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ABA Section of Litigation Annual Conference, April 16 – 18, 2008:
Crossing the Line: Responding to Prosecutorial Misconduct
INTRODUCTION
Among lawyers, a prosecutor is in a unique position. Normally a lawyer is free to—indeed, expected
to—zealously advocate on behalf of his or her client. Prosecutors, however, are not simply advocates
for the government. They are also ministers of justice whose aim is not to “win a case, but that justice
shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). As such, “[i]t is as much his duty to
refrain from improper methods calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.” Id.; see generally Bennett L. Gershman, The Prosecutor’s
Duty to Truth, 14 Geo. J. Legal Ethics 309 (2001).
By now, the actions of Michael Nifong, the former District Attorney of Durham County, North
Carolina, that led to his disbarment are well known. See generally Robert P. Mosteller, The Duke
Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to “Do Justice”, 76
Fordham L. Rev. 1337 (2007). Some argue that the situation involving Nifong is an isolated case. Yet
prosecutorial overreaching has been an issue well before this headline-grabbing case came along.
A recent report issued by the California Commission on the Fair Administration of Justice referred to a
study that reviewed 2,130 California appellate cases in which a claim of prosecutorial misconduct was
raised. Cal. Comm’n on the Fair Admin. of Justice, Report and Recommendations on Professional
Responsibility and Accountability of Prosecutors and Defense Lawyers (2007), available at
http://www.ccfaj.org/documents/reports/prosecutorial/official/official report on reporting
misconduct.pdf. Of those 2,130 cases, 443 resulted in findings that prosecutorial misconduct actually
occurred. In 53 of the 443 cases, a reversal of conviction was the result—the rest concluding that the
misconduct was harmless error. Perhaps the most disturbing statistic is that a follow-up study looking
at half of the cases resulting in a reversed conviction concluded that the prosecutor was not referred to
the California State Bar for discipline, which is required under California law. If there is a positive
aspect to the Duke Lacrosse saga, it is that Nifong’s actions and ultimate disbarment have served to
highlight the important issue of prosecutorial misconduct and the need for effective remedies.
Few would claim that any prosecutor intentionally sets out to seek the conviction of an innocent
person. Rather, it is argued that prosecutorial misconduct stems from a “win at all cost” mentality
underlying the desire to further a career, or a firm belief in the defendant’s guilt notwithstanding
admissible evidence. See Joseph F. Lawless, Prosecutorial Misconduct § 1:06, at 1-15 (3d ed. 2003).
Regardless of the causes, the effects of prosecutorial misconduct are distressing. Two different studies
of persons exonerated by DNA evidence have shown that prosecutorial misconduct played a role in
convicting an innocent person nearly half of the time. See Peter A. Joy, The Relationship Between
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Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006
Wis. L. Rev. 399, 403 (2006). Moreover, assuming that the defendant is factually culpable, a
conviction secured through the improper actions of a prosecutor could be unconstitutional and, thus,
subject to reversal. The result is that the innocent are convicted and the guilty go free, which can only
exacerbate the public’s loss of trust in the integrity of the criminal justice system.
PROSECUTORIAL GUIDELINES
In performing their duties to seek justice, prosecutors are bound by constitutional standards, case law
governing trial conduct, and various ethics rules and standards pertaining to the prosecutorial function.
Rule 3.8 of the ABA Model Rules of Professional Conduct (“Model Rules”) specifically covers the
actions and responsibilities of prosecutors. All state jurisdictions have an ethics rule imposing special
responsibilities on prosecutors, most based on Model Rule 3.8. Prosecutors are also guided by
standards found in the ABA Standards for Criminal Justice Prosecution Function and Defense
Function (3d ed. 1993) (“ABA Standards”) and the National District Attorneys Association
Prosecution Standards (2d ed. 1991) (“NDAA Standards”). In assessing the conduct of prosecutors,
courts have oftentimes looked to the ABA Standards for guidance. See, e.g., Miller v. North Carolina,
583 F.2d 701, 706 n.6 (4th Cir. 1978).
For years, the U.S. Department of Justice (“DOJ”) took the position that Assistant United States
Attorneys (“AUSAs”) were exempt from state ethics rules. The McDade Amendment in 1999 laid to
rest this argument. The amendment, attached as a rider to an appropriations bill, provides:
An attorney for the Government shall be subject to State laws and rules, and local
Federal court rules, governing attorneys in each State where such attorney engages
in that attorney’s duties, to the same extent and in the same manner as other
attorneys in that State.
28 U.S.C. § 530B(a). The Professional Responsibility Advisory Office within the DOJ provides
advice to AUSAs regarding ethical issues and choice-of-law matters.
EXAMPLES OF PROSECUTORIAL MISCONDUCT
“Like the Hydra slain by Hercules, prosecutorial misconduct has many heads.” United States v.
Williams, 504 U.S. 36, 60 (1992) (Stevens, J., dissenting); see also Joy, supra, at 402 (listing
numerous forms of prosecutorial misconduct). This article focuses on five categories: (1) suppression
of evidence, (2) misuse of the media, (3) misconduct involving witnesses, (4) investigative
misconduct, and (5) trial misconduct. Any specific act of prosecutorial misconduct may fall into more
than one category. For example, knowingly presenting perjured testimony would be misconduct
involving a witness, as well as a violation of the duty to disclose exculpatory evidence.
Suppression of Evidence
[V]iolations of Brady are the most recurring and pervasive of all constitutional
procedural violations, with disastrous consequences: innocent people are wrongfully
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convicted; the reputation of U.S. prosecutors suffer; and the absence of meaningful
legal and ethical enforcement and accountability has a corrosive effect on the
public’s perception of a justice system that often appears to be arbitrary, unjust, and
simply unreliable.
Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 Case W. Res. L.
Rev. 13, 15 (2007) [hereinafter Gershman, Litigating ].
The key holding of Brady v. Maryland is that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87
(1963). Arguably, because a Brady violation may occur even when the prosecutor acts in good faith,
the term “prosecutorial misconduct” in the suppression of evidence context should be used only when
the prosecutor intentionally withholds exculpatory material.
In United States v. Agurs, the Supreme Court explained that a prosecutor has a “constitutional duty of
disclosure” when he or she is in possession of evidence that would deny a defendant a fair trial if that
evidence were not disclosed. See 427 U.S. 97, 108 (1976). The Court has stressed that because a
prosecutor is in a different position to determine the materiality of a piece of evidence than is an
appellate court, “the prudent prosecutor will resolve doubtful questions in favor of disclosure.” Id.
The Supreme Court has clarified that the constitutional requirement that a prosecutor disclose
evidence that is favorable and material exists regardless of whether the defendant makes a request for
a specific piece of evidence, a general request for favorable evidence, or no request at all. United
States v. Bagley, 473 U.S. 667, 682 (1985). When considering the issue retrospectively, appellate
courts conclude that the duty existed when “there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the outcome.” Id. Moreover, a
“prosecutor has a duty to learn of any favorable evidence known to the others acting on the
government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995).
Finally, there is no constitutional significance between impeachment evidence and evidence that is
directly exculpatory. The key to a Brady violation is the materiality of the withheld evidence. See
Bagley, 473 U.S. at 676–78.
Ethical rules require more than the constitutional minimum of Brady. Although the NDAA Standards
seem to require only slightly more than the constitutional minimum, see NDAA Standard 25.4 (“The
prosecutor should disclose the existence or nature of exculpatory evidence pertinent to the defense.”),
the Model Rules and ABA Standards go further. Model Rule 3.8(d) provides that a prosecutor must:
make timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense, and,
in connection with sentencing, disclose to the defense and to the tribunal all
unprivileged mitigating information known to the prosecutor, except when the
prosecutor is relieved of this responsibility by a protective order of the tribunal.
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Likewise ABA Standard 3-3.11(a) provides:
A prosecutor should not intentionally fail to make timely disclosure to the defense, at
the earliest feasible opportunity, of the existence of all evidence or information which
tends to negate the guilt of the accused or mitigate the offense charged or which
would tend to reduce the punishment of the accused.
The commentary to ABA Standard 3-3.11 notes that this provision “is virtually identical to that
imposed by ABA model ethical codes, [and] goes beyond the corollary duty imposed upon prosecutors
by constitutional law.” (Footnote omitted.) See also Kyles, 514 U.S. at 437 (noting that Brady
“requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for
prosecutorial disclosures of any evidence tending to exculpate or mitigate”). Finally, ABA Standard 3-
3.11(c) warns that “[a] prosecutor should not intentionally avoid pursuit of evidence because he or she
believes it will damage the prosecution’s case or aid the accused.”
