Prosecutorial accountability 2.0.

• Author: Green, Bruce
• Position: Introduction through II. Prosecutorial Accountability 2.0 B. B. The Regulatory Shift 3. Disciplinary Oversight, p. 51-83

"There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it." (1)

INTRODUCTION

Given prosecutors' extraordinary power, (2) it is important that they be effectively regulated and held accountable for misconduct. Although prosecutors perceive that they are in fact well-regulated, (3) if not over-regulated, (4) public complaints about prosecutorial misconduct and demands to reform the regulation of prosecutors have grown louder and carried further in the information age. The clamor over prosecutorial misconduct derives from many quarters and consists of critiques that build upon each other. National and local publications, websites, and blogs regularly chronicle prosecutorial misconduct. (5) In a 2015 article on criminal justice reform, Judge Kozinski of the Ninth Circuit Court of Appeals called for holding prosecutorial misconduct "up to the light of public scrutiny." (6) The New York Times editorial page has criticized discovery abuse by the New Orleans prosecutor's office. (7) Significantly, conservative publications have roundly condemned prosecutorial misconduct and urged elevating the problem to the national political agenda. (8)

The discourse about prosecutorial misconduct has expanded and evolved in the past two decades. For a long time, the media and judiciaries focused primarily on intentional violations of law, not abuses of discretion or negligent law-breaking. They assumed intentional prosecutorial law-breaking was aberrational, the fault of rogue prosecutors--"a few bad apples." (9) The public and judicial response was limited to calls to punish individual wrongdoers, whose misconduct did not seriously erode public and judicial confidence in the prosecution's basic fairness and integrity. But over time, there has been increased acceptance of the argument that prosecutorial misconduct is widespread and systemic, as reflected in the popularization of Judge Kozinski's 2013 declaration that there is a national "epidemic" of prosecutorial misconduct. (10)

A regulatory shift has accompanied this rhetorical shift. Slowly and sporadically, courts and other regulators have become more receptive to allegations of prosecutorial misconduct, more inclined to initiate inquiries into these allegations, and somewhat more willing to afford remedies and impose punishment. Perhaps most importantly, the public and regulators have become increasingly supportive of systemic measures aimed at deterring or preventing prosecutorial wrongdoing. These evolutionary changes are significant because they point toward greater legal and political accountability for prosecutors, both individually and institutionally, for errant behavior. This regulatory shift is a transition toward what this Article terms "Prosecutorial Accountability 2.0."

This Article describes the rhetorical and regulatory changes that characterize the new prosecutorial accountability, identities the conditions that have enabled them to occur, and considers their implications. While identifying various necessary conditions, the Article argues that information technology has been the essential catalyst; the evolution could not be sustained without the aggregation, accessibility, and communication of data and commentary about prosecutorial misconduct that new information technology makes readily available to the public. Given the permanence of information technology in modern society, the Article concludes by cautiously predicting that the contemporary regulatory movement will be sustained; the pendulum will not swing back to the period when courts and the media presumed the integrity of prosecutors and counted on them to ameliorate the excesses and injustices of the police. Rather, the current pressure to hold prosecutors accountable will be ongoing.

This Article proceeds in four Parts. Part I describes the traditional rhetoric of, and regulatory approaches to, prosecutorial misconduct. Part II then discusses how rhetoric and regulation are changing in the information age. Part III looks at the conditions contributing to these changes, emphasizing the role of information technology. Finally, Part IV considers the future of the new prosecutorial accountability.

1. PROSECUTORIAL ACCOUNTABILITY 1.0

   This Part looks at prosecutorial accountability prior to the information age. It focuses on two defining features--the discourse about, and the regulation of, prosecutorial misconduct. It describes the traditional view--the view that most prosecutors could be counted on to act lawfully and ethically and that their offices promote lawful and ethical conduct. Wrongdoing, as narrowly conceived, was assumed to be rare and the fault of a few rogue prosecutors. This rhetoric impelled courts and other regulators to focus on individuals, and, in many cases, defer to prosecutors' offices to deal with presumably aberrant misbehavior.

