Prosecutorial misconduct in the digital age.

Author:Browning, John G.
Position:Miscarriages of Justice

    Prosecutorial misconduct, which this article defines as what occurs when a prosecutor deliberately engages in dishonest or fraudulent behavior calculated to produce an unjust result, is--according to many legal scholars--seriously underreported. One study utilizing a computer-assisted review revealed that there have only been just over one hundred reported cases of professional discipline of federal and state prosecutors in the past century--an average of approximately one disciplinary case per year. (1) Another leading scholar in the area has concluded that prosecutorial discipline is "so rare as to make its use virtually a nullity." (2)

    Why is this? Many reasons emerge, not the least of which is a practical, empirical obstacle to accurately assessing the problem: prosecutors who engage in such misconduct presumably don't want to be caught, and will take steps to conceal their actions. Another reason is the autonomy enjoyed by prosecutors' offices insofar as their internal policies are concerned. The considerable discretion afforded to prosecutors over whom to prosecute and which offenses to charge, coupled with a lack of external oversight of prosecutors' offices, fosters an environment in which misconduct can remain undetected and unchecked. Yet another reason is sheer volume: most criminal cases in the United States result in plea bargains, which are rarely subjected to judicial review or extensive investigation. (3) Consequently, the vast majority of known examples of prosecutorial misconduct only came to light during long, drawnout trials or over the course of an appeal, and often were discovered with the aid of resources beyond the means of the typical criminal defendant. In Connick v. Thompson, (4) for example, plaintiff John Thompson spent fourteen years on death row (and a total of eighteen years in prison) because prosecutors never disclosed an exculpatory blood evidence report from his defense attorneys. (5) The chance discovery--one month before Thompson's scheduled execution--by Thompson's investigator saved his life and led to the vacating of his convictions for both murder and armed robbery. (6) At least four, and possibly five prosecutors were aware of the evidence--a swatch of fabric from the bloody pants leg of one of the victims--which conclusively established that the perpetrator's blood was Type B (Thompson's blood was Type O). (7) Yet, it was never turned over to the defense. (8)

    Another reason for the underreporting of prosecutorial misconduct is the extreme reluctance and even disincentive on the part of those who are in the best position to report such conduct: other prosecutors, defense counsel and their clients, and judges. Prosecutors are reluctant to turn in colleagues; defense attorneys may feel instituting a bar complaint that they have precious little time for anyway can jeopardize ongoing dealings with prosecutors on other matters; and defendants themselves may believe that a complaint could adversely affect their case or their later prospects for parole. As for the hesitation of judges, one federal judge has summed it up nicely: "When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors' actions were flagrant, willful or in bad faith." (9)

    In addition, one cannot discount other factors that help account for the underreporting of prosecutorial misconduct. The rejection of tort liability (including common law personal tort liability under 42 U.S.C. [section] 1983 and municipal liability under [section] 1983) by the U.S. Supreme Court, most recently in Thompson, has proven to be a bar to punishing prosecutors' official misbehavior. (10) Professional discipline by state bar authorities, repeatedly endorsed by the Supreme Court as the appropriate vehicle for addressing claims of prosecutorial misconduct, (11) has also proven toothless.

    Along with the vast underreporting of prosecutorial misconduct and the lack of satisfactory, professionally viable means of ensuring accountability even where misconduct is reported, a potentially greater concern looms: technology. In today's digital age, prejudicial pretrial publicity can occur with the speed of a search engine, videos of "perp walks" can go viral, and posts on social networking platforms like Facebook and Twitter can heighten public condemnation of the accused and taint the jury pool with frighteningly fast and widespread results. The two social media trials of the twenty-first century, the prosecutions of Casey Anthony and George Zimmerman, demonstrated the power of harnessing emerging media for both prosecution and defense, in everything from pretrial publicity and raising a defense fund to jury selection and witness impeachment. (12) In an age in which "72 percent of adult Americans maintain at least one social networking profile," (13) where Facebook boasts "1.23 billion active monthly users" worldwide, (14) where 500 million tweets are processed each day, (15) and where text messaging has taken over, prosecutors have a host of technological options at their fingertips. It has led to positive results, like the use of social media content as useful evidence relied upon by prosecutors and defense attorneys alike. But it has also led to new ways to engage in prosecutorial misconduct, as this article illustrates with its discussions of cases in which prosecutors and judges have texted each other during trial, blogged about pending cases, posted inflammatory Facebook updates, and even created false online personas in an attempt to influence alibi witnesses. (16)