Nifong suppressed exculpatory evidence when he did not tell the defense team that DNA from
numerous males, none of it from any of the lacrosse players, was found in items obtained from the
complainant during her medical examination. This evidence was inconsistent with the complainant’s
allegations that she was raped by several of the team members. It also contradicted her claims that she
had not had sex with anyone in over a week prior to the alleged incident. See generally Stuart Taylor,
Jr. & KC Johnson, Until Proven Innocent (2007).
One of the most egregious cases of a prosecutor failing to disclose impeachment evidence occurred in
the small town of Tulia, Texas. In 1999, 38 people (36 of them black) were arrested on drug charges
and later convicted. The only evidence used to secure their convictions was the uncorroborated
testimony of one undercover officer with severe credibility problems. At a hearing several years later,
a judge determined that the prosecutor had failed to turn over evidence impeaching the officer’s
credibility, and stood silent when he knew the officer was committing perjury. All of the defendants
were either pardoned or had their convictions overturned. See Laura Parker, Court Cases Raise
Conduct Concerns, USA Today, June 26, 2003, at 3A. A more thorough discussion of how
prosecutors may evade their responsibility to disclose exculpatory evidence may be found in
Gershman, Litigating , supra.
Misuse of the Media
Ethical rules prohibit all lawyers involved in litigation or investigations from making statements to the
media that would prejudice the matter. Model Rule 3.6(a) provides:
A lawyer who is participating or has participated in the investigation or litigation of
a matter shall not make an extrajudicial statement that the lawyer knows or
reasonably should know will be disseminated by means of public communication and
will have a substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter.
Model Rule 3.8(f), which applies specifically to prosecutors and is meant to protect a defendant’s
Sixth Amendment right to a fair trial, is worded similarly to Model Rule 3.6(a). It also imposes a duty
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on a prosecutor to take reasonable steps to prevent the entire prosecutorial team from making
prejudicial statements:
[E]xcept for statements that are necessary to inform the public of the nature and
extent of the prosecutor’s action and that serve a legitimate law enforcement
purpose, [a prosecutor shall] refrain from making extrajudicial comments that have
a substantial likelihood of heightening public condemnation of the accused and
exercise reasonable care to prevent investigators, law enforcement personnel,
employees or other persons assisting or associated with the prosecutor in a criminal
case from making an extrajudicial statement that the prosecutor would be prohibited
from making under Rule 3.6 or this Rule.
Standard 3-1.4 of the ABA Standards is basically an amalgam of Model Rules 3.6(a) and 3.8(f). The
full text of Standard 3-1.4 follows:
(a) A prosecutor should not make or authorize the making of an extrajudicial
statement that a reasonable person would expect to be disseminated by means of
public communication if the prosecutor knows or reasonably should know that it will
have a substantial likelihood of prejudicing a criminal proceeding.
(b) A prosecutor should exercise reasonable care to prevent investigators, law
enforcement personnel, employees, or other persons assisting or associated with the
prosecutor from making an extrajudicial statement that the prosecutor would be
prohibited from making under this Standard.
The DOJ has promulgated regulations governing the release of information in criminal cases. 28
C.F.R. § 50.2(a)–(b). The regulations provide that very general information about the defendant,
charging instrument, investigating agency, and circumstances of arrest may be released. § 50.2(b)(3).
Importantly, “[d]isclosures should include only incontrovertible, factual matters, and should not
include subjective observations.” § 50.2(b)(3)(iv). The regulations clearly prohibit dissemination of
“any information concerning a defendant’s prior criminal record,” § 50.2(b)(4), and also list numerous
types of information or opinions that a prosecutor “should refrain from making available.” §
50.2(b)(6). The United States Attorney Manual (“USAM”) contains guidelines to implement the
regulations, but cautions that they “do not create any rights enforceable in law or otherwise in any
party.” USAM § 1-7.001.
Improper extra-judicial statements include: releasing grand jury material, commenting on the bad
character of a defendant, referring to the crime as heinous or reprehensible, disclosing a defendant’s
confession, disclosing a defendant’s criminal record, discussing trial strategy, opining on the
defendant’s guilt, claiming that the government’s case is strong, and commenting on the defendant’s
lack of cooperation. See Bennett L. Gershman, Prosecutorial Misconduct §§ 6:3–:10 (2d ed. 2007)
[hereinafter Gershman, Misconduct ]. But see 28 C.F.R. § 50.2(b)(6) (providing that a prosecutor
“should refrain” from giving an opinion as to the defendant’s guilt and referring to the defendant’s
character or confession).
The Disciplinary Hearing Commission of the North Carolina State Bar determined that Nifong had
violated Rule 3.6(a) and 3.8(f) of North Carolina’s Revised Rules of Professional Conduct on at least
30 different occasions. A small sampling of the statements include:
“[O]ne would wonder why one needs an attorney if one was not charged and had not done anything
wrong.”
“The contempt that was shown for the victim, based on her race was totally abhorrent. It adds
another layer of reprehensibleness to a crime that is already reprehensible.”
“I would not be surprised if condoms were used. Probably an exotic dancer would not be your first
choice for unprotected sex.”
“I’m not going to let Durham’s view in the minds of the world to be a bunch of lacrosse players
from Duke raping a black girl in Durham.”
“What happened here was one of the worst things that’s happened since I have become district
attorney.”
“They don’t want to admit the enormity of what they have done.”
Nat’l Org. of Bar Counsel, Case of the Month (June 2007), http://www.nobc.org/cases/0607.asp.
Nifong’s numerous statements inflamed the public, the pool from which the jury would have been
drawn had the case gone to trial.
Misconduct Involving Witnesses
It should go without saying that a prosecutor acts unethically when he or she suborns perjury. Such
conduct undermines the integrity of our adversarial system and, at a minimum, violates Model Rule
3.3(a)(3), which prohibits any lawyer from knowingly offering false evidence. Similar to the Model
Rule, ABA Standard 3-5.6(a) succinctly states: “A prosecutor should not knowingly offer false
evidence, whether by documents, tangible evidence, or the testimony of witnesses, or fail to seek
withdrawal thereof upon discovery of its falsity.”
Beyond the ethics of presenting perjured testimony, the knowing use of such testimony “involve[s] a
corruption of the truth-seeking function of the trial process.” Agurs, 427 U.S. at 104. “[A] conviction
obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if
there is any reasonable likelihood that the false testimony could have affected the judgment of the
jury.” Id. at 103 (emphases added) (footnote omitted). This rule equally applies when a prosecutor,
“although not soliciting false evidence, allows it to go uncorrected when it appears,” even when the
uncorrected testimony goes to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 269
(1959).
In addition to the Tulia case discussed above, another well-known case of a prosecutor using perjured
testimony in order to obtain a conviction occurred in the Detroit “Sleeper Cell” terrorism trial.
Although the case was riddled with various forms of prosecutorial misconduct, perjury played a key
role.
Central to the prosecution’s case in United States v. Koubriti, No. 01-80778 (E.D. Mich.), was a sketch
recovered from the defendants’ apartment containing the words “Queen Alia” and “Hashemite
Kingdom of Jordan” written in Arabic. Indictment, United States v. Convertino, No.06-cr-20173, at 3
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(E.D. Mich. Mar. 29, 2006). The government presented testimony through a Department of State
Special Agent that he had traveled to the Queen Alia Military Hospital in Jordan and concluded that
the sketch was almost an exact representation of the facility. Among the agent’s assertions was that a
“very large dead tree” corresponded with a marking on the sketch and provided certainty that the
drawing depicted the hospital. See Bennett L. Gershman, How Juries Get It Wrong—Anatomy of the
Detroit Terror Case, 44 Washburn L.J. 327, 332–33 (2005). Both on direct and on cross, the agent
claimed that he had not taken any photographs of the facility because of security restrictions.
According to the DOJ, however, the truth was that the agent had taken numerous aerial photographs of
the facility at the request of the prosecutor, Richard Convertino. Although it appears Convertino never
received these specific photographs taken, he did obtain photographs of the Queen Alia Military
Hospital taken by the agent’s replacement. Not only did Convertino elicit perjury from the agent
during his direct testimony (and allow it to stand during cross-examination), Convertino never
disclosed to the defense the photographs he eventually did receive. Indictment, United States v.
Convertino, No.06-cr-20173, at 3–4. In an unprecedented case, the DOJ’s Public Integrity Section
charged and tried Smith and Convertino with obstruction of justice, perjury, and conspiracy. Id. Both
were acquitted.
Witness coaching can also be a form of prosecutorial misconduct. See generally Bennett L.
