Monday, November 28, 2011

I thought prosecutors have an obligation to behave ethically... silly me!

A court-appointed investigator has found that the high-profile prosecution of the late Senator Ted Stevens was “permeated” by the prosecutors’ “serious, widespread and at times intentional” illegal concealment of evidence that would have helped Mr. Stevens defend himself at his 2008 trial. However, the investigator recommended against imposing a finding of contempt on the prosecutors involved because the judge who presided over the trial did not issue an order specifically instructing prosecutors to obey the law, and act according to their ethical duties, both of which required them to turn over any exculpatory evidence.

I am sorry, but this is so absurd it is painful.  Granted, there is a difference between contempt and disciplinary action, but this "reasoning" is one of the dumbest things I have heard all year.  To say that clearly unethical conduct is not worthy of punishment because the court did not specifically tell the lawyers they needed to be ethical makes a mockery of the whole notion of professional responsibility! 

And people wonder why there is so much prosecutorial misconduct.  Here is the answer: because there is no accountability.  Judges need to understand that to minimize prosecutorial misconduct they need to start imposing liability (whether civil, criminal or disciplinary) for unethical conduct.

For more on this story see The New York Times, Jonathan Turley's blog, the Wall Street Journal's law blog and the Blog of the Legal Times.