[[ In a previous post regarding the Duke lacrosse prosecutions, I linked to three articles exploring prosecutorial misconduct, including an article by Fred Zacharias. Our frequent guest blogger, Monroe Freedman, offers this response to Professor Zacharias's article. ]]
My first criticism is that Zacharias disparages previous, pioneering commentators on prosecutors’ ethics for their "traditional lamentations," which are "somewhat overblown," and for engaging in "hand-wringing" as they "bemoan" the failure of disciplinary authorities to deal with prosecutorial misconduct. By contrast, Zacharias claims that he will deal with the subject from an "impartial perspective" and will assess the matter "impartial[ly], "realistically" and "dispassionately." Nevertheless, although he does not say so directly, Zacharias’ research simply confirms the prior conclusions of others. More important, however, Zacharias says things that could produce complacency about prosecutorial discipline. For example, one of his conclusions is that "the authorities do seem to have targeted particularly serious prosecutorial misconduct." Also, Zacharias claims that his research "put[s] the lie to at least one myth: that prosecutors are never disciplined." Of course, no one has ever stated the "lie" or "myth" that "prosecutors are never disciplined." What a number have said, though, is that prosecutors are far too seldom disciplined * and that conclusion is actually supported, not dispelled, by Zacharias’ research. Zacharias’ computerized review of all cases involving disciplinary actions against prosecutors produced slightly over 100 cases. However, his cases go back over one hundred years, to 1886. That comes to a single case a year, nationwide, federal and state, and including cases of bribery, extortion, conversion, and embezzlement of state funds. Obviously, that shows an insignificant number of disciplinary actions, especially in cases of denial of defendants’ constitutional rights. Instead of simply saying that, however, Zacharias characterizes the number of cases as "far from staggering" in comparison to the number of criminal cases. Zacharias might say that the careful reader of his article will recognize that prosecutorial discipline has been woefully inadequate. But all readers are not careful. Indeed, Professor Zacharias himself announced to an AALS conference that his research revealed a "fair" number of cases of professional discipline against prosecutors. A conclusion that there are already a "fair" number of disciplinary cases is not one that is likely to inspire more vigorous efforts. In addition, Zacharias suggests that there may be less discipline of prosecutors than of lawyers representing private clients because of the "lesser need ... in order to protect individuals." However, every citizen who is convicted unjustly because of suppressed evidence or false testimony, or deprived of due process, is an individual seriously in need of protection. Another justification he gives for the failure of disciplinary committees to discipline prosecutors more frequently is that prosecutors who engage in unethical and unconstitutional conduct are "typically ... driven by an excess of zeal in pursuing the public good" rather than by career advancement or political aspirations. Thus, disciplinary authorities "justifiably avoid cases involving well-intended" prosecutorial misconduct. How Zacharias knows what "typically" motivates such conduct is not clear. One might question, though, how "impartial" and "dispassionate" a commentator is who presumes a pro bono motive for suppressing evidence or using false testimony and who, on that ground, justifies seriously inadequate discipline.