The Adams Center

Prosecutors Rarely Penalized for Misdeeds

First published Aug. 29, 2007 in The Daily Item

The Center for Public Integrity spent three years reviewing more than 10,000 criminal cases pending between 1970 and 2003 in which prosecutorial misconduct was alleged by a defendant awaiting trial or after conviction, including 523 Pennsylvania cases. The center announced its findings in June 2003.

In 67 of the 523 Pennsylvania cases, a court ruled that a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In an additional 35 cases a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant. Two of the defendants ultimately proved their actual innocence.

According to the center, “(o)f the (67) cases in which judges ruled a prosecutor’s conduct prejudiced the defendant, 49 involved improper trial behavior questioning witnesses or in opening or closing arguments, eight involved the prosecutor withholding evidence from the defense, four involved pre-trial tactics, two involved speedy trial issues, one involved endorsing perjury, one involved trying to influence a defense witness, one involved manipulating the sentencing calendar and one involved discrimination in jury selection.” Forty-one of the 67 cases originated in Philadelphia County.

Like attorneys in private practice, prosecutors have ethical obligations. In fact, they have one very important additional ethical obligation: to seek justice.

The American Bar Association Prosecution Function Standard 3-1.2 states that “the duty of the prosecutor is to seek justice, not merely to convict.” Prosecutors are expected to be “ministers of justice.”

The attorney disciplinary system in Pennsylvania is in the hands of the Pennsylvania Supreme Court and the Disciplinary Board of the Supreme Court. The Pennsylvania Constitution grants the Supreme Court exclusive jurisdiction over attorney discipline matters, including the rules of professional conduct and rules governing their enforcement. It appoints all members of the Disciplinary Board and designates the Board’s Chair and Vice-Chair. Only the Supreme Court can impose public discipline on an attorney. The Disciplinary Board initially considers all disciplinary matters and makes recommendations to the Supreme Court, but the Court has ultimate authority.

So what has this disciplinary system produced out of the 67 cases in which a court ruled that a prosecutor’s conduct prejudiced a defendant to the extent that a conviction, sentence or indictment could not withstand legal challenge? Only one of the prosecutors involved ever faced a disciplinary hearing based on the established misconduct: York County Prosecutor Hugh Stanley Rebert. The proceeding against Rebert worked its way up to the Supreme Court in 1998, and was then sent back by the Court to the Disciplinary Board for further action. There is no record of any discipline ever being imposed on Mr. Rebert, who remains York County Prosecuting Attorney.

How about criminal charges for obstruction of justice? The fact is that criminal charges against prosecutors for obstruction of justice are almost unheard of. A Chicago Tribune investigation in 1999 disclosed that in the prior 36 years, 381 homicide convictions had been reversed in the United States because prosecutors knowingly used false evidence or withheld exculpatory evidence from the defense. Not a single prosecutor was brought to trial on criminal charges for the misconduct. Only two were charged and the indictments against them were dismissed before trial.

While dated by a few years, the findings of the Center for Public Integrity and Chicago Tribune are very consistent with what an up-to-date study would reveal, despite such rare events as the June, 2007 disbarment of Durham, North Carolina Prosecutor Michael Nifong for misconduct in connection with the prosecution of certain Duke University student-athletes. One must wonder whether the outcome in Nifong would have been the same had the case not attracted such widespread national publicity, and the student-athletes not been represented by exceptionally skilled and aggressive counsel.

It is important to know that, while not commonplace among prosecutors, prosecutorial misconduct is by no means rare. Across the United States every day there are individual prosecutors guilty of misconduct. In the vast majority of cases involving prosecutorial misconduct, the misconduct never comes to light or it is remedied without the need for an appeal, so that it would not be subject to review in a criminal appellate court proceeding.

To protect and enhance the reputation of our criminal justice system, and respect for the many fine public servants who are devoted to law enforcement that both protects our communities and serves the cause of justice, the Pennsylvania Supreme Court and the Disciplinary Board of Pennsylvania should require that, after a Pennsylvania court makes a finding that a prosecutor’s misconduct prejudiced a defendant’s rights to the extent that a conviction, sentence or indictment must be set aside, the court shall refer the matter for possible disciplinary action against the prosecutor. Upon referral, each case should be evaluated fairly based on the evidence to determine whether disciplinary charges are in order. Whatever the decision, the public should be given access to the decision and the reasons that support it. We must not forget that prosecutors are public servants and accountable as such to the citizens.

Allan Sobel is director of the Arlin M. Adams Center for Law and Society at Susquehanna University.

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