Unlike any private attorney, the local prosecutor—be he district attorney, county attorney, or criminal district attorney—is an elected official whose office is constitutionally mandated and protected. Prosecutors are still subject to the Rules of Professional Responsibility, but they must police themselves at the trial court level because of their status as independent members of the judicial branch of government. Such a holding is not tantamount to making the fox guardian of the henhouse or letting the wolf keep watch on the flock, because a prosecutor who violates ethical rules is subject to the disciplining authority of the State Bar like any other attorney. Perhaps even more importantly, as mentioned above, his violation of the rules will subject his cases to reversal on appeal when his unprofessional conduct results in a denial of due process to a defendant. Lastly, he, like all elected public officials, must regularly answer to the will of the electorate. Should his conduct create too much appearance of impropriety and public suspicion, he will ultimately answer to the voters. — State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tx. 1990)
Prosecutors, like other attorneys, must adhere to the standards of professional conduct that exist in the state where they practice. Every state has a disciplinary system under which lawyers can be punished for violating ethical standards. Some acts of prosecutorial misconduct, apart from leading to reversals of convictions, can constitute ethical violations and thus subject the prosecutor to disciplinary action by the state bar authority.
Discipline of any lawyer is a serious matter, because it can lead to the permanent loss of the lawyer’s license to practice in the state. As with regular criminal defendants, therefore, lawyers entering the disciplinary system are afforded rights to ensure fair treatment. A thorough investigation of the case is conducted, and the lawyer is given the opportunity to present a defense. Disciplinary proceedings are normally kept confidential unless the bar authority or court imposes a public punishment. Funding for the disciplinary authority’s operation usually comes from an annual fee assessed on all lawyers who practice in the state.
The process usually begins with the filing of a complaint at the bar disciplinary authority. For private attorneys, the complainant is normally a dissatisfied client. Since prosecutors do not have a “”client”” in the traditional sense, the complainant may be a defendant, defense lawyer or judge. After the complaint is filed, the disciplinary authority begins an inquiry. All complaints undergo a review process that might lead to the filing of formal charges against the lawyer, a trial-like formal hearing and, if warranted, the imposition of a punishment. Final decisions of the disciplinary authority can usually be appealed to the courts. In some states, the highest court is required to review all cases that result in suspension or disbarment.
Actual punishment of a lawyer can take several forms, depending on the particular circumstances, including the severity of the offense. Punishment in most states, however, follows the same basic progression in severity: private admonition or reprimand, public reprimand, suspension from the practice of law for a set period of time, and permanent disbarment from the practice of law. Additionally, the lawyer may also be assessed the cost of the disciplinary proceedings, which can run to thousands of dollars. In some cases, a period of probation with conditions the attorney must satisfy can be imposed in lieu of a more severe punishment. The disciplinary authority or court, at any stage of the process, may decide against imposing any sanction and dismiss the complaint.
The Center’s Findings:
The Center analyzed dozens of cases since 1970 in which local prosecutors appeared before state bar authorities for their misconduct.
Punishable misconduct by a prosecutor can take many forms. Prosecutors have faced discipline for committing crimes such as forgery and drug possession and, in jurisdictions where prosecutors are allowed to keep a private law practice on the side, for having conflicts of interest. In keeping with our study, however, we selected only those cases involving misconduct that affected the fundamental fairness of pending criminal proceedings or infringed on the constitutional rights of criminal defendants.
Examples of such misconduct include:
- discovery violations;
- improper contact with witnesses, defendants, judges or jurors;
- improper behavior during hearings or trials;
- prosecuting cases not supported by probable cause;
- harassing or threatening defendants, defendants’ lawyers or witnesses;
- using improper, false or misleading evidence;
- displaying a lack of diligence or thoroughness in prosecution; and
- making improper public statements about a pending criminal matter.
Out of 44 attorney disciplinary cases:
In 7, the court dismissed the complaint or did not impose a punishment.
In 20, the court imposed a public or private reprimand or censure.
In 12, the prosecutor’s license to practice law was suspended.
In 2, the prosecutor was disbarred.
In 1, a period of probation was imposed in lieu of a harsher punishment.
In 24, the prosecutor was assessed the costs of the disciplinary proceedings.
In 3, the court remanded the case for further proceedings.
