Here’s a switch, last week Brian Schowalter, a criminal defense lawyer in Durango, Colorado was on the receiving end of a grand jury indictment brought by the district attorney who alleged Schowalter had refused to turn over evidence to the prosecution.
I know nothing about the merits of the case against Schowalter but in a show of support 10 criminal defense lawyers did sit behind the accused at his court appearance on Tuesday, August 13th. And Schowalter’s defense lawyer called the charge “outrageous” while a local colleague added, “It sends a chill through attorneys when they see the district attorney will not only grieve you, but he will use whatever criminal power he’s got to get his way in a case.”
Ham sandwich and short hairs.
Isn’t this rich? Forget for the moment that after the grand jury indictment, Schowalter must have felt like that chewed-up indictable ham sandwich.
Here we have the otherwise unheard of instance of a defense lawyer accused of supposedly withholding evidence — when it’s something that at least to me, seems more likely to occur at the hands of prosecutors — not defendant’s counsel.
As George Carlin once said, “Not only do I not know what’s going on, I wouldn’t know what to do about it if I did.”
In any event, it appears that prosecutors are increasingly being outed for playing fast and loose with the Brady Rule — the unanimous U.S. Supreme Court ruling declaring prosecutors’ have a constitutional obligation to turn over exculpatory evidence to the defense. Also see “A Fair Trial Remedy for Brady Violations – Yale Law Journal.”
The difference here is that unlike that Durango defense lawyer facing a felony charge, prosecutors are rarely brought up by the short hairs for ethical lapses or prosecutorial misconduct.
What me worry?
And it’s not because of any halos either, even though some prosecutors do think they’re better than everyone else at self-policing.
And besides, a lot of them don’t think there’s a problem with the current ethical regimen. Or as Sam Goldwyn famously said about himself, prosecutors may admit to not always being right — but they’re never wrong.
So where’s the problem?1
Meantime, don’t worry about any supposed infrequent ‘lapses’ that cost the wrongfully convicted years behind bars. The easiest outrage to bear is always somebody else’s.
What’s more, as some D.A.s contend, it’s not like defense attorneys aren’t also above misbehaving — since they’re “unhampered by any special ethical responsibilities to be fair or to seek the truth, and they know for certain that their actions will never be reviewed as part of a claim of “misconduct.” But for a different look, see “The Legal Profession’s Failure to Discipline Unethical Prosecutors.”
All the same, it’s still headline news when prosecutors are atypically brought up on charges, including most recently that notorious Texas former prosecutor turned jurist, Judge Ken Anderson and the case of Michael Morton. Such was the notoriety of the Morton case that it became both springboard and linchpin to passage of the Michael Morton Act, the DA accountability legislation that Governor Rick Perry signed into law this past May
The problem of misconduct is not as uncommon as you’d like to think. But it’s the lack of prosecutor accountability that appalls.
Unaccountable? How about a New York Times story about New York prosecutors also reporting that “In California, ‘prosecutors continue to engage in misconduct, sometimes multiple times, almost always without consequence,’ according to a study by the Northern California Innocence Project and Santa Clara University School of Law. In some 600 cases in which courts found there had been prosecutorial misconduct, the study found, only six times did the State Bar discipline the prosecutor.”2
Or take, for example, an investigation by ProPublica, an independent investigative news organization, that found 30 cases in New York over the past 10 years where convictions had been overturned because of prosecutorial misconduct — but where only once was a prosecutor subject to disbarment, censure or suspension. Also see “Out of Order When Prosecutors Cross the Line.”
Indeed, in April of this year, came news that Del Norte County, California District Attorney Jon Michael Alexander reportedly became the state’s first sitting prosecutor to face disciplinary charges. See the Opinion.
But at least here in Arizona, any proposed changes to the ethical status quo governing prosecutors are according to some prosecutors, “a solution in need of a problem.” Which reminds me of course of what Ted Turner used to say, “If I only had a little humility, I’d be perfect.”
 For almost two years now, the Arizona Supreme Court has been weighing a proposal to amend Rule 42, ER 3.8, Rules of the Arizona Supreme Court, that would further clarify prosecutorial obligations concerning when they know of new evidence establishing a reasonable likelihood that a convicted defendant did not commit the offense and to examine the circumstances when a prosecutor has a duty to disclose, a duty to investigate, and a duty to do something to remedy the conviction of an innocent person. Generally, the prosecutorial bar is opposed to any changes. See, for instance, Prosecution Ethics: A Post-Conviction Duty Pro-Con – Lawyers
 Also see “Prosecutors Shouldn’t Be Hiding Evidence From Defendants …” and “Tainted Trials, Stolen Justice: Study reveals questionable conduct by attorneys” and “Court Findings of Prosecutorial Misconduct Claims in Post-Conviction Appeals and Civil Suits Among the First 255 DNA Exoneration Cases.”
Photo Credits:”surprise,” by Mary at Flickr via Creative Commons-license requiring attribution; “ham sandwich,” by Fancy steve via Wikimedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license;”disgusting,” by John Lambert Pearson at Flickr via Creative Commons-license requiring attribution; Dimanche au musee by Honoré Daumier at Wikimedia Commons, public domain; Man with short hair and gown tied at neck by Wenceslaus Hollar at Wikimedia Commons, public domain; A postcard with the public domain “me worry?” face that later inspired Mad magazine‘s Alfred E. Neuman, author unknown, Wikipedia Commons, public domain;Taco Bell Worker Licking Shells, via Facebook; Freilandtheater Käthe und Helene by Stefan Doering at Wikimedia Commons, public domain.