“In asking Eric Holder to investigate Eric Holder, Obama illustrated the difficulty of adequately addressing prosecutorial misconduct as well as anyone possibly could: Prosecutors are relied upon to police themselves, and it isn’t working. “
Radley Balko at The Huffington Post uses New Orleans’ rich history of prosecutorial misconduct to explain why prosecutors in this country are not held accountable for violating the law.
Using a series of examples like the one above (which refers to the subpoena of Fox News reporter James Rosen’s phone and email records by the Justice Department) Balko offers a detailed portrait of prosecutorial regulation in his latest article, “The Untouchables: America’s Misbehaving Prosecutors, And The System That Protects Them.”
New Orleans is a logical place to start and end his story. Since the Connick v. Thompson decision when the Supreme Court found (5-4) that district attorneys are immune from liability for the misconduct of their staff, self-regulation of the prosecutorial profession is all we can hope for – and I’m afraid it’s a faint hope. While Justice Thomas (who wrote the opinion in Connick) envisions state bars having a significant role in the disciplining of wayward prosecutors, chief counsel for the Louisiana Bar Association’s Office of Disciplinary Counsel, Charles Plattsmier, suggests otherwise:According to Plattsmier, in his time at ODC, complaints against prosecutors have been almost nonexistent… In his 17 years on the job, he can only recall three occasions in which a prosecutor has been disciplined for misconduct.
Despite overseeing a dearth of complaints against prosecutors who have committed misconduct in Louisiana, Plattsmier insists, “I wouldn’t be at this job if I didn’t think we were making a difference.” Some of the attorneys Balko talked to who have filed complaints with Plattsmier’s office about unethical prosecutors and received notice that their complaints were dismissed (or received no response at all) may feel differently. But it is at least reassuring that Plattsmier is telling Louisiana prosecutors what the law is:“Some prosecutors have assumed that [the materiality test] gives them the authority to decide what information is and isn’t material to guilt. But that isn’t how it works. It isn’t up to their discretion. From an ethics standpoint, if it’s favorable to the defense, they’re obligated to turn it over. And we’ve told them that the fact that the information they withheld was deemed immaterial by a court doesn’t preclude us from opening an investigation.”
[It’s not yet clear that the message is getting through to Orleans Parish District Attorney Leon Cannizzaro. See under “Henry Bruer” on New Orleans page: “When he was asked why prosecutors had not disclosed the deal in a more timely way, District Attorney Cannizzaro… incorrectly told the Times-Picayune that if defense counsel fails to request a piece of evidence, “we’re not obligated to give it to him,” even though there is clear U.S. Supreme Court precedent to the contrary.”]
Plattsmier and local New Orleans defense attorney Sam Dalton (whose complaints against the New Orleans District Attorney’s Office have disappeared into a black hole) offer Balko three compelling reasons why self-regulation is not a useful way to address prosecutorial misconduct:
- Prosecutors do not want to report other prosecutors for ethical violations.
- Judges do not want to report prosecutors for ethical violations.
- Defense attorneys do not want to report prosecutors for ethical violations.
If we have reached a point where even the head of Louisiana’s Office of Disciplinary Counsel is saying that the concept of self-regulation is mostly a fanciful one, then mere procedural changes – encouraging judges to report misconduct to state bars, getting more training for prosecutors, instituting open file policies – are not going to fix the problem. There needs to be a cultural shift.
More from Balko:“Publicity and high conviction rates are a stepping stone to higher office,” says Harvey Silverglate, a Boston-based criminal defense attorney and outspoken civil libertarian. He says prosecutors accused of going too far can frame the allegations as a testament to their willingness to lock up the bad guys. “Except in some rare cases, misconduct isn’t going hurt a prosecutor’s career. And it can often help,” he says. Back in Orleans Parish, the lead prosecutor in the John Thompson case, Eric Dubelier, was not only never disciplined, he was eventually appointed as an Assistant United States Attorney for the Southern District of Florida, where he handled narcotics cases. In a prosecutor’s world, that’s a promotion. He was then promoted again to the Justice Department’s Transnational and Major Crimes Section in Washington, D.C., where he worked for eight years. Since 1998, he has been a partner at the large international law firm Reed Smith, where he heads up its division on white-collar crime.
Justice Thomas’s theory of how prosecutorial discipline will be enforced post-Connick hinges on an important premise: that legal professionals will be willing to file complaints against prosecutors when they do something wrong. Balko’s article is riddled with vignettes that expose the falsity of this premise. Neither judges, nor defense attorneys, nor prosecutors have anything to gain from regulating their own profession. In fact, in a system that has afforded prosecutors nearly boundless discretion, they only have things to lose.