Today the Tenth Circuit Court of Appeals (Lucero, Murphy, and O'Brien) brought tears to the eyes of people who care about a more just criminal system. In granting habease relief to a prisoner, the Court identified - by name - the prosecutors who violated their oath of office, and their duties under the Rules of Professional Conduct.
The prosecutors, Miller and Macy, then immediately proceeded to mislead the jury as to its role in sentencing by informing jurors (1) the jury’s work would be wasted if it failed to reach a unanimous verdict, (2) defense counsel’s argument that it took the vote of only one juror to prevent imposition of the death penalty constituted a request for “jury nullification,” and (3) failure to deliberate in a manner leading to a unanimous verdict would amount to operating outside the law. Thus, immediately following the jury instructions, which spoke only of unanimity, the prosecutors engaged in intentional misconduct designed to misinform the jurors that it is improper for individual jurors to holdout against a majority vote and thereby prevent a unanimous verdict.
Many of you may not appreciate my gratitudes, so let me explain.
If you are charged with a crime, prosecutors will put your name in the newspapers. Prosecutors often issue press releases very publicly identifying those who have been charged with a crime. If you are acquitted at trial or the charges against you are dismiss, no matter: Your name will forever be connected to your alleged crimes.
For the rest of your life, you'll be asked about the case you no doubt won "on a technicality" - that's assuming people bother calling you in for an interview.
Nevertheless, prosecutors who commit gross misconduct are almost never identified in court opinions by name. A typical judicial opinion reads:
People v. Crime & Federalism:
Detective Joe Smith and the prosecutor conspired to convict an innocent man. The prosecutor suborned perjury. The prosecutor committing professional malfeasance at a lever never seen by the court. He is a discredit to the legal profession generally, and prosecutors specifically.
Who is "the prosecutor"? Courts won't tell us. I'm the guy who got framed, and my name is public record. The prosecutor who framed me escapes any public censure or scrutiny. How is that fair?
Moreover, unethical prosecutors should be identified to deter future misconduct. Shame is a powerful sanction. Most of us behave better when we know we are being watched. Who will watch the prosecutors? It should be judges.
Identifying unethical prosecutors matters. I read an Ninth Circuit opinion that identified an unethical prosecutor by name. That opinion was later withdrawn after the local United States Attorney wrote a motion taking responsibility for failing to train the young prosecutor, and begging that the young Assistant United State's Attorney's name be stricken from the Federal Reporter.
Clearly, then, identifying prosecutors matters to prosecutors. They do not want to be identified for committing misconduct. Thus, identifying unethical prosecutors is an effective sanction against prosecutorial misconduct.
Moreover, prosecutors who commit misconduct will appear before different judges. Don't those judges have a right to know that the prosecutor appearing before them lied in other cases? The Federal Rules of Evidence allow a misdemeanor conviction involving dishonesty as impeachment evidence - as prior dishonesty is probative of future dishonesty. If a prosecutor lied to a different judge, maybe he'll lie to this judge?
A judge - and defense lawyer - know to triple-check the assertions of a prosecutor who had committed prior misconduct. Due diligence requires trust-but-verify. Prosecutors who have committed misconduct in the past must be verified-and-verified. Judge need to know whom to trust.
Thus, every time a judge publishes an opinion identifying prosecutors by name, I am going to brown nose. I am 100% certain that no judge cares what I write. It doesn't matter: If we're going to complain insulating prosecutors from their misconduct, then intellectual integrity demands that we praise opinions identifying unethical prosecutors.
And so, to Judges Lucero, Murphy, and O'Brien: Thank you.