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5-1988

The Prosecutor as "Minister of Justice"

Bennett L. Gershman Elisabeth Haub School of Law at Pace University

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Recommended Citation Bennett L. Gershman , The Prosecutor as "Minister of Justice”, N.Y. St. B.J., May 1988, at 8, http://digitalcommons.pace.edu/lawfaculty/624/.

This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]...... ~ ...... BENNETTL.GERSHMAN* White Plains

The Prosecutor as a "Minister of Justice"

hese are heady times for Indeed, Supreme Court wat­ prosecutors. Gone are the chers, and 1 am one of them, T days when the Supreme carefully analyze the oracles from Court every other week, it seemed, our Nation's legal equivalent of Mt. would invoke a new due process Olympus, and try to discern trends. right for criminal defendants; when Some trends are easy to decipher, prosecutors would frantically such as the Death of the Fourth prepare for strange new hearings Amendment; the continuing drift labeled "Mapp", "Huntley", and from adjudicative fair play, sym- "Wade"; would be embroiled in sen­ sational, political trials-Harlem 6; * The author is an Adjunct Professor of Law Chicago 7; Harrisburg 8; Boston 5; at Pace University School of Law, and prac­ tices law in White Plains, New York. He was Panther 21-only to be rebuked by a prosecutor for ten years in the offices of defense counsel, the press, the Frank S. Hogan and Maurice H. Nadjari, and public, and juries. Prosecutors were has written extensively about prosecutorial and police conduct. often on the defensive in those days. 1 McNabb v. United States, 318 U.S. 332, Times have changed. Today, 343 (1943).

prosecutors are on top of the world. 2 See, e,g. 18 U.S.c, §§. 1961 et. seq. Their powers are enormous, and (Racketeer and Corrupt Organizations Act); constantly reinforced by sym­ 18 U,S,c, § 1952 (A) (murder for hire); 18 U,S,c, § 1952 (B) (commission of violent pathetic legislatures and courts. The crimes in aid of racketeering activity), "awful instruments of the criminal 3 See 18 U,S,c, § 1623 (lessening proof re­ law," as Justice Frankfurter describ­ quirements in perjury prosecutions); ed the system,1 are today sup­ Fed,R.Evid. 801 (d)(2)(E) (l~ssening proof re­ quirements in conspiracy prosecutions, as in­ 2 plemented with broad new crimes, terpreted in Bourjaily v. United States, 107 easier proof requirements,3 heavier S,Ct, 2775 (1987), sentencing laws, 4 and an extremely 4 See 21 U,S.c, § 841 (b)(l) (increasing cooperative judiciary, from district penalties for drug trafficking); 18 U.S,C. § 924 (c) (imposing mandatory penalty for use and state judges, to the highest of firearms during commission of violent Court in the land. crime).

