This past week has seen more fallout from New Orleans Federal District Judge Englehardt's 129-page opinion in the "Danziger Bridge" case as the Department of Justice has announced it is launching its own investigation into the matter.
Judge Englehardt vacated the convictions of five police officers after findings of prosecutorial misconduct, here in the form of prosecutors anonymously posting about the case and the defendants on online message boards. The five officers had been convicted of murdering two citizens, injuring a number of others, and engaging in an extensive cover-up in the days following the devastation of Hurricane Katrina in New Orleans in 2005.
Judge Englehardt's order granting a motion for a retrial brings up three separate but related questions:
1. Did the defendants receive a full and fair trial in the face of the prosecutors' misconduct on Internet message boards?
2. Did the prosecutors involved receive an appropriate punishment for their behavior?
3. How can we ensure prosecutors act ethically and fairly in their discretionary acts?
Judge Englehardt addressed the first question by throwing out all five convictions. The judge writes that the government's misconduct, in which prosecutors anonymously posted online comments about the case before and during the trial, "is like scar tissue that will long evidence infidelity to the principles of ethics, professionalism, and basic fairness and common sense necessary to every criminal prosecution, wherever it should occur in this country."
As for the second question, two of the prosecutors involved have left their positions, and the US Attorney for the Eastern District of Louisiana, Jim Letten, has resigned in the aftermath of his office's misconduct. Further, the DOJ's Office of Professional Responsibility announced this week that it is investigating the matter and further sanctions might be imposed. Although the online comments appear to violate bar rules 3.8(f) and 3.6, it is not clear whether the Louisiana bar will take action.
The third question is important, with repercussions beyond the Danziger Bridge case. It asks us to consider what type and degree of punishment would deter future misconduct and what measures will encourage ethical behavior in this and other prosecutor's offices.
Danziger is an extremely high-profile case with an unusual outcome, but public findings of prosecutorial misconduct occur regularly. The website The Open File offers a daily stream of cases in which public findings reveal prosecutorial misconduct. Calls for the need for greater prosecutorial accountability have come from across the political spectrum; articles recently appeared in conservative magazine Commentary and in a long-form piece on this website by Radley Balko.
What is incredibly rare is for any sort of official sanction to meet prosecutors who break the rules. Defendants may get new trials or sentences when prosecutorial misconduct is found to have tainted the proceedings, but the prosecutors rarely face professional discipline or other punishment, even when a Judge finds that rules were broken.
In 2011, three fellow law students and I published a paper on this topic in the Yale Law Journal Online. When the U.S. Supreme Court ruled in 2011 in Connick v. Thompson that the District Attorney's office would not be held liable for misconduct perpetrated by its prosecutors, the Court wrongly placed its trust in existing state bar association disciplinary structures to guide and police the prosecutors.
In Connick v. Thompson, the Court affirmed that state bars and their ethics committees are a sufficient existing professional disciplinary mechanism, which can address instances of prosecutorial misconduct. However, in our study exploring the policies and practices of the bars of the 50 states, we found that existing professional responsibility structures varied tremendously, were largely secretive, unnecessarily complex, and could take years to act, if they acted at all. In short, the Court invoked state bar associations, which are on the whole inadequate for both investigating and punishing prosecutorial misconduct.
A new study released last week from the Center for Prosecutor Integrity estimated that prosecutors face sanctions in only 1 to 2 percent of cases where misconduct is reported to state bars -- and it is well documented that prosecutorial misconduct is rarely reported to state bars because of the strong incentives against doing so for the legal stakeholders most likely to be aware of misconduct.
The Danziger Bridge case, in part no doubt because of its high-profile nature, is to be the rare example where prosecutors face real professional consequences for violating their ethical and professional responsibilities. But, in the absence of such public and media attention, the problem of prosecutorial misconduct is rarely effectively addressed by external oversight. While rules and sanctions are important tools and should be strengthened, change must also come from within. Increased training and continuing legal education of prosecutors should focus on instilling an ethic of fairness and truth-seeking. As for public perception, we all must move away from valuing conviction rates and inflated sentences, and recognize that a culture of justice should govern our prosecutors' offices.