DOCSLIB.ORG

Automatic Reporting of Lawyer Misconduct to Disciplinary Authorities: Filling the Reporting Gap

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Automatic Reporting of Lawyer Misconduct to Disciplinary Authorities: Filling the Reporting Gap The Automatic Reporting of Lawyer Misconduct to Disciplinary Authorities: Filling the Reporting Gap ARTHUR F. GREENBAUM* An effective lawyer disciplinarysystem is essential to the protection of clients, third parties, and the profession as a whole. The present system, however- which relies primarily on complaints filed by lawyers, judges, and clients- often fails to capture misconduct, which, either standing alone or as part of a larger pattern of misconduct, warrants disciplinary attention by sanction or through remedial training. A robust automatic reporting regime, triggered by the occurrence of identifiable acts, would help fill this reporting gap. The system I envision places reporting duties on third parties providing services to lawyers, the courts, and individual lawyers already convicted of a crime or sanctionedfor unethical conduct. Some of these duties, like overdraft notification by banks or self-reporting by lawyers, are already well established, although not universally so. Others, like imposing a reporting duty on malpractice insurers or courts, have not been adopted widely. None have been systematically studied. Each of these devices has its own costs, benefits, and unintended consequences. Each can be implemented in a variety of ways. This Article catalogs and critiques those costs, benefits, and consequences, and provides recommendationsfor the implementation of these devices. TABLE OF CONTENTS I. INTRODUCTION ..............................................................................439 A. The Needfor GreaterReporting of Lawyer Misconduct to D isciplinaryAuthorities .......................................................... 439 1. Gaps in the Current Reporting System for Reporting Lawyer Misconduct ........................................................... 439 2. Why the Gaps in the CurrentReporting System Need to B e Closed ..........................................................................442 B. An Additional Paradigmfor Identifying Lawyer Misconduct .. 443 II. REPORTING BY ENTITIES OUTSIDE THE LEGAL PROFESSION- TRUST ACCOUNT OVERDRAFT NOTIFICATION ...............................445 James W. Shocknessy Professor of Law, The Ohio State University Moritz College of Law. I wish to thank T. Conrad Bower, Danielle Gadomski, Andrew Gammill, Zachery Keller, and Jillian Wolosiansky for their research assistance. Thanks also to Bruce Campbell, Jonathan Coughlan, Robert Fellmeth, Larry Garvin, Jack Sahl, and those in attendance at the Moritz College of Law Faculty Workshop, at which I presented an earlier draft of this Article, for their thoughtful comments. I also appreciate'the assistance I received from numerous state officials in California, Florida, and Ohio, Who helped explain the operation of their automatic reporting regimes. Finally, I wish to thank the Moritz College of Law for its financial support through its summer research grant program. OHIO STATE LA WJOURNAL [Vol. 73:3 A. Usefulness of the Information to DisciplinaryAuthorities ..... 446 B. Burden of Compliance on ReportingEntity and Others......... 448 C. Potential Compliance Problems ............................................. 451 D . Indirect Consequences ............................................................ 451 E. Recom m endation ..................................................................... 453 III. REPORTING BY ENTITIES OUTSIDE THE LEGAL PROFESSION- MALPRACTICE NOTIFICATION ........................................................ 453 A. Usefulness of the Information to DisciplinaryAuthorities ..... 454 B. Burden of Compliance on Reporting Entity and Others ......... 460 C. Potential Compliance Problems ............................................. 462 D . Indirect Consequences ............................................................ 464 E. Recom m endation ..................................................................... 467 IV. REPORTING BY THOSE INVOLVED IN THE JUDICIAL PROCESS ......... 467 A. Usefulness of the Information to DisciplinaryAuthorities ..... 471 B. Burden of Compliance on Reporting Entity and Others......... 473 C. PotentialCompliance Problems ............................................. 474 D . Indirect Consequences ............................................................ 478 E. Modifications to the CourtReporting Requirements.............. 481 F. Recom m endation..................................................................... 484 V. LAWYER SELF-REPORTING OF PARTICULAR EVENTS ..................... 486 A. Usefulness of the Information to DisciplinaryAuthorities ..... 491 B. Burden of Compliance on Reporting Entity and Others ......... 494 C. PotentialCompliance Problems ............................................. 