8 NEW YORK STATE BAR JOURNAL MAY 1988 HeinOnline -- 60 N.Y. St. B.J. 8 1988 bolized by the Due Process Revolu­ tion of the Nineteen-Sixties, to crime control, epitomized by what I have termed the Counter­ Revolution of Harmless Error;5 and the increasing availability and use of draconian forms of punishment, whether labeled preventive deten­ tion,6 consecutive jail sentences for overlapping criminal acts,7 and more and more executions.s Another trend, more subtle, perhaps, has been a change in the role of the prosecutor. Twenty-five years ago, in one of the great cases of this or any generation - Brady v. Maryland9 - the Supreme Court could write this about the pro­ secutor's duty: "Society wins not only when the gUilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly."IO This statement was a kind of banner under which enthusiastic young men and women began legal careers in prosecutors offices, par­ ticularly in the office of New York County District Attorney Frank S. Hogan. Indeed, the cover story of one issue of the New York Times Magazine profiled that office, under prosecutor is too heavily involved 5 Gershman, "The Harmless Error Rule: the title: "Hogan's Office Is a Kind Overlooking Violations of Constitutional in the "competitive enterprise of fer­ Rights," 14 West.B.J. 3 (1987). of Ministry of Justice."l1 For a long reting out crime" to pass on the suf­ 6 United States v. Salerno, 107 S.Ct. 2095 time it has been an accepted part of ficiency of a search warrant in a case (1987) (upholding 18 U.S.c. § 3142 (e) of Bail the conventional legal wisdom, being investigated under his super­ Reform Act of 1984). translated into one of the principal vision. Only a judge is neutral and 7 Albernaz v. United States, 450 U.S. 333 Standards of Criminal Justice of the (1981); United States v. Blocker, 802 F.2d impartial enough to do so. And in 1102 (9th Cir. 1986). American Bar Association, that it is Gerstein, the Court held that an in­ S See "Rise in Executions Widening Debate," the duty of the prosecutor "to seek formation drafted by a prosecutor is N. Y. Times, Nov. 1, 1987, p. 30. In Mc­ justice, not merely to convict."12 not "judicial" enough to provide an Cleskey v. Kemp, 107 S.Ct. 1756 (1987), the There are, however, serious Supreme Court upheld the imposition of the objective guarantee of probable death penalty over claims that the penalty practical and conceptual difficulties cause comparable to that furnished was imposed disproportionately against in squaring the prosecutor's func­ by a grand jury, because the pro­ racial minorities. This decision may have in­ tion with that of a "l\Ilinister of volved the last major challenge to the death secutor is inherently partisan, while penalty as violative of the Eighth Amend­ Justice." The concept was seriously the grand jury is an arm of the ment's proscription against "cruel and eroded in two important decisions court. unusual punishments." of the Supreme Court -Coolidge v. Futhermore, anybody who has 9 373 U.S. 83 (1963). New Hampshire13 and Gerstein v. carefully followed recent 10 ld. at 87. Pugh14-in which the Court developments in criminal justice, 11 Mayer, "Hogan's Office is a kind of recognized that it is realistically im­ Ministry of Justice," N. Y. Times Magazine, and particularly the Surpreme July 23, 1967, p. 7. possible for a prosecutor to play the Court's treatment of prosecutorial 12 ABA, Standards for Criminal Justice, dual roles of vigorous advocate and behavior, must view such references 3-1.1(c) (1980). protector of public justice. In to the prosecutor's purported justice 13 403 U.S. 443 (1971). Coolidge, the Court said that the function with considerable skep- 14 420 U.S. 103 (1975).

