The wide and unchecked authority granted to criminal prosecutors in charging and deal-making decisions is a feature of the American system that does not exist in other democracies. As one observer has noted: “[A] comparison of American and continental [European] prosecutorial practices reveals that American prosecutors still stand virtually alone in their overly broad and largely unfettered discretion.” [1]
Surprisingly, the American Bar Association’s Model Rules of Professional Conduct, which in various forms apply in every state except California, contain few if any restrictions on this aspect of the practice of law. The purpose of this article is to discuss the applicable Rules and to make a modest proposal for several new sections to one such Rule in order to correct the potential for abuse created by this situation. Given how ingrained the concept of prosecutorial discretion has become in the American system, a change in the Rules of Professional Conduct would appear to have the best chance of accomplishing a goal of change.
At the outset, a consideration of some numbers may be appropriate:
28,000: the number of Arthur Anderson employees who lost their jobs when the accounting firm went out of business after being indicted for obstruction of justice in the Enron scandal. [2] Even though only a couple of the firm’s employees ordered the alleged wrongful document destruction, federal prosecutors insisted on indicting the firm notwithstanding the consequences to its employees and clients. The firm’s conviction was ultimately overturned by the Supreme Court in Arthur Anderson, LLP v. United States, 544 U.S. 696 (2005), and the government elected not to re-try the case.
Thirty: the number of murders committed by career criminals who testified in the Massachusetts and Florida trials of former Boston FBI agent John Connolly. In exchange for their cooperation and testimony, prosecutors granted leniency to, among others, John Martorano, who admitted to pulling the trigger in the homicide case for which Connolly was prosecuted in Florida.
Over twenty-four: the number of ethics rules violated by former Durham, North Carolina district attorney Michael Nifong in prosecuting the infamous Duke lacrosse rape case. Although the players were ultimately exonerated and Nifong disbarred, the consequences to the players and their families and to the university and its athletic program were immense.
Thirteen: the number of employees of the accounting firm KPMG whose criminal indictments were dismissed for violations of their Sixth Amendment rights by prosecutors. [3] In the course of an investigation into an alleged tax shelter fraud scheme, federal prosecutors used “overwhelming influence” to persuade the firm to cease paying the employees’ legal fees. [4] The Court of Appeals condemned the prosecutors for a blatant violation of the employees’ Sixth Amendment rights, but not before each employee experienced the ordeal of indictment and a threatened disruption of his or her relationship with trusted counsel.
• Ten: the number of years of incarceration ordered for a seventeen year-old Georgia high school athlete and honor student for engaging in consensual oral sex with a younger schoolmate. Prosecutors exploited an antiquated Georgia law to obtain the conviction, causing even the law’s original sponsor to condemn their actions. [5] After the conviction, the Georgia legislature amended the law, making such sexual encounters misdemeanors. [6]
Another notable prosecutorial overreach was presented by the so-called “Thompson Memorandum” in 2003, which authorized federal prosecutors to pressure putative corporate defendants into waiving the attorney-client and work-product privileges in exchange for leniency. [7]
Despite the widespread criticism of these and other controversial decisions made by prosecutors in the last decade, the Model Rules have put few limitations on their discretion. In 2000, the American Bar Association conducted a comprehensive review of the Model Rules, but made no changes to those dealing with prosecutorial decision-making. In February of 2008, the ABA promulgated an amendment to Model Rule 3.8, which outlines the “Special Responsibilities of a Prosecutor,” creating an ethical duty to help rectify wrongful convictions of innocent persons. [8] This amendment is the first significant change in prosecutorial ethics since the adoption of the Model Code of Professional Responsibility in 1969. However, the Model Rules still afford prosecutors a significant amount of unreviewable independence.
