What can—and should—be done
By Barry S. Edwards and Stacy L. Bettison
A few years ago American Public Media (APM) produced an 11-part podcast investigating a quadruple murder in Winona, Mississippi, the arrest of a man named Curtis Flowers for the crime, and the six trials that followed. Four of the six trials resulted in guilty verdicts, but the Mississippi Supreme Court overturned three of those for prosecutorial misconduct. Two of the trials resulted in hung juries. The last trial resulted in a guilty verdict that was appealed to and reversed by the U.S. Supreme Court.
“Like the Hydra slain by Hercules, prosecutorial misconduct has many heads.”
U.S. v. Williams, 504 U.S. 36, 60 (1992) (Stevens, J., dissenting).
Two different Supreme Courts (State of Mississippi and United States) have found that the prosecutor in that case, Doug Evans, not only engaged in prosecutorial misconduct, specifically racial bias in jury selection, but that the misconduct was so egregious as to amount to “clear error.”1 In spite of his hometown Supreme Court and the United States Supreme Court finding four separate times that he engaged in egregious misconduct—as a result of which Curtis Flowers has been in prison for over two decades—Mr. Evans wanders the streets freely, never having spent a day in jail for his behavior. In fact, he still works as a licensed attorney, currently as chief prosecutor for seven counties in central Mississippi, a position to which he was recently re-elected without opposition.2
Over the past several years, increased attention has come to those wrongfully convicted because of prosecutorial misconduct, particularly with such high-profile cases as those of Curtis Flowers, Walter “Johnny D.” McMillian (the subject of the Hollywood-produced feature film Just Mercy), the Netflix documentary Making a Murderer, and the podcast Serial, featuring the case of the recently released Adnan Sayed. In the context of these stories, the public has called for holding these prosecutors accountable and expressed widespread frustration that doing so is difficult and rare. The Black Lives Matter movement, generally, calls for criminal justice reform, and the election of “reform-minded” prosecutors from San Francisco to Philadelphia has resulted, at least in part, from this awakening to the phenomenon of prosecutorial misconduct.3
In this article we endeavor to answer three questions: 1) what is prosecutorial misconduct; 2) why do prosecutors engage in it; 3) and what can—and should—be done about this problem?
What is prosecutorial misconduct?
The prosecutor holds a special role in our criminal justice system that renders prosecutorial misconduct especially problematic. The United States Supreme Court has explained that the prosecutor:
“… is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”4
Minnesota courts have likewise recognized that the overarching concern with prosecutorial misconduct is that it risks depriving the defendant of a fair trial,5 and prosecutors have an affirmative obligation to ensure that a defendant receives a fair trial, no matter how strong the evidence of guilt.6 Echoing the United States Supreme Court, Minnesota has acknowledged the special power that a prosecutor holds with respect to both the accused and the public: The prosecutor “is a minister of justice whose obligation is to guard the rights of the accused as well as to enforce the rights of the public.”7
Prosecutors engage in misconduct when they “violate[] clear or established standards of conduct, e.g. rules, laws, orders by a district court, or clear commands in this state’s case law.”8
In 1935, Justice Sutherland of the U.S. Supreme Court outlined some types of misconduct:
“That the United States prosecuting attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said, and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and, in general, of conducting himself in a thoroughly indecorous and improper manner…. The prosecuting attorney’s argument to the jury was undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury.”9
Other types of misconduct by “overzealous” or “misguided” prosecutors, as outlined by Justice Stevens:
- knowingly using perjured testimony;
- suppression of evidence favorable to the accused; and
- misstatements of law in argument to the jury.10
Minnesota courts have specifically identified misconduct in the following categories:
- The prosecutor must avoid inflaming the jury’s passions and prejudices against the defendant,11 and courts “pay special attention to statements that may inflame or prejudice the jury where credibility is a central issue.”12
- The prosecutor may not interject personal opinions about the veracity of witnesses.13
- The prosecutor may not disparage the defendant’s defense to the charges.14
Minnesota courts have held that when misconduct occurs and is prejudicial, reversing a conviction is the proper remedy.15 And while prejudice must be shown, the Minnesota Supreme Court has “made it clear to prosecutors who persist in employing such tactics that [courts] retain the option of reversing prophylactically.”16 This power to “reverse prophylactically or in the interests of justice” arises from the appellate courts’ supervision of the trial courts.17
Why do prosecutors engage in misconduct?