495 D . Indirect Consequences ............................................................ 499 E. Extending the Self-Reporting Regime to Other Areas ............ 500 F. R ecom m endation..................................................................... 501 VI. POTENTIAL SYSTEMIC PROBLEMS FLOWING FROM AN AUTOMATIC REPORTING REGIME .................................................. 502 A. Information and the Overzealous DisciplinaryCounsel ........ 502 B. Automatic Reporting and System Overload............................ 503 C. Automatic Reporting and Resource Constraints .................... 504 V II. C ON CLUSION .................................................................................. 506 20121 A UTOMA TIC REPORTING OFLAWYER MISCONDUCT I. INTRODUCTION A. The Needfor Greater Reporting of Lawyer Misconduct to DisciplinaryAuthorities 1. Gaps in the CurrentReporting System for Reporting Lawyer Misconduct It is commonly accepted that a substantial amount of lawyer misconduct goes unreported to disciplinary authorities. That reporting gap has serious implications. It undercuts the integrity of the legal profession.' It compromises the lawyer disciplinary process, which can function only if potential misconduct comes to the attention of disciplinary authorities. 2 It undermines the profession's right of self-regulation, which carries with it the responsibility to exercise sufficient oversight of lawyer conduct through an effective disciplinary system. 3 There are several reasons behind this underreporting phenomenon. The first is a general reluctance to report by those who, by virtue of their training and interactions, are most likely to witness and recognize lawyer misconduct-lawyers and judges.4 While lawyers and judges have an ethical 5 duty to report lawyer misconduct, that duty often is ignored. Most 1See, e.g., MODEL CODE OF PROF'L RESPONSIBILITY EC 1-4 (1980) ("The integrity of the profession can be maintained only if conduct of lawyers in violation of the Disciplinary Rules is brought to the attention of the proper officials."). 2 Cf STANDARDS FOR IMPOSING LAWYER SANCTIONS preface (1992), available at http://www.americanbar.org/content/dam/aba/migrated/cpr/regulation/standards-sanctions.a uthcheckdam.pdf ("Only if all lawyer misconduct is in fact reported to the appropriate disciplinary agency can the legal profession have confidence that consistent sanctions are imposed for similar misconduct."). 3 MODEL RULES OF PROF'L CONDUCT pmbl., 10-12 (2009). Although the term "self- regulation" is often used to describe the lawyer regulatory system, in reality it is a system of judicial regulation, in which lawyers and the organized bar often play a significant role. See Judith L. Maute, Bar Associations, Self-Regulation and Consumer Protection: Whither Thou Goest?, 2008 J. PROF. LAW. 53, 58. Thus the judiciary, with close ties to the legal community, rather than the legislative or executive branches, has primary, and in some states exclusive, authority over attorney regulation. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 1 cmt. c (2000) (noting that in most states the courts have the inherent power to regulate lawyers and that in many states that power is exclusive). 41 have explored this issue at length in two previous articles. One addresses reporting requirements for lawyers. See Arthur F. Greenbaum, The Attorney's Duty to Report Professional Misconduct: A Roadmap for Reform, 16 GEO. J. LEGAL ETHICS 259 (2003) [hereinafter Greenbaum, Attorney's Duty to Report]. The other addresses reporting requirements for judges. See Arthur F. Greenbaum, Judicial Reporting of Lawyer Misconduct, 77 UMKC L. REv. 537 (2009) [hereinafter Greenbaum, JudicialReporting]. 5As to underreporting by lawyers, see CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 12.10.1, at 683 (1986) ("Probably no other professional requirement is as widely ignored by lawyers subject to it."). See also Lonnie T. Brown, Jr., Ending Illegitimate Advocacy: ReinvigoratingRule 11 Through Enhancement of the Ethical Duty to Report, 62 OHIO STATE LA WJOURNAL [Vol. 73:3 commentators attribute this to several factors. The first is a societal attitude 6 toward reporting the misconduct of others-we live in an anti-snitch culture. This is reinforced by the potential negative ramifications of reporting, including soured professional relations and possible retaliatory actions. 7 While some reporting is mandatory in most systems for both judges and lawyers, the standards imposing the reporting duty are themselves filled with discretionary calls which may, as a practical matter, obviate the requirement to report. 8 Given a general reluctance to report, as well as the costs associated with reporting, 9 these flexible standards are a recipe for silence in many instances. This reporting gap is filled somewhat by
Load more

Recommended publications
  • The Legal Profession's Failure to Discipline
