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After a recent Delaware Supreme Court decision, Wilmington lawyer Charles M. Oberly III wrote to E. Norman Veasey, the chief justice. Oberly, a veteran prosecutor now in private practice, had something to get off his chest about the court’s ruling on another prosecutor’s case. A lower court had granted the defendant a new trial partly because of “prosecutorial misconduct,” a term repeated by the state’s highest court in its ruling.

“The clear connotation of the word ‘misconduct’ is purposeful misbehavior,” Oberly wrote. “During my 25 years being associated with the criminal justice system, I do not recall any instances in which a prosecutor intentionally caused error or behaved in a manner to cause a reversal of a conviction. The terminology is both unfair and demoralizing. If a defense attorney errs, the court simply refers to it as ineffective assistance of counsel or some other less damaging word. If the court errs, the judge is not designated as having committed ‘misconduct.’ I would like to respectfully request that the court cease using the word ‘misconduct’ unless the peculiar circumstances clearly call for such terminology. Instead, I would suggest that errors committed by the prosecution leading to a reversal and a new trial simply be referred to as prosecutorial error.”

In the next paragraph, Oberly added a personal reference: “Approximately 20 years ago, a case of mine was reversed and the words ‘prosecutorial misconduct’ were used. I have never forgotten the feeling that the opinion implied—that I intended to do something wrong.”

The chief justice sent a reply, addressed to “Dear Charlie.”

“Although we understand your concern about the use of a term that includes the word ‘misconduct,’ it has become a term of art. A Westlaw search from 1944 to date reflects that the term ‘prosecutorial misconduct’ has been used by state courts 12,672 times, district courts 2,302 times, circuit courts 4,470 times and the United States Supreme Court 58 times. … In the Dorsey case, we simply quoted the trial court’s use of that term. As you know, the trial judge was Richard Gebelein, the former attorney general. … We believe it would be confusing to change the terminology in view of this history.”

Oberly is not the only prosecutor, former or current, to object to the word “misconduct.” In a new book called “The Prosecutors Deskbook: Ethical Issues and Emerging Roles for 21st Century Prosecutors,” written by prosecutors for prosecutors, the following paragraph appears on the first page of the preface:

” … Prosecutors often must face misperceptions and negative images of their activities communicated through the media. For example, allegations of ‘prosecutorial misconduct’ too often surface as defense trial tactics that are superficially aired in the popular media. In truth, allegations of ‘prosecutorial misconduct’ are rarely substantiated and are confused with occasional ‘prosecutorial error’ which does not involve professional misconduct.”

That view is echoed by the National District Attorneys Association, the professional group that represents prosecutors, in the organization’s magazine, The Prosecutor: “Frequently, a defendant, in an effort to find any basis for appeal, will claim prosecutorial misconduct produced his conviction rather than a fair and impartial trial,” staff member Paula Wulff wrote in the July-August 2002 issue. “In most instances, these charges are dismissed by the reviewing court as groundless. Occasionally, however, the court’s evaluation of the prosecutor’s conduct is deemed to have created substantial prejudice such that the defendant was denied due process. In rare instances, a finding of prosecutorial misconduct has risen to a level where reversal is considered the proper outcome.”

In another recent book by and for prosecutors, Doing Justice: A Prosecutor’s Guide to Ethics and Civil Liability, James E. Puntch Jr., an assistant district attorney from Sedgwick County (Wichita), Kan., noted that misconduct claims “seem to be increasing almost exponentially in recent years,” making it “a given” that many cases will involve prosecutorial misconduct allegations from defense counsel. “It is almost impossible to read the reported cases from any jurisdiction and not find cases where prosecutorial misconduct is alleged or even has been found by the court to have occurred.” Rather than despair at the unfairness of it all, Puntch advised prosecutors to be prepared to respond to the allegations quickly and effectively. “A prosecutor must know in advance the law concerning claims of misconduct. It is now simply another part of trial preparation.”

That means prosecutors must know not only how to deal with what they consider to be ill-motivated misconduct claims, Puntch wrote; they must also know themselves. “Many of us have that moment in trial when we realize that we have acted inappropriately. Perhaps an objection was lodged that calls the action to our attention. Or we come to the realization on our own after some time for reflection. However a prosecutor learns that a mistake has been made, it is vital that a prosecutor act promptly and forthrightly. The worst thing is to do nothing and hope that no one discovers what happened. Cover-ups are almost always exposed. If it is discovered that the prosecutor knew of the inappropriate action and did nothing, it is almost guaranteed that not only might the conviction be reversed, but also the prosecutor may be facing lawyer discipline. In addition to those penalties, the prosecutor’s reputation in the legal community will be damaged in a way that may be irreparable. It is much better to be known as someone who admits to … errors than someone who tries to hide them.”

“Even if defense counsel has acted improperly,” Puntch adds, “this does not give you a license to respond in kind. Draw the court’s attention to the objectionable conduct and request the proper relief. Do not respond in kind. The rules for prosecutors and defense counsel are vastly different. That may not seem fair, but it is a fact.”

Roderick W. Leonard, a Los Angeles County deputy district attorney, explains: “An attorney’s most valuable asset is not trial ability; it is the attorney’s reputation. Think of attorneys who are not trusted. Lack of trust invariably results from actual or perceived violation of professional ethics … Relations with that attorney become formal … of necessity … in writing or in court and on the record. A prudent attorney who must litigate against a lawyer of questionable legal ethics is advised to seek pretrial judicial orders to protect against possible unethical conduct. … Motions … and protective orders against the attorney’s possible improper conduct during trial may become the norm … How effective is an attorney, civil or criminal, defense attorney or prosecutor, who has a reputation for questionable ethical integrity?”

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