Prosecutors engage in misconduct because they can gain an unfair advantage with almost no risk to their case or to themselves, personally or professionally. First, they enjoy absolute immunity from civil lawsuits. Second, if there are sanctions against a prosecutor for misconduct, there is little public visibility regarding those sanctions. Third, appellate court treatment of misconduct has created a high bar for reversing convictions for prosecutorial misconduct—making such reversals, or any consequences, rare. When a prosecutor’s professional success rides on conviction rates, engaging in prohibited and unethical conduct to increase the chance of conviction would naturally become enticing.
Absolute immunity from civil lawsuits
While police have “qualified immunity,” prosecutors have “absolute immunity.” This means that while a police officer cannot be prosecuted or sued for damages for almost any conduct he or she engages in while in the course of employment, prosecutors (and judges) cannot be prosecuted or sued for any conduct they engage in while in the course of employment. They are absolutely immune from suit for wrong actions, even if their misconduct is reckless or willful.
In Imbler v. Pachtman,18 the U.S. Supreme Court set forth an extensive rationale for absolute immunity from civil liability under 42 U.S.C §1983. To begin, the threat of lawsuits would undermine performance of their duties, and the “public trust of the prosecutor’s office would suffer” if prosecuting decisions were made against the possible consequences of the prosecutor’s own personal liability in a suit for damages.19 Being in a position of having to defend prosecuting decisions, and often many years after those decisions were made, would impose unacceptable burdens for a prosecutor who was responsible for hundreds of indictments and trials annually.20
Further, the “functioning of the criminal justice system” would be impaired.21 This proper functioning requires that both the prosecution and defense have “wide discretion” in their “conduct at trial and presentation of evidence.”22 Because the “veracity of witnesses is subject to doubt before and after they testify,” if prosecutors were limited in using their judgment about which witnesses to present because of risk of personal liability, juries would be denied potentially critical evidence.23
Finally, the Court expressed confidence that misconduct would not simply go unchecked because of absolute immunity from civil suit because of “various post-trial procedures” available to determine whether the accused received a fair trial (including remedial measures).24 What’s more, the Court reasoned, the public has tremendous power to guard against misconduct:
“We emphasize that the immunity of prosecutors from liability in suits under §1983 does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights on the strength of 18 U.S.C. §242, the criminal analog of §1983.… The prosecutor would fare no better for his willful acts. Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.”25
Professional discipline rare, public visibility low
While the Imbler Court expressed faith in 1976 that prosecutors were “not beyond the reach” of criminal law and that “professional discipline” would also serve as a check against misconduct, this envisioned accountability has never materialized.