    THE LEGAL PROFESSION’S FAILURE TO DISCIPLINE UNETHICAL PROSECUTORS Angela J. Davis* I. INTRODUCTION White students at Jena High School in Jena, Louisiana, hung nooses from a tree at the high school, provoking a series of fights between groups of black and white students. Punches were thrown on both sides, and both black and white students were injured. However, the prosecutor, Reed Walters, charged one white student with a misdemeanor while charging six black students with serious felonies in adult court. In Douglasville, Georgia, a seventeen-year-old boy named Genarlow Wilson had consensual oral sex with a fifteen-year-old girl. The prosecutor charged him with aggravated child molestation and other sex offenses. Oral sex with a person under fifteen years old is aggravated child molestation in the state of Georgia, and consent is no defense. Wilson was acquitted of all charges except the child molestation offense, which at the time carried a mandatory sentence of ten years in prison. A judge later found that Wilson’s sentence constituted cruel and unusual punishment and ordered him released. But the prosecutor appealed the judge’s decision, and Wilson remained in prison for over two years until the Georgia Supreme Court ordered his release on October 26, 2007.1 Delma Banks was charged with capital murder in the state of Texas. The prosecutor in his case withheld exculpatory evidence and repeatedly coached the main witness on what his testimony should be. The prosecutor even threatened to prosecute this witness if he did not conform his testimony to the prosecutor’s version of the case.
    [Show full text]
  • A License to Rape Justice at Will
    Absolute Immunity: A License to Rape Justice at Will Prentice L. White* Table of Contents PART I ........................................................................................ 349 Prosecutorial Powers .................................................................... 349 PART II ........................................................................................ 359 Convictions are First and Foremost.............................................. 359 PART III ........................................................................................ 376 Addressing the Misconduct .......................................................... 376 PART IV ........................................................................................ 379 The Proposal ................................................................................. 379 CONCLUSION ................................................................................. 382 Kenneth has been the lead prosecutor in the trial section of the District Attorney’s Office for the past five years.1 He has been solicited by the * Prentice L. White is an Associate Professor of Law at Southern University Law Center (Baton Rouge, Louisiana), and is a former New Orleans prosecutor. He is a member of the Louisiana Appellate Project, which is a state agency that handles criminal appeals for indigent defendants in Louisiana, and he is part of the CJA Panel of contract attorneys for the Middle and Western Districts of Louisiana. The idea for this article resulted from several criminal
    [Show full text]
  • The Ethical Limits of Discrediting the Truthful Witness
    Marquette Law Review Volume 99 Article 4 Issue 2 Winter 2015 The thicE al Limits of Discrediting the Truthful Witness: How Modern Ethics Rules Fail to Prevent Truthful Witnesses from Being Discredited Through Unethical Means Todd A. Berger Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Courts Commons, and the Evidence Commons Repository Citation Todd A. Berger, The Ethical Limits of Discrediting the Truthful Witness: How Modern Ethics Rules Fail to Prevent Truthful Witnesses from Being Discredited Through Unethical Means, 99 Marq. L. Rev. 283 (2015). Available at: http://scholarship.law.marquette.edu/mulr/vol99/iss2/4 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. THE ETHICAL LIMITS OF DISCREDITING THE TRUTHFUL WITNESS: HOW MODERN ETHICS RULES FAIL TO PREVENT TRUTHFUL WITNESSES FROM BEING DISCREDITED THROUGH UNETHICAL MEANS TODD A. BERGER* Whether the criminal defense attorney may ethically discredit the truthful witness on cross-examination and later during closing argument has long been an area of controversy in legal ethics. The vast majority of scholarly discussion on this important ethical dilemma has examined it in the abstract, focusing on the defense attorney’s dual roles in a criminal justice system that is dedicated to searching for the truth while simultaneously requiring zealous advocacy even for the guiltiest of defendants. Unlike these previous works, this particular Article explores this dilemma from the perspective of the techniques that criminal defense attorney’s use on cross-examination and closing argument to cast doubt on the testimony of a credible witness.
