Is prosecutorial misconduct on the rise? LeClairRyan Michael Volkov USA August 14 2012
See - http://www.lexology.com/library/detail.aspx?g=472d6f11-2de9-4608-8067-47d8606c4f66&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+federal+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2012-08-17&utm_term= "x x x. The white collar bar and political interests are banging the drum concerning the need for Congress and the Supreme Court to address the issue. Some are calling for the Supreme Court to review appropriate cases questioning prosecutorial immunity from civil liability. Senator Murkowski from Alaska has proposed legislation to increase possible sanctions against prosecutors who engage in misconduct. There is no question that publicity surrounding prosecutorial misconduct – each case or finding of misconduct is trumpeted in the press as further proof that prosecutors are out of control. It is not clear to me that such a finding is accurate. No one has conducted any type of statistical analysis and just citing anecdotal evidence as proof is not very persuasive. Not every prosecutor is perfect. Most, if not nearly all prosecutors, are ethical and professional. Lawyers who become prosecutors usually have a reason for doing so – they believe that compliance with the law is important for society. Because of this attitude, prosecutors are likely to avoid unethical conduct. Some prosecutors can be sloppy which can lead to instances of misconduct. That does not mean they were evil or trying to pull one over on the defense or the judge. After all, in the end, the most important achievement for a prosecutor is the respect of his or her peers and the judges. Prosecutors who intentionally seek to avoid their Brady obligations or any other ethical requirements should be sanctioned. No one can argue against that. But there are fine lines and different degrees in determining whether undisclosed evidence satisfies the Brady standard. In my experience, prosecutors who possess evidence which may meet the Brady test should turn it over to the judge and have the judge decide the issue. If the judge decides it is Brady, the court will turn it over to the defense. If the judge decides it is not Brady, the court can seal the evidence for the record and make sure it is available for appellate review if the defendant is convicted. Relying on this procedure, prosecutors protect themselves from subsequent claims of misconduct. The Justice Department has tried to address the perception of increasing prosecutorial misconduct by beefing up internal training programs and trying to increase internal discipline programs. Those are all welcome steps and should have make prosecutors more aware of their discovery obligations. x x x."