Gershman, Witness Coaching by Prosecutors, 23 Cardozo L. Rev. 829 (2002). Although witness
coaching has received scant attention from courts, a recent case may cause jurists to more closely
scrutinize this issue. A Virginia lawyer, Leslie Smith, represented William Jones, the co-defendant of
Daryl Atkins. Based on Jones’s testimony, Atkins received the sentence of death for the murder of
Eric Nesbitt. Atkins’s case went all the way to the Supreme Court, where the Court ruled that the U.S.
Constitution bars the execution of those with mental retardation. See Atkins v. Virginia, 536 U.S. 304
(2002). As of early 2008, however, Virginia was still trying to put Atkins to death, arguing that Atkins
was not mentally retarded.
Recently, Smith came forward and revealed that in 1997 prosecutors had coached his client, William
Jones, into providing testimony that more closely aligned with their theory that Atkins, and not Jones,
was the triggerman. Soon after the coaching had occurred, Smith went to the Virginia State Bar’s
ethics counsel, but was told that he could not disclose information about the coaching since it would
be detrimental to his client. Approximately ten years later, Smith finally came forward after getting
the green light from the Virginia State Bar because Jones’s case is now final. Because of Smith’s
account, a court in January 2008 commuted Atkins’s death sentence to life imprisonment. See Adam
Liptak, Lawyer Reveals Secret, Toppling Death Sentence, N.Y. Times, Jan. 19, 2008, at A1.
Investigative Misconduct
Pressure to solve a crime might lead a prosecutor to get intimately involved in the pre-trial
investigation of a matter. See ABA Standard 3-3.1 (“[T]he prosecutor has an affirmative responsibility
to investigate suspected illegal activity when it is not adequately dealt with by other agencies.”).
Although the line between investigating a crime and prosecuting a crime can be fuzzy, suffice it to say
that a prosecutor acts in an investigative capacity when gathering facts such as staging an undercover
operation or engaging in wiretapping. See generally Gershman, Misconduct , supra, § 1.
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Nifong committed investigative misconduct in devising the photo array that led to the arrest of the
three lacrosse players. The accuser in the case, Crystal Mangum, had been shown two photo arrays—
one on March 16, 2006 and another on March 21, 2006—that did not contain any “fillers.” Every
single picture, 36 in total, that Mangum looked at was a lacrosse player. Mangum was unable to
identify any of her alleged attackers. Then, on March 31, 2006, Nifong suggested to the police that
Mangum be shown photographs of all 46 white members of the team at the same time. See Mosteller,
supra, at 1398. During this procedure, which occurred on April 4, 2006, Mangum, at the direction of
Nifong, was told that the police had reason to believe that all of the men she was looking at were at
the party where she was allegedly raped. Again, the array contained no “fillers.” In essence, Mangum
was told that she could not make a wrong choice. It was at this time that Mangum identified the
players who were later charged. The direct consequence of this investigative misconduct was the
indictment of three innocent people.
Trial Misconduct
Prosecutorial misconduct during the course of trial covers a broad spectrum. For example, a
prosecutor may improperly: introduce evidence, assassinate the character of a defendant, refer to the
fact that a defendant did not talk to the police or take the stand in his or her defense, make
inflammatory statements during closing argument, or attempt to bolster the credibility of a prosecution
witness. See generally, Lawless, supra, §§ 9–10; Gershman, Misconduct , supra, §§ 10–11.
ABA Standard 3-5.8 and NDAA Standard 85.1 govern the scope of closing arguments. The NDAA
Standard simply states: “Closing arguments should be characterized by fairness, accuracy, rationality,
and a reliance upon the evidence or reasonable inferences drawn therefrom.” NDAA Standard 85.1.
The ABA Standard goes further and specifically states that a prosecutor should not express his or her
personal belief as to the veracity of any evidence or guilt of the defendant. The ABA Standard also
provides that a prosecutor should not appeal to the prejudices of the jury. See ABA Standard 3-5.8(b)–
(c).
Case law is filled with innumerable instances of improper trial conduct—most of which is deemed
harmless. One prosecutor who repeatedly went over the line according to appellate courts is Robert
H. Macy, the former District Attorney of Oklahoma County, Oklahoma. See Ken Armstrong,
“Cowboy Bob” Ropes Wins—But at Considerable Cost , Chi. Trib., Jan. 10, 1999, at 13. Called a “true
patriot” by former Attorney General William Barr and honored as “America’s prosecutor” by the
Oklahoma Senate upon his retirement in 2001, Macy left behind a string of cases commenting
unfavorably on his trial conduct. Paxton v. Ward , 199 F.3d 1197 (10th Cir. 1999); Washington v. State,
989 P.2d 960 (Okla. Crim. App. 1999); Ochoa v. State, 963 P.2d 583 (Okla. Crim. App. 1998); Torres
v. State, 962 P.2d 3 (Okla. Crim. App. 1998); Le v. State, 947 P.2d 535 (Okla. Crim. App. 1997);
Duckett v. State, 919 P.2d 7 (Okla. Crim. App. 1995); Robinson v. State, 900 P.2d 389 (Okla. Crim.
App. 1995); Hawkins v. State, 891 P.2d 586 (Okla. Crim. App. 1995); Hooker v. State, 887 P.2d 1351
(Okla. Crim. App. 1994); Howell v. State, 882 P.2d 1086 (Okla. Crim. App. 1994); McCarty v. State,
765 P.2d 1215 (Okla. Crim. App. 1985); Cantrell v. State, 697 P.2d 968 (Okla. Crim. App. 1985)
(Parks, J., dissenting). The rebukes seem not to have had any effect on his conduct.
The introduction of misleading (or patently false) forensic evidence has been publicized recently. As
Professor Gershman discusses in a law review article, “[t]he records of contemporary criminal trials
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are replete with instances of so-called ‘junk science’ finding its way into courtrooms, and championed
by prosecutors to win convictions.” Bennett L. Gershman, Misuse of Scientific Evidence by
Prosecutors, 28 Okla. City U. L. Rev. 17, 30 (2003). Examples include tendering evidence of sloppy
or outright faulty lab work of otherwise reliable forensic tests, or the presentation of “scientific”
evidence of dubious quality such as bite-mark and hair analysis. See id. One example of faulty
forensic evidence is the FBI’s use of “compative-bullet lead analysis.” The procedure supposedly
allowed the FBI to match fired bullets found at a crime scene with unfired bullets in the possession of
a suspect. The FBI used the procedure for decades, but stopped doing so in 2005 after finally
acknowledging that the technique is unreliable and misleading. It is estimated that comparative bullet-
lead analysis played a role in convicting over 2,500 people. See John Solomon, FBI’s Forensic Test
Full of Holes, Wash. Post, Nov. 18, 2007, at A1.
REMEDIES
To date, prosecutorial misconduct—even the most egregious—has largely gone unchecked. See
Gershman, Misconduct , supra, at vi (“Relatively few judicial or constitutional sanctions exist to
penalize or deter misconduct; the available sanctions are sparingly used and even when used have not
proved effective.”). In January 1999, the Chicago Tribune published a five-part series titled: Trial &
Error: How Prosecutors Sacrifice Justice to Win. Analyzing thousands of cases, the newspaper found
that since 1963 at least 381 defendants had their convictions reversed either because prosecutors
suppressed exculpatory evidence or suborned perjury. Alarmingly, of those 381 cases, “not one of
those prosecutors was convicted of a crime. Not one was barred from practicing law. Instead, many
saw their careers advance, becoming judges or district attorneys. One became a congressman.” Ken
Armstrong & Maurice Possley, The Verdict: Dishonor , Chi. Trib., Jan. 10, 1999, at 1.
Criminal Prosecutions
The criminal prosecution of a prosecutor is extremely rare. According to the Chicago Tribune series,
“[f]ew prosecutors nationally have been indicted, and they were acquitted or, at worst, convicted of a
misdemeanor and fined.” Ken Armstrong & Maurice Possley, Break Rules, Be Promoted , Chi. Trib.,
Jan. 14, 1999, at 1 [hereinafter Armstrong & Possley, Break Rules]. This statistic seems not to have
changed in the last nine years. Subsequent to the Tribune series, two separate cases were brought
against prosecutors for acts committed in their official capacity; neither resulted in convictions.
The first occurred in mid-1999—a case in which three former Illinois state prosecutors were charged
with conspiring to frame a man by the name of Rolando Cruz for murder. Cruz spent nearly 10 years
on Death Row before it became clear that the prosecution had suppressed evidence that another person
had committed the crime and that prosecutors had conspired with police officers to introduce a “dream
statement” of Cruz’s into evidence at his original trial and two re-trials. A judge dismissed charges
against two of the prosecutors for insufficient evidence. (One later became an Illinois judge—the
other, an AUSA.) A jury acquitted the third after a 28-day trial. See Andrew Bluth, Prosecutor and 4
Sheriff’s Deputies Are Acquitted of Wrongfully Accusing a Man of Murder , N.Y. Times, June 5, 1999,
at A9.
