Speakers Clash About Prevalence of Prosecutor Mischief

For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...

By Lance J. Rogers

June 3 — Ninth Circuit Judge Alex Kozinski's statement three years ago that there's an “epidemic” of Brady violations sweeping the land is a “lie,” a California prosecutor told attendees June 3 at the 42nd ABA National Conference on Professional Responsibility in Philadelphia.

It's a gross exaggeration to call isolated examples of misconduct an epidemic, said Marc Debbaudt, a deputy district attorney at the Los Angeles County District Attorney's Office. “This isn't Ebola,” he said.

But law professors on the panel disputed the notion that everything's hunky dory.

Kozinski was talking about a systemic problem where, because of staffing problems, uncooperative police or maybe just a poor “office culture,” exculpatory information that should've been disclosed to the defense never saw the light of day, Professor Ellen Yaroshefsky, of Benjamin N. Cardozo School of Law in New York, said.

“Yes, there are some rogue prosecutors and bad apples but they're not the primary problem,” she said.

Is There Even a Problem?

Debbaudt was moderating a panel titled “Prosecutors' Role and Professional Responsibility: Power, Discretion, Misconduct and Accountability,” which the syllabus promised would feature a dialogue about the extent of the problem, its ramifications and the effectiveness of legal remedies.

But the conversation never made it past the initial question of whether there's a problem that needs fixing. Instead it devolved into something more closely resembling a schoolyard confab, with the protagonists crying alternatively, “Did too! Did not! Did too!”

I think this whole media campaign is designed to tamper with the jury pool and put the government in a negative light, Debbaudt said. He paraphrased the litigator's aphorism often attributed to Carl Sandberg: “When the law is against you, argue the facts; when the facts are against you, argue the law; when those both are against you, attack the prosecutor!”

“I think it's appropriate we're having this debate in the City of Brotherly Love,” panelist Charles B. Plattsmier joked to laughter in the room.

“Apollo Creed and Rocky Balboa couldn't be more entertaining,” he said. Plattsmier is chief disciplinary counsel in Louisiana.

‘Media Grandstander.'

Even the audience got into the act, with some aggressively challenging the stances taken by the panelists.

At one point, Lucian T. Pera, a partner at Adams & Reese LLP in Memphis, Tenn., offered Debbaudt an opportunity to walk back his remark about Kozinski.

Do you really think that Kozinski is intentionally lying about this, Pera asked, or is that just hyperbole?

Debbaudt refused the lifeline and instead doubled down on his claim that Kozinski was lying.

It's not hyperbole; Kozinski's a “media grandstander,” Debbaudt said.

Debbaudt is president of the Association of Deputy District Attorneys, the collective bargaining agent for deputy district attorneys for the county of Los Angeles.

High-Profile Cases

Panelist Jules Epstein, a law professor at Temple University's Beasley School of Law, acknowledged that the term “epidemic” might be a little over-the-top but insisted that failure to turn over exculpatory evidence is a very real problem.

Just look at all the DNA exoneration cases, Epstein said. He also pointed to the Supreme Court's decision this spring in Wearry v. Cain, 2016 BL 67934 (U.S. 2016) (98 CrL 538, 3/9/16), which overturned a 1998 capital conviction because of a Brady violation.

But two panelists who are prosecutors in the Philadelphia area, Louis D. Lappen and Melissa Francis, bristled at the notion that prosecutors routinely break ethics rules.

They both outlined the “open file” policies followed in their offices and suggested that high-profile cases of misconduct—like the infamous Duke Lacrosse scandal—are rare and give the public the wrong idea about how prosecutors work.

The reason prosecutors appear to be a little “thin-skinned” about allegations of misconduct and sometimes react so angrily “is that we are so frequently accused of it when there's absolutely no basis for it,” Lappen said.

Lappen is the top assistant U.S. attorney for the Eastern District of Pennsylvania. Francis is chief of the Dangerous Drug Offenders Unit in the Philadelphia district attorney's office.

‘Cognitive Bias.'

Yaroshefsky praised federal prosecutors in Philadelphia, saying that “most problems” crop up in state courts and that the causes of wrongful convictions often are “systemic.”

But she also suggested that there is a certain amount of “cognitive bias” at play.

Law enforcement might see something as outrageous or false that the defense team would see as an exculpatory fact, she said.

Finally, Yaroshefsky drew a distinction between what she called a “legal wrong” and the ethical obligation to turn over any evidence tending to negate guilt or mitigating the offense under ABA Model Rule of Professional Conduct 3.8(d) and its state counterparts.

Both Plattsmier and Yaroshefsky noted that the rubric “prosecutorial misconduct” often includes things that don't involve any misbehavior by prosecutors. Sometimes what we call “prosecutorial misconduct” is actually “law enforcement misconduct,” Yaroshefsky said.

Debbaudt said the statistics don't support claims that there is rampant misconduct.

The Center for Public Integrity analyzed over 2,000 cases between 1970 and 2003 where prosecutors appeared before state bar authorities for alleged misconduct and only found 50 situations where the misbehavior was serious enough to warrant sanctions, he said.

“I think the system works,” he added.

Hidden Problem

The system works, but only if the misconduct is discovered, Epstein said. “The system doesn't have a self-correct mechanism,” he said.

Both Epstein and Yaroshefsky argued that it's tough to get a handle on the pervasiveness of the issue because violations of the disclosure mandate in Brady v. Maryland, 373 U.S. 83 (1963), are often “hidden.”

Ninety-seven percent of federal prosecutions end in guilty pleas, so we may never know if something wasn't disclosed, Yaroshefsky said.

But Debbaudt said it's wrong to speculate that there must be a rich source of misconduct just because we can't find it.

“I don't know what's on the other side of the black hole, either,” Debbaudt said.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com