Dishonest federal prosecutors who engage in prosecutorial misconduct is a serious issue that can affect the lives of innocent people. In our criminal system, prosecutors have a lot of power. They have the power to decide whether to bring charges against someone, what to charge them with, whether to allow them to plead to lesser charges, and as a result how much time someone can potentially spend behind bars. In federal court, the charges are generally more serious, the prison time is higher and the potential effect a conviction can have on your life is even more devastating because it cannot be expunged from a person’s record. When we look to dirty federal prosecutors we come to see that the stakes are much higher in terms of the potential devastation when they act unscrupulously.
Prosecutorial misconduct does not occur if a prosecutor simply makes a mistake or does not admit to a conflict of interest a case. This misconduct is far more serious—it is when a prosecutor deliberately keeps information from a defense attorney in order to bolster their case or when they plant a witness who provides a false testimony to the court. When this happens, an innocent person can go to prison and remain in there so long as the evidence is not exposed or the witness does not recant their statement. Defense attorneys are put in a position where they cannot do their job, as they are duty bound to do, because they do not have all of the information they should. The adversarial system that we use in the United States depends on the honesty of both the prosecutors and the defense attorneys when a case is being argued in court. However, in Berger v. United States the Supreme Court held the ethical duty of a prosecutor is even much higher than that of a criminal defense attorney due to how much power they have in their position. When a prosecutor is dishonest, the whole system is compromised and a potentially innocent person can spend time behind bars.
The question then becomes, how do we find out when a prosecutor is being dishonest. This issue has recently come to light in Orange County, when it was discovered that prosecutors were covering up their use of jailhouse informants who would testify in court in return for a significant reduction in their criminal charges. How do we prevent such a scandal from happening again and how do we make sure that prosecutors cannot continue on dishonestly?
The Office of Professional Responsibility (OPR) has jurisdiction to investigate all allegations of federal prosecutorial misconduct and provides a process to file a complaint against a federal prosecutor for misconduct. If a complaint is not filed, the prosecutor gets away with the misconduct, so it’s imperative complaints be filed to hold them accountable. After the complaint is received, the OPR conducts an investigation of the allegations. The OPR has also established a Professional Misconduct Review Unit (PMRU) that handles the disciplinary actions that will be imposed once a federal prosecutor is found to have committed misconduct. The only problem is, the Department of Justice refuses to provide a public list of names of those federal prosecutors who have been found to engage in shady prosecution tactics. This is something that needs to change in order to send the message to shady prosecutors that if they choose to engage in misconduct, they will be publicly listed on the shady list.