The second such prosecution of a prosecutor is the Convertino case discussed above. Convertino led
the U.S. government’s case in convicting two men on terrorism-related charges in 2003. Then-
Attorney General John Ashcroft asserted that the convictions sent a “clear message” that the DOJ
would “work diligently to detect, disrupt and dismantle the activities of terrorist cells in the United
States and abroad.” Danny Hakim, U.S. Asks for Dismissal of Terrorism Convictions, N.Y. Times,
Sept. 1, 2004, at A17. A little over a year later, however, the federal government asked the court to
throw out the convictions due, in part, to prosecutorial misconduct committed by the lead prosecutor,
Richard Convertino.
The DOJ’s Public Integrity Section eventually charged Richard Convertino with perjury, obstruction
of justice, and conspiracy in what may be the only time that the DOJ has ever charged an AUSA for
acts committed in his or her official capacity. Convertino was acquitted by a jury in October 2007 and
is now seeking reimbursement for attorney fees, alleging that the government’s prosecution of him
was vexatious, frivolous or in bad faith. Ironically, Convertino is in essence asserting that the
prosecution against him was itself an act of prosecutorial misconduct.
Disciplinary Actions
Each state bar has a mechanism in place for the discipline of misconduct by attorneys licensed in that
state. Separately, federal courts may discipline attorneys who appear before them, which may result in
the suspension or disbarment of attorneys from that particular court. See, e.g., In re Kramer , 282 F.3d
721 (9th Cir. 2002). Further, the DOJ’s Office of Professional Responsibility (“OPR”) has
responsibility for investigating allegations of misconduct committed by AUSAs. It appears that these
procedures are rarely effective in dealing with prosecutorial misconduct.
The disciplinary action against Nifong is unusual in that not only did it result in disbarment, but
because it was initiated while charges against the Duke students were still pending. Recently, the
Center for Public Integrity conducted a study that found only 44 instances of disciplinary actions
against prosecutors since 1970. Of those 44:
in 7, the court dismissed the complaint or did not impose punishment;
in 3, the court remanded the case for further proceedings;
in 24, the court assessed the costs of the proceedings against the prosecutor;
in 20, the court imposed a public or private reprimand or censure;
in 1, the prosecutor was placed on probation;
in 12, the prosecutor’s license was suspended;
in 2, the prosecutor was disbarred.
Neil Gordon, Misconduct and Punishment: State Disciplinary Authorities Investigate Prosecutors
Accused of Misconduct (2007), http://www.publicintegrity.org/pm/default.aspx?act=sidebarsb&aid
=39; see generally Steve Weinberg et al., Ctr. for Pub. Integrity, Harmful Error: Investigating
America’s Local Prosecutors (2003). A follow-up to the Tulia case discussed above revealed that the
prosecutor, whose subornation of perjury and Brady violations led to the wrongful convictions of
scores of people, received two years of probation. See Disciplinary Actions, 68 Tex. B.J. 753, 758
(2005).
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The OPR has the authority to determine whether an AUSA committed “professional misconduct in the
exercise of his or her authority to investigate, litigate or provide legal advice.” U.S. Dep’t of Justice
Office of Prof’l Responsibility, Analytical Framework (rev. 2005), available at
http://www.usdoj.gov/opr/framework.pdf. Professional misconduct is defined as the intentional or
reckless disregard “of an obligation or standard imposed by law, applicable rule of professional
conduct, or Department regulation or policy.” Id. If the OPR determines that an AUSA committed
professional misconduct, it recommends a certain sanction to the attorney’s supervisor. Available
sanctions range from a written reprimand to removal. The OPR may also refer the matter to the bar
disciplinary authority in the jurisdiction in which the attorney is licensed. See U.S. Dep’t of Justice
Office of Prof’l Responsibility, Policies & Procedures, available at http://www.usdoj.gov/opr/
polandproc.htm.
In 2001, a General Accounting Office report concluded that the OPR was ineffective in dealing with
prosecutorial misconduct. See News Advisory, U.S. House of Representatives, Committee on the
Judiciary, GAO Report Finds Significant Problems with Justice Department’s Office of Professional
Responsibility (Feb. 20, 2001), available at http://www.judiciary.house.gov/legacy/news0220.htm. A
recent highly-publicized case illustrates the problem.
Chief Judge Mark Wolf of the U.S. District Court, District of Massachusetts found “extraordinary
misconduct by the Department of Justice in its investigation and prosecution of members of the
Patriarca Family of La Cosa Nostra.” Ferrara v. United States, 384 F. Supp. 2d 384, 387 (D. Mass.
2005), aff’d , 456 F.3d 278 (1st Cir. 2006). Chief Judge Wolf found that AUSA “Jeffrey Auerhahn,
violated [his] clearly established constitutional duty to disclose . . . before trial, important exculpatory
information that directly negated [Vincent Ferrara’s and Pasquale Barone’s] guilt on” murder charges.
Id. The suppression of the evidence was intentional according to Chief Judge Wolf. See id. at 393–
98. The First Circuit agreed, stating: “[T]he government’s actions in this case . . . paint a grim picture
of blatant misconduct. The record virtually compels the conclusion that this feckless course of
conduct . . . constituted a deliberate and serious breach of its promise to provide exculpatory
evidence.” Ferrara v. United States, 456 F.3d 278, 293 (1st Cir. 2006) (footnote omitted).
The OPR investigated Auerhahn and concluded that he had acted in reckless disregard of his duty to
disclose exculpatory evidence. The sanction was a private written reprimand. Not satisfied, Chief
Judge Wolf initiated his own disciplinary action against Auerhahn and wrote then-Attorney General
Alberto Gonzales a letter on June 29, 2007 criticizing the OPR. Associate Deputy Attorney General
David Margolis replied by letter to Chief Judge Wolf, asserting that “the discipline imposed by the
Department was consistent with, correlated to, and proportional with the findings that resulted from
OPR’s investigation.” Letter from David Margolis to The Honorable Mark L. Wolf (Oct. 2, 2007).
Still not satisfied, Chief Judge Wolf wrote Attorney General Michael Mukasey. In this letter, Chief
Judge Wolf noted that he assisted in the establishment of OPR, but now has “serious questions about
whether judges should continue to rely upon the Department to investigate and sanction misconduct
by federal prosecutors.” Letter from The Honorable Mark L. Wolf to The Honorable Michael B.
Mukasey (Jan. 2, 2008). The letters may be found in the court files of Barone v. United States, No.
98-11104 (D. Mass. 1998) and Ferrara v. United States, No. 00-11693 (D. Mass. 2000).
11
068
Contempt
A court could exercise its contempt powers to curb prosecutorial misconduct that occurs in the
courtroom. However, “[a]lthough contempt is frequently used to punish defense counsel for
misconduct, it is rarely used to punish prosecutors.” Gershman, Misconduct , supra, § 14:9 (footnote
omitted). Even when a trial court imposes contempt on a prosecutor, appellate courts rarely sustain
the charge. See id.; Lawless, supra, § 13.35.
Appellate Court Action
If prosecutorial misconduct violates a defendant’s constitutional rights to a fair trial, the defendant’s
conviction might be overturned on appeal. Reversals of convictions, however, are limited by the
harmless-error doctrine, which generally precludes relief when the court finds that the defendant was
not fundamentally prejudiced by the prosecutorial misconduct. See Rose v. Clark , 478 U.S. 570
(1986). The Center for Public Integrity looked at 11,452 appellate cases since 1970 where
prosecutorial misconduct was an issue raised by the defendant. The study revealed that in 2,012 cases
the prosecutor’s misconduct was so serious that a dismissal of the charges, a reversal of conviction, or
a reduction in the imposed sentence was warranted. In thousands of others, prosecutorial misconduct
was found to have occurred, but was deemed to be harmless. Steve Weinberg, Breaking the Rules:
Who Suffers When a Prosecutor Is Cited for Misconduct? (2007), http://www.publicintegrity.org/
pm/default.aspx?act =main; see generally Weinberg et al., supra.
One should ask whether a reversal of a conviction adequately sanctions a prosecutor for misconduct
since the focus is on the defendant, rather than the prosecutor. Moreover, many have questioned
whether prosecutorial misconduct is adequately deterred when the harmless-error doctrine is
consistently applied. For example, one commentator has asserted that application of the rule is
“tantamount to saying that if one is obviously guilty as charged, he has no fundamental right to be
tried fairly.” Note, Prosecutor Indiscretion: A Result of Political Influence, 34 Ind. L.J. 477, 486
(1959); see also Rose, 478 U.S. at 588–89 (Stevens, J., concurring) (“An automatic application of
harmless-error review in case after case, and for error after error, can only encourage prosecutors to
subordinate the interest in respecting the Constitution to the ever-present and always powerful interest
in obtaining a conviction in a particular case.”).