    [Show full text]
  • Petitioners Opening Brief
    COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court No. SJC - 12471 COMMITTEE FOR PUBLIC COUNSEL SERVICES & OTHERS, v. ATTORNEY GENERAL OF MASSACHUSETTS & OTHERS ON RESERVATION AND REPORT FROM THE SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY BRIEF OF THE PETITIONERS ON RESERVATION AND REPORT FROM THE SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY Rebecca A. Jacobstein, BBO 651048 Daniel N. Marx, BBO 674523 Benjamin H. Keehn, BBO 542006 William W. Fick, BBO 650562 COMMITTEE FOR PUBLIC COUNSEL FICK & MARX LLP SERVICES 100 Franklin Street, 7th Floor PUBLIC DEFENDER DIVISION Boston, MA 02110 44 Bromfield Street (857) 321-8360 Boston, MA 02108 [email protected] (617) 910-5726 [email protected] Matthew R. Segal, BBO 654489 Ruth A. Bourquin, BBO 552985 Carlton E. Williams, BBO 600973 ACLU FOUNDATION OF MASS., INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 March 2018 [email protected] ii TABLE OF CONTENTS TABLE OF AUTHORITIES .............................. IV INTRODUCTION ....................................... 1 ISSUES PRESENTED ................................... 4 STATEMENT OF THE CASE .............................. 5 STATEMENT OF FACTS ................................. 7 I. FARAK’S MISCONDUCT .............................. 7 II. THE AGO’S MISCONDUCT ............................ 9 A. The AGO’s withholding of exculpatory evidence through deception .......................... 10 B. The AGO’s failure to correct its false statements ................................. 16 C. The AGO’s failure to notify defendants ..... 17 III. THE DISTRICT
    [Show full text]
  • Prosecutorial Oversight: a National Dialogue in the Wake of Connick V
    Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson MARCH 2016 The Innocence Project would like to acknowledge and thank the following individuals who contributed to this report and its success: Lawanna Kimbro, Liz Jansky, Emily West, Stephen Saloom, Cookie Ridolfi and Ellen Yaroshefsky. Resurrection After Exoneration Resurrection After Exoneration (RAE) was founded in 2007 by exonerees to promote and sustain a network of support among formerly wrongfully incarcerated individuals in the South. RAE works to reconnect exonerees to their communities and provide access to those opportunities of which they were robbed. Innocence Project New Orleans Innocence Project New Orleans (IPNO) is a nonprofit law office that represents innocent prisoners serving life sentences in Louisiana and Mississippi at no cost to them or their loved ones, and assists them with their transition into the free world upon their release. IPNO uses its cases to explain how wrongful convictions happen and what we can all do to prevent them. Since its inception in 2001, IPNO has freed or exonerated 27 innocent men. We devote the majority of our time and resources to freeing poor people who will otherwise die in prison for crimes they did not commit. Veritas Initiative at Santa Clara University School of Law The Veritas Initiative is dedicated to advancing the integrity of our justice system by researching and providing critical data that shines a light on such crucial issues as the misconduct of public prosecutors. The report Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009 marks the launch of the Veritas Initiative.
    [Show full text]
  • Wrongfully Convicted: the Overrepresentation of the Poor Susan Rutberg Golden Gate University School of Law, [email protected]
    Golden Gate University School of Law GGU Law Digital Commons Publications Faculty Scholarship 2011 Wrongfully Convicted: The Overrepresentation of the Poor Susan Rutberg Golden Gate University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.ggu.edu/pubs Part of the Criminal Law Commons Recommended Citation Rutberg, Susan, "Wrongfully Convicted: The Overrepresentation of the Poor" (2011). Publications. Paper 441. http://digitalcommons.law.ggu.edu/pubs/441 This Book Chapter is brought to you for free and open access by the Faculty Scholarship at GGU Law Digital Commons. It has been accepted for inclusion in Publications by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. 16 SALT final 2/11/11 11:12 AM Page 299 16 Wrongfully Convicted: The Overrepresentation of the Poor Susan Rutberg * Professor Susan Rutberg introduced a panel of her students who presented papers, each focused on an individual cause of wrongful convictions and a proposed solution to this identified problem. The panel illustrated how law school students can use the lens of their inexperience to articulate straight - forward approaches that might reduce the circumstances that produce wrong - ful convictions and alleviate some of the hardship such convictions cause. Over the last twenty years, 255 wrongfully convicted people have been re - leased from American prisons on the basis of indisputable scientific evidence. 1 For all these people, proof of the innocence they had long asserted was gen - erated by DNA testing, often performed decades after their original convic - tions. For many, freedom came only after lengthy legal battles, sometimes decades long.