Federal prosecutors benefit from “the black hole”—whence complaints, once filed, never come out.26 And habeas reform included in the Antiterrorism and Effective Death Penalty Act passed after the Oklahoma City bombing has provided further inoculation for “cutthroat prosecutors” because, among other things, it limits consideration of new evidence (including exculpatory evidence withheld by prosecutors) until it has first been raised in the state courts.27
And in many states, including Minnesota, getting a court to review new evidence requires that the appellant first surpass a number of burdensome obstacles.28 Even obtaining new evidence is a substantial hurdle in itself. While the laws vary by state, generally the convicted have no right—and seldom even an opportunity—to see or test potentially exculpatory forensic evidence.29
The National Registry of Exonerations documents over 2,600 cases so egregious—because the proof of innocence was so overwhelming or the misconduct so severe—that exoneration was the only remedy. Of those rare instances in which misconduct resulted in the extraordinary remedy of an exoneration, only 4 percent of the culpable prosecutors were disciplined in any way.30
According to the Innocence Project, only one prosecutor has ever gone to jail for misconduct, even though there are hundreds of known cases of prosecutors withholding exculpatory evidence that resulted in innocent people going to prison, even spending decades on death row. Ken Anderson is one. A judge when his misconduct was discovered, as a prosecutor he withheld exculpatory evidence, as a direct result of which an innocent man spent 25 years in prison. For conduct that put that innocent man in prison for a quarter century (while the man who actually murdered his wife was free), Mr. Anderson spent five days in jail.31
In Minnesota, there are 87 elected county attorneys, the top prosecutor in a county (Minnesota’s equivalent to what most states call a district attorney), and approximately 700-800 assistant county attorneys or front-line prosecutors.32 In 2020, for the first time in the state’s history, a prosecutor was disbarred for practice-related misconduct, specifically “failing to discuss discipline information relating to a police officer found to have engaged in dishonest work-related conduct.”33 The prosecutor’s violations of professional rules and constitutional protections resulted in the dismissal of several cases and the reversal of a conviction.34
Appellate review rarely results in reversals
Minnesota courts employ a sort of “harmless error” test when reviewing claims of prosecutorial misconduct. When a prosecutor’s remarks during closing argument are not objected to, for example, the court reviews the alleged prosecutorial misconduct under the modified plain error test.35 The defendant has the burden to demonstrate that the misconduct constituted error and that the error was plain.36 If plain error is established, the burden then shifts to the state to demonstrate that the error did not affect the defendant’s “substantial rights.”37 To meet its burden, the state must show that there is no “reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict.”38
Thirty-five years ago, the Minnesota Supreme Court in State v. Merrill appeared to reach its wit’s end when it gave, for the “last time,” a stern warning to prosecutors who engage in misconduct: “[W]e will no longer tolerate the tactics used by the prosecution in closing arguments in this case. The prosecution can expect a reversal if such tactics are used again.”39 In Merrill, the appellant argued that the prosecutor engaged in numerous instances of misconduct during closing arguments, for example, by referring to the appellant as “an animal.”40 The Court agreed:
“We agree that the comments of the prosecutor referred to above were unfortunate, inexplicable, and, even worse, totally unnecessary. The prosecution had overwhelming evidence of defendant’s guilt. It did not have to stoop to such tactics to get a conviction. We feel compelled to say that this court has seen with increasing frequency tactics being used such as those exhibited in this case…. We have on occasion warned the prosecution in our opinions that it has used improper tactics. However, these warnings appear to have been to no avail.”41
Recent case law shows how, despite the “warnings” that have been offered “to no avail,” misconduct continues unabated. What’s more, even the most obvious misconduct does not result in convictions being reversed because the appellate court finds that the defendants’ “substantial rights” are not violated. As Professor Sonja Starr of the University of Chicago Law School notes, “if the remedy for a rights violation is undesirable, courts will find ways to avoid granting it, such as narrowing the underlying right.”42
Prosecutors can misstate law regarding defendants’ basic constitutional protections
A Minnesota Court of Appeals decision from 2020 demonstrates how the court of appeals is currently applying the rules for evaluating prosecutorial misconduct. In Moore v. State, the court assessed a prosecutor’s closing statement, in which she informed the jury that the defendant was “no longer entitled to the presumption of innocence.”43 The prosecutor stated, “[t]he defendant started this trial the way every criminal defendant starts every trial, with a complete presumption of innocence. But at the end of the State’s case, now that all of the evidence is in, and as you begin deliberations, he’s no longer entitled to that presumption.”44
The court of appeals acknowledged that “’the presumption of innocence is a basic component of the fundamental right to a fair trial”45 and it is “’improper for a prosecutor to misstate the presumption of innocence in a criminal case.’”46 Based on this, the court concluded that misstatements about the presumption were plain error:
