The chronic failure to discipline prosecutors for misconduct: proposals for reform.

• Author: Sullivan, Thomas P.
• Position: Introduction through III. Proposals for Reform in Criminal Cases B. Recommendations Directed to Judges Who Serve on Reviewing Courts, p. 881-913 - Symposium on the Center on Wrongful Convictions - Author abstract

TABLE OF CONTENTS INTRODUCTION I. LACK OF DISCIPLINE FOR PROSECUTORIAL MISCONDUCT A. Examples of Cases Involving Prosecutorial Misconduct with No Resulting Discipline B. Surveys and Articles Illustrating Lack of Discipline of Errant Prosecutors II. ALL JUDGES AND LAWYERS--INCLUDING THEIR LAWYER CLERKS--HAVE PROFESSIONAL OBLIGATIONS TO REPORT SERIOUS PROSECUTORIAL MISCONDUCT TO DISCIPLINARY AUTHORITIES A. Rules Applicable to All State Court Judges, All State and Federal Prosecutors, and All Law Clerks B. Rules Applicable to All Federal Judges and Their Law Clerks C. The Kinds of Prosecutorial Misconduct that Should Be Reported D. The Failure To Report A Lawyer's Serious Misconduct Is Itself a Violation of the Professional Rules and the Judicial Code III. PROPOSALS FOR REFORMS IN CRIMINAL CASES A. Recommendations Directed to Trial Court Judges in Criminal Cases B. Recommendations Directed to Judges Who Serve on Reviewing Courts C. Recommendations Directed to Federal and State Legislatures and Supreme Courts D. Recommendations Directed to Prosecutors: Adopt and Instill in the Office a Culture of Integrity and Compliance with the Rules of Professional Conduct E. Recommendations Directed to Defense Lawyers F. Recommendations Directed to State and Federal Disciplinary Authorities G. Recommendations Directed to Federal and State Organizations Which Promulgate Codes of Professional and Judicial Conduct H. Recommendations Directed to National, State, and Local Organizations that Represent Judges, Prosecutors, and Defense Lawyers I. Recommendations Directed to Law Schools CONCLUSION APPENDIX: THE STATUS OF LAWYER AND JUDGE REPORTING RULES IN THE 50 STATES INTRODUCTION

The authors of this article have extensive experience with the criminal justice systems, state and federal. Possley is a Pulitzer Prize-winning journalist (1) with more than forty years of experience and the co-author of two surveys, cited infra, which revealed extensive prosecutorial misconduct in Chicago and California that had gone unpunished. (2) Sullivan has practiced law in Chicago for over sixty years, chiefly in civil and criminal litigation, including service for a brief period as a federal prosecutor. We believe that most prosecutors adhere to the precept that their primary function is not to obtain convictions, but to see that justice is done; hence, the threat of sanctions is not needed to persuade them to comply with their ethical obligations. Unfortunately, there are a few rogue prosecutors who flout the rules of professional conduct and bring our criminal justice system into disrepute. The writings cited in this article--which span four decades--have identified and bemoaned this problem, but few have attempted--as we do in this article--to set forth a comprehensive series of practical proposals designed to identify and weed out the small, but insidious, group of miscreants, and to prevent future acts of prosecutorial misconduct. (3)

We have divided our article into three parts: (4) Part I contains a review of the evidence that has accumulated over the past several decades and reveals an almost complete lack of discipline of errant prosecutors. Part II contains a summary of the rules that apply to all members of the bar, including judges, and require them to report serious lawyer misconduct to disciplinary bodies. In Part III, we set out our recommendations for reforms, which are directed to judges, prosecutors, state and federal disciplinary authorities and legislatures, organizations that promulgate codes of conduct for judges and lawyers, organizations that represent judges and lawyers, and law schools.

1. LACK OF DISCIPLINE FOR PROSECUTORIAL MISCONDUCT

   The failure to punish prosecutors who engage in misconduct is not a recent phenomenon. To the contrary, it has been well known for many decades, as illustrated in the surveys and articles summarized below, prepared by those who have studied relevant cases and disciplinary systems. (5)

   We begin in Part A with a few of the many cases in which misconduct was discovered but went unpunished. In Part B we cite surveys and articles that have called attention to this situation.

   1. EXAMPLES OF CASES INVOLVING PROSECUTORIAL MISCONDUCT WITH NO RESULTING DISCIPLINE

      The reality of prosecutorial misconduct is best illustrated through the facts of specific cases, so we have gathered and summarized a few below. (6) In none of these cases was the prosecutor disciplined.