    [Show full text]
  • Final Task Force Report
    Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions For the Consideration of the House of Delegates • April 4, 2009 • New York State Bar Association • Task Force on Wrongful Convictions 1 Table of Contents Executive Summary.................................................................................................!4 ! Work of Paramount Importance!....................................................................!4 ! ! The Formation of the Task Force...................................................................!4 ! The First Meeting.........................................................................................!5 ! Mission Statement (Box)...............................................................................!5 ! The Causes of Wrongful Convictions..............................................................!6 ! Additional Information About Case Studies....................................................!6 ! Frequency of Specific Causes Linked to Wrongful Convictions (Chart)...............!7 ! The Formation of the Subcommittees..............................................................!8 ! The Recommendations of the Subcommittees..................................................!8 ! The Vote of the Task Force...........................................................................!8 ! Proposals for the Consideration of the House of Delegates...............................!8 !!Proposals of the Government Practices Subcommittee........................!8 !!Proposals of the
    [Show full text]
  • Legal Ethics in Afghanistan
    1ST EDITION, 2015 AN INTRODUCTION TO LEGAL ETHICS IN AFGHANISTAN An Introduction to the Legal Ethics in Afghanistan First Edition Published 2016 Afghanistan Legal Education Project (ALEP) at Stanford Law School http://alep.stanford.edu [email protected] Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 http://law.stanford.edu Protected by Creative Commons License (No Derivative Works) i ALEP – STANFORD LAW SCHOOL Authors Rohullah Azizi Megan Karsh Julian Simcock (Student Director, 2012-13) Will Havemann Jake Klonoski Nicolas Martinez Editors James Banker Jason Fischbein Vikram Iyengar Carrie Keller-Lynn Cassandra Kildow Ryan McIlroy Ryan Nelson Vina Seelam Faculty Director Erik Jensen Rule of Law Program Executive Director Megan Karsh Advisors Rohullah Azizi Rolando Garcia Miron AMERICAN UNIVERSITY OF AFGHANISTAN Contributing Faculty Editors Taylor Strickling Mehdi Hakimi Chair of the Department of Law Taylor Strickling, 2012-13 Hadley Rose, 2013-14 Mehdi Hakimi, 2014-2016 ii PREFACE & ACKNOWLEDGEMENTS Stanford Law School's Afghanistan Legal Education Project (ALEP) began in the fall of 2007 as a student-initiated program dedicated to helping Afghan universities train the next generation of Afghan lawyers. ALEP’s mandate is to research, write, and publish high-quality legal textbooks, and to develop a degree-granting law program at the American University of Afghanistan (AUAF). The AUAF Law Department faculty and Stanford Law School students develop curriculum under the guidance of ALEP’s Faculty Director
    [Show full text]
  • Leveling Felony Charges at Prosecutors for Withholding Evidence
    LEVELING FELONY CHARGES AT PROSECUTORS FOR WITHHOLDING EVIDENCE Jodi Nafzger* ABSTRACT This Article addresses the intersection of the rule of Brady v. Maryland, 373 U.S. 83 (1963), and ABA Model Rule of Professional Conduct 3.8. Brady requires prosecutors to automatically disclose materially exculpatory evidence in the government’s possession to the defense. ABA Model Rule 3.8 requires a prosecutor in a criminal case “to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” The ABA issued a formal opinion in 2009 which concluded that the prosecutor’s ethical duty under 3.8 is broader in scope than the constitutional requirements under Brady. ABA Comm’n on Ethics & Prof’s Responsibility, Formal Op. 09-454, 1 (2009). Essentially, Brady requires a determination that the evidence would likely produce a different outcome at trial (materiality), but the ethical rule requires disclosure without regard to the impact at trial. In short, Brady and Rule 3.8 impose different standards on prosecutors. The intersection of these principles leads to inefficient and sometimes unjust results. The Article briefly examines, state-by-state, how often and under what circumstances prosecutors face disciplinary action for failure to disclose information and California's state law imposing felony charges on prosecutors for withholding evidence. The Article draws attention to the national conversation and concern centered on prosecutorial misconduct and highlights a number of elected prosecutors who are making headlines for withholding exculpatory evidence. The Article advocates for a revision to Model Rule 3.8 (and its state equivalents) to alleviate ambiguity related to the prosecutor’s discovery obligations and to conform to constitutional requirements.