9 NEW YORK STATE BAR JOURNAL MAY 1988 HeinOnline -- 60 N.Y. St. B.J. 9 1988 ticism. This is not to suggest that prosecutorial misbehavior. Indeed, claim of improper prosecutorial prosecutors by and large behave un­ such combination can be lethal. For behavior. In virtually every case, fairly. They do not. However, the example, in the recent capital case of the Supreme Court reversed. It also prosecutor's role is not that of a Darden v. Wainwright,19 the pro­ should be noted that among the justice-giver, but of an advocate, a secutor, among other things, dozens of summary reversals by the "Champion of the People," in the characterized the defendant as an Court - done without briefs or oral same way that defense counsel's role "animal;" told the jury that the only argument - well over 90% were is not a defender of abstract justice, guarantee against his future crimes decided in the prosecutor's favor.23 but, rather, a Champion of the would be to execute him; that he Any lingering notion that the Defendant. Frequent ceremonial should have "a leash on him;" and prosecutor is obligated to dispense language about the prosecutor's that he should have "his face blown justice has been dispelled by recent quasi-judicial function15 is not only away by a shotgun." Darden's trial decisions of the Supreme Court. For misleading, but may be detrimental. was "not perfect," said the Supreme example, the increasingly expansive It places the prosecutor in an Court in upholding his conviction use of the harmless error doctrine is untenable conflict, forcing him con­ and death sentence. "Few are." "But one of the principal themes in the stantly to walk a tightrope, and it neither was it fundamentally Court's treatment of prosecutorial invites the judiciary to display a unfair. "19. misconduct. Thus, in United States kind of obeisance towards the pro­ Obviously, we can never know v. Mechanik,24 the Court for the secutor, suggesting that he or she to what extent the jury in finding first time held that prosecutorial stands above the fray, omnipotent guilt and imposing death, was in­ misconduct in the grand jury, and infallible. fluenced by the prosecutor's reviewed on appeal following a con­ To be sure, the prosecutor has a outrageous remarks. Was Darden viction, could be harmless error. fundamental commitment to fair trea ted unfairly? The answer Similarly. in United States v. Lane,25 dealing, not foul play.16 The respect, depends, in part, on where one sits. the Court held for the first time that and success, of any prosecutor's of­ One of the major problems with the improper conduct in mischarging fice depends on a high degree of Supreme Court's prosecutorial crimes, reviewed on appeal follow­ skill, good judgment, and fairness. jurisprudence - and that of ap­ ing a conviction, could be harmless If the prosecutor plays fairly and by pellate courts generally - is that error. Further, in United States v. the rules, justice probably will work these courts look at trial pro­ Hasting,26 the Court held that lower itself out under our system of adver­ ceedings retrospectively, and can sarial testing. However, to the ex­ only guess, quantitatively or tent that some courts, particularly qualitatively, at the prejudicial im­ 15 United States v. Young, 470 U.S. 1, 7 the Supreme Court, continue to pact of such misconduct, or its in­ (1985), quoting Berger v. United States, 295 evince a consistent and unyielding fluence on the fairness of the trial.20 U.S. 78, 88 (1935). philosophy of judicial per­ To be sure, the Supreme Court 16 Berger v. United States, supra. missiveness in the face of pro­ has not tolerated every form of pro­ 17 See Rose v. Clark, 106 Sup.Ct. 3101, 3112 (1986) (Stevens, J., concurring). See also secutorial excesses, many pro­ secutorial misconduct. In one case Gershman, "Why Prosecutors Misbehave," secutors will get the wrong message, - Batson v. Kentucky21 - the 22 Crim. L. Bull. 131 (1986). namely, that misconduct pays.17 Court at long last outlawed the per­ 18 Bar Committees rarely impose discipline And to the extent that bar nicious prosecutorial practice of on offending prosecutors. But see In re Rook, 276 Ore. 695, 556 P.2d 1351 (1976) (miscon­ disciplinary committees wink at peremptorily challenging minority duct in plea bargaining). It is Virtually prosecutorial excesses, the message jurors from jury service. Bt;ltson, as unheard of for disciplinary sanctions to be is reinforced.18 well as Vasquez v. Hillery,22 which imposed for misconduct in the courtroom. Clearly, prosecutors have legal dealt with grand jury discrimina­ 19 106 Sup.Ct. 2464, 2471-73 (1986). and ethical obligations different tion, are clearly long overdue and 19> On March 15, 1988, Willie Darden was executed in Florida's electric chair. N. Y. from their defense counterparts. are to be applauded. However, they Times, March 16, 1988, p. A15. Prosecutors are guided by stricter involve equal protection concerns to 20 See R. Traynor, THE RIDDLE OF rules, many of which are embodied which the Court has displayed far HARMLESS ERROR (1969); Note, "Pro­ in the constitution. Moreover, in greater sensitivity than to due pro­ secutor Indiscretion: A Result of Political In­ fluence" 34 Ind. L. J. 477, 486 (1959). contrast to defense counsel, pro­ cess concerns. Indeed, virtually 21 106 S.O. 1712 (1986). secutors wield tremendous power every important decision of the 22 106 S.O. 617 (1986). and tremendous discretion. The jux­ Supreme Court over the past several 23 See United States v. Benchimol, 471 U.S. taposition of such power and discre­ terms addressing the prosecutor's 453,458 (1985) (dissenting opinion). tion can be dangerous, especially if conduct involved a lower court 24 475 U.S. 66 (1986). courts display restraint, passivity, judgment - state or federal - 25 474 U.S. 438 (1986). and even withdrawal in the face of which had sustained the defendant's 26 461 U.S. 499 (1983).

