Bad prosecutorial behavior should not be condoned.

I do a lot of court-appointed criminal defense out of Philadelphia. At times, I see young assistant district attorneys make statements they should not make during closing and opening speeches. What is the responsibility of the District Attorney’s Office in the Appellate Division when it is clear the young assistant has acted incorrectly? I normally see briefs attempting to defend these actions to the utmost when, in reality, the Appellate Division is reinforcing the bad conduct at the trial level. Is it ethical for the Appellate Division to do that?

Anyone who does criminal defense, particularly court-appointed criminal defense, knows the frustration in Pennsylvania in dealing with the appellate courts and prosecutorial misconduct. No matter what a district attorney says or does, sometimes it seems as if the appellate court either ignores it or bends over backward to justify the conduct. Very few cases are reversed on prosecutorial misconduct, even though a review of arguments often shows statements of personal opinions, misstatements of evidence and inflammatory statements.

But the question is not about the appellate courts. It is about the Appellate Divisions and District Attorney’s Office. Clearly, all of the lawyers who have the privilege of serving as an assistant district attorney or assistant U.S. attorney have important responsibilities. These responsibilities are more enhanced for the prosecutor. Under the Rules of Professional Conduct, there is a specific rule about special responsibilities of prosecutors found at Rule 3.8.

This rule prohibits an assistant district attorney from prosecuting a case he or she knows is not supported by probable cause. There is a requirement that the prosecutor not take advantage of an unrepresented defendant. It requires timely disclosure of all mitigating evidence and requires the prosecutor to not make statements to the press or public that could prejudice the case and also to ensure that the law enforcement personnel don’t make similar statements.

Comment 1 to Rule 3.8 clearly places the heavy burden of responsibility on a prosecutor: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence."

Any appellate division of a prosecutorial office should be very careful in its advocacy when trying to justify misconduct by an assistant district attorney during the trial.

This issue has been discussed in great detail by the respected ethics professor Monroe Freedman in an article titled "The Use of Unethical and Unconstitutional Practices and Policies by Prosecutors’ Offices," found in the Washington Law Journal, Volume 52, No. 1.

Freedman begins the article by pointing out two serious ethical problems. The first is the adoption by chief prosecutors of policy or practices for the office that violate defendants’ constitutional rights and, second, he notes what he calls the "rogue prosecutor," who purposefully adopts unethical and/or unconstitutional tactics, such as concealing exculpatory evidence. He noted when the prosecutor’s office seeks to justify the unethical conduct of the rogue prosecutor, that conduct then becomes "office policy" and encourages similar misconduct.

Freedman then notes some offices will have two approaches. The first approach is to disavow the prosecutor’s conduct, but then to argue that the defendant is not entitled to any redress.

Freedman also criticizes the disciplinary authorities in various states for not taking appropriate disciplinary action. He noted a study that showed there had been just 100 reported cases of professional discipline of federal and state prosecutors during the last century, which would be an average of one disciplinary case per year. Freedman notes the failure of the courts and disciplinary authorities to take remedial action and/or disciplinary action encourages this type of prosecutorial misconduct.

Freedman discusses some cases. One case of particular interest is Texas v. Morton, where a man spent 25 years in prison for a murder he did not commit. Morton always said he was innocent. The new district attorney fought Morton’s access to DNA for more than five years. When Morton was finally able to get the DNA tested, it demonstrated he was innocent and implicated another man. The person implicated had a long criminal record and lived nearby. It turned out that the District Attorney’s Office in the state of Texas had strong evidence about this other man at the trial potentially being the culprit, but never told Morton’s lawyer about that, according to Freedman. The prosecutor who hid the evidence of the other person is now a sitting judge in the state of Texas. The new prosecutor, who fought long and hard to prevent the DNA from being given, said he opposed the DNA because the prior DA asked him to do so and they were friends. So far, nothing has been done to the prior district attorney who hid this evidence and misled the defendant’s lawyer.

Freedman mentions prosecutorial offices that have a win-at-all-costs attitude or policy.

Freedman discusses other forms of prosecutorial misconduct that studies reveal. He discusses the use of cooperating witnesses, which is common among prosecuting offices. He notes that many of these people will say anything. He notes some prosecutorial offices refused to have a central index record of jailhouse informants. One prosecutorial office actually had a memo indicating the reason for lack of a central record was to prevent defense counsel from attacking the credibility of these jailhouse or confidential informants.

Freedman points out that one of the "dirty little secrets" is that if you perjure yourself as a prosecution witness, no one is going to prosecute you.

One of the examples Freedman notes is the case of Illinois v. Rivera, 777 NE 2nd 360 (Illinois Appellate Court, 2002). In that case, the defendant was convicted on the testimony of an informant and a supposed coerced confession. The victim was an 11-year-old girl. Subsequently, when the DNA showed that the sperm in the victim’s vagina was not the defendant’s, the prosecutor made an incredible argument that this 11-year-old girl had supposedly been sexually active and, therefore, the exclusion should not exonerate the defendant.