    [Show full text]
  • Litigation Ethics
    Confidentiality: Part IV (Non-Clients' Misconduct) McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/17) ABA Master CONFIDENTIALITY: PART IV (NON-CLIENTS' MISCONDUCT) Hypotheticals and Analyses* Thomas E. Spahn McGuireWoods LLP * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. For ease of use, these analyses and citations use the generic term "legal ethics opinion" rather than the formal categories of the ABA's and state authorities' opinions -- including advisory, formal and informal. ______________________ © 2017 McGuireWoods LLP. McGuireWoods LLP grants you the right to download and/or reproduce this work for personal, educational use within your organization only, provided that you give proper attribution and do not alter the work. You are not permitted to re-publish or re-distribute the work to third parties without permission. Please email Thomas E. Spahn ([email protected]) with any questions or requests. 65833122_6 Confidentiality: Part IV (Non-Clients' Misconduct) McGuireWoods LLP Hypotheticals and Analyses T. Spahn (2/8/17) ABA Master TABLE OF CONTENTS Hypo No. Subject Page (A) Choice of Applicable Ethics Rules 1 General Rule ............................................................................................... 1 2 Choice of Ethics Rules for Litigators: While a Matter is Pending Before a Tribunal .......................................................................................
    [Show full text]
  • Naming Attorneys to Reduce Prosecutorial Misconduct
    Prosecutorial Shaming: Naming Attorneys to Reduce Prosecutorial Misconduct ∗ Adam M. Gershowitz This Article explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed that misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who have committed serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct. ∗ Associate Professor of Law, South Texas College of Law. An earlier draft of this Article was presented at the Annual Meeting of the Southeastern Association of Law Schools. I am grateful to Brandon Garrett, Corinna Barrett Lain, Paul Marcus, and Scott Sundby for helpful discussions and to Maggie Dozler, Lisa Howenstine, Jared Howenstine, and Justin Thompson for their research assistance. 1059 1060 University of California, Davis [Vol. 43:1059 TABLE OF CONTENTS INTRODUCTION ................................................................................. 1061 I. PROSECUTORIAL MISCONDUCT SEVERE ENOUGH TO REVERSE A CONVICTION BUT NOT TO NAME THE PROSECUTOR ................. 1066 A. Omitting Names: From the Supreme Court on Down, Justices and Judges Do Not Name Prosecutors Who Have Committed Misconduct .................................................... 1067 B. Redacting Names To Actively Shield the Identity of Misbehaving Prosecutors ................................................. 1069 C. Failure to Identify Repeat Offenders Because Each Judge Thinks This is the Prosecutor’s First Offense .................... 1071 II. FAILURE TO NAME THE PROSECUTOR IN CAPITAL REVERSALS .............................................................................
    [Show full text]
  • The New York Prosecutorial Conduct Commission and the Dawn of a New Era of Reform for Prosecutors
    de•novoC A R D O Z O L A W R EVIEW THE NEW YORK PROSECUTORIAL CONDUCT COMMISSION AND THE DAWN OF A NEW ERA OF REFORM FOR PROSECUTORS Clyde Rastetter† “You have a D.A., he doesn’t talk about when they convict you or how they convict you, he’s talking about how he’s going to kill you. He don’t give a damn if you’re innocent. He don’t give a damn if you’re guilty. He’s talking about killing you. [I]t’s like a bad dream. You want to wake up, but you can’t do it.” —Exoneree Randall Dale Adams1 † Associate Editor, Cardozo Law Review. J.D. Candidate, Benjamin N. Cardozo School of Law, June 2020; B.A., summa cum laude, Columbia University, 2015. First and foremost, I am grateful to the wonderful staff of the Innocence Project and my terrific colleagues from the clinic who all prompted me to focus on this subject—including my supervising attorney, the inimitable Seema Saifee. I also want to thank Barry Scheck for focusing my attention on New York’s reforms and for his inspiration and support, as well as for being the first to cite a work-in-progress version of this Note in his excellent preface to the latest edition of the Georgetown Annual Review of Criminal Procedure. I would also like to thank my Note Advisor, Professor Ekow Yankah, for his discerning feedback and patient encouragement, and all of the editors of Volumes 40 and 41 of the Cardozo Law Review, whose tireless efforts, including their careful consideration, expert edits, and generous guidance, made this piece possible.
    [Show full text]