      After serving as a prosecutor in the Cuyahoga County District Attorney's office in Cleveland, Ohio, for thirty years, Carmen Marino retired in 2002. (7) Over those three decades, Marino prosecuted scores of cases and racked up many convictions. Marino attributed his success to jurors, who he said were inclined to trust law enforcement and distrust defendants who did not testify in their trials. (8) Upon Marino's retirement, the Cuyahoga County District Attorney began giving an annual award, christened the Carmen Marino Award, to a prosecutor in the office for "integrity and professionalism in the pursuit of justice." (9)

      Six years later, however, the award was renamed Prosecutor of the Year Award because Marino's name had come to represent the worst--not the best--attributes of a prosecutor. (10) Many of the convictions he obtained unraveled because of his misconduct: failing to disclose key pieces of evidence to defendants before trial; allowing prosecution witnesses to lie at trial; (11) and delivering improper, prejudicial closing arguments. (12)

      In 2003, the Center for Public Integrity, in a nationwide survey of prosecutorial misconduct from 1970 through 2002, reported that five of Marino's convictions had been overturned by Ohio reviewing courts. (13) After Marino retired in 2002, the reversals kept coming. In 2004, a federal court cited ten cases in which Ohio state courts found Marino had engaged in prosecutorial misconduct. (14)

      One of the most notable of Marino's reversals was the case involving Joseph D'Ambrosio, who was convicted of murder in 1989 and sentenced to death. (15) The Ohio reviewing courts affirmed D'Ambrosio's conviction and sentence, (16) and D'Ambrosio's state post-conviction petition for relief was denied. (17) In March 2001, D'Ambrosio filed a federal petition for writ of habeas corpus based in part on a claim that Marino failed to disclose exculpatory evidence. (18) In 2006, following an evidentiary hearing, a federal judge granted the petition based upon findings that D'Ambrosio was denied due process by the prosecution's failure to apprise him of exculpatory and impeachment evidence, including evidence that pointed to an alternative suspect with a strong motive to kill the victim. The judge ordered the state to either dismiss the charges or conduct another trial within 180 days. (19) The warden appealed. (20) In 2008, the Sixth Circuit affirmed, noting that there was a "reasonable probability" that the outcome of D'Ambrosio's trial would have been different had the prosecution not suppressed evidence. (21) The suppressed evidence would have both weakened the prosecution's case and strengthened D'Ambrosio's position that someone else committed the murder. (22)

      Disputes ensued concerning additional exculpatory evidence not previously disclosed to D'Ambrosio's lawyer. In 2010, after several state court proceedings related to D'Ambrosio's retrial and other federal court proceedings, (23) U.S. District Judge Kathleen McDonald O'Malley ordered the state not to retry D'Ambrosio. (24) She lamented prosecutors' improper withholding of evidence that tended to raise questions of D'Ambrosio's guilt. (25) The judge said that the state's testimony "only can be described as 'strain[ing] credulity,' and showing startling indifference to D'Ambrosio's rights." (26)

      The Sixth Circuit affirmed. (27) D'Ambrosio was released from prison after serving more than twenty years on Ohio's Death Row. (28) His subsequently filed federal suit for damages against Cuyahoga County was dismissed, although the judge acknowledged the prosecutors "trampled upon D'Ambrosio's constitutional rights." (29)

      And the hits keep on coming. In March 2015, Cuyahoga County Common Pleas Judge Nancy Russo ordered a new trial for Eugene Johnson, Derrick Wheatt, and Laurese Glover, each of whom had spent nearly twenty years in prison for a murder in East Cleveland. (30) Judge Russo found that Marino intentionally withheld a trove of exculpatory evidence in the case, and at one point had written a letter to the East Cleveland police department ordering department officials to conceal all police reports and other information relating to the investigation. (31) In rendering her decision, Judge Russo stated, "Marino is infamous in Cuyahoga County for his vindictive, unprofessional and outrageous misconduct in criminal cases." (32)

      Despite this litany of misconduct, the Ohio State Bar has never publicly disciplined Carmen Marino. (33)

      Ohio is not alone. An Arizona man convicted of assaulting police officers when resisting arrest was exonerated after excessive force reports surfaced, suggesting that the officers may have beaten the twenty-three-year-old man...