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The
word “misconduct” has nasty connotations.
“Misconduct” has been defined as “intentional wrongdoing” and specifically
“deliberate
violation of a law or standard especially by a government official.”[1] When referring to alleged prosecutorial
error, some appellate courts have elevated the prosecutor’s conduct to that
tantamount to criminal behavior. For
instance, State v. Campbell, 23 P.3d
176, 181 (2001), observed: “The question
of whether a particular prosecutor has been guilty
of misconduct in the trial of a criminal case is the subject of some relatively
controversial recent decisions by our Supreme Court and by this court. .
. .” (Emphasis added.).
When a trial judges commit trial errors
and are reversed for them, appellate courts do not consider finding the trial
judges guilty of “judicial misconduct.”
How receptive would an appellate court bench be to finding “trial judge
misconduct” when the allegation on appeal refers to trial error, not bad or
dishonest conduct by the trial judge.
Also, it is ironic when an appellate court applies the deprecatory
description of “prosecutorial misconduct” in rendering a decision on alleged
epithets employed by a prosecutor in closing.
“Trial error” is a more apt description for all but the few cases where
the prosecutors’ conduct actually fits the description of “misconduct.”
This discussion suggests putting an end
to use of the phrase “prosecutorial misconduct” when it is an inaccurate
description, and that is a small part of why this article is entitled “Eradicating
‘Prosecutorial Misconduct.’” But more
significantly, this article and future ones explore significant areas of
vulnerability for prosecutorial error that appellate courts have considered under the rubric
“prosecutorial misconduct,” and offer ways to make sure no prosecutorial error
is committed. No matter what the label
is, prosecutorial “error” or “prosecutorial misconduct,” we want none of it.
Prosecutors are “ministers
of justice.” In its 1935 decision of Berger v. United States, the United
States Supreme Court held:
The United States
Attorney 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 nor 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."[2]
The Comment to Model Rule of Professional Conduct 3.8 “Special
Responsibilities of a Prosecutor” echoes Berger: “A prosecutor has the
responsibility of a minister of justice and not simply that of an advocate.” This is the elevated
role of the prosecutor.
The Washington's
Supreme Court in State v. Gibson, 75
Wn.2d 174, 177 (1969) stated, "The closing paragraph in State v. Montgomery could well be on the desk of every prosecutor as a constant reminder of
the high duties of his office."
Here is the paragraph in that 1909 State v. Montgomery
decision:
It
is not our purpose to condemn the zeal manifested by the prosecuting attorney
in this case. We know that such officers
meet with many surprises and disappointments in the discharge of their official
duties. They have to deal with all that
is selfish and malicious, knavish and criminal, coarse and brutal in human
life. But the safeguards which the
wisdom of ages has thrown around persons accused of crime cannot be
disregarded, and such officers are reminded that a fearless, impartial
discharge of public duty, accompanied by a spirit of fairness toward the
accused, is the highest commendation they can hope for. Their devotion to duty is not measured like
the prowess of the savage, by the number of the victims.[3]
Prosecutors
rightfully are held to a higher standard of conduct than any other lawyer. The
goal of this and upcoming articles is to eradicate not only the misuse of the
phrase “prosecutorial misconduct” but also trial error that can be avoided by pointing out danger zones for prosecutors.
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