   1. The Traditional Rhetoric

      Judges have traditionally professed that the overwhelming majority of prosecutors are honest and law-abiding, and they have sometimes elevated this belief to the level of a legal presumption. (11) When there is a question of whether a prosecutor's wrongdoing was willful or simply careless, judges tended to give the prosecutor the benefit of the doubt. (12) Likewise, judges assumed that most prosecutors' offices could be trusted to, and had the means to, regulate their prosecutors, by, for example, punishing individual misconduct. (13) Judges occasionally remarked on the prevalence of certain kinds of prosecutorial misconduct within their jurisdictions, (14) and on the courts' ineffectual responses, (15) but more often, courts expressed faith in the general integrity of individual prosecutors and their offices. (16)

      Judges took this position based on cues from the U.S. Supreme Court. Eighty years ago, in its classic elaboration on the prosecutor's quasi-judicial role, the Court echoed the public's confidence that prosecutors will faithfully observe their obligations to play fairly and seek justice. (17) Three decades later, even as the Warren Court expanded protections against police abuse, (18) it did not question criminal procedure law's underlying "confidence in the integrity of the federal prosecutor." (19) Later Supreme Court jurisprudence, building upon Brady v. Maryland, (20) the Warren Court's most significant decision regarding prosecutorial conduct, trusted prosecutors to decide for themselves whether evidence in the state's possession is exculpatory and material and, if so, to disclose it, notwithstanding temptations to do otherwise. (21) Further, the Warren Court left other large and important swaths of prosecutorial conduct to essentially unreviewable discretion, subject at best to unenforceable professional or internal guidelines. (22)

      Thus, the Warren Court's criminal procedure revolution largely overlooked prosecutors. The Court evidently regarded prosecutorial misconduct as a rare and individual problem, (23) not one, like police investigative conduct, requiring sweeping reform. (24) No doubt, the Court's general confidence in the professionalism of prosecutors partly reflected Chief Justice Warren's confidence, as a former Alameda County prosecutor, that other prosecutors' offices maintained the high professional standards he attributed to his own former office. (25) That level of confidence is apparently shared by most current-day Justices, including another former local prosecutor, Justice Sonia Sotomayor. (26)

      For the most part, in the years leading up to the Internet era, only academics and defense and civil rights lawyers offered a counter-narrative that depicted prosecutorial misconduct as a widespread, systemic problem. Academics examined how prosecutors conducted their work and identified how some prosecutors violated laws or ethics rules or otherwise abused their power, whether intentionally or inadvertently. For example, Professor Bennett Gershman's treatise on prosecutorial misconduct, first published in 1985, surveyed a wide range of prosecutorial misdeeds. (27) Other academics, joined by some practitioners, also surveyed prosecutors' misconduct (28) or targeted wrongdoing in aspects of prosecutors' work, such as misconduct in discovery, (29) jury arguments, (30) or other phases of the trial. (31)

      Some academic writings identified apparent patterns of misconduct among prosecutors within a specific jurisdiction. (32) Some suggested that the tendency to commit misconduct may be intrinsic to the role of a lawyer for the prosecution in an adversarial system, (33) while others attributed this tendency to prosecution cultures that value winning cases or convicting criminals over playing by the rules. (34) Furthermore, a handful of legal academics and many practicing defense lawyers inferred that certain known violations--in particular, discovery violations, which were not easily exposed--were the "tip of the iceberg." (35) However, these critics' accounts were largely ignored or dismissed by mainstream government and media institutions. Organizations such as the National Association of Criminal Defense Lawyers (NACDL) assisted lawyers around the country who alleged prosecutorial misconduct, but these efforts were mostly unrecognized on a broader scale. (36)

      At the same time, prosecutors and their defenders insisted that instances of prosecutorial misconduct were in fact isolated and disconnected, not systematic. (37) This position relied on a conception of prosecutorial misconduct that is narrow in two respects.

      First, the rhetoric in defense of prosecutors has focused on intentional wrongdoing, not negligent or inadvertent wrongdoing. The prosecutorial view has been that prosecutorial misconduct should mean willful misconduct--a departure from how the term is used injudicial decisions in criminal cases. Courts use "prosecutorial misconduct" as a term of art to cover violations of law, particularly discovery law, whether or not the violation is...