Prosecutorial ethics: new insights after 75 years of jurisprudence.

• Author: Cannizzaro, John
• Position: Feature: The Prosecutor

IN APRIL OF 1935 the United States Supreme Court reversed a conviction due to the prosecutor's misconduct and unethical behavior at trial. Berger v. U.S., 295 U.S. 78 (1935). The Supreme Court in Berger found the prosecutor "misstated facts ... conducting himself in a thoroughly indecorous and improper manner ... was undignified and intemperate" Id. at 85. This case is a must-read for current prosecutors and anyone interested in becoming one. The reason the Court was so harsh on the prosecutor was the great respect the Court has for such an important part of our system. The same court, berating the actions of the unethical prosecutor, goes on to define the prosecutor's role. The Court tells us that the prosecutor:

"is a representative not of an ordinary part to a controversy, but of a Sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore in a criminal prosecution is not that it shall win a case, but that justice shall be done" Id. at 88.

How important those words are for prosecutors today. Nearly 76 years have passed and the role of prosecutors has not changed their still important function.The role of the prosecutor is to be a "servant of the law, {so that} the guilt shall not escape or the innocence suffer" Id. at 89. It is this struggle between convicting the guilty and protecting the innocent that some

of the most difficult ethical considerations need to be focused. It appears that the Court was well aware of these very same issues that we are faced with today when it stated "It is as much his 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." Id.

Fast forward to today. The Supreme Court in March of this year in a 5-4 decision reversed a Fifth District Court of Appeals case in which a jury awarded 14 million dollars to a defendant where the district attorney's office was sued due to a lack of training in dealing with Brady issues. Connick v. Thompson 131 S.Ct. 1350 (2011). In this case there were Brady violations due to crime lab reports not being turned over to the defense. The defendant was on death row for close to 14 years and was one month from being executed when the evidence came to light. As a result of the evidence, the cases against the defendant were vacated and the lawsuit came about alleging that the district attorney's office failed to train their prosecutors about their ethical obligations under Brady. A jury agreed with the prisoner and awarded him 14 million dollars. The Fifth Circuit affirmed this decision, only to have it reversed by the Supreme Court by the narrowest of margins. All of the Justices were in agreement that there were some serious ethical breaches in this case. The only division in the opinion was whether the district attorney's office could be sued for the lack of training. The dissent in discussing the prosecutors' ethical obligations points out, "A...