In two of the 44 cases, In re Christoff and In re Conduct of Burrows, two prosecutors were disciplined. The case of Hartford, Conn., prosecutor John Massameno was an action for declaratory relief that arose out of a pending state attorney grievance committee proceeding. Massameno argued that the disciplinary committee lacked the authority to punish him. The state high court disagreed and remanded the case to the committee, which subsequently cleared him of all wrongdoing in March 1997.
Of the 20 censures or reprimands, 19 are public. Appellate opinions that cite prosecutors for misconduct do not, for the most part, name the prosecutor who broke the rules. The Oklahoma Court of Criminal Appeal in the case of Peninger v. State offers a plausible explanation as to why courts are reluctant to name misbehaving prosecutors in their opinions: Publishing the name of a prosecutor (or any other kind of lawyer) is tantamount to issuing a public censure without affording the prosecutor the due process protections to which they are entitled in the attorney disciplinary system.
Suspensions in the cases found by the Center typically ranged from thirty days to six months. In the case of L. Gilbert Farr, the court imposed a suspension of six months on top of Farr’s self-imposed two-year suspension. In the case of L. Forrest Price, the court imposed a five-year suspension, then stayed all but two years plus the time it would take him to comply with certain conditions. In the case of James Ramey, the court suspended him indefinitely with no possibility for reinstatement for three months.
Disbarment is the most serious professional penalty for an attorney. In the case of Kenneth Peasley, the full state disciplinary commission recommended disbarment in November 2002. Peasley appealed; his case is pending before the Arizona state Supreme Court. In the case of Thurston County, Wash., prosecuting attorney Charles O. Bonet, the Washington Supreme Court ruled in August 2001 that Bonet violated the state’s attorney ethics rules and remanded the case to the disciplinary board to impose appropriate sanctions. On remand, the disciplinary board hearing officer recommended disbarment. Bonet was officially disbarred in April 2003.
In 24 cases, the prosecutors had to pay all or part of the cost of their hearings. The amounts that could be determined from the opinions ranged from $272.20 in the case of Linda J. Hansen to $12,156 in the case of Kenneth N. Johnson.
Disciplinary hearings often involve complex or novel legal issues. In the case of York County, Pa., district attorney Hugh Stanley Rebert, the Pennsylvania Supreme Court was asked to define the level of mental culpability necessary to prove whether Rebert’s failure to disclose evidence to the defendant violated the ethics rules. The court did so and remanded the case to the disciplinary board for further proceedings. Rebert’s disciplinary records, as of May 2003, show no public sanctions have ever been imposed against him.
Prosecutors who faced disciplinary committees because of their professional conduct
|Prosecutor||Citation||Date||State and County of Practice||Misconduct||Disposition|
|Brian R. Barnes||574 P.2d 657||2/14/78||OR||Lane County||While prosecuting a rape case, Barnes sought a search warrant to obtain a blood sample from the defendant without notifying the court that a hearing on the matter was pending in another court.||Public reprimand|
|Francis W. Bloom||9 Mass. Attorney Discipline Reports 23||12/16/93||MA||Hampden County||Bloom authored a bogus confession in order to trick two suspects into confessing to a crime; the confession was later discovered in the file of the purported confessor by another prosecutor who planned to use it at trial until she discovered its falsity.||Public censure|
|Charles O. Bonet||29 P.3d 1242||8/23/2001||WA||Thurston County||Bonet told a co-defendant witness that charges against him would not be prosecuted if he took the stand and pled the Fifth Amendment when called to testify for the other co-defendant.||Bonet violated the ethics rules; the case was remanded to the disciplinary board with directions for it to impose appropriate discipline. Bonet was officially disbarred in April 2003.|
|Allen R. Brey||490 N.W.2d 15||10/14/92||WI||Taylor County||Brey met with a criminal defendant he knew was represented by counsel without that counsel’s knowledge or consent. Brey later denied to the court and the attorney disciplinary authority that the meeting had taken place.||Sixty-day suspension; costs|