10 NEW YORK STATE BAR JOURNAL MAY 1988 HeinOnline -- 60 N.Y. St. B.J. 10 1988 federal courts could not use their Examples of this quagmire to obtain comparable evidence. supervisory powers to discipline er­ spawned by the Court are Again, how does a defendant show rant prosecutors who had con­ numerous. In Smith v. Phillips,29 the the importance of evidence that is sistently violated that circuit's rules. prosecutor suppressed information no longer available? These courts were ordered to apply that a juror in a murder trial had Moreover, the Supreme Court's the harmless error test instead. sought employment with the same undue deference to the prosecutor, It is in the area of nondisclosure prosecutor's office. The Supreme as noted above, can result in of exculpatory evidence, however, Court reversed the Second Circuit, wholesale abdication of traditional that the Supreme Court has which had granted the habeas cor­ judicial functions. With due respect rendered most meaningless notions pus petition. The Court said first, to the judiciary, the prosecutor is of fundamental fairness and con­ that there was no showing of actual the most dominant and powerful of­ stitutional protections afforded bias, nor, secondly, any showing ficial in the criminal justice system. criminal defendants. This is the one that the defendant was prejudiced The prosecutor runs the show. The area above all else that depends on by the nondisclosure. Ethical stan­ prosecutor decides whether or not the integrity and good faith of the dards may be overlooked, said to bring criminal charges; who to prosecutor. If the prosecutor hides Justice Rehnquist for the majority, charge; what charges to bring; evidence, it .will probably never be because the "touchstone of due pro­ whether a defendant will stand trial, known. Moreover, as an advocate, cess analysis is the fairness of the plead guilty, or be conferred with the prosecutor, if candid, will con­ trial, not the culpability of the pro­ immunity. The prosecutor even cede that his or her inclination is not secutor." But, quaere, how does one possesses broad sentencing powers, to disclose. By way of rough demonstrate prejudice if the juror as the New York Court of Appeals' analogy, we do not enjoy paying swears: "I was not prejudiced"? decision in People v. Farrar il­ taxes. Since the government's Similarly, in United States v. lustrates.32 The prosecutor enjoys auditing powers are severly limited, Valenzuela-Bernal,30 the prosecutor virtual independence. He has no the tax system depends largely on ordered the deportation of illegal­ superiors. He cannot be compelled the integrity of the individual tax­ alien eyewitnesses to the defendant's to bring charges or to terminate payer. Many evaders are not ap­ crime before they could be inter­ them. Moreover, in using these vast prehended. But if a tax cheat is viewed by defense counsel. The powers, the prosecutor is presumed caught, the chances are good that Supreme Court reversed the Ninth to act in good faith. The Supreme the courts will impose severe sanc­ Circuit, which had reversed the con­ Court wrote a few months ago in a tions, mostly for deterrent pur­ viction. The prompt deportation of case involving the use of a private poses. illegal-aliens is an overriding duty of prosecutor: "Between the private So, it seems, should it be with the Executive Branch, the Court life of the citizen and the public prosecu torial suppression of said, to which the Court will defer glare of criminal accusation stands evidence. But in this one area, absent a plausible showing that the the prosecutor, with the power to where the prosecutor's fairness is so lost evidence would be material and employ the full machinery of the dramatically put to the test, the favorable to the defense. Of course, state in scrutinizing any given in­ Supreme Court has continued to as the dissent correctly pointed out, dividual. "33 And, one might add, to default. First, according to the showing the importance of evidence stigmatize that person for life. To be Court, the prosecutor's good or bad without an opportunity to examine sure, the prosecutor's vast charging faith in secreting evidence is irrele­ that evidence can be exceedingly dif­ discretion is contrained by a few vant.27 But surely if one seeks to ficult. And in California v. modest doctrines: the prosecutor deter prosecutors from hiding ex­ Trombetta,31 the Court reversed the culpatory evidence, willful viola­ state court which had reversed the Continued on Page 63 tions should be severely punished. defendant's intoxicated driving con­ Not so, according to the Court. The viction because the prosecutor had hidden evidence has to be failed to preserve as evidence the 27 United States v, Agurs, 427 U.S, 97 "material," that is, as the' Court contents of a breathilyzer test. The (1976); Giglio v, United States, 405 U.S, 150 wrote recently· in United States v. evidence was not sufficiently (1972), Bagley,28 a case involving a pro­ material, said the Court. To be 28 473 U.S. 667, 682 (1985), secutor's false representations to material, a defendant is required to 29 455 U,S, 209 (1982), defense counsel about monetary in­ show that the evidence possessed an 30 458 U,S, 858 (1982), ducements to government exculpatory quality that was ap­ 31 467 U,S, 479 (1984), witnesses, it has to be shown that parent before the evidence was 32 52 N,Y,2d 304, 419 N,E,2d 864, 437 N,Y,S,2d 961. (1981), but for the nondisclosure, the ver­ destroyed, and was of such nature 33 Young v, United States ex reI. Vuitton et dict would have been different. that the defendant would be unable Fils S,A" 107 $,Ct. 2124, 2141 (1987).