    As this article demonstrates, prosecutorial misconduct arising out of the use (or more accurately, misuse) of technology poses a particular concern thanks to the ease of use and inexorable spread of these new communication platforms. Misconduct can occur more quickly, easily, and be harder to detect because the very nature of the Internet facilitates deceptive conduct. It can take forms never envisioned before by courts or bar ethics authorities, including the exchange of texts hidden from the defense or a rogue prosecutor who takes it upon himself to create a false Facebook profile and tamper with witnesses. The ABA adopted changes to the Comments to Rule 1.1 of the Model Rule of Professional Conduct in August 2012, a key portion of which now expands the definition of what constitutes competent representation. (17) Counsel in all areas must now not only keep abreast of changes in their specialty, they must also be conversant in the benefits and risks of technology. (18) The many ways of committing prosecutorial misconduct in the digital age discussed in this article underscore the importance of this concept.


    When a Broward County, Florida jury convicted Omar Loureiro of first degree murder on March 27, 2007, and when then Broward Circuit Judge Ana Gardiner imposed the death penalty on Loureiro on August 24, 2007, neither the defendant, his lawyers, nor the jury were aware of a fact that would later send shockwaves across the Florida legal community: that the prosecutor in the case and Judge Gardiner had secretly chatted and texted hundreds of times over the course of his trial. (19) Over the course of 151 days, Broward County prosecutor Howard Scheinberg and Judge Gardiner exchanged 471 text messages and 949 cellphone calls, averaging nearly 10 ex parte communications per day. (20) Unbeknownst to Loureiro, with his life literally on the line, the lawyer prosecuting him and the judge who would ultimately decide his fate were in regular, secret contact--including a seventy-minute phone conversation on the very same night that the jury returned a verdict recommending a death sentence. (21)

    Both Gardiner and Scheinberg denied any romantic relationship. (22) According to David Bogenschutz, the lawyer who later defended Gardiner in a disciplinary proceeding, "[t]he relationship, if you can call it that, between Ms. Gardiner and Howard Scheinberg was a phone relationship, a text relationship and it had to do with their own personal problems." (23) Bogenschutz maintained that Scheinberg was supportive of Gardiner after she lost her father and grandmother in early 2007, while Gardiner was a source of support for Scheinberg as he went through a difficult divorce and "its effects on his two young daughters." (24) Bogenschutz added that the bulk of the texts were brief, consisting of little more than "how are you" or "can't talk now." (25) Moreover, according to the Florida Supreme Court in its ruling on the disciplinary action brought against Scheinberg, "[i]t is not disputed that their conversations were personal in nature and did not pertain to the Loureiro case." (26)

    At the same time, however, the court observed that the communications between Scheinberg and Judge Gardiner "were not casual or administrative, such as the type of communication that might occur when a lawyer and judge pass each other in the hallway or when they serve on the same committees." (27) Instead, the court noted that the "extensive communications ... created an appearance of impropriety in the case" and "served to damage the perception of judicial impartiality." (28) In fact, the Florida Supreme Court felt strongly enough about the damage that this sordid episode did to the administration of justice that it doubled the recommended penalty of one year put forth by a referee and suspended the former prosecutor's Florida law license for two years. (29) Not only was the court swayed by the "substantial number of personal communications that were not disclosed to the opposing party and his attorney," but also the fact that "this conduct occurred in the context of a capital first-degree murder case where the judge had to rule on motions made by and against [Scheinberg] ... and where the judge could, and did, impose the ultimate sentence of death." (30) Moreover, the court...

To continue reading