First, let me just say that I know a lot about prosecutors. I used to be one. And as a criminal defense attorney, I still interact on a daily basis with federal, state and municipal prosecutors. Most do their job professionally and diligently. Therefore in my experience, the vast majority of prosecutors are honest and ethical; they operate above the line, not below it. This is extremely important because a lawyer is only as good as his or her word, and this is particularly true in criminal litigation because an accused citizen’s liberty is at stake. If the defense lawyer cannot trust the prosecutor, where does that leave the Defendant? If the prosecutor is seeking only a conviction, not justice, then very bad things can happen – like life sentences and death penalties for people later proven to be innocent!
Historically, not much has happened in the way of discipline when a prosecutor strayed from his or her ethical duties. Once in a while the Bar Association of a particular State might become involved through the grievance procedure, and in extreme cases issue some type of reprimand or sanction. But by and large, prosecutors can claim immunity for all their official acts, and not worry much about legal or disciplinary proceedings. This is of course a good thing to the extent prosecutors are able to zealously and vigorously prosecute criminals. However, it becomes a bad thing when the prosecutor is merely seeking a conviction, and is willing to manipulate the evidence to achieve the win.
Recently, a number of developments have arisen that examine the extent of prosecutorial immunity, and when it does or does not apply. These cases include the recent Pottawattamie decision from Iowa. In this case, prosecutors were held civilly liable for money damages, notwithstanding their claims of immunity. This “piercing of immunity” case is one of the first examples of its kind, and deals with extreme prosecutorial misconduct: fabricated evidence, coerced confessions, and the presentation of perjured testimony. Innocent people went to prison because the Pottawattamie prosecutors appeared willing to do literally anything to convict the citizens they believed guilty.
I don’t believe the threat of civil liability and money judgments will have a chilling effect on any legitimate prosecution; but it will hopefully discourage cheating to secure a conviction. The outright deception on the Court and the defense that occurred in Pottawattamie illustrates the extreme misconduct that must exist for a prosecutor to lose prosecutorial immunity. Fortunately, these types of situations are extremely rare and hopefully will become even more so with the holdings of cases like Pottawattamie.
A more common scenario concerns prosecutorial misconduct in discovery practice, particularly those decisions that revolve around what is evidence material to guilt/innocence. Disclosure of Brady materials requires that all exculpatory material be turned over to the defense. If the prosecutor has sole discretion to decide what is exculpatory, it is akin to the proverbial fox guarding the chicken coop. What about the required disclosure of all favorable material as proposed by the model rules of the American Bar Association? It is broader than Brady because it requires the disclosure of all evidence or information favorable to the defense, without regard to the anticipated impact of the evidence or information on a trial’s outcome. Following this standard would take a lot of the guesswork out of deciding what should be turned over to the defense, and also be a whole lot more fair.
None of the developments discussed here should have a “chilling effect” on ethical prosecutors. Rather the real benefit of the courts and Bar Associations more closely enforcing ethical prosecution would be to “freeze” activity by the few prosecutors who operate outside the rules. No one should have an objection to the process being fair. After all, who really wants an innocent person to go to jail while the guilty perpetrator goes free?
Kevin Collins is a San Antonio Criminal Defense Lawyer, former Prosecutor, and is Board Certified in Criminal Law and Juvenile Law by the Texas Board of Legal Specialization and also a member of the Criminal Law Section of the San Antonio Bar Association. For more information please visit www.sanantoniocriminallawyertx.com or call 210-598-8629.
 McGhee v. Pottawattamie, 547 F.3d 922 (8th Cir. 2008).
 Brady v. Maryland, 373 U.S. 83 (1963).
 Rule 3.8 (d) Special Responsibility of a Prosecutor, ABA Rules of Model Conduct, states that the
prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information
favorable to the defense without regard to the anticipated impact of the evidence or information on the
outcome of a trial.