“The statements made by the prosecutor are troublesome. They were not only unartful, but constitute a misstatement of the law. A defendant is presumed innocent ‘unless and until the defendant has been proven guilty beyond a reasonable doubt.’… The prosecutor stated that [the defendant] lost the presumption ‘as [the jury] begin[s] deliberations.’ But, only once the jury reaches the conclusion that a defendant is guilty beyond a reasonable doubt has the presumption been lost. Because the prosecutor’s statement, ‘at the end of the State’s case, now that all of the evidence is in, and as you begin deliberations, he’s no longer entitled to that presumption,’ was a misstatement of the law, we hold that the prosecutor’s statement constitutes plain error.”47
But although the prosecutor leveraged her authority as “the state” to revoke the defendant’s presumption of innocence in violation of the law and the state and federal constitutions, the court of appeals proceeded to shrug off the “plain error” as “harmless” and allowed the conviction to stand because “the prosecutor’s statement likely did not play a substantial part in influencing the jury to convict.”48
No discipline or other consequences (such as remand) were meted out. The court reasoned that other factors mitigated any impact to the defendant’s substantial rights:
- The district court properly instructed the jury on the presumption of innocence;
- after the prosecutor misstated the legal standard, the prosecutor’s “next statement discussed the state’s high burden of proof”; and
- the prosecutor’s misstatement of the law was only one statement included in 57 pages of the entire closing argument.49
In essence, because the court gave the jury instruction it was required to give, the prosecutor acknowledged its own burden of proof and only made one misstatement of about the presumption of innocence, the prosecutor’s conduct had no impact on the defendant’s substantial rights.
Why would the prosecutor so clearly misstate “a basic component of the fundamental right to a fair trial”? Because of results like this. They can do it and might be found to have committed “plain error,” but the conviction will stand. A prosecutor can bias the jury and the court will acknowledge the misconduct as egregious, but then conclude there was no harm. Why would she not do it again? Why wouldn’t every prosecutor misstate the defendant’s presumption innocence if they could? This case establishes that, in fact, they can—without consequence other than increasing their likelihood of the conviction they seek.
In 1946, a frustrated Judge Jerome Frank of the 2nd Circuit Court of Appeals wrote,
“This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said, that nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable…. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it…. Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking.”50
What can—and should—be done about it
Mapp v. Ohio calls for suppression of evidence gathered by police in violation of a suspect’s constitutional rights, since to “hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.”51 However, there is no analog, state or federal, when that violation of due process is perpetrated by a prosecutor—and, as we have shown, no other consequences accrue to the prosecutors themselves, either. Furthermore, “the existing remedies for prosecutorial misconduct are ineffective, largely because they are rarely invoked.”52
As Judge Richard Posner has lamented, courts repeatedly “rebuke prosecutors” for violating the constitutional rights of defendants:
“Ten years ago we were commenting on a ‘sense of futility from persistent disregard of prior admonitions.’ These rebukes seem to have little effect, no doubt because of the harmless error rule, which in this as in many other cases precludes an effective remedy for prosecutorial misconduct. The expansive code of constitutional criminal procedure that the Supreme Court has created in the name of the Constitution is like the grapes of Tantalus, since the equally expansive harmless error rule in most cases prevents a criminal defendant from obtaining any benefit from the code.”53
One approach could be to address the problem as certain academics have begun doing on both the east and west coasts. In New York, after three men were exonerated in March 2021 of crimes they did not commit, professors filed complaints with New York’s court-appointed grievance committee responsible for investigating complaints of attorney wrongdoing.54 After filing the complaints against 21 Queens prosecutors for misconduct (which were based on judicial findings of misconduct), the professors published the complaints on a website they created specifically for the purpose of publicizing the complaints.55 In some of the judicial findings, courts found that the prosecutors withheld evidence that was favorable to the defense or failed to correct false testimony at trial.56 Lara Bazelon, a law professor from University of San Francisco, has also filed eight complaints against prosecutors in cases where an appeals court found significant misconduct that required convictions be reversed.57
Another remedy to end this phenomenon is the reversal of convictions so obtained. As the U.S. Supreme Court wrote in Brady, reversal of convictions achieved by misconduct “is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its citizens in the courts.’”58
Minnesota’s courts of appeal are no different from those lamented by the federal judges cited above. They often find “plain error” but never reverse or even remand because they set the bar for “harmless error” so low.
