Misbehaving Prosecutors Get Privilege of Anonymity

We’re pretty lucky in the Detroit Federal Prosecutor’s Office to have very honest prosecutors who rarely if ever take “cheap shots” just to “win at all costs,” largely because the leadership of that office has been above reproach and that’s the kind of assistant United States Attorneys they hire.  Sadly, the same cannot be said for many other federal districts and state prosecutors’ offices, many of which I have practiced in across the country.  In those rare instances that federal appeals judges actually do take one or another federal prosecutor to task for unethical or improper conduct, they rarely, if ever, name the offending prosecutor – talk about an Old Boys (and Girls) Club. Defense attorneys, on the other hand, are routinely named in appeal opinions whenever they have done anything unethical, or even just provided a poor defense by failing to make a certain objection or introduce a piece of important evidence.  – James W. Burdick


Originally Published in the Huffington Post:

By Radley Balko

Last month, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit ruled that a prosecutor in San Mateo County, Calif., committed “textbook” misconduct when she “knowingly elicited and then failed to correct false testimony” during an armed robbery trial. A judge from the U.S. District Court for the Northern District of California also found misconduct in the case, but ruled it was a “harmless error” and upheld the conviction of the defendant, La Carl Martez Dow. The appeals court panel overturned that ruling, and Dow’s conviction. But an important detail was missing from both those rulings — the prosecutor’s name, Jennifer Ow. At the time of Martez Dow’s conviction, she was an assistant district attorney for San Mateo county. She currently holds the same title in Nevada County, Calif. Earlier this year, the U.S. Supreme Court declined to hear an appeal alleging misconduct by a federal prosecutor who made racially offensive remarks during a drug trial in Texas. Justice Sonia Sotomayor wrote a separate opinion that excoriated the prosecutor, who, she wrote, “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation.” “It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century,” she wrote. “Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice.” But Sotomayor didn’t name the prosecutor, either. And while her opinion attracted a fair amount of media attention, those initial accounts also failed to give the prosecutor’s name. Ken White, a former federal prosecutor who now blogs at Popehat.com, checked the legal document service PACER and tracked down the name: Sam L. Ponder. He is still an assistant U.S. attorney in Texas. After White found Ponder’s name, many media outlets amended their original reports to include it. But the case is an exception. The names of misbehaving prosecutors are rarely if ever included in appellate court opinions that find misconduct. Those opinions aren’t all that well covered in the media to begin with, but when they are, it can take a fair amount of digging for a reporter on the courts beat to match the prosecutor to the case. So most don’t. There’s no formal rule precluding the publication of a prosecutor’s name in an opinion. White says it’s more about professional courtesy. “It’s tradition. It’s an informal practice driven by the government’s fairly strong stand that the names shouldn’t be published,” he said. “I’ve seen some really egregious, outrageous examples of misconduct in which the government actually asked for opinions to be republished to remove names of specific prosecutors.” Some prosecutors argue that they should be protected from false allegations of misconduct. At the U.S. Department of Justice, disciplinary actions against federal prosecutors are usually kept confidential, out of respect for the prosecutors’ privacy. Many state bar associations keep disciplinary complaints and outcomes against prosecutors (and other attorneys) secret for similar reasons. “I find it kind of odd,” White said. “You’re dealing with a justice system where the defendant never gets that kind of protection of anonymity. There’s no delay in releasing his name until he’s actually convicted. Instead, prosecutors put out press releases and make public statements about the accused. I just don’t think there’s a legitimate argument you can make as to why prosecutors should get more protection from allegations of wrongdoing than defendants do.” The practice also makes it more difficult to track repeat offenders. To see whether a prosecutor found to have committed misconduct in a certain case has been similarly rebuked in other cases, you would need to search for all the cases handled by that prosecutor’s office in which an appeals court found misconduct, then either call someone associated with the cases to inquire about the prosecutor’s name, or look up each of those cases on PACER, then sort through court filings and records. Even then, the identity of the offending prosecutor isn’t always apparent. “If it’s a case where you have team of prosecutors, and the misconduct involves a statement made in court, it isn’t always clear which prosecutor is at fault,” White said. “It’s all needlessly complicated.” The complexity of piecing together a particular prosecutor’s record not only makes it more difficult for journalists and watchdog groups to identify misconduct, it also makes it nearly impossible for voters to learn about a prosecutor’s performance when he or she runs for re-election, or moves on to run for judge or political office. Charles Sevilla, an attorney in San Diego, is pushing a broader rule that would require appeals courts in California to include the names of all trial attorneys for both sides in their opinions. “They already name the trial judge and the attorneys for the appellee and the appellant,” he said. “There’s no reason why they can’t add an extra line to include the trial attorneys.” Sevilla says it’s not about holding just prosecutors accountable, but the courts system in general. “Any member of the public who is looking for an attorney should be able to go on the Internet to see the names of attorneys who have tried similar cases, and to see the result in those cases,” he said. “The people have the right to know what’s going on in the public courts.” That public scrutiny should then also apply to under-performing defense attorneys. Appeals courts rarely name the attorney at fault when ruling in favor of a claim of ineffective assistance of counsel, although White says the practice isn’t nearly as consistent as it is with prosecutors. “You have to remember, the bar for ineffective assistance is set really low,” he said. “You have to make a really egregious mistake to be found ineffective.” Sevilla’s blanket proposal to name all the trial attorneys would address both positions equally. True accountability would mean a searchable, easy-to-use database of misconduct cases. “You are starting to see some bloggers and public defenders keep running files on bad prosecutors,” White said. “That’s a good start.” Internet shaming has certainly worked on Sam L. Ponder. Should he ever run for office, his behavior as an assistant U.S. attorney is pretty easy to find. Half the returns on the first page of a Google search for his name are articles and blog posts about his conduct in the case for which Sotomayor rebuked him. Click to see this article in its original context