Another way appellate courts can address prosecutorial misconduct is by public rebuke. In Bank of
Nova Scotia v. United States, the Supreme Court stated that defendants should not be given a
“windfall” when they are not prejudiced by prosecutorial misconduct. 487 U.S. 250, 263 (1988). One
way to deal with prosecutorial misconduct when the defendant’s rights are not violated, according to
the Court, is for an appellate court to “chastise the prosecutor in a published opinion.” Id. The
effectiveness of this remedy has been questioned as well. An article in the Chicago Tribune series
noted that even when the prosecutor’s actions are criticized in appellate opinions, the courts usually do
not call out the prosecutors by name. According to the article, “[t]he granting of anonymity isn’t
mandated anywhere, but instead stems from tradition and professional courtesy.” Armstrong &
Possley, Break Rules, supra. Moreover, even when prosecutors are named in appellate opinions, there
is little evidence that it adversely impacts that person’s career or future conduct. See id.; supra Part
III.E (discussing the chastising of Robert H. Macy).
12
069
Civil Liability
When being sued under federal civil rights laws, prosecutors often assert they are immune from
liability. The law is nuanced in this area, but prosecutors can be found liable. For example, a man by
the name of John Thompson spent 14 years on Death Row after an assistant district attorney destroyed
exculpatory evidence. A jury in the Eastern District of Louisiana awarded Thompson $14 million after
finding that the district attorney “was deliberately indifferent to the need to train, monitor, and
supervise his prosecutors to comply with the constitutional requirements concerning production of
evidence favorable to an accused.” Thompson v. Connick , No. 03-2045, 2007 WL 1200826, at *1
(E.D. La. April 23, 2007). The availability for redress under state tort law (e.g., malicious
prosecution) varies from jurisdiction to jurisdiction.
One avenue of relief for those wrongly prosecuted by the federal government is a Hyde Amendment
claim. See Department of Commerce, Justice, and State, the Judiciary and Related Appropriations Act
of 1998, Pub. L. No. 105-119, § 617, 111 Stat. 2440 (codified at 18 U.S.C. § 3006A Note). This law
provides for the recovery of attorney fees for prosecutions by the U.S. government that were
“vexatious, frivolous, or in bad faith.” To recover attorney fees, the defendant must be a “prevailing
party.” To determine whether a defendant is a prevailing party, courts look to the totality of the
circumstances. See, e.g., United States v. Campbell , 134 F. Supp. 2d 1104, 1107 (C.D. Cal. 2001),
aff’d , 291 F.3d 1169 (9th Cir. 2002). Generally, a defendant prevails when he or she “was completely
exonerated through voluntary dismissal of all charges without sanction, dismissal by way of a motion
of judgment for acquittal or dispositive motion, or through acquittal.” Id. at 1108. Moreover, a
defendant is a prevailing party when the government dismisses the case with prejudice, and may or
may not be considered as such when the case is dismissed without prejudice. See United States v.
Gardner , 23 F. Supp. 2d 1283, 1292 (N.D. Okla. 1998).
CONCLUSION
The Nifong / Duke Lacrosse saga brought to the public’s awareness the sad and disturbing nature of
prosecutorial overreaching. While Nifong’s actions may have been particularly egregious, it is clear
that the problem of prosecutorial misconduct is nothing new—it has simply taken place outside of
public view for the most part. It is also clear that, to date, there has not been an effective remedy to
this systemic problem. Hopefully something good can come out of the tragedy of the Duke case—
public awareness of the need to hold prosecutors accountable for misconduct, and a newfound
willingness of the courts, bar associations, and the DOJ to impose harsher sanctions on wayward
prosecutors.
13
070
Jon Sands Steven Kalar Geoffrey Hansen Federal Public Defender AFPD Chief Assistant Public Defender Phoenix, Arizona San Francisco, California San Francisco, California
Chris Miles Peter Davids Jonathan Katchen R&W Attorney, FPD Associate Assistant Attorney General San Francisco, California Jones Day State of Alaska, Dept. of Law
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor– indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935)
. . . it is the responsibility of the United States Attorney and his senior staff to create a culture where ‘win-at-any-cost’ prosecution is not permitted. Indeed, such a culture must be mandated from the highest levels of the United States Department of Justice and the United States Attorney General. It is equally important that the courts of the United States must let it be known that, when substantial abuses occur, sanctions will be imposed to make the risk of non-compliance too costly.
United States v. Shaygan, 661 F.Supp.2d 1289, 1292 (S.D.Fla. 2009)
“The Court finds [the government’s] explanation wholly incredible.”
United States v. Stevens, 593 F.Supp.2d 177, 181 (D.D.Ct. 2009)
Prosecutorial Misconduct 1
I. Policing the Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Ethical Immunity Before 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. The Citizens Protection Act of 1998, 28 U.S.C. § 530B . . . . . . . . . . . . . . 5 C. The Hyde Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 D. Criminal Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 E. Case Remedies - Mistrial, Dismissal, Jury Instruction . . . . . . . . . . . . . . . 9
II. Winning-At-All-Costs: Prosecutorial Misconduct During Various Phases of a Criminal Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Pre-Indictment Investigation and The Grand Jury . . . . . . . . . . . . . . . . . . 10
1. Subpoenas to Defense Counsel . . . . . . . . . . . . . . . . . . . . 10 2. Pre-indictment Contact with Represented Witnesses . . . 11 3. Exculpatory Evidence Before the Grand Jury . . . . . . . . . 12 4. Miscellaneous Prosecutorial Misconduct Within the Grand
Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
B. Brady, Due Process, and State Ethical Rules on Discovery . . . . . . . . . . 14
C. Prosecutorial Misconduct During Trial . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1. Misconduct During Jury Selection . . . . . . . . . . . . . . . . . 19 2. Improper Conduct During Opening Statements . . . . . . . 19 3. Ethical Problems with Government Witnesses and Trial
Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4. Improper Closing Arguments . . . . . . . . . . . . . . . . . . . . . 21
D. Broken Promises: Breached Pleas at Sentencing . . . . . . . . . . . . . . . . . . . 26
III. Normalizing Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
A. The Proposed Expansion of Rule 16 and DOJ’s Opposition . . . . . . . . . . 27
B. For the Defense – Commentators’ Opinions and Recommendations . . . 29
Parting Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Introduction
Most experienced practitioners would agree that the vast majority of federal prosecutors behave in an ethical manner, and would further agree that federal prosecutorial misconduct has been the exception, rather than the rule. As will be described in greater detail below, federal prosecutorial misconduct is now a local inquiry as well as a constitutional inquiry – after 1998, state ethical rules now also bind federal prosecutors. Therefore, while this outline may be a useful starting point, counsel should be encouraged to turn to state bar rules of professional responsibility and, if questions arise, consult an ethics hotline.
I. Policing the Prosecutors
A. Ethical Immunity Before 1998
Before the late1990's, the system of ethical rules and restraints that constrained any other attorney – including defense counsel – did not apply to federal prosecutors. As will be discussed in greater depth below, Congressman McDade’s 1998 Citizens Protection Act (“CPA” or “ § 530B”) revolutionized the application of state rules to federal prosecutors in ways that have still not been fully explored. Even before Joseph McDade successfully slipped the CPA into law, however, national discontent about the special treatment of federal prosecutors had been brewing.
Before 1998, federal prosecutors could be sanctioned for ethical misconduct by the federal court in which they practiced, or by the Department of Justice. Many commentators – including federal judges – were (and remain) dubious of the government’s ability to self-regulate its attorneys. See, e.g., Lynn R. Singband , THE HYDE AMENDMENT AND PROSECUTORIAL
INVESTIGATION: THE PROMISE OF PROTECTION FOR CRIMINAL DEFENDANTS , 28 FORDHAM URB. L.J. 1967, 1978 (Aug. 2001) (discussing the creation – and limitations of – the DOJ Office of Personal Responsibility (“OPR.”)). In 1993, Ninth Circuit Judge Kozinski, for example, openly questioned the failure of the United States Attorney to supervise the ethical behavior of its AUSAs:
How can it be that a serious claim of prosecutorial misconduct remains unresolved – even unaddressed – until oral argument in the Court of Appeals? Surely when such a claim is raised, we can expect that someone in the United States Attorney’s office will take an independent, objective look at the issue. The claim here turned entirely on verifiable facts: A dispassionate comparison between the transcript of the AUSA's statement to the jury and Nourian's plea agreement would have disclosed that the defense was right and the government was wrong. Yet the United States Attorney allowed the filing of a brief in our court that did not own up to the problem, a brief that itself skated perilously close to misrepresentation.