“Ritualistic verbal spankings” do not prevent misconduct. And, frankly, despite the Brady Court’s paean to justice as a social good, there is little appetite for releasing wrongdoers, especially violent ones. So why not do as the criminal justice system itself does, by focusing the remedy on punishing those who commit the misconduct rather than the cases in which that misconduct occurred? Prosecutorial misconduct is professional misconduct. No other attorney could be found by an appellate court to have engaged in dishonest behavior without consequences. Yet prosecutors in the same office can do so repeatedly and neither they nor their office suffer any professional rebuke.
Minnesota courts have held that failure to disclose exculpatory information that is not “material” does not violate Brady v Maryland.59 “Accordingly, a new trial is not required simply because a defendant uncovers previously undisclosed evidence that would have been possibly useful to the defendant but unlikely to have changed the verdict.”60 But that does not mean that the same conduct does not violate the Rules of Professional Conduct. Rule 3.8 states that a prosecutor must “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.”61 It says nothing about materiality.
This point was made in these pages when Susan Humiston of the Office of Lawyers Professional Responsibility (OLPR) noted that, “Rule 3.8(d) is not co-extensive with constitutional case law regarding disclosure, but rather is separate and broader.”62 According to Ms. Humiston, failure to disclose evidence that tends to negate the guilt or mitigate liability should be required under the Rules of Conduct even if such disclosure is not mandated under Brady. While reversing a conviction for car-jacking due to misconduct by a prosecutor—thereby allowing a violent criminal to go free—may be an unpalatable remedy, surely reprimanding, suspending, or after multiple offenses, disbarring that prosecutor would make for second thoughts.
Finally, the Rules of Professional Conduct state that a “lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer’s conduct conforms to the Rules of Professional Conduct.”63 This rule makes those 87 elected county attorneys responsible and maybe liable for the misconduct of their 700-800 subordinates. Beyond quasi-Brady violations, “misconduct” as defined above could well violate the “minister of justice” language in the comments to Rule 3.8.
If the OLPR wants to begin disciplinary proceedings against prosecutors who violate the rules, they need look no further than the court of appeals rulings published every Monday and search for “misconduct.” The court will have already done the analysis and called it “harmless.”
Barry S. Edwards is a criminal justice attorney with the Keller Law Offices.
Stacy Bettison is an attorney and crisis communications expert (www.bettison.com).
Notes
1 Flowers v. Mississippi, No. 17-9572, 588 U.S. ___ (2019), slip op. at 31.
2 https://www.apmreports.org/story/2020/10/14/will-doug-evans-face-accountability
3 The recent election of Mary Moriarty to the office of Hennepin County Attorney had nothing to do, explicitly, with misconduct in that office.
4 Berger v. United States, 295 U.S. 78, 88 (1935).
5 See, e.g., State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003); State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).
6 See State v. Henderson, 620 N.W.2d 688, 701-02 (Minn. 2001); State v. Sha, 193 N.W.2d 829, 831 (Minn. 1972).
7 State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (citing ABA Standards for Criminal Justice: Prosecution Function & Defense Function, Standard 3-1.2(c) (3d ed. 1993)); see also Nat’l Dist. Attys. Ass’n, National Prosecution Standards, Standard 1.1 (2d ed. 1991) (“The primary responsibility of prosecution is to see that justice is accomplished.”).
