Judge says prosecutors should follow the law. Prosecutors revolt.

I’ve addressed the problem of prosecutorial misconduct here a few times before — both its prevalence, and the fact that misbehaving prosecutors are rarely sanctioned or disciplined. Recently (or perhaps the better word is finally), some judges have begun to speak out about the problem including, most notably, Alex Kozinski, the influential judge on the U.S. Court of Appeals for the 9th Circuit.

Late last year, South Carolina State Supreme Court Justice Donald Beatty joined Kozinski. At a state solicitors’ convention in Myrtle Beach, Beatty cautioned that prosecutors in the state have been “getting away with too much for too long.” He added, “The court will no longer overlook unethical conduct, such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence. You better follow the rules or we are coming after you and will make an example. The pendulum has been swinging in the wrong direction for too long and now it’s going in the other direction. Your bar licenses will be in jeopardy. We will take your license.”

You’d think that there’s little here with which a conscientious prosecutor could quarrel. At most, a prosecutor might argue that Beatty exaggerated the extent of misconduct in South Carolina. (I don’t know if that’s true, only that that’s a conceivable response.) But that prosecutors shouldn’t suborn perjury, shouldn’t retaliate against political opponents, shouldn’t suppress evidence, and that those who do should be disciplined — these don’t seem like controversial things to say. If most prosecutors are following the rules, you’d think they’d have little to fear, and in fact would want their rogue colleagues identified and sanctioned.

The state’s prosecutors didn’t see it that way. Beatty singled out South Carolina’s 9th Judicial District in particular. There’s a good reason for that: He noted in his talk that two prosecutors from that district, overseen by Solicitor Scarlett Wilson, had already been suspended for misconduct and at the time of his talk, another complaint was pending. A recent complaint by the state’s association of criminal defense lawyers recently laid out a list of other complaints (PDF) against Wilson’s office. (You can read Wilson’s response here.)

But Wilson took personal offense at Beatty’s comments. She accused him of bias and sent a letter asking him to recuse himself from criminal cases that come out of her district. In one sense, Wilson is unquestionably correct. Beatty is biased. He’s clearly biased against prosecutors who commit misconduct. But that’s a bias you probably want in a judge, particularly one that sits on a state supreme court. It’s also a bias that isn’t nearly common enough in judges. (Not only do most judges not name misbehaving prosecutors in public, they don’t even name them in court opinions.)

Other prosecutors around the state jumped on, and now at least 13 of the head prosecutors in the state’s 16 judicial districts, along with South Carolina Attorney General Alan Wilson, are asking for Beatty’s to be recused from criminal cases. This would presumably end his career as a state supreme court justice.

Over at the Connecticut Law Tribune, the public defender who writes under the pseudonym “Gideon” comments on this mess:

Why, then, is it so inappropriate for Justice Beatty to remind stewards of justice that their charge includes not only securing convictions, but also maintaining the integrity of the criminal justice system? What is so particularly offensive about the justice making his opinion known? Certainly no one would argue that there are two competing opinions to be had here; there is no pro-suppression of exculpatory evidence lobby. So is it merely the petulance of being chided in public?

This isn’t an unusual occurrence, however. Prosecutors in San Diego have long used a state law to “disqualify” pro-defense judges. Just a few months ago, they boycotted a superior court judge because he issued a few too many rulings upholding the Fourth Amendment, in favor of defendants. They claim that these statements and rulings evince an underlying bias that these judges have, making them unfit to be neutral and detached magistrates in criminal court.

Also in Santa Clara County, Calif., where a few years ago former district attorney Delores Carr responded to a series of scandals in which her office failed to expose exculpatory evidence, and one of her assistants was sanctioned, by boycotting the judge who ruled against her, and then attempting to restrict the power of the state bar to discipline prosecutors. (Something the bar rarely does, anyway.)

In these days when the media and the masses equate every arrest with guilt and every acquittal with a mistaken jury and a technicality in the law, these incidents show that some prosecutors aren’t above playing to these base sentiments, or worse, actually believe these very things.

Why else would a judge who sides with a defendant and his Fourth Amendment rights be unfit to sit in criminal court? Why else would it be grounds to disqualify a judge for reminding prosecutors of their ethical obligation?

Justice Beatty’s remarks are troubling, but not for the reasons the attorney general of South Carolina thinks. They’re troubling because they reveal that prosecutors there engage in witness tampering, retaliatory and selective prosecutions and even perjury. They’re troubling because they reveal that perhaps the South Carolina Supreme Court has been aware of this unethical conduct but has heretofore turned a blind eye to it (“no longer overlook…”). They’re troubling because they reveal that justice in South Carolina isn’t what justice should be and some want to keep it that way.

One more example: Recently in Arizona, the state’s supreme court recommended adopting an ethics rule that would require prosecutors to disclose “new, credible, and material evidence” of a wrongful conviction, make that information available to the convicted and then “undertake further investigation or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.”

This seems like a pretty sensible guideline. Yet the office of Maricopa County Attorney William Montgomery opposed it. Why? According to a comment Montgomery’s office submitted to the court, because there’s “no convincing evidence that Arizona has a ‘problem’ of wrongful convictions” or that “prosecutors have failed to take corrective action when appropriate.” In a debate a couple of weeks ago, Montgomery reiterated his opposition. He said he already follows the rule, and so he was insulted that anyone would suggest an ethical guideline would be necessary to hold him to it.

Of course, even if Montgomery himself always follows the proposed rule, he isn’t the only prosecutor in Arizona. Nor will he be the last prosecutor in Maricopa County. Certainly he can’t believe that every current and future prosecutor in Arizona will now and always do the right thing when presented with evidence of a wrongful conviction. Perhaps it’s true that only the rare, rogue, isolated prosecutor would hide, obscure, or sit on such evidence. But if disclosure of that evidence is the right thing to do, it’s difficult to understand why anyone would oppose giving the state bar a way to discipline that prosecutor, rare, rogue, isolated as he may be.

The most plausible explanation for all of these stories is that a significant number of prosecutors just don’t want to be held accountable to anyone but themselves. I suppose a lot of us would like to have that sort of protection in our jobs. But few of us do. And the rest of us don’t hold positions that give us the power to to ruin someone’s life with criminal charges, to convince a jury to put someone in prison or to ask the state to put someone to death.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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Radley Balko · March 7