|Patrick J. Brophy||442 N.Y.S.2d 818||9/17/81||NY||Richmond County||Brophy hid evidence and suborned perjury to convict organized crime figures. He was convicted of the misdemeanor of willfully depriving an individual of his rights and fined $500.||Public censure|
|Robert M. Burrows||618 P.2d 1283||11/4/80||OR||Josephine County||A defendant, who had confessed to murder, wrote a letter to his mother. The mother gave the letter, which made no specific reference to the murder, to Burrows and specifically authorized him to use it in any manner to help young people. While defendant’s case was pending, Burrows read the letter to high school students.||Burrows’ conduct did not violate the ethics rules; complaint dismissed.|
|Robert M. Burrows William D. Hostetler||629 P.2d 820||6/16/81||OR||Josephine County||District Attorney Burrows and Deputy District Attorney Hostetler communicated, and caused others to communicate, with a criminal defendant without obtaining his attorney’s consent. Additionally, Burrows had ex parte communications with the judge regarding the defendant’s case without notifying defendant’s attorney, and Hostetler acted to conceal the communications with the defendant by failing to countermand police officers’ suggestion to the defendant that he not tell his attorney.||Public reprimand; costs|
|Sue Carpenter||808 P.2d 1341||4/12/91||KS||Shawnee County||Carpenter’s negligence in not diligently obtaining and reviewing medical reports deprived the defendant of a fair trial.||Public censure; costs|
|Mark S. Christoff Richard M. Holmes||690 N.E.2d 1135||12/30/1997||IN||Fountain County||Christoff threatened to renew a long-dormant criminal investigation against a political candidate seeking the office occupied by Holmes; Holmes filed a grievance with the disciplinary commission against the candidate.||Christoff: Public reprimand; costs Holmes: Thirty-day suspension; costs|
|Vance W. Curtis||656 N.E.2d 258||10/10/1995||IN||Tipton County||Curtis represented a client when simultaneously, as a prosecutor, he was participating in an investigation of the client without consulting the client or the state about the dual representation.||Thirty-day suspension; costs|
|James H. Dumke||489 N.W.2d 919||10/14/92||WI||Rock County||Dumke committed several acts of misconduct in his capacity as both a private attorney and prosecutor. As a prosecutor, he communicated with a party he knew was represented by counsel without the counsel’s consent.||Six-month suspension; costs|
|L. Gilbert Farr||557 A.2d 1373||5/26/89||NJ||Somerset County||Farr committed a series of gross improprieties after developing a personal relationship with two informants.||Six-month suspension (in addition to a self-imposed two-year suspension); costs|
|Daniel Peter Feinberg||760 So.2d 933||6/1/2000||FL||Charlotte County||Feinberg continued to meet privately with opposing counsel’s client despite knowing the client was represented by counsel; he affirmatively misled opposing counsel regarding those meetings.||Public reprimand; costs ($4,912.87)|
|William E. Gerstenslager||543 N.E.2d 491||8/16/89||OH||Cuyahoga County||Gerstenslager failed to fully disclose exculpatory evidence in a rape case, conduct for which he was convicted of contempt of court and fined $500 plus costs.||Public reprimand; costs|
|Terese M. Gustafson||968 P.2d 367||11/13/98||OR||Clackamas County||Gustafson improperly threatened a defense lawyer handling a pending juvenile case with possible criminal and ethical charges and failed to disclose a material fact regarding those charges to the court.||Six-month suspension (In 2002, Gustafson was disbarred for failing to obey a court order and misleading the court regarding her handling of records in the juvenile matter.)|
|Bruce R. Hamilton||819 S.W.2d 726||12/19/91||KY||Henry County||During his prosecution of a criminal trial in 1984, Hamilton made a false statement of fact to the trial court regarding the destruction of evidence.||Fifty-nine day suspension; costs|
|Linda J. Hansen||877 P.2d 802||7/14/94||AZ||City of Phoenix||Hansen, an assistant city prosecutor, informed the court and defense counsel during a trial that the victim witness failed to appear, even though she had seen the witness at the courthouse earlier that day and told her she could leave.||Censure; costs ($272.20)|
|Charles H. Hatcher, Jr.||483 S.E.2d 810||2/21/97||WV||Cabell County||Allegedly, Hatcher knowingly failed to timely disclose exculpatory evidence to defense counsel during a criminal prosecution.||The attorney disciplinary board failed to prove the misconduct allegations by requisite clear and convincing evidence; disciplinary charges dismissed|