It is worth noting that the Rules place strict limits on the conduct of a defense lawyer during the course of litigating a criminal case. For example, a defense lawyer may not request that a witness refrain from making himself available to other parties and may not offer an inducement to a witness contingent on his or her testimony or the outcome of the case. [9] Moreover, a defense lawyer is subject to discipline, if not criminal prosecution, for “coaching” a client to testify falsely or to not testify at all. [10] By contrast, prosecutors frequently evade both of these proscriptions against offering inducements or limiting access to witnesses in entering into leniency deals with witnesses that, although carefully couched with these two provisions in mind, violate their intent. [11]
In addition, unlike defense attorneys, prosecutors are rarely subject to professional discipline for their misconduct. This may be due in part to the reluctance of disciplinary agencies to “redress complaints against prosecutors which might be motivated by resentful defendants or politically motivated in an effort to publicly discredit the office of the prosecutor.” [12] Another reason for such a scarcity of disciplinary cases may be the vagueness of Rule 3.8, which provides little guidance to disciplinary authorities faced with the task of interpreting and enforcing it. [13] Indeed, Rule 3.8 contains no guidance as to what a prosecutor must take into consideration when deciding on whether to enter into plea negotiations, or whether to charge an organization with criminal conduct, or (as was the case with the now-withdrawn Thompson Memorandum) whether to penalize organizations for refusing to waive important privileges. The catch-all provision in Rule 8.4 (d), involving conduct that is “prejudicial to the administration of justice,” does not appear to circumscribe a prosecutor’s authority in making these important decisions.
With the foregoing as a backdrop, this writer would propose that Model Rule 3.8 be amended to add the following new sections:
The prosecutor in a criminal case shall:
(i) not enter into a leniency or other agreement relating to criminal prosecution with a proposed witness without considering the following:
(1) Whether the severity of the provable criminal conduct of the proposed witness so far exceeds that of the individual against whom the witness plans to testify that the argument shocks the conscience; and
(2) The effect of the proposed agreement on the public’s perception of the criminal justice system; and
(3) The likelihood that the proposed cooperating witness will engage in further criminal conduct or will otherwise act in a matter inimical to the interests of justice.
(j) not intentionally avoid pursuit of evidence because the prosecutor believes it will damage the prosecution’s case or assist the accused.
(k) not charge an organization with criminal conduct for the action(s) taken by a member or employee of that organization without considering the following:
(1) Whether the criminal conduct was sanctioned by management-level executives of the organization; and
(2) Whether the organization has a history of similar misconduct; and
(3) Whether the organization had implemented an adequate compliance mechanism prior to the misconduct at issue; and
(4) Whether the harm to the innocent members or employees (or to the clients or customers) of the organization threatened by charges substantially outweighs the harm caused by the misconduct.
Section (i) would require prosecutors to factor three important matters into their decisions granting benefits to proposed cooperating witnesses. First, does the “deal” make sense proportionally, or does a comparison of the criminal conduct at issue reveal a judgment that is transparently flawed. In the Connolly cases, the prosecutors would have been required to consider Martorano’s role as the actual killer as well as his involvement in 20 other murders before entering into an agreement with him. Second, does the proposed deal shock the conscience of the public, as was the case (at least in some quarters) in the Connolly prosecutions. Finally, the prosecutor will have to consider the potential of recidivist behavior (or the potential of non-criminal, but otherwise abhorrent, behavior) by the proposed witness. In the Connolly cases, while none of the cooperating witnesses have been charged with post-agreement criminal activity, public statements by some of them have certainly offended their victims’ families, as well as certain segments of the law enforcement community.
Proposed section (j), which has been adopted in Massachusetts and the District of Columbia, would address the prosecutor’s duty in investigating crimes to not only seek convictions, but to seek justice. By requiring a prosecutor to pursue all evidence, even that which may hurt the government’s case, this new section would promote fair and impartial investigations. This key principle was reflected in the ethical considerations that formed part of the Model Code, but was not included in Model Rule 3.8. [14]
Section (k) would require prosecutors to weigh four factors in deciding whether to prosecute an organization for the criminal misconduct of its members or employees. These factors would have required the prosecutors in the Arthur Andersen case to have considered, prior to the indictment, the lack of pervasive wrongdoing within the company, as well as the potential detrimental impact of prosecution on the innocent employees and the firm as a whole. It is to be noted that the Department of Justice has, in effect, adopted this proposed section in response to the criticisms levied by the Court in United States v. Stein. [15] Codifying these limitations in the Model Rules insures that they will become more than a bureaucrat’s whim.
