How not to encourage ethical conduct: Oklahoma Supreme Court holds that the proper sanction for misconduct is what it would have been back when the conduct ocurred

If you follow this blog you know that I have often commented on how courts do not seem to do enough to punish unethical conduct by prosecutors. (Most recently, here.)  With that in mind, I find the reports on a recent decision by the Oklahoma Supreme Court very troubling.

As reported by Prof. Jonathan Turley the court rejected a request from the state bar association to disbar a former assistant district attorney for Oklahoma County for egregious misconduct in two capital cases. Here is a key passage that summarizes the court's conclusion:

Hindsight is 20-20. Instances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension. Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct. Reprehensible though  [it] may have been, and even if such misconduct is punished more harsly [sic] when it occurs now, [the prosecutor's] actions took place decades ago and it would be unfair to hold him to a harsher standard than he would have been subjected to when his actions took place. Make no mistake, if this conduct were to happen today, the punishment would have been much more severe. This is not to say that the Court condones his conduct, merely that we are not inclined to apply the harsher standards of today to conduct that occurred at a time when it was punished lightly, if at all. 

This is, in short, absurd.  Anyone who knows anything about professional responsibility knows that there has always been a problem with sanctions being inconsistent among and within jurisdictions, particularly when it comes to prosecutors.  Also, anyone paying attention knows prosecutorial misconduct is a huge problem in this country.

The question should never be whether the sanction to be imposed is what would have been imposed back when the conduct was committed.  The question is whether the conduct was unethical.  Period.  It was.  In fact, the court admits it was reprehensible.  To hold as it does provides an excuse for reprehensible conduct - as long as others were engaged in like conduct at the time or as long as the actor can hide it long enough to say it happened back when a lot of people were engaged in it.  Using this logic, today's unethical prosecutors could avoid harsh sanctions in the future since prosecutors today are also not getting the sanctions they deserve.

Once again, I sound like a broken record:  why do we have so much prosecutorial misconduct?  Because courts are unwilling to take it seriously and do something meaningful about it.

Fortunately, not every member of the Oklahoma Supreme Court was willing to go along with the majority's absurd view. Justices Taylor and Watt dissented, stating:

Whether it was “decades ago” or today, no attorney should ever commit the “reprehensible” conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report. The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice. I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.

 You can read Prof. Turley's criticism of the court's opinion here.

For my previous posts on prosecutorial misconduct, go here and scroll down.