For the Defense - Vol. 6, Issue 1 - 12

and yields accurate results. Obviously, as underpaid
public servants, financial gain is not their motive, nor
is a competitive desire to notch " wins " or to seed a
political career, as often is portrayed in fiction.
Most lawyers are ethical, but, as in every practice
niche, there are some bad apples. Further, criminal
prosecutors sometimes suffer from the same biases
that can blind all of us - for example, confirmation bias
that persuades them to ignore evidence of innocence
once they've focused on a particular target.3 For
example, when I was a defense lawyer and represented
witnesses, I often observed how the agents and
prosecutors put down their pens and stopped taking
notes when my client began to defend the target or
describe his positive attributes. Too often, prosecutors
convince themselves that if they do not believe the
information, no one would, and it is not exculpatory.
Prosecutors are the most powerful actors in the most
visible part of our legal system, the criminal justice
system.4 There are legitimate debates about charging
decisions, plea bargaining, enforcement priorities,
and sentencing recommendations. But all agree that
prosecutors, like other lawyers, should follow certain
basic rules of conduct designed to protect participants
in the system and ensure its integrity. They must disclose
to the defense information that tends to negate
guilt or mitigate sentence.5 They must represent the
facts honestly and avoid arguments that cite to their
personal knowledge, mischaracterize the evidence or
inflame the jury on an improper, non-evidentiary basis,
such as appeals to personal prejudices. They cannot
impede the defendant's access to witnesses.6 And they
must follow other court-made rules that guarantee the
fair administration of justice, such as the duty to avoid
racial and gender discrimination in jury selection.7
Violation of these rules diminishes respect for
our system, but it can also yield inaccurate and
life-destroying results. The National Registry of
Exonerations recently examined 2,663 exonerations
and concluded that prosecutorial misconduct
contributed to thirty percent of those wrongful
convictions.8 The report surveyed previous studies of
prosecutorial misconduct and commented: " Taken
together, the studies of prosecutorial misconduct
reached two main conclusions: (i) a substantial number
of prosecutors commit misconduct in criminal cases,
and (ii) almost none are disciplined for it. " 9
The Pennsylvania disciplinary system has sanctioned
a number of prosecutors over the years. In 2015, a
Venango County ADA was disbarred for his repeated
misrepresentations and abusive closing arguments in a
number of cases.10 Over the last two years, the elected
District Attorney of Centre County was suspended for
12

For The Defense l Vol. 6, Issue 1

a year and a day for setting up a fraudulent website to
entice defendants to make incriminating statements.11
Likewise, a chief deputy attorney general was
suspended, also for a year and a day, for failing to
obtain court approval before subpoenaing a target's
attorney to testify in the grand jury and for making
false statements to the supervising judge in connection
with the matter.12 And two years ago, we first
obtained an emergency temporary suspension against
the Attorney General herself, and then obtained her
disbarment by consent.13
Nonetheless, we need to do better. Studies that
compare findings of serious misconduct in criminal
cases to the impositions of discipline show that the
disciplinary system has faltered. For example, The
Innocence Project examined judicial rulings from 2004
to 2008 in New York, Arizona, California, Pennsylvania,
and Texas. Courts found prosecutorial misconduct in
660 cases; in 133, they ruled the error required reversal
of the conviction. Only one of the prosecutors in those
cases received public discipline.14 Third Circuit Court
of Appeals Judge Stephanos Bibos surveyed some of
the literature twelve years ago and commented that
" by and large, . . . bar authorities have proven to be
ineffective. " 15 As one leading commentator, himself a
former prosecutor, wrote, " The debate is mostly over
just how bad disciplinary enforcement has been. " 17
The public and the profession deserve better from us.

ODC's Initiative
	
We are undertaking the following changes to our
rules and practices to enable us to be more effective in
encouraging the bar and public to report prosecutorial
misconduct, to investigate it effectively, and to monitor
the scope of the issue and our response.
We have amended our internal policy so that the
reversal of a conviction on the basis of misconduct is
no longer a prerequisite to a disciplinary action against
a prosecutor. In the past, ODC would not investigate
a complaint alleging prosecutorial misconduct " unless
there had been an adjudication by a Court in an
appropriate Post Conviction or Appellate proceeding
holding that the district attorney involved had, in
fact, engaged in prosecutorial misconduct. " While
it had a " good cause " exception, this policy on its
face prevented investigation of serious misconduct
that resulted in a lenient plea offer, that the court
avoided by reversing on other grounds, or that was
deemed harmless because the other evidence was
overwhelming.
Our new policy, attached as Appendix A in the
endnotes, permits investigations in those instances.
We will not interfere with pending adjudication of
For the Defense - Vol. 6, Issue 1

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