In my experience most prosecutors play by the rules. They know their ethical duties and abide by them. However, I, along with many of my colleagues, have observed a growing number of prosecutors that have no problem stepping over the ethics line. The issue seems more to do with ignorance than intent.
For the most part, the public is unaware of this growing problem. It is only when the misconduct is so outrageous and the victim has the means to fight it does the misconduct make its way to the public’s attention (e.g. the 2006 Duke University lacrosse case.) When prosecutorial misconduct truly does occur, only a small percentage of prosecutors are disciplined for their actions. Apparently, a new report from the Northern California Innocence Project at Santa Clara University School of Law demonstrates this problem is not isolated to Arizona.
The Report examined more than 4,000 cases where prosecutorial misconduct was alleged over a twelve year period. The Report found that courts only made prosecutorial misconduct a finding in approximately 700 of 4,000 of the cases. In those 700 cases, only six (6) prosecutors were charged with misconduct. Obviously, as a former prosecutor, I understand that when someone is convicted of a crime, it may result in a frivolous claim; still these numbers are still extraordinary.
In addition, this report determined that judges often failed to report prosecutorial misconduct to the state bar despite their legal obligation to notify the bar of such behavior. Although over sixty prosecutors (60) committed misconduct more than once, and some more than five times, the majority of those prosecutors were never publicly disciplined.
In response to the report, the State Bar of California, issued the following written statement:
“Prosecutorial misconduct as indicated in the Innocence Project report does not always equate with attorney misconduct for disciplinary purposes. The State Bar believes that it is disciplining criminal prosecutors where appropriate and where the misconduct was willful and can be established by clear and convincing evidence.”
If you have a specific legal question regarding prosecutorial misconduct in an Arizona Criminal Case, please contact The Koplow Law Firm at 602-494-3444.
Lawrence Koplow