United States v. Kojayan, 8 F.3d 1315, 1320 (9th Cir. 1993).

Despite the shortcomings of self-regulation, it was the common view that a federal prosecutor was not subject to state or local ethical rules or restraints. This view was based on the position that the Supremacy Clause of the United States Constitution preempted state regulation of federal prosecutors, practical arguments about conflicts of local state rules arising in a national federal practice, and a healthy dose of self-interest from the Department of Justice.
Two issues helped to sharpen the debate over the propriety of an exemption for federal prosecutors from state ethical rules. See Fred C. Zacharias, Bruce A. Green, The Uniqueness of
Federal Prosecutors, 88 GEO. L.J. 207, 213 (2000). The first of these issues related to attorney contact of represented parties. Though such contact was widely prohibited by state local rules, in 1989 Attorney General Thornburgh distributed an infamous memorandum that purported to exempt federal prosecutors. This memorandum was controversial both within and outside of the legal community. See Dick Thornburgh , Ethics and the Attorney General: The Attorney General
Responds, 74 Judicature 290 (April/May 1991) (“Given the normally high quality of the articles in Judicature, I had hoped to see a discussion of the Department of Justice’s policy on contacting representing persons that was free of the near-hysteria that has punctuated articles written by some members of the defense bar.”)
The second debate focused on a prosecutor’s ability to subpoena witnesses. Zacharias &
Green , supra at 212; see also Stern v. United States District Court , 214 F.3d 4, 7 (1st Cir. 2000) (“The 1980s witnessed a dramatic increase in the number of subpoenas served on defense attorneys by federal prosecutors. The reasons for this trend are difficult to pinpoint, but some commentators have linked it with heightened efforts to fight organized crime and drug- trafficking, new forfeiture laws, and an unprecedented expansion of the Department of Justice (DOJ).”)
In the wake of the controversy of the Thornburgh memorandum, in 1994 Attorney General Janet Reno issued formal regulations which continued the exemption for federal prosecutors from state ethical violations, but promised voluntary compliance with most professional rules (the “Reno Rule.”) Zacharias & Green, supra at 212; see also
Communications With Represented Persons , 59 FR 39910-01 (Aug. 4, 1994) (containing text of the Reno Rule regarding contact with represented persons).
Also fueling the fire of this ethical debate were a number of developments that sharpened the adversarial process and directly impacted the criminal defense bar, including federal grand jury subpoenas to defense attorneys, forfeiture of funds paid by defendants to retained counsel, and non-discretionary sentencing provisions in the Federal Sentencing Guidelines. See Rory K. Little, Who Should Regulate the Ethics of Federal Prosecutors? , 65 FORDHAM L. R EV. 355, Oct. 1996; see also Note, Federal Prosecutors, State Ethics Regulations, and the McDade
Amendment , 113 HARV. L . R EV. 2080, 2083 (2000) (discussing three Model Rules of Ethics that prompted national debate on state ethical limitations on federal prosecutors).
Outside of the national limelight of this ethical debate, however, a federal criminal prosecution was brewing – a prosecution which led to a further attempt to formally regulate federal prosecutors.
B. The Citizens Protection Act of 1998, 28 U.S.C. § 530B
In 1992, Pennsylvania Congressional Representative Joseph McDade was indicted with five federal counts relating to bribery. While Congressman McDade admitted that “errors had been made,” he denied the allegations.1 He kept his seat in office and – four years later – was acquitted by a jury of all of the charges. Zacharias & Green , supra at 212.
McDade complained that federal prosecutors had turned his life “into a living nightmare” and had harassed and hounded him.2 In his role as a criminal defendant, he filed a number of motions alleging prosecutorial misconduct – all of which were denied. See, e.g., United States v.
McDade, No. 92-249, 1992 WL 187036, at *2 (E.D. Pa. July 30, 1992) (discussing motion to dismiss arising from prosecutor’s alleged conflict of interest).
Stinging from his recent personal experiences with federal prosecutors, McDade introduced in the House of Representatives a version of the Citizen Protection Act which would have imposed state and local ethical rules on federal prosecutors (as well as a number of other, wide-ranging changes). That bill was killed in committee, and a re-introduced bill the following year also never made it out of committee. Zacharias & Green, supra, at 214-15. Finally, in 1998 the CPA was introduced as a rider to an appropriations bill, and was passed without ever clearing committee – much to the chagrin of (DOJ advocate) Senator Hatch. Id. at 215. The bill’s unique road to passage was a source of later criticism from DOJ allies and sparked later efforts at repeal; efforts that were unsuccessful. See, e.g., NAAUSA Initiatives, Federal Prosecutor Ethics Act , http://www.naausa/org./ initiatives/ethics.htm (visited Feb. 18, 2003) (discussing congressional testimony of national AUSA representative against CPA and describing alternative bills proposed).
The Citizen’s Protection Act has been codified at 28 U.S.C. § 530B.3
§ 530B. Ethical standards for attorneys for the Government
(a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State.
(b) The Attorney General shall make and amend rules of the Department of Justice to
assure compliance with this section.
(c) As used in this section, the term “attorney for the Government” includes any attorney
1 http://www.nytimes.com/1992/05/06/us/top-republican-on-a-house-panel -is-charged-with-accepting-bribes.html?pagewanted=1 (last visited 4/7/10)
2 Id.
3 The Citizen’s Protection Act is referred to as the “CPA” or, more frequently, “§ 530B.”

described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations and also includes any independent counsel, or employee of such a counsel, appointed under chapter 40.
28 U.S.C. § 530B (West 2003). Section 530B has been worked into the Code of Federal Regulations (“CFR”) and integrated into the United States Attorney’s Manual. See, e.g., 28 CFR § 77.3 (applying 28 U.S.C. § 530B to all attorneys for the government involved in, among other actions, all criminal investigations and proceedings); U.S.A.M. 9-13.200 (2005) (“Department attorneys are governed in criminal and civil law enforcement investigations and proceedings by the relevant rule of professional conduct that deals with communications with represented persons.”).
As will be discussed in greater depth infra, remedies for violation of the CPA may be sparse. In one of the few published cases on the new statute and regulations, the Eleventh Circuit rejected the idea that a violation of a state ethical rule would support suppression of evidence in federal court. See United States v. Lowery, 166 F.3d 1119, 1124-25 (11th Cir. 1999) (“Assuming for present purposes that the rule is violated when a prosecutor promises a witness some consideration regarding charges or sentencing in return for testimony, a state rule of professional conduct cannot provide an adequate basis for a federal court to suppress evidence
that is otherwise admissible.”) Similarly, in United States v. Syling , the court held that any state ethical standards would not “override the law governing presentation of [exculpatory] evidence at grand jury proceedings.” 553 F.Supp.2d 1187, 1192 (D.Haw. 2008). Indeed, the CFR itself provides that § 530B “should not be construed in any way to alter federal substantive, procedural, or evidentiary law or to interfere with the Attorney General's authority to send Department attorneys into any court in the United States.” 28 CFR § 77.1.
The First Circuit has flatly refused to view the CPA as an inroad for state (or local) regulation of federal prosecutors in federal court. See Stern, 214 F.3d at 19. In Stern, the First Circuit rejected a local rule from the District of Massachusetts that required judicial authorization for grand jury subpoenas of defense attorneys. Id. Despite the clear language of the CPA, the Court in Stern concluded that Congress did not mean to “empower state (or federal district courts, for that matter) to regulate government attorneys in a manner inconsistent with federal law.” Id.
Nonetheless, other federal courts have conceded that § 530B does extend state ethical rules to federal prosecutors. See Jennifer Blair, The Regulation of Federal Prosecutorial
Misconduct by State Bar Associations, 28 U.S.C. § 530B and the Reality of Inaction , 49 UCLA L. R EV. 625, 637 (Dec. 2001) (collecting federal authority acknowledging the extension of state ethical rules to federal prosecutors after 28 U.S.C. § 530B). One of the most thoughtful of these decisions is United States v. Colorado Supreme Court , 189 F.3d 1281 (10th Cir. 1999). In that case, the Tenth Circuit held that – in light of § 530B – a Colorado state ethical rule prohibiting “federal prosecutors [from] subpoenaing attorneys to divulge information on past and present clients in connection with a criminal proceeding other than a grand jury,” was not inconsistent with federal law in violation of the Supremacy Clause of the United States Constitution. Id. at 1288-89.

The ultimate impact of § 530B on federal prosecutors remains an open question – one commentator has discovered that during a year-and-a-half long period only one federal prosecutor was disciplined out of the 1767 lawyers punished by ten state bar organizations. Blair, supra, at 641 (“If punishment for prosecutors was previously “lax,” one federal prosecutor disciplined out of the 1767 lawyers punished by ten state bar associations from April 1999 until December 2000 does virtually nothing to increase the regulation of unethical behavior by federal prosecutors.”)
