Why Punishing Bad Prosecutors Won’t Fix a Bad System

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Photo by Clyde Robinson via Flickr

After 50 years of representing indigent defendants in urban criminal courts I have no objection to seeing prosecutors disciplined for their misconduct.

As a matter of fact, I find the prospect delectable.

But during those same 50 years I have represented a few (thousand) guilty people. Almost all of those clients understood perfectly well that their acts were illegal and that there were authorities eager to punish them for those acts if they were discovered.

They did them anyway.

So, I am a little skeptical about deterrence. Accountability NY, a coalition of law professors, civil rights corps, community activists, attorneys . . . seeking professional consequences for prosecutorial misconduct, tells us that “the biggest reason prosecutorial misconduct continues to be widespread is that courts, district attorneys and bar associations rarely hold prosecutors accountable for their misconduct.”

As I’ve suggested elsewhere,  I’m not quite sold.

That’s one reason, but it’s not the most important.

Yes, I can see that creating some realistic potential for punishment might influence prosecutors’ decisions. Still, we have to remember that the threat of discipline will be only one influence among many. It is no silver bullet. After all, before you can be punished you would have to victimize a defendant who is actually innocent and has the resources to prove it, then get caught doing it.

In fact, I think that if we want a safer criminal justice system, the habit of reducing “accountability” to punishment of individual bad actors will turn out to be a crippling mistake.

Discipline for insider misconduct is an important contribution to public trust in the law, but we can’t stop there.

Since early 2021 the New York Times has been chronicling reactions to three Queens wrongful conviction cases that might help explain why I think that laser focus on punishment will not get us where we want to go.

Person-Based v. System-Based Safety

On the weekend before Christmas in 1996 the owner of a Queens check-cashing business and an off-duty cop working security there were shot and killed in a hold-up. It was the sixth police killing of that year. Media coverage was intense. Then-mayor Rudolph Giuliani stoked the pressure on the investigators.

Three days later, Gary Johnson, George Bell and Rohan Bolt were arrested and charged. Each of the three was convicted in a separate trial.

In March of this year—over two decades of wrongful imprisonment later—a New York state judge ruled that the convictions were mistaken and ordered all three men released.

According to the Times, the judge found that “prosecutors never turned over police reports showing that investigators had linked the killings to other men, the members of a local robbery ring. And five witness accounts — never seen by defense lawyers — contradicted the men’s confessions, which were wrong on key details of the crime, and which lawyers say were coerced.”

The judge found that the District Attorney’s office at the time of trial had “completely abdicated its truth-seeking function.”

The current Queens District Attorney, Melinda Katz, eventually supported the dismissals.  But Katz also stated that since her office had uncovered “no intentional misconduct” by the trial prosecutors there would be no further examination of their other cases.

Predictably, this response infuriated Accountability NY and its allies.

Most lawyers would see Katz’s response as a word-game. For criminal lawyers, “intentional” means simply that you meant to do the act, not that you specifically intended to break the rules, and there was no doubt that the Queens trial prosecutors did in that sense intend to withhold the evidence—these weren’t sleepwalkers.

Accountability NY filed grievances with the state bar authorities against a catalog of prosecutors whom judges had found violated ethical requirements and posted the names of the violators on the web. The City of New York’s Corporation Counsel’s office, which defends the city against civil suits arising from the wrongful convictions, then weighed in, blasting Accountability NY for violating the confidentiality requirements of the bar disciplinary process.

The fact is, if Katz is right, and there was no “intentional” misconduct involved, that elevates the need for review to emergency status. But the review we need is not just a performance review of a lone unethical prosecutor; it’s a full event review.

System Crash

When a prosecutor hides exculpatory Brady material, that act is one proximate cause of a miscarriage of justice even if it is not the sole cause, and there is little interest in widening the lens to account for other factors. Disciplining the individual actor seems to be both a sufficient response and an emergency.

To give attention to other considerations in these cases seems, to many, to threaten to introduce complication and ambiguity where stark moral clarity is demanded—to generate bogus extenuation where all that is required is a plain statement of culpability.

But the fact is, miscarriages of justice can never be fully explained by the failures of a single component or a lone operator; they are organizational accidents. The right answer to the question “Who was responsible for this wrongful conviction?” is usually “Everyone involved, to one degree or another,” either by making an error or by failing to anticipate or intercept someone else’s error.

