Women Criminal Defense Attorneys: We Remain the First Line of Defense Against Prosecutorial Misconduct

It is a good sign when anyone outside of the criminal defense bar takes up the case against prosecutorial misconduct.  Last Sunday, the New York Times Editorial Board boldly addressed the negative impact of such misconduct on our system in a piece entitled Rampant Prosecutorial Misconduct. The Editorial Board highlighted the recently issued dissenting opinion in United States v. Kenneth Olsen by Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit.

Judge Kozinski wrote that “There is an epidemic of Brady violations abroad in the land” and noted that “only judges can put a stop to it.”  In Olsen, the Government failed to disclose evidence that the forensic scientist who performed the lab tests in the case had been previously investigated relating to sloppy work which led to wrongful convictions in the past. The majority ruled that this would not have changed the outcome based on the overwhelming evidence against the defendant. Judge Kozinski chastised the majority and called this rationale a “serious moral hazard” and called out the fact that prosecutors are rarely punished for these violations. According to the Center for Prosecutor Integrity, courts punish prosecutorial misconduct in less than 2 percent of the cases in which it occurs.

These statistics are no shock to any of us in the trenches fighting for criminal defendants.  While the Editorial Board states that all Courts should heed Judge Kozinski’s call, they also add that this alone will not fix the problem and that prosecutor’s offices should develop integrity standards of their own.   That is the same as asking any group to police their own misconduct and, although a morally correct position, it has very little chance of actually changing anything.

From where I sit, as always, the defense bar is the first line of defense against Brady violations and prosecutorial misconduct.  We have to remain vigilant while pushing for evidence, and must commit to exposing all incidents where evidence is withheld. The statistics referenced above relating to prosecutorial punishment only account for cases in which defense counsel is drawing attention to violations.  We all know that there are countless cases where Brady violations go undetected because defense counsel is in the “let’s just get along” mode.  I understand there are times when this is the right approach for a client’s sake, but that doesn’t mean that you shouldn’t be asking for everything that your client is entitled to.  If a prosecutor considers that controversial or too adversarial for their taste you should question everything about their motive and their integrity.

I am not intending to shift the blame for Brady Violations to defense counsel. The responsibility remains in the laps of the prosecutors but we are and always will be the first line of defense against this devastating injustice.

While the New York Times Editorial Board should be applauded for bringing this issue to the public’s attention, let’s not forget that it is our job to keep pushing, prodding and objecting so that every instance of prosecutorial misconduct is exposed.