Courts appear reluctant to file a complaint with a state bar organization. Currently, at least one federal prosecutor is in state disciplinary proceedings after allegedly withholding exculpatory evidence in a case.4 The district court judge on that case filed the letter of complaint with state bar counsel after learning that DOJ had only issued a written reprimand to the prosecutor.5 Another district court judge has reserved the right “to impose any further sanctions and/or disciplinary measures as may be necessary against [the federal prosecutors] after reviewing the results of the Justice Department’s investigation.” United States v. Shaygan, 661 F.Supp.2d 1289, 1325 (S.D. Fla 2009).
C. The Hyde Amendment
Another champion of ethical restraints on federal prosecutors has been Congressman Hyde. In 1997, his infamous “Hyde Amendment” exposed the federal government to civil liability for criminal lawsuits that are vexatious, frivolous, or in bad faith:
Attorney Fees and Litigation Expenses to Defense
Pub.L. 105-119, Title VI, § 617, Nov. 26, 1997, 111 Stat. 2519, provided that: "During fiscal year 1998 and in any fiscal year thereafter, the court, in any criminal case (other than a case in which the defendant is represented by assigned counsel paid for by the public) pending on or after the date of the enactment of this Act [Nov. 26, 1997], may award to a prevailing party, other than the United States, a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust. Such awards shall be granted pursuant to the procedures and limitations (but not the burden of proof) provided for an award under section 2412 of title 28, United States Code. To determine whether or not to award fees and costs under this section, the court, for good cause shown, may receive evidence ex parte and in camera (which shall include the submission of classified evidence or evidence that reveals or might reveal the identity of an informant or undercover agent or matters occurring before a grand jury) and evidence or testimony so received shall be kept under seal. Fees and
4 See “Boston AUSA Faces Judicial Panel Over Alleged Misconduct,” http://www.mainjustice.com/2010/01/22/boston-ausa-faces-judicial-panel-regarding-alleged-mis conduct/ (last visited 4/9/10).
5 Id.

other expenses awarded under this provision to a party shall be paid by the agency over which the party prevails from any funds made available to the agency by appropriation. No new appropriations shall be made as a result of this provision.
18 U.S.C. § 3006A, stat. history (West 2003).
Like § 530B, the Hyde Amendment had its origins in the eight-year prosecution of Congressman McDade. See Singband, supra at 1981-82; see also United States v. Gilbert , 198 F.3d 1293, 198-99 (11th Cir. 1999) (tracing legislative history of the Hyde Amendment). The Hyde Amendment has had some recent success in federal courts. See id. at 1986-88 (collecting
Hyde Amendment cases). See also United States v. Aisenberg , No. 899-CR-324-T23 MAP, 2003 WL 403071, *39 (M.D. Fla. Jan. 31, 2003) (“Pursuant to the Hyde Amendment, the Aisenbergs are entitled to a reasonable attorney's fee in the amount of $2,680,602.22 and other litigation expenses in the amount of $195,670.32.”); United States v. Shaygan, 661 F.Supp.2d 1289, 1324 (S.D.Fla 2009) (attorney’s fees and costs in the amount of $601,795.88 awarded to the defendant); United States v. Claro, 579 F.3d 452, 456 (5th Cir. 2009) (noting the district court awarded and government paid $391,292.29 in attorneys fees pursuant to Hyde Amendment);
United States v. Adkinson, 247 F.3d 1289 (11th Cir. 2001) (determining that defendants were entitled to attorneys fees where government included bank fraud in conspiracy indictment with
knowledge that it was precluded by controlling precedent). See also Brown v. United States, SA- 03-CV-0792-WRF (W.D.Tex. 2007)(wherein parties reached settlement agreement and government agreed to pay plaintiff $1,340,000 to settle plaintiff’s complaint filed under the Federal Tort Claims Act based on nature of government’s criminal investigation and prosecution of plaintiffs).
The Hyde Amendment certainly heightened the sensitivity of the DOJ to charges of vexatious prosecution. See Elkan Abramowitz, Peter Scher, The Hyde Amendment: Congress
Creates a Toehold for Curbing Wrongful Prosecution, THE CHAMPION (Mar. 1998) (discussing aggressive DOJ stance against Hyde Amendment before its adoption). The courts’ recent awards suggest that the federal defense bar should continue to push for such recourse against the government for wrongful prosecutions.6 See also Dick DeGuerin, Neal Davis, If They Holler,
Make ‘Em Pay . . . The Hyde Amendment , THE CHAMPION (Sept./Oct. 1999).7
6 Larry Breuer, head of DOJ’s Criminal Division, speaking at the ABA’s white collar crime conference, called on the defense bar to refrain from terming discovery violations as endemic stating that “nothing could be further from the truth.” He criticized those who “think it is acceptable to use motions for sanctions, or threats of OPR referrals, as a way to gain some sort of strategic litigation advantage.” http://www.mainjustice.com/2010/02/25/ breuer-tells-white-collar-bar-to-ease-up-on-prosecutors/ (last visted 4/12/10).
7 This Champion article is an excellent starting point for any Hyde Amendment litigation, and includes a useful check-list for defense counsel to review before initiating a Hyde Amendment petition.
D. Criminal Contempt
The five DOJ employees who prosecuted Senator Ted Stevens in United States v. Stevens
are currently the subject of criminal contempt proceedings instigated by U.S. District Court Judge Emmet Sullivan based in part on allegations of Brady and Giglio violations.8 Judge Sullivan appointed a special counsel to examine the conduct of the prosecutors after the Justice Department moved to dismiss the case with prejudice. The DOJ’s Office of Professional Responsibility is conducting a simultaneous investigation. Both reports are due to be completed in the near future.
E. Case Remedies - Mistrial, Dismissal, Jury Instruction
Unethical behavior or improper methods by the prosecutor may result in a mistrial or a reversal of a conviction where the methods “so infect the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright , 477 U.S. 168, 181 (1986). In United States v. Ted Stevens, the government itself motioned to set aside the verdict and dismiss the case with prejudice based on admitted Brady violations. The judge voided the conviction. In United States v. Chapman, the district court determined that the prosecutor violated both Brady and Giglio and the district court declared a mistrial. 524 F.3d 1073, 1083- 84 (9th Cir. 2008).9 Following a hearing on the matter, the district court judge dismissed the indictment with prejudice. Id. In United States v. W.R. Grace, CR 05-07-M-DWM (D.Mt 2009), based on the government’s Brady and Giglio violations, the court explained to the jury why the government would not be permitted to do any redirect examination of one of the government’s main witnesses and why they should view “any proof offered by [that main
witness] with skepticism.” See Appendix A W.R. Grace Jury Instruction . The court instructed the jury, in part, that, “the Department of Justice and the United States Attorney’s Office have violated their constitutional obligation to the defendants and they have violated orders of the court.” Id.
At the appellate level, “review of prosecutorial misconduct . . . consists of a two part test: first, was the prosecutor’s conduct actually improper; second, did the misconduct, taken in the context of the trial as a whole, violate the defendant’s due process rights.” Andrew M. Hetherington , Prosecutorial Misconduct , 90 GEO. L.J. 1679 (May 2002). In evaluating the seriousness of the misconduct, courts will find “harmless error if the misconduct was not severe, effective curative measures were taken by the trial court, or if the weight of evidence made conviction certain absent the improper conduct.” Id. at 1689 (footnotes omitted). Some courts will additionally “consider whether the misconduct was deliberately or accidentally made [and] the extent to which the defense was able to counter the improper conduct with rebuttal, or both,
8 http://www.mainjustice.com/2009/10/21/welch-to-step-down-as-public-integrity-chief/ (last visited 4/9/10).
9 On appeal, the Ninth Circuit held that the mistrial was supported by a valid determination of manifest necessity and thus, a retrial of the defendant would not violate the Double Jeopardy Clause. Chapman, 524 F.3d 1073, 1083-84 (9th Cir. 2008)
to their evaluation of the seriousness of misconduct.” Id.
The one, universal lesson from all authority regarding remedies for prosecutorial misconduct is the need to object to preserve the error. Timidity in the face of prosecutorial misconduct will injure the client on later appellate review, where the (nearly insurmountable) plain error standard will be applied.
II. Winning-At-All-Costs: Prosecutorial Misconduct During Various Phases of a Criminal Prosecution
With the McDade and Hyde laws in hand and remedies in mind, we turn to examples of prosecutorial misconduct as they arise during various stages of a criminal prosecution and investigation.
