To the editor:
I write in response to the March 2023 Bench and Bar article Getting serious about prosecutorial misconduct: What can—and should—be done. The article, authored by Barry S. Edwards and Stacy L. Bettison, cited the most extreme versions of prosecutorial misconduct—the Mississippi prosecutor who engaged in abhorrent conduct in the Curtis Flowers cases—and with a broad brush compared it to Minnesota cases citing “prosecutorial misconduct.” From that specious set-up, Edwards and Bettison assert that prosecutors in Minnesota routinely “engage in misconduct because they gain an unfair advantage with almost no risk to their case or themselves, personally or professionally.” Nothing could be further from the truth.
As the executive director of the Minnesota County Attorneys Association, I work with the dedicated men and women across the 87 counties in Minnesota who have dedicated their lives to public service and strive to be ministers of justice. The prosecutors in Minnesota take that directive extremely serious and work to ensure the defendant has a fair trial, the victims’ voices are heard, and that justice—no matter the result—is done.
Edwards and Bettison would have your readers believe that misconduct runs rampant in Minnesota’s criminal justice system with prosecutors routinely violating rules of professional conduct because they know they can get away with it. The premise of their argument stems from a flawed characterization that Minnesota appellate courts use when analyzing a defendant’s claim of “prosecutorial misconduct.”
The vast majority of Minnesota appellate decisions do not distinguish between “prosecutorial error” and “prosecutorial misconduct.” Instead, the concepts are lumped together and analyzed as one and the same. But a 2009 Minnesota Court of Appeals’ decision makes the important distinction between “prosecutorial error” on the one hand, which “suggests merely a mistake of some sort, a misstep of a type all trial lawyers make from time to time,” and “prosecutorial misconduct” on the other hand, which “implies a deliberate violation of a rule or practice, or perhaps a grossly negligent transgression.” State v. Leutschaft, 759 N.W.2d 414, 418 (Minn. App. 2009). This important distinction recognizes that prosecutors are human beings, and people make mistakes. It does not add an element of malice to that mistake. Unfortunately, the lines have been blurred for years as courts combine the concepts of a mistake with misconduct. As one scholar noted, “[b]ecause few prosecutors found to have committed misconduct are bad actors whose violations were deliberately or malevolently intended, ‘misconduct’ is loaded and an arguably misleading way to describe the problem.” Lara A. Bazelon, Hard Lessons: The Role of Law Schools in Addressing Prosecutorial Misconduct, 16 Berkeley J. Crim. L. 391, 400–01 (2011).
Tellingly, scholars recognize that “[m]isconduct does not usually occur because prosecutors are evil, overly results oriented, or intentionally seeking to cheat.” Geoffrey S. Corn & Adam M. Gershowitz, Imputed Liability for Supervising Prosecutors: Applying the Military Doctrine of Command Responsibility to Reduce Prosecutorial Misconduct, 14 Berkeley J. Crim. L. 395, 403–04 (2009). Instead, it “often happens inadvertently because there is too much for prosecutors to know and insufficient ethics training to avoid misconduct.” Id. “Given the fine line between proper argument and prosecutorial trial misconduct, even well-intentioned prosecutors may sometimes cross the line inadvertently[.]” Mary Nicol Bowman, Mitigating Foul Blows, 49 Ga. L. Rev. 309, 320 (2015).
If the Office of Lawyer Professional Responsibility does what Edwards and Bettison says it should – “look no further than the court of appeals rulings published every Monday and search for ‘misconduct’” and then begin disciplinary proceedings against the implicated prosecutors – the OLPR would find itself hunting down mistakes that all trial attorneys make from time to time. The same would hold true if the OLPR searched for “ineffective assistance of counsel” where a veteran public defender’s missteps could result in disciplinary investigations. What would be helpful, to the defense bar, prosecutors, and the OLPR, is for the Minnesota appellate courts to follow the guidance of the American Bar Association and adopt a distinction between prosecutorial misconduct and prosecutorial error. See American Bar Association House of Delegates, Recommendation 100B (2010).
It is indisputable that the legal profession should be “serious about prosecutorial misconduct.” Anyone who willfully violates their ethical obligations should be held accountable. And the OLPR does, in fact, hold prosecutors accountable. William Wernz has published several blog posts on Bench and Bar’s website that details fourteen prosecutors who have been publicly disciplined and at least four prosecutors who have received admonitions. If a prosecutor deliberately violates the rules or is grossly negligent, such conduct should be reported to the OLPR by other prosecutors, the judge, or defense counsel. Edwards and Bettison’s suggestion of the OLPR starting disciplinary proceedings every time a defendant raises a claim of “prosecutorial misconduct” misunderstands that term of art which appellate courts have, unfortunately, used for years. It also suggests a widespread problem that, in my experience at the MCAA and as a trial judge, simply does not exist.
Robert M. Small
Executive Director
Minnesota County Attorneys Association
Barry S. Edwards & Stacy Bettison reply:
Mr. Small reads our article to say that prosecutors “routinely” engage in such misconduct and that it “runs rampant.” We never suggested any particular frequency; frankly, there is no way to know how common such misconduct is since misconduct of the non-disclosure sort (Brady) likely is never detected.
More substantively, however, Mr. Small defends his colleagues by quoting a law review article stating that such misconduct “often happens inadvertently because there is too much for prosecutors to know and insufficient ethics training to avoid misconduct.”* Yes, he said that. That prosecutors are as incompetent and poorly trained as Mr. Small argues is a separate indictment that we find to be alarming in and of itself. It’s equally astonishing that Mr. Small cites language from a section of that article entitled “Misconduct Lies Around Every Corner,” an indictment stronger than our own. Or maybe he did not really read the article, which bears a conclusion nearly identical to our own:
“In sum, there is little external or internal pressure on prosecutors to avoid misconduct. They are extremely unlikely to face criminal charges, civil liability, bar discipline, reversal of their convictions, judicial shaming, or serious in-house discipline. More creative proposals set forth by scholars have likewise failed to foster change. Accordingly, we suggest a more dramatic incentive drawn from the law of war: the prospect of imputed liability.”
The authors continue, “State ethics codes should be revised to make supervising prosecutors vicariously responsible for the misconduct of their subordinates that they knew or should have known would occur.” We argue that Minnesota’s current ethics code suffices, but the point is the same.
Finally, Mr. Small misrepresents our ultimate suggestion, stating that we want the OLPR to start disciplinary proceedings “every time a defendant raises a claim of ‘prosecutorial misconduct.’” We said no such thing. We said that the OLPR should investigate when the court of appeals finds misconduct but rules it “harmless,” a recommendation we modified in public dialogue with William Wernz. What’s most concerning to us, however, is that Mr. Small never acknowledges that prosecutorial misconduct is 1) a problem; and 2) needs to be addressed in a more fulsome way. If, as he says, "prosecutors in Minnesota take [their] directive extremely serious and work to ensure the defendant has a fair trial” we would expect him to be joining us in trying to find solutions to a very real and largely unredressed problem.
* “Imputed Liability for Supervising Prosecutors: Applying The Military Doctrine Of Command Responsibility To Reduce Prosecutorial Misconduct,” Geoffrey S. Corn and Adam M. Gershowitz, 114 Berkeley J. Crim. L. 395, 404.