|Cecelia G. Jarrell||523 S.E.2d 552||11/10/99||WV||Lincoln County||In one case, Jarrell conferred with a defendant without his counsel present. In another case, she falsely stated that there were no verbal plea offers; delayed the execution of a plea agreement until after a hearing where a defense lawyer sought the plea information, and failed to disclose an executed plea agreement to a co-defendant for more than three months.||Disciplinary charges dismissed due to “”extraordinary mitigating circumstances””|
|Kenneth N. Johnson||477 N.W.2d 54||11/27/91||WI||Dodge County||Johnson failed to withdraw from prosecuting a case when the exercise of his professional judgment was affected by his own personal interest in preventing an investigation into the conduct of his office in the case.||Public reprimand; costs ($12,156)|
|Dwayne K. Jones||613 N.E.2d 178 (the facts of this case are more fully described in the Ohio attorney disciplinary board’s findings issued on December 17, 1992)||6/16/93||OH||Summit County||At a domestic violence retrial, Jones failed to disclose to the court and defense counsel that he found exhibits defendant had used at the previous trial but later misplaced.||Six-month suspension; costs ($717.98);|
|William L. Lasswell||673 P2d 855||12/6/83||OR||Douglas County||Lasswell made public statements regarding suspects arrested during a drug raid before they were brought to trial.||Found not guilty of violating the ethics rules; complaint dismissed|
|Julie Ann Leonhardt||930 P.2d 844||1/16/97||OR||Clatsop County||Leonhardt obtained an indictment without probable cause, altered the indictment after it had been signed by the grand jury and lied about the alterations to the court and others; in a separate incident, she improperly attempted to use her influence to alter the course of a criminal prosecution.||Disbarment|
|Steven M. Lucareli||611 N.W.2d 754||6/20/2000||WI||Vilas County||Lucareli was alleged to have filed immediately before the start of a trial a criminal charge against the defendant’s attorney that was not supported by probable cause.||The attorney disciplinary board failed to prove the misconduct allegations by requisite clear and satisfactory evidence; disciplinary proceeding dismissed|
|John M. Massameno||663 A.2d 317||8/1//1995||CT||Hartford||It was alleged that while prosecuting a sexual molestation case, Massameno interviewed the accused’s wife, the complaining witness, in the absence of her attorney; prosecuted the case without probable cause to believe the accused was guilty; requested a psychiatric examination of the children victims to assess their testimonial capacity; and improperly cross-examined a defense witness.||Affirmed the judgment that held the state attorney grievance committee had jurisdiction to investigate and discipline Massameno for professional misconduct (In March 1997, the attorney grievance committee cleared him of all wrongdoing.)|
|Robert T. Miller||677 N.E.2d 505||3/7/1997||IN||Monroe County||Miller assisted the cause of a civil plaintiff by prosecuting a concurrent criminal action against the civil defendant; during the pendency of the criminal action, Miller failed to comply with several discovery orders; after the criminal action was dismissed because of Miller’s inaction, he resurrected the case after the statute of limitations expired.||Public reprimand; costs|
|R. Kathleen Morris||419 N.W.2d 70||11/13/87||MN||Scott County||Morris failed to disclose exculpatory evidence and violated a court order for sequestering a child witness.||Public reprimand; costs ($750.00)|
|Pamela F. Mucklow||35 P.3d 527||12/26/2000||CO||Montezuma County||Case one: Mucklow failed to timely inform opposing counsel of a letter from a complaining witness recanting an allegation that the defendant had assaulted the witness. Case two: On the advice of the district attorney, she failed to timely inform opposing counsel of exculpatory information.||The Colorado Supreme Court overturned a lower court’s public censure and dismissed the case.|
|Mark C. Pautler||35 P.3d 571||4/2/2001||CO||Jefferson County||Pautler knowingly and intentionally deceived a murder suspect into believing that he was a public defender during negotiations designed to encourage the suspect to surrender to the authorities; he failed to inform the suspect that he represented the state.||Three-month suspension; suspension stayed during a probationary period of twelve months; costs|