A. Pre-Indictment Investigation and The Grand Jury
1. Subpoenas to Defense Counsel
Grand jury misconduct was one of the ethical issues that sparked the McDade revolution, and yet five years after § 530B was enacted, it still remains an unsettled issue. One of the most controversial aspects of grand jury practice has been the issuance of a grand jury subpoena to defense counsel, to secure information about a counsel’s client. The American Bar Association has promulgated model ethical rules that limit this type of grand jury subpoena. See Appendix B,
ABA Model Rule of Professional Conduct 3.8(e). Because the ABA Model Rules have been adopted in many states, after § 530B the issue is ripe for conflict in federal court. State ethical rules in Colorado provide a good example of the problem.
Grand jury subpoenas to defense counsel on the subject of their representation are prohibited by Colorado state ethical rules. See Appendix C , Colorado State Rule of Professional
Conduct 3.8, Special Responsibilities of a Prosecutor.10 The federal government’s policy of
10 Because this state rule is based on rules from “ABA Standards of Criminal Justice Relating to the Prosecution Function,” the conflict between this state ethical rule and federal action is likely to arise more frequently. A non-exhaustive list of states that have adopted Model Rule 3.8, Special Responsibilities of a Prosecutor, (or a substantially-similar rule), includes Arizona, Colorado, Arkansas, Connecticut, Delaware, Indiana, Kansas, Maryland, Michigan, New Jersey, Massachusetts, Rhode Island, South Carolina, and West Virginia. California is
currently proposing such an adoption. See, e.g., http://calbar.ca.gov/calbar/pdfs/public-comment /2009/Revision-Rules-Professional-Conduct-11-Rules_11-13-09.pdf (comparing and contrasting other states’ adoption and California’s proposed changes) (last visited 4/9/10); Arizona v.
Talmadge, 999 P.2d 192, 197 (Az. S. Ct. 2000) (discussing E.R. 3.8, Arizona Rules of Professional Conduct); Colorado v. Mucklow, 35 P.3d 527, 534 (Co. S.Ct. 2000) (discussing Colo. RPC 3.8(d)); Arkansas R. Prof. Conduct 3.8 (West 2002); Connecticut Rule Prof. Conduct 3.8 (West 2002); Del. R. Prof. Conduct 3.8 (West 2002); Indiana R. Prof. Conduct 3.8 (West 2003); Kansas v. Dimaplas, 978 P.2d 891, 894 (Ka. S.Ct. 1999); Md. R. Prof. Conduct 3.8 (West

forcing defense counsel to testify regarding their clients thus became an issue for the Tenth Circuit. See United States v. Colorado Supreme Court , 189 F.3d 1281, 1284 & n.3 (10th Cir. 1999).
The Tenth Circuit noted that before § 530B (McDade’s Citizen Protection Act) was adopted there had been a circuit split on the issue of federal grand jury subpoenas to defense counsel, over state ethical prohibitions. See United States v. Colorado Supreme Court , 189 F.3d 1281, 1284 & n.3 (10th Cir. 1999) (discussing contrary authority permitting, and striking, local rules limiting federal government grand jury subpoenas of defense counsel). In Colorado
Supreme Court , the Tenth Circuit managed to avoid the grand jury issue because that particular aspect of the Colorado state rule was not appealed. Id. at 1284.
The short, and unsatisfying, answer is that there is now no definitive authority on whether § 530B extends state ethical prohibitions on grand jury subpoenas to defense counsel. See Brenner & Shaw, Federal Grand Jury: A Guide To Law And Practice, FED. GRAND JURY § 13.5 (discussing conflicting authority on issue and Department of Justice Guidelines).
If faced with such a subpoena, the first step should be to turn to state ethical rules to see whether they prohibit such action (likely to be found in Rule 3.8, adopted from the ABA Model
Rule). Defense counsel will then need to argue that this state ethical rule has been extended to the federal prosecutor by virtue of 28 U.S.C. § 530B, and that this statute trumps any Supremacy Clause issues.
2. Pre-indictment Contact with Represented Witnesses
Does a federal prosecutor violate state ethical rules when he or she speaks to a represented witness before indictment? That was the question before the Ninth Circuit in one of the lead cases on the subject, United States v. Talao, 222 F.3d 1133 (9th Cir. 2000). In Talao, a federal prosecutor spoke to an employee of a corporation that was represented by counsel – before indictment, and while that corporate counsel was banging on the door of the interview room. Id. at 1136. The district court held that the prosecutor had violated California ethical rule 2-100, prohibiting contact with represented persons. Id. at 1136. The Ninth Circuit reversed, but not before articulating several important rules regarding federal prosecutors, ethics, and contact with represented persons.
As an initial matter, it was by no means clear that pre-indictment contact with represented persons was prohibited. The Court turned to the Second Circuit’s decision in United
States v. Hammand , 858 F.2d 834 (2d Cir. 1988), and concluded that there was no bright-line
2002); Michigan R. Prof. Conduct 3.8 (West 2003); New Jersey v. Torres, 744 A.2d 699, 708 (N.J. S. Ct. 2000) (discussing R.P.C. 3.8); In re: Grand Jury Investig., 15 Mass. L. Rptr. 354 (Super. Ct. Mass. 2002) (mem.) (discussing Mass. R. Prof. Conduct 3.8(f)); RI Rule Prof. Conduct 3.8 (West 2002); South Carolina v. Quattlebaum, 338 S.E.2d 105, 109 (S.C. S. Ct. 2000) (discussing South Carolina R. Prof. Conduct 3.8); West Va. R. Prof. Conduct 3.8 (West 2002).

categorical rule on the issue. Id. at 1139. The Ninth Circuit concluded that in the pre-indictment procedural context of the Talao case, there were “fully defined adversarial roles”11 that triggered the ethical prohibition. Id.
The Court also was not troubled by the controversy over DOJ’s previous position and the Thornburgh memorandum, which permitted contact with represented witnesses. Id. at 1139-40. The Ninth Circuit flatly concluded that 28 U.S.C. § 530B made state ethical rules applicable to federal attorneys, which “dissipated” any previous dispute. Id. at 1140.
The Court in Talao ultimately let the prosecutor off of the ethical hook, however, because it concluded that in the unique circumstances of a disgruntled employee seeking to distance herself from corporate counsel – an employee who was alleging subornation of perjury by the lead defendant – Rule 2-100 did not preclude contact. Id. at 1140.
The Talao case is notable because it un-hesitantly extends state ethical rules to federal prosecutors, extends the prohibition of represented-witness contact to the pre-indictment context, and it suggests that under a less-unique factual setting the disciplinary referral would have stood.
3. Exculpatory Evidence Before the Grand Jury
Consider the following hypothetical: The defendant is charged with being a felon in possession of a gun, in violation of 18 U.S.C .§ 922(g)(1). During his arrest, his girlfriend protests that it was her gun, and that the defendant was unaware that the weapon was in the house. Need the AUSA present the girlfriend’s exculpatory statement to the grand jury before indictment?
The federal rule – before § 530B – has been that a federal prosecutor need not present exculpatory evidence to the grand jury. See United States v. Williams , 504 U.S. 36, 52 (1992) (“Imposing upon the prosecutor a legal obligation to present exculpatory evidence in his possession would be incompatible with this [grand jury] system.”) Yet, despite the Williams rule, the United States Attorneys Manual states that when an AUSA “is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person.” U.S.A.M. § 9-11.233 (2008). The Manual also states that an indictment should not be dismissed for a violation of this policy, but appellate courts may refer prosecutors to the DOJ Office of Professional Responsibility for review if they violate the policy. Id.
Since enactment of § 530B, a district court has held that any state ethical standards requiring the presentation of exculpatory evidence would not “override the law governing
11 The case had already undergone a civil investigation, a qui tam action, an corporate counsel had already initiated settlement discussions with the government. Talao, 222 F.3d at 1139.

presentation of [exculpatory] evidence at grand jury proceedings.” United States v. Syling , 553 F.Supp.2d 1187, 1192 (D.Haw. 2008). The district court’s opinion did not address any prosecutorial obligations created by the United States Attorneys Manual.
4. Miscellaneous Prosecutorial Misconduct Within the Grand Jury
If it is true that an experienced prosecutor can get a grand jury to indict a ham sandwich, then why would an AUSA cut corners to get an indictment? While unethical behavior before a grand jury seems particularly unnecessary, it nonetheless occurs. A good summary of prohibited acts can be found in United States v. Samango, 607 F.2d 877 (9th Cir. 1979).
In Samango, an indictment was dismissed by a federal district judge in Hawaii. Id. at 878.12 Samango was a witness called before the grand jury relating to a cocaine importation case from Tahiti. Id. The AUSA informed the grand jury of his dissatisfaction with Samango’s performance under a non-pro

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