Culture of misconduct: the misplaced priorities of prosecutors.

• Author: White, Ken

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I began my term as a federal prosecutor on October 3, 1995, the day O.J. Simpson was acquitted. The approving roar of the crowd at Camp O.J. across the street from the Los Angeles federal courthouse interrupted my supervisor's earnest lecture on our obligations as prosecutors, it did not sound like an auspicious beginning.

After the tumult died down, my supervisor read us the famous passage from Supreme Court Justice George Sutherland's opinion in the 1935 case Bergerv. United States, reminding us that our duty was not to win the case, but to see "that justice shall be done." Veteran prosecutors across the country instruct neophytes with similar exhortations. They will commonly say, borrowing from Sutherland, that prosecutors may strike hard blows but not foul ones.

Yet state and federal prosecutors routinely fall short of this ideal. There are too many stories of convictions obtained through subornation of perjury, through suppression of exculpatory evidence, and through the willful use of unreliable, wrongfully obtained confessions.

It's difficult enough to detect misconduct, mostly due to inadequate funding for criminal defense. But if detection is rare, redress is even rarer. Prosecutors enjoy "absolute immunity" from lawsuits, a privilege no other profession in America enjoys save for judges. In theory, state bars should sanction misbehaving prosecutors, but that is also vanishingly rare. Last September, USA Today found 210 cases in which federal prosecutors had committed ethical breaches so egregious that a federal judge personally rebuked the prosecutor, overturned a conviction, or dismissed the criminal charges entirely. The prosecutor faced serious discipline from a state bar in just one of those 210 cases. Recent studies of misconduct among state prosecutors in California have produced similar results: disturbing examples of misconduct and an even more disturbing lack of accountability.

I've worked as both a prosecutor and a defense lawyer. In my experience, one primary problem drives all these issues: a professional culture that values winning above all else.

Defense lawyers, of course, do their absolute best for their clients in every case, but they tend to understand that the deck is stacked against them. They can't possibly win them all, in part because of the government's overwhelming resources, in part because of judges' and jurors' tendency to defer to law enforcement, and in part because many of our...