United States v. Mahaffey, et al, (copy here), the trade press is ringing once again with claims of continuing prosecutorial abuse.  Judging by press reports on this case and others, including the Senator Stevens case, the instances of prosecutorial misconduct appear to be on the rise. 

The white collar bar and political interests are banging the drum concerning the need for Congress and the Supreme Court to address the issue.  Some are calling for the Supreme Court to review appropriate cases questioning prosecutorial immunity from civil liability.  Senator Murkowski from Alaska has proposed legislation to increase possible sanctions against prosecutors who engage in misconduct.  

There is no question that publicity surrounding prosecutorial misconduct – each case or finding of misconduct is trumpeted in the press as further proof that prosecutors are out of control.  It is not clear to me that such a finding is accurate.  No one has conducted any type of statistical analysis and just citing anecdotal evidence as proof is not very persuasive.

Not every prosecutor is perfect.  Most, if not nearly all prosecutors, are ethical and professional.  Lawyers who become prosecutors usually have a reason for doing so – they believe that compliance with the law is important for society.  Because of this attitude, prosecutors are likely to avoid unethical conduct. 

Some prosecutors can be sloppy which can lead to instances of misconduct.  That does not mean they were evil or trying to pull one over on the defense or the judge.  After all, in the end, the most important achievement for a prosecutor is the respect of his or her peers and the judges. 

Prosecutors who intentionally seek to avoid their Brady obligations or any other ethical requirements should be sanctioned.  No one can argue against that.  But there are fine lines and different degrees in determining whether undisclosed evidence satisfies the Brady standard.

In my experience, prosecutors who possess evidence which may meet the Brady test should turn it over to the judge and have the judge decide the issue.  If the judge decides it is Brady, the court will turn it over to the defense.  If the judge decides it is not Brady, the court can seal the evidence for the record and make sure it is available for appellate review if the defendant is convicted.  Relying on this procedure, prosecutors protect themselves from subsequent claims of misconduct. 

The Justice Department has tried to address the perception of increasing prosecutorial misconduct by beefing up internal training programs and trying to increase internal discipline programs.  Those are all welcome steps and should have make prosecutors more aware of their discovery obligations.

Discovery problems could be avoided if Federal Rule of Criminal Procedure 16 relating to discovery is revised.  As a prosecutor, and a supervisor, my rule was to avoid all pre-trial discovery disputes.  Judges appreciate a prosecutor who turns over information on an “open file” basis.  Of course, prosecutors should avoid turning over evidence that creates a security threat to a witness.  If a prosecutor turns over all of the case materials except information which protects a witness’ identity, judges are likely to support the prosecutors’ approach. 

Prosecutors usually get tripped up over disclosure of prior statements or testimony by government witnesses.  Those are instances when turning the material over to the judge will protect the prosecutor and the government’s case. 

Whether or not prosecutorial misconduct has really increased or not is besides the question.  The discovery rule should be modified and the government should take a more relaxed attitude towards disclosure, using its best judgment, and relying on the courts when necessary.