12 NEW YORK STATE BAR JOURNAL MAY1988 HeinOnline -- 60 N.Y. St. B.J. 12 1988 The Prosecutor as a "Minister of Justice" Continued from Page 12 showing that the defendant was the ante;" they would obtain fewer selected "because of his protest ac­ pleas. Further, in virtually every must not be unfairly selective, vin­ tivities," a showing of prosecutorial pretrial context in which pro­ dictive, or demagogic in using his motivation that seems almost im­ secutors have increased charges charging powers. These doctrines, possible to prove. Given the after defendants have exercised however, are rarely invoked, and presumption of prosecutorial good rights, courts uniformly have found hardly ever successful. faith, the prosecutor's expertise, and no vindictiveness. This can result in No area of criminal justice is the prosecutor's law enforcement some patently unfair decisions. In more complex and controversial plans and priorities, matters which one recent New York case,38 the pro­ than that of the prosecutor's discre­ are ill-suited to judicial review, said secutor charged the defendant with tion, particularly as it relates to the Court, there would be no in­ perjury after his motion to suppress charging, plea bargaining, dismiss­ terference with the prosecutor's evidence was granted. The hearing ing, and granting immunity. It is discretion, even in this obvious in­ court found that the defendant was here, in my judgment, that the stance of a prima facie case of selec­ a credible witness, and the police courts should exercise more tive prosecution. witnesses were not. This is a blatant vigilance and control. Yet here, Unfair selectivity is matched by instance of prosecutorial vindic­ more than any other area, the courts prosecutorial retaliation in the form tiveness, or alternatively, of pro­ have withdrawn more than ever. 34 of increased charges after defen­ secutorial bad faith, particularly Several recent cases illustrate the in­ dants raise statutory or constitu­ after a judge already had made a effectiveness of doctrine as it relates tional claims. Prosecutors, credibility determination in the to the prosecutor's discretion. In however, may not be vindictive in defendant's favor. Wayte v. United States,35 for exam­ response to a defendant's exercise of Prosecutorial behavior in plea ple, the defendant, a vocal oppo­ rights. Proving prosecutorial vindic­ bargaining is standardless and often nent of the Selective Service system, tiveness, however, is another mat­ highly coercive. A plea bargain is a was one of a handful of non­ ter. The courts have indulged the constitutional contract. The pro­ registrants who was prosecuted, out prosecutor in this area as well. secutor must keep his promise. of nearly a million non-vocal non­ Thus, prosecutorial retaliation by However, the prosecutor's decisions registrants. Wayte made a colorable increasing charges after a plea offer usually are deferred to by the showing .that he was impermissibly is refused is not legally vindictive, Courts, and the prosecutor's inter­ targeted for prosecution based on said the Supreme Court in United pretation of the bargain usually con­ his exercise of First Amendment States v. Goodwin,36 reaffirming trols. A good example of this is rights. He sought to discover infor­ Bordenkircher v. Hayes,37 even Ricketts v. Adamson,39 decided by mation in the prosecutor's files. though such tactics may the Supreme Court last June. The When the prosecutor resisted, the demonstrate actual vindictiveness. case arose out of the murder of district court dismissed the indict­ The concerns are purely pragmatic. Arizona newspaper reporter Don ment. The Supreme Court treated Prosecutors need this leverage to Bolles. The prosecutor and Adam­ the case not as a discovery problem. run the system. If prosecutors could son agreed that Adamson would The Court found that there was no not threaten defendants by "upping testify fully and completely in