8 State v. McCray, 753 N.W.2d 746, 751 (Minn. 2008) (quotation omitted).
9 Berger, 295 U.S. at 84; see also U.S. v. Williams, 504 U.S. 36, 60-61 (1992) (J. Stevens, dissenting) (citing Berger discussing the “improper tactics that overzealous or misguided prosecutors,” including knowing use of perjured testimony, suppression of evidence favorable to the accused, misstatements of law to the jury).
10 Id.
11 State v. Morgan, 51 N.W.2d 61, 63 (Minn. 1952).
12 See State v. Turnbull, 127 N.W.2d 157, 162 (Minn. 1964).
13 State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).
14 See State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997).
15 State v. Steward, 645 N.W.2d 115 (Minn. 2002).
16 Salitros, 499 N.W.2d at 820.
17 Id.
18 424 U.S. 409 (1976).
19 Id. at 424.
20 Id. at 426.
21 Id.
22 Id.
23 Id.
24 Id. at 427.
25 Id. at 428-29 (citations omitted).
26 Radley Balko, “Why prosecutors get away with misconduct,” The Washington Post (11/18/2021).
27 Radley Balko, “The rogue prosecutor who helped pass a law enabling rogue prosecutors,” The Washington Post (3/17/2021).
28 See State v. Rainer, 502 N.W.2d 784 (1993) (four-part test must be met for appellant to get new trial based on newly discovered evidence).
29 Dist. Attorney’s Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52, 73 (2009).
30 https://www.law.umich.edu/special/exoneration/Documents/Government_Misconduct_and_Convicting_the_Innocent.pdf
31 Daniele Selby, “Innocence Project News,” 11/11/2020. Available at https://innocenceproject.org/ken-anderson-michael-morton-prosecutorial-misconduct-jail/
32 Minnesota County Attorney’s Association (as of 11/1/2022).
33 Annual Report of the Office of Lawyers Professional Responsibility (July 2021) at 7.
34 Id.
35 See State v. Ramey, 721 N.W.2d 294, 299-300 (Minn. 2006).
36 See State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010).
37 Id.
38 Ramey, 721 N.W.2d at 302 (citations omitted).
39 State v. Merrill, 428 N.W.2d 361, 373 (Minn. 1988).
40 Id. at 372.
41 Id. at 372-73.
42 Starr, Sonja B. “Sentence Reduction as a Remedy for Prosecutorial Misconduct.” Geo. L. J. 97, no. 6 (2009): 1509-66.
43 Moore v. State, 945 N.W.2d 421, 434 (Minn. Ct. App. 5/18/2020).
44 Id.
45 Id. at 433 (citing State v. Bowles, 530 N.W.2d 521 (Minn. 1995)).
46 Id. (citing Finnegan v. State, 764 N.W.2d 856, 863 (Minn. App. 2009)).
47 Id.
48 Id.
49 Id. at 434.
50 State v. Mayhorn, 720 N.W.2d 776, 791–92 (Minn. 2006) (citing United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir.1946) (Frank, J., dissenting)).
51 Mapp v. Ohio, 367 U.S. 643, 656, 81 S. Ct. 1684, 1692, 6 L. Ed. 2d 1081 (1961).
52 Supra note 42.
53 United States v. Pallais, 921 F.2d 684, 691–92 (7th Cir. 1990).
54 “Prosecutors wrongfully convicted three men who spent 24 years behind bars. Will they be disbarred?” Gothamist (New York Public Radio) (3/6/2021).
55 “They publicized prosecutors’ misconduct. The blowback was swift,” New York Times (11/10/2021).
56 Id.
57 Opinion: “Why prosecutors get away with misconduct,” The Washington Post (11/18/2021).
58 Brady v. Maryland, 373 U.S. 83, 87 (1963).
59 Id.
60 Walen v. State, 777 N.W.2d 213, 216 (Minn. 2010).
61 Minn. R. Pro. Conduct 3.8(d).
62 Bench & Bar of Minnesota, October 2020.
63 Minn. R. Pro. Conduct 5.1(b).