|Kenneth J. Peasley||State Bar of Arizona Hearing Officer’s Report and Recommendation, File No. 97-1909||7/1/02||AZ||Pima County||Peasley suborned perjured testimony at two murder trials.||Sixty -day suspension; one year probation; costs (In November 2002, the full disciplinary commission recommended disbarment; Peasley’s case is pending before the state Supreme Court.)|
|L. Forrest Price||638 P.2d 1311||1/25/82||CA||San Diego County||Price altered evidence in a criminal trial and then attempted to cover up his actions.||Five-year suspension, stayed, with Price placed on probation for five years on condition that he be suspended for the first two years and such additional time as it took him to pass the state attorney ethics exam and that he comply with other conditions.|
|Joel I. Rachmiel||449 A.2d 505||8/4/82||NJ||Union County||Rachmiel prosecuted a defendant for murder. A writ of habeas corpus was granted after the conviction. Rachmiel, then in private practice, spoke out about the case before the prosecutor’s office decided whether to retry the defendant.||Rachmiel’s conduct did not violate the ethics rules; disciplinary charges dismissed. (In July 1978, while still a prosecutor, Rachmiel made public statements during ongoing grand jury deliberations. An ethics investigation was initiated but terminated after Rachmiel explained that he had been misquoted.)|
|James W. Ramey||512 N.W.2d 569||2/23/94||IA||Polk County||During trial, Ramey made false statements regarding the authenticity of evidence; Ramey also failed to disclose exculpatory evidence in the same matter.||Suspended indefinitely, with no possibility for reinstatement for three months after the date of the court’s opinion; costs|
|Beverly C. John Read||357 S.E.2d 544||6/12/1987||VA||Rockbridge County||Read failed to disclose exculpatory eyewitness evidence.||Read did not violate his discovery obligations; the order of the Virginia State Bar Disciplinary Board that disbarred Read was reversed|
|Hugh Stanley Rebert||714 A.2d 402||7/8/98||PA||York County||In a rape/murder case, Rebert failed to give the defense a confession by the defendant and also failed to disclose his agreement with a jailhouse informant witness until after the witness testified.||Case remanded to the disciplinary board for further proceedings|
|Jeffrey Kim Roberts||503 S.E.2d 160||6/1/98||SC||Sixth Judicial Circuit||Roberts was convicted of requesting or agreeing to accept sexual favors from a female defendant in exchange for dismissing a charge of driving under the influence.||Disbarment|
|Roger Rook||556 P.2d 1351||11/18/76||OR||Clackamas County||Rook refused to plea bargain with 15 criminal defendants on the same basis as previously offered to another criminal defendant unless they dismissed their attorneys and employed other counsel.||Public reprimand|
|Frank Schaub||618 So.2d 202||5/13/1993||FL||Manatee County||While prosecuting a murder trial, Schaub introduced irrelevant, improper and deliberately misleading evidence.||Thirty-day suspension; costs ($1,176.80)|
|Marc A. Shafir||455 A.2d 1114||2/15/83||NJ||Essex County||Shafir placed the signature of his supervising attorney on plea forms without the supervisor’s permission. He also misrepresented facts regarding an accused’s case to a prosecutor in another county, potentially increasing the sentence.||Public reprimand; costs|
|William Raymond Sharpe||781 P.2d 659||10/30/1989||CO||Jefferson County||While prosecuting a capital case, Sharpe made a racially insensitive remark regarding the accused in the presence of the accused’s lawyer.||Public censure|
|George E. Westfall||808 S.W.2d 829||5/3/91||MO||St. Louis County||Westfall made public remarks disparaging a Missouri court of appeals judge who issued a ruling that favored a defendant he was prosecuting.||Public reprimand; costs|
|Robert D. Zapf||375 N.W.2d 654||11/5/85||WI||Kenosha County||Zapf sent a letter criticizing a defense lawyer to both the presiding judge and the lawyer’s client without obtaining the lawyer’s authorization; Zapf also failed to disclose discoverable evidence.||Public reprimand; costs|
|John C. Zimmermann||764 S.W.2d 757||1/23/1989||TN||Davidson County||Zimmermann made statements to the media regarding pending criminal proceedings.||Private reprimand; costs (split with the attorney disciplinary board)|
|John C. Zimmermann||Notice of Public Censure in File No. 24039-5-CH||5/28/02||TN||Davidson County||In a murder case, Zimmermann misrepresented and withheld evidence.||Public censure|