NEW YORK STATE BAR JOURNAL MAY 1988 63 HeinOnline -- 60 N.Y. St. B.J. 63 1988 The Prosecutor as a "Minister of Justice" Continued from Page 12 showing that the defendant was the ante," they would obtain fewer selected "because of his protest ac- pleas. Further, in virtually every must not be unfairly selective, vin- tivities," a showing of prosecutorial pretrial context in which pro- dictive, or demagogic in using his motivation that seems almost im- secutors have increased charges charging powers. These doctrines, possible to prove. Given the after defendants have exercised however, are rarely invoked, and presumption of prosecutorial good rights, courts uniformly have found hardly ever successful. faith, the prosecutor's expertise, and no vindictiveness. This can result in No area of criminal justice is the prosecutor's law enforcement some patently unfair decisions. In more complex and controversial plans and priorities, matters which one recent New York case,38 the pro- than that of the prosecutor's discre- are ill-suited to judicial review, said secutor charged the defendant with tion, particularly as it relates to the Court, there would be no in- perjury after his motion to suppress charging, plea bargaining, dismiss- terference with the prosecutor's evidence was granted. The hearing ing, and granting immunity. It is discretion, even in this obvious in- court found that the defendant was here, in my judgment, that the stance of a prima facie case of selec- a credible witness, and the police courts should exercise more tive prosecution. witnesses were not. This is a blatant vigilance and control. Yet here, Unfair selectivity is matched by instance of prosecutorial vindic- more than any other area, the courts prosecutorial retaliation in the form tiveness, or alternatively, of pro- 3 4 have withdrawn more than ever. of increased charges after defen- secutorial bad faith, particularly Several recent cases illustrate the in- dants raise statutory or constitu- after a judge already had made a effectiveness of doctrine as it relates tional claims. Prosecutors, credibility determination in the to the prosecutor's discretion. In however, may not be vindictive in defendant's favor. Wayte v. United States,35 for exam- response to a defendant's exercise of Prosecutorial behavior in plea ple, the defendant, a vocal oppo- rights. Proving prosecutorial vindic- bargaining is standardless and often nent of the Selective Service system, tiveness, however, is another mat- highly coercive. A plea bargain is a was one of a handful of non- ter. The courts have indulged the constitutional contract. The pro- registrants who was prosecuted, out prosecutor in this area as well. secutor must keep his promise. of nearly a million non-vocal non- Thus, prosecutorial retaliation by However, the prosecutor's decisions registrants. Wayte made a colorable increasing charges after a plea offer usually are deferred to by the showing that he was impermissibly is refused is not legally vindictive, Courts, and the prosecutor's inter- targeted for prosecution based on said the Supreme Court in United pretation of the bargain usually con- his exercise of First Amendment States v. Goodwin,36 reaffirming trols. A good example of this is rights. He sought to discover infor- Bordenkircher v. Hayes,17 even Ricketts v. Adamson,3 9 decided by mation in the prosecutor's files. though such tactics may the Supreme Court last June. The When the prosecutor resisted, the demonstrate actual vindictiveness. case arose out of the murder of district court dismissed the indict- The concerns are purely pragmatic. Arizona newspaper reporter Don ment. The Supreme Court treated Prosecutors need this leverage to Bolles. The prosecutor and Adam- the case not as a discovery problem. run the system. If prosecutors could son agreed that Adamson would The Court found that there was no not threaten defendants by "upping testify fully and completely in

