Win for Law Professors in Key Prosecutor-Accountability Bid

    Arthur Applbaum, a prominent Harvard Kennedy School ethics professor, scandalized the legal world in the 1990s when he said that “lawyers might accurately be described as serial liars, because they repeatedly try to induce others to believe in the truth of propositions or in the validity of arguments that they believe to be false.” Facing rebuke from those he deemed “good” lawyers, he said that he was not condemning all lawyers, but the practice of lawyering. For Applbaum, it was the practice of lawyering that “engages in misdescription.”

    An adversary system, with two sides of the “v,” incentivizes each side’s lawyers to twist the truth. Zealous advocacy is permitted, even encouraged; it is right there in the American Bar Association’s model rules of professional conduct. Some prominent attorneys have opined that “zeal” should be removed, because the line between zealous legal work and zealotry—fanaticism, extremism, et al.—is a fine one indeed.

    It’s in this psychological context that prosecutors commit misconduct—like hiding evidence which might help exonerate a defendant, striking Black jurors because of their race, or telling jurors that exercising the right against self-incrimination (“pleading the Fifth”) indicates guilt.

    A group of law professors filed scores of bar complaints against over 20 prosecutors. They publicly posted them on a website. They are winning so far.

    Regardless of how much or how little an individual prosecutor cares about the crime victims they represent, when they “win” more cases, they further their careers. When they “lose” more, they take a professional hit. Zealotry, then, is incentivized.

    State bars’ disciplinary arms could be described as complicit, since on the rare occasion a prosecutor is disciplined for misconduct, it is usually only after aggrieved parties, their attorneys and legal journalists have sparked a media firestorm about their often-serial bad behavior.

    In 2021, a group of law professors, fed up with prosecutors’ chronic lack of accountability for wrongdoing, filed scores of bar complaints against over 20 prosecutors in Queens. That in itself would have been unique. But they went a step further, to violate the big taboo of attorney misconduct investigations: secrecy. They publicly posted their complaints on a website.

    On the behest of Queens District Attorney Melinda Katz, New York City’s chief legal counsel seemingly sought to punish them for speaking out. They were cut off from receiving updates on their petitions to the bar, all but guaranteeing that their complaints—all based on prior findings of misconduct by appellate courts—would wither and die in some mildewy office basement.

    But on the contrary, it is the professors who are winning so far.

    On June 13, Senior US District Judge Victor Marrero, a Clinton appointee, ruled against the state defendants, finding that the First Amendment “prohibits a state from banning complainants from publishing their own attorney grievance complaints.”

    The judge conceded that governmental interests may justify confidentiality for some aspects of the attorney discipline process in some cases. But he determined that a broad-base ban on complainants’ publication of their own complaints does not represent “narrow tailoring” to a “compelling government interest,” which is required for the constitutional regulation of speech based on its content.

    Disturbingly, the laundry list of government defendants in this case did not even bother to defend themselves against the First Amendment complaint. They relied on the existence of the state’s confidentiality statute, as well as the simple argument that there are “broad-based privacy interests” that “require that these documents remain confidential and sealed from public disclosure.”

    The potential importance of this litigation to criminal justice reform should not be understated.

    Were the defendants’ lawyers—notably including active attorneys at the New York City Law Department and New York Attorney General’s Office—so convinced that the First Amendment does not apply to state bar governance that they didn’t bother to make a relevant argument?

    This limited decision does not represent an ultimate legal ruling on whether the government officials involved sought to punish the professors for their public callout. (There is an outstanding federal civil rights claim under Section 1983 that the court refused to dismiss; state defendants are claiming they have qualified immunity, a doctrine that shields government officials from liability unless they knew they were violating the Constitution.) Yet it is a clear step in that vindicating direction. And the potential importance of this litigation to criminal justice reform should not be understated.

    Some, including Boston defense lawyer James Doyle, have argued that a focus on prosecutor misconduct is misguided because accountability after the fact does not, in practice, deter it. He cites his experiences with many convicted clients he has represented. There is some truth in this; the decision to commit misconduct of any kind can be influenced by emotional, as well as rational, factors.

    But lawyers are not used to conducting analyses of comparative power. After all, under the law, the CEO who embezzled money and the person who stole on the street are viewed similarly. But the lives and psychological processes of those two people are unlikely to be similar. Street crime is much easier to detect, and physically hazardous; that person’s decision-making is more likely to have been impacted by desperate circumstances and severe stressors.

    Accountability would, among other things, underline to the legal profession that the people harmed by bad prosecutors are human.

    A prosecutor has education, status and privilege—factors that point more to calculated misconduct than to desperation or loss of control. Accountability, then, and meaningful professional consequences for misconduct that deliberately inflicts profound damage on marginalized people—not merely a “disclosure and apology” process, as sometimes occurs after medical errors—is surely required.

    In identifying individual bad actors, we should not forget the system. To return to medicine, doctors are called to “first do no harm” to their patients. For prosecutors, their job is to inflict harm upon those accused of crimes, however much they may dress this up as public safety and harm prevention (the harshness of penalties is not an effective deterrent).

    As a result, prosecutors often come to see the people they prosecute as less than human, attitudes that may be exacerbated by racism or other biases. In fact, it was only in 2017 that judges in New York City were urged by the mayor’s office to stop calling defendants “bodies.”

    Accountability for prosecutors’ wrongdoing would, among other things, underline to the legal profession that the people harmed by bad prosecutors are human. At a time when influential voices argue, for example, that homeless people who commit petty crimes to survive should have all their rights taken away, sending that message is crucial.



    Photograph via PxHere/Public Domain

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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