It is not hard to imagine vigorous opposition to such a proposed change by prosecutors and their allies. Some opponents will likely echo Justice Scalia’s argument that new ethical obligations are unnecessary because “the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect.” [16] However, the political accountability of prosecutors to the electorate is arguably too attenuated to serve as an adequate check on prosecutorial discretion. Such opposition is also apt to include the worn-out notion that prosecutors cannot function effectively without being free to enter cooperation agreements or pursue indictments without interference. However, lawyers have an obligation to strive constantly for improvements in the justice system, even when it is politically unpopular to do so. The changes proposed here are designed to accomplish that goal.
Thomas E. Peisch
(Mr. Peisch is a founder of Conn Kavanaugh Rosenthal Peisch & Ford, LLP of Boston. His practice is concentrated in criminal and regulatory matters, the defense of professionals, and business litigation. Mr. Peisch is a former member of the Massachusetts Board of Bar Overseers and was its vice-chair from 2003 to 2005. He is a Fellow of the American College of Trial Lawyers. He gratefully acknowledges the assistance of colleagues Dara M. Yoken and Jacqueline Giordano-Hayes in the preparation of this article.)
[1] Yue Ma, A Comparative View of Judicial Supervision of Prosecutorial Discretion, 44 No. 1 CRIM. L. BULL. 2 (2008).
[2] Linda Greenhouse, Justices Unanimously Overturn Conviction of Arthur Andersen, New York Times, May 31, 2005, available at http://www.nytimes.com/2005/05/31/business/31wire-andersen.html?_r=1&pagewanted=2.
[3] United States v. Stein, 541 F.3d 130 (2nd Cir. 2008).
[4] Id. at 136.
[5] See Matt Towery, Inside The Genarlow Wilson Case, Creators Syndicate, Inc., June 18, 2007, http://www.creators.com/opinion/matthew-towery/inside-the-genarlow-wilson-case.html.
[6] Thurbert E. Baker, Open Letter from Attorney General Baker on Genarlow Wilson Case, State of Georgia Department of Law, June 15, 2007, available at http://law.ga.gov/00/press/detail/0,2668,87670814_88114294_95844391,00.html.
[7] See Memorandum from Larry D. Thompson, Deputy Attorney General, U.S. Department of Justice, to Heads of Department Components and U.S Attorneys (Jan. 20, 2003) (on file with the
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U.S.D.O.J.), available at http://www.usdoj.gov/dag/cftf/business_organizations.pdf.
[8] See MODEL RULES OF PROF’L CONDUCT R. 3.8(h) [hereinafter MODEL RULES].
[9] See MODEL RULES R. 3.4 (b) and (f).
[10] See MODEL RULES R. 3.4 (b); See also In re Foley, 439 Mass. 324 (2003); U.S. v. Cintolo, 818 F.2d 980 (1st Cir. 1987).
[11] See, e.g., Commonwealth v. Rivera, 424 Mass. 266 (1997) (finding no improper conduct by prosecutor where witness declined defense interview after prosecutor expressed preference that he participate in interview).
[12] Lyn M. Morton, Seeking The Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal, or Discipline?, 7 Geo. J. Legal Ethics 1083, 1089 (1994).
[13] See, e.g., MODEL RULES R. 3.8 (f) (a prosecutor must exercise “reasonable care” to prevent underlings from making public statements about a matter).
[14] See ABA MODEL CODE OF PROF'L RESPONSIBILITY, EC 7-13 (1969) (providing that “a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecutor's case or aid the accused”).
[15] See U.S. Department of Justice, United States Attorneys’ Manual § 9-28.300 (Aug. 2008), available at http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/28
mcrm.htm#9-28.300.
[16] Morrison v. Olson, 487 U.S. 654, 728 (1988) (Scalia, J., dissenting).