NEW YORK STATE BAR JOURNAL MAY 1988 return for a plea to a reduced out, the release-dismissal agreement Such sanctions are either nonexis- murder charge and a reduced is inherently coercive and unfair, tent or not used. Prosecutors are sentence. Adamson testified at the there being no mutuality of advan- generally immune from civil liabili- 44 murder trial of two other co- tage, as there is in plea bargaining. ty. Imposition of discipline by bar 45 defendants and was sentenced. All Moreover, there is a conflict of in- committees is virtually unheard of. told, Adamson made 14 court ap- terest between the prosecutor's in- Contempt rulings by trial judges are 46 pearances in 5 separate cases - 31 terest in furthering legitimate law rare. Appellate reversals may days of testimony and over 200 in- enforcement objectives, and at the punish society more than the pro- 47 terview sessions with the prosecutor same time protecting the town, secutor. And although appellate - but balked at testifying at a police, or other public officials, courts occasionally issue stinging retrial after the above murder con- from civil liability. rebukes, the decisions rarely if ever victions were reversed. He claimed Finally, as noted above, the identify the offending prosecutor by that his plea agreement, reasonably standards applied by the courts to name. Perhaps if the prosecutor construed, did not require such ad- prosecutors often are unrealistic. were forced to appear before the ap- ditional testimony. The prosecutor Clearly, the search for a pro- pellate tribunal to defend his or her disagreed, claimed that Adamson secutorial mens rea, or guilty mind, conduct, the incidence of courtroom breached his agreement, and not- is hazardous at best. Prosecutors do misconduct might diminish. withstanding Adamson's willingness not confess their misdeeds, and Although not a Minister of to accede to the prosecutor's inter- presumptions are rarely invoked. Justice, the prosecutor's role may 41 pretation, nonetheless indicted and Thus, in Oregon v. Kennedy, a well be the most exacting of any convicted Adamson of first degree case in which a prosecutor's miscon- public official. But by the same murder, and obtained a death duct provoked the defendant to ask token, the public has a right to re- sentence. A majority of the Court for a mistrial, the Supreme Court quire of that official the highest upheld the prosecutor's interpreta- was asked to decide whether retrial measure of responsibility, profes- tion of the agreement, and found should be barred on double jeopar- sionalism, and integrity. Pro- there was no double jeopardy bar to dy grounds. Several courts, in- secutors who use their prodigious Adamson's conviction. The four cluding some New York courts, powers gracefully and fairly are no dissenting Justices, on the other looked to the seriousness of the less effective as Champions of the hand, said that Adamson had not misconduct in deciding whether to People, and will be far worthier of breached, that there was a bar retrial.42 The Supreme Court, respect and admiration. Courts and reasonable basis for his interpreta- however, adopted the most restric- bar associations have to send out tion, and that the matter should tive approach possible, requiring better messages, and provide have been submitted to the courts proof that the prosecutor's specific stronger incentives for prosecutors for resolution. Overzealousness intention was to goad the defendant to behave fairly. into seeking a mistrial, rather than may be an appropriate characteriza- 34 See A. Goldstein, THE PASSIVE tion of the prosecutor's conduct prejudicing the defendant generally. JUDICIARY: PROSECUTORIAL DISCRE- here. He behaved more like an Proving such specific intent, said the TION AND THE GUILTY PLEA (1981). "Avenging Angel" than a "Minister four dissenting justices, is "almost 35 470 U.S. 598 (1985). of Justice." inconceivable. 43 36 457 U.S. 368 (1982). Although prosecutors may need For some prosecutors, the temp- 37 434 U.S. 357 (1978). "leverage" in plea bargaining, they tation to cross over the allowable 38 People v. Stephens, 122 A.D.2d 608, 505 do not need leverage when seeking a ethical line often must be irresisti- N.Y.S.2d 393 (4th Dept. 1986). defendant's agreement to release the ble, particularly because miscon- 39 107 S.Ct. 2680 (1987). 40 107 S.Ct. 1187 (1987). from civil duct frequently creates distinct ad- police or municipality 41 456 U.S. 667 (1982). liability following an arrest, and us- vantages to prosecutors in helping of charges as a to win their case. It takes a steadfast ' See People v. Cavallerio, 104 Misc.2d 436, ing the dismissal 428 N.Y.S.2d 585 (1980). See also Petrucelli weapon to compel such agreement. effort on the part of prosecutors to v. Smith, 544 F.Supp. 627 (W.D.N.Y. 1982). 40 In Newton v. Rumery, the First maintain high moral and profes- 43 456 U.S. at 688. Circuit, as had several other cir- sional standards necessary to avoid 44 Imbler v. Pachtman. 424 U.S. 409 (1976). cuits, found such release-dismissal such temptations. Regrettably, 45 See B. Gershman, PROSECUTORIAL agreements invalid as contravening many courts, notably the Supreme MISCONDUCT § 13.6 (1985). public policy. The Supreme Court Court, have provided few incentives 46 See B. Gershman, PROSECUTORIAL reversed, finding that the agreement to prosecutors to avoid misconduct. MISCONDUCT § 13,3 (1985). 47 See United was voluntarily and knowingly As with punishment generally, States v. Modica, 663 F.2d 1173, 1182-86 (2d Cir. 1981), cert. denied, entered into, as in the case of plea deterring misconduct requires the 456 U.S. 989 (1982). bargains. But as the dissent pointed imposition of realistic sanctions. l'll

NEW YORK STATE BAR JOURNAL MAY 1988