PROSECUTORIAL MISCONDUCT AND CONSTITUTIONAL REMEDIES PETER J. HENNING* INTRODUCTION ............................................................................................. 714 I. PROSECUTORIAL INTENT AND “DO JUSTICE” ............................................ 720 A. Ascertaining Prosecutorial Intent................................................. 722 B. Ethical Rules ................................................................................ 727 C. Due Process.................................................................................. 729 II. PROSECUTORIAL INTENT AND THE DECISION ABOUT WHO AND WHAT TO PROSECUTE...................................................................................... 732 A. Vindictive Prosecutions: Isn’t That What You’re Paid For?........ 734 1. The Presumption of Vindictiveness ...................................... 735 2. The Irrelevance of Actual Intent........................................... 738 B. Selective Prosecution: You Can’t Get There From Here ............. 747 III. PROSECUTORIAL MISCONDUCT AND EVIDENCE OF GUILT ..................... 754 A. The Knowing Use of Perjured Testimony..................................... 756 B. Extending Due Process to Undisclosed Evidence ........................ 760 C. The Destruction of Evidence ........................................................ 767 D. Loss of Evidence Through Governmental Delay.......................... 772 1. The Sixth Amendment Speedy Trial Right............................ 772 2. Due Process and the Initiation of Criminal Prosecutions.... 775 IV. BATSON LIES............................................................................................ 780 A. Equal Protection and Peremptory Challenges............................. 782 B. The Effect of Implausible Responses ............................................ 787 V. MISCONDUCT DURING TRIAL: CAN DOUBLE JEOPARDY CONTROL PROSECUTORIAL MISCONDUCT? .......................................................... 798 A. Manifest Necessity for a Mistrial ................................................. 800 B. Goading Defendants to Seek a Mistrial........................................ 803 C. Prosecutorial Misconduct as a Separate Basis for a Double Jeopardy Violation ....................................................................... 809 VI. PROSECUTORIAL MISCONDUCT AND THE PROBLEM OF REMEDY .......... 816 A. Are Due Process and Double Jeopardy Interchangeable?........... 820 B. Sanctioning Prosecutors Directly................................................. 828 * Associate Professor, Wayne State University Law School. © 1999 Peter J. Henning. I would like to thank Professors Joe Cook, George Thomas, Ellen Podgor, Joe Grano, Joshua Dressler, and David Harris for their kindness and patience in reviewing drafts of this article. 713 P713 Henning.doc 02/01/00 5:35 PM 714 WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 77:713 CONCLUSION .............................................................................................. 832 INTRODUCTION Modern prosecutors have enormous authority in every phase of a criminal case, from the start of an investigation through the sentencing of a defendant after conviction. The source of that authority is the discretion the criminal justice system vests in prosecutors to decide whether to initiate an investigation, which charges to file, when to file such charges, and whether to offer a plea bargain or request leniency.1 Under the current sentencing regime for federal cases, the prosecutor, not the trial judge exercises primary control over the sentence a particular defendant will receive.2 Not surprisingly, some prosecutors have abused this authority, or at least exercised it in a fashion that calls into question the fairness of their conduct. When prosecutors abuse their broad authority, the vexing questions are whether such prosecutorial misconduct violated a defendant’s constitutional rights, and, if so, what remedy to afford.3 1. See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”); Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. CRIM. L. & CRIMINOLOGY 717, 718 (1996) (“In the past thirty years . power has increasingly come to rest in the office of the prosecutor. Developments in the areas of charging, plea bargaining, and sentencing have made the prosecutor the preeminent actor in the system.”); Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64 FORDHAM L. REV. 851, 862 (1995) (“The prosecutor’s charging discretion is, for the most part, unreviewable.”); James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521, 1522 (1981) (“There is a broad and rather casual acceptance of the fact that prosecutors often exercise greater control over the administration of criminal justice than do other officials.”). 2. In enacting the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (codified as amended at 18 U.S.C. §§ 3551-3586 (1994)), Congress adopted a system of uniform Sentencing Guidelines to eliminate disparity in punishment for violations of federal criminal statutes. The Sentencing Guidelines provide a determinate range of incarceration depending on the type of offense and degree of harm caused. See UNITED STATES SENTENCING GUIDELINES MANUAL § 1A3, comment. (backg’d) (1997). Under the Sentencing Guidelines, judicial discretion to affix a sentence has been substantially curtailed and federal prosecutors determine the range of punishment through the selection of the charge that will be filed against the defendant. See United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990) (“It is by now apodictic that the sentencing guidelines effectively stunt the wide discretion which district judges formerly enjoyed in criminal sentencing.”). 3. See, e.g., United States v. Lopez, 4 F.3d 1455, 1464 (9th Cir. 1993) (“[E]ven assuming that [the prosecutor] did act unethically, we question the prudence of remedying that misconduct through dismissal of a valid indictment.”); United States v. Jannotti, 673 F.2d 578, 613-14 (3d Cir. 1982) (Aldisert, J., dissenting). In dissenting from the en banc court upholding a conviction as part of the ABSCAM investigation, Circuit Judge Aldisert stated: To the Department of Justice, its operation was a taste of honey; to me, it emanates a fetid odor whose putrescence threatens to spoil basic concepts of fairness and justice that I hold dear. That the FBI has P713 Henning.doc 02/01/00 5:35 PM 1999] PROSECUTORIAL MISCONDUCT AND CONSTITUTIONAL REMEDIES 715 The relief granted for prosecutorial misconduct should redress the harm suffered by the defendant rather than merely send the government a message about the impropriety of its conduct. Contact between individuals and the police, such as an arrest, search, or interrogation, are discrete events; therefore, any violation of the defendant’s rights under the Fourth or Fifth Amendments will usually arise directly from that contact. A prosecutor, on the other hand, deals with a defendant, and more importantly, the defendant’s attorney, on a routine basis throughout a criminal proceeding. There are, at least quantitatively, a greater number of constitutional rights associated with the adjudicative phase of a criminal proceeding than with the investigative phase, and the parameters within which a violation can take place are much broader. Moreover, a constitutional violation by the prosecutor can occur without any direct contact with the defendant or his counsel, and it may be the culmination of a series of events rather than the product of a discrete act. The motives and intent of police officers are irrelevant to the Fourth Amendment issue of whether probable cause supported a search or seizure.4 The Supreme Court, however, refers with some regularity to the prosecutor’s intent as one factor in determining whether prosecutorial misconduct violated a defendant’s rights. Unlike other areas of criminal procedure, in which the Court focuses on the defendant’s knowledge of a right and expectation of privacy, the intent of the government’s lawyer—the prosecutor—is often considered in determining whether there was a constitutional violation arising from prosecutorial misconduct. One reason an assessment of intent may be attractive as a standard for reviewing the conduct of prosecutors, as opposed to the conduct of police, is the apparent ease with which a court can gather evidence of a prosecutor’s motives. Because the prosecutor appears routinely before the court, a judge may believe that she need do little more than question the prosecutor to determine intent. In addition, the vast majority of crimes require proof of the defendant’s state of mind, so courts generally are comfortable assessing a person’s mental state.5 earned high praise for its performance in the traditional discharge of its duties should not immunize the secret police tactics employed in its ABSCAM operation from appropriate and vigorous condemnation. Id. 4. See United States v. Whren, 517 U.S. 806, 813 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”). 5. See, e.g., Oregon v. Kennedy, 456 U.S. 667, 675 (1982). The Kennedy court stated: [A] standard that examines