Freedman notes other examples where prosecutors have turned on the victim in such an unethical way, and the difficulties with the prejudicial pretrial publicity by prosecutors. He concludes that part of the problem is the failure of both trial and appellate courts to recognize this misconduct and to take the appropriate action or reverse convictions. He also notes the failure of disciplinary authorities to hold the prosecutors accountable.

"As a number of authorities have concluded, the failure to hold prosecutors accountable has contributed to a culture in too many prosecutorial offices in which prosecutors act as if they are above constitutional and ethical restraints," Freedman writes.

The article exposes a problem that is often ignored. This problem is known by any lawyer who practices criminal law regularly and argues in the appellate courts.

There is time now for this conduct to change. Disciplinary authorities have to be more vigilant and should investigate reversals or misconduct by prosecutors and take action that will result in loss of license. Only by doing so will prosecutors know they are not above the law. These kinds of actions tarnish the many excellent prosecutors who work in offices and are true public servants, giving long hours of time at very low rates of pay.

The appellate courts have to rethink their position. Pennsylvania has been very clear for years that personal opinion is not allowed and inflammatory statements are not allowed. Yelling or screaming at a defendant or pointing at them is not allowed. Sending a message is not allowed, etc.

Despite that, the Superior Court’s memorandum opinions are replete with examples of this kind of conduct regularly and repeatedly. Everything is justified as rhetorical flair or supposedly responding to the defense argument. Freedman’s article is a wake-up call for many. It is one thing for a prosecutor to act badly, but it is far worse when the prosecutor’s office tries to justify that conduct or excuse it and, further, when the appellate courts refuse to remedy the situation.

Talking to jurors after a trial can be informative if done appropriately.

I completed a jury trial recently and, after it was done, found my opponent, who lost a case, speaking to several jurors outside about how wrong their decision was and telling them things that were not introduced as part of the evidence. Clearly, the jurors were upset. Is that ethical conduct?

That conduct is wrong and highly unethical. Such conduct is vindictive on the part of someone who is a sore loser.

Cases are won in the courtroom based on law and evidence and obviously skills of persuasion. Jurors are the fact-finders and do the best they can with the evidence that is presented. For an advocate to then go outside and suggest to a jury that they made a mistake is a very serious act of misconduct, particularly if the advocate is referring to evidence or information that was not of record and not presented. By doing so, the advocate or lawyer has pretty much ruined the jurors’ experience. Jurors are people who give their time, without charge beyond the $9 a day, and try to give a fair and just verdict, whether it is a civil award or a criminal finding of guilty or not guilty. Anyone who has tried jury trials regularly develops good faith in the jury system, although there are at times some aberrations. Spoiling that process and suggesting to people that their decision was wrong undermines the ability of these people to be chosen again or to be fair jurors. It also prevents them from having a good view of the legal system.

There are consequences for doing this. Rule of Professional Conduct 3.5(c) prohibits a lawyer from communicating with a juror or prospective juror after the discharge of the jury if the communication is prohibited by law or court order, if the juror has made known to the lawyer a desire not to communicate or if the communication involves misrepresentation, coercion, duress or harassment. Many local courts, such as the U.S. District Court for the Eastern District of Pennsylvania, have local rules prohibiting contact with jurors after the case unless the court gives approval.

Talking to jurors after a case can be an educational process if done properly. It is good for the jurors and good for the lawyers. If the lawyer approaches the discussions with an eye for constructive criticism as opposed to trying to vindicate his or her cause, the discussions can be rather rewarding and helpful professionally.

Every lawyer who wants to talk to a jury after trial should ask for court approval. But in talking, there cannot be harassment, coercion or duress. That comes if the lawyer says, "You made a mistake," or tells the jury of the defendant’s prior record. Present counsel has actually seen a juror cry when told that by an assistant district attorney after the verdict was in. That was serious misconduct.

Comment 3 to Rule 3.5 notes as follows: "The lawyer may not engage in improper conduct during the communication."

Improper conduct is berating a juror, showing him or her evidence that the lawyer believes should have been admitted or telling him or her how wrong their verdict is. Proper conduct is to ask the jurors how they weighed certain evidence, ask what the lawyer could have done to have helped them or ask them if there is anything the lawyer did that they found annoying, etc. Constructive criticism can be very helpful to a lawyer and, at times, can be humbling, but at the same time very useful.

The question clearly demonstrates bad conduct by a lawyer, which could result in disciplinary action or potentially a court sanction. Talking with jurors is a dying skill after a case is done. But, done properly, it can be very rewarding. •

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.