In the Queens cases, the cops had to arrest the wrong guys and use the wrong interrogation techniques. The defenders had to fail in finding the exculpatory witnesses on their own. And in this view “everyone” includes actors far from the scene of the event who set the budgets (e.g., starved the defenders and left them without investigators), did the hiring, wrote the laws, developed the jurisprudence, provided see-no-evil oversight of discovery practices, and designed the incentives for the apparent culprits on the frontlines.

“Everyone” includes those who created (e.g., by hysterical media coverage) the environment in which the sharp-end actors operated. “Everyone” even takes account of the contributions of individuals who stood by inattentively while the frontline environment was shaped by others.

Media coverage of these tragic wrongful convictions conjures up images of swashbuckling Nietzschean prosecutor-supermen, swaggering through the system, disregarding the rules, in an amoral quest for “wins.”

If that were the case, then a tight focus on personal discipline would make sense.

But I know these guys, and I doubt that is true. They chose their jobs because they wanted freedom to be aggressive from a position of perfect security. I think it is far more likely that when the Queens prosecutors hid the evidence they were doing what they believed was expected of them.

They were not lusting after victories; they were panicked by the possibility of losses—losses of cases and of local status.

As Diane Vaughan concluded after her meticulous anatomy of the space shuttle Challenger launch decision, the problem wasn’t flagrant rule violation; it was conformity. “Practical drift” sets in in the office: little departures from the Brady rule (“Just this once”) produce no obvious ill effect, and each one then sets the new departure point for the next “workaround” in a new, borderline case.

The “normalization of deviance” takes over, and the DA’s staff, like many workers in many systems under pressure, develops a set of “covert work rules.”

Follow those rules and you demonstrate you’re a real pro; go “by the book” and you’re a rube.

This is the actual unspoken meaning of DA Katz’s determination that there was “no intentional misconduct.” In this view the Brady violation in Queens, like the Challenger launch decision, was not an abominable transgression, it was just (in Vaughan’s characterization) “a mistake embedded in the banality of organizational life.”

The issue is not having rules, or knowing the rules; it is following rules or ignoring them.

An entire field of Behavioral Ethics teaches us that peoples’ ethics are not fixed; they are dynamic and malleable. Bad people cross ethical lines; sometimes good people do too.  There are conditions and influences under which ethical behavior “makes sense” to actors, other conditions and influences under which ethical behavior does not.

For the prosecutors in the Queens case, those conditions and influences were enough to bend their conduct across ethical lines. Were those conditions and influences present, and did they have the same impact in their other cases? In their colleagues’ cases? Are those conditions and influences still there? Will whacking one transgressor be enough to clean them out?

Those are the questions DA Katz has to ask herself.

Accountable for Learning

No system can survive without sanctioning its conscious rule-breakers, but if we want to lower the risk of repeating these tragedies, the antagonists in the battles the Times has been reporting need to hold themselves (and each other) accountable for learning why these things happened.

If they—the DA, the cops, the Corporation Counsel, the communities represented by Accountability NY—collaborate in all-stakeholders, all-ranks, forward-looking Sentinel Event Reviews they will begin to see that the challenge here isn’t just people, or just systems; it’s people in systems.

We can accelerate a degree of restoration for the wrongfully convicted (something I’m convinced New York’s taxpayers want) by disentangling their compensation from fault-based lawsuits, free important safety information from the hide-the-ball traditions of adversarial litigation, and begin to understand the deep endemic features of our criminal justice culture that make it so dangerous.

Punishing ethical violations is fine with me, but understanding them is important too.

Limit our responses after disasters to punishment or impunity and we miss something. As Max Bazerman and Francesca Gino put it in their study of behavioral ethics, “only by reflecting on their ethical failures and the inconsistencies between their desire to be moral and their actual behavior can [people] rise to the actions (and ethical standards) that their more reflective selves would recommend.”

A new practice of conditioning mitigation of bar discipline on cooperation with a full and honest debriefing in a sentinel event review process would be a good place to start—allow the disciplinary process to contribute to illuminating endemic problems rather than to burying them.

james doyle

James Doyle

Bar disciplinary authorities could also recognize the restorative justice potential of their positions, consider the solace that patients harmed by medical errors receive from medicine’s “Disclosure and Apology” efforts, and by forming alliances with groups such as Healing Justice mobilize that model in prosecutorial misconduct episodes.

Collaborative event reviews can lead us to a system in which everyone feels—and acts on—his or her individual responsibility for a just collective outcome.

James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He enjoys hearing from readers.

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