Do Americans care more about the integrity of sports than the integrity of the justice system? That cynical-sounding question keeps recurring when one examines the many court decisions, studies, and anecdotal reports about public prosecutors who engage in the most egregious kinds of cheating to win convictions but who escape any punishment or other harmful consequences, whereas athletes who cheat by using performance enhancing drugs get suspended from competition, stripped of Olympic medals, and even criminally prosecuted.
It's not far-fetched to see an equivalence between sports and litigation. Courts often use the metaphors of sports and games to describe U.S. litigation and trials. It is common to speak of a trial as an "adversarial contest" with the courtroom as the "arena," with the "players" operating under a carefully prepared "game plan," the judge as the "umpire," to ensure that "teams" of lawyers for either side abide by the rules of "fair play," but who may be penalized for committing "errors" and "fouls."
Indeed, the rhetoric of fair play and sportsmanship is particularly apt as it applies to the image of the prosecutor - a "Champion of the People" - vindicating the rule of law in a contest against law-breakers. Prosecutors in U.S. culture often embody a heroic persona - a gladiator who is required to play by special rules that may require him or her to eschew winning for the nobler goal of serving the cause of justice. What is more heroic than sacrificing self-interest for some higher principle?
This romanticized depiction of the prosecutor, however, often clashes with the hard reality of criminal prosecution. Increasingly, it appears, courts are finding that prosecutors have engaged in serious misconduct that has caused an innocent person to be convicted and imprisoned, sometimes for decades. Academics and researchers who study and report on criminal justice issues have increasingly focused on a particular form of cheating by prosecutors that courts harshly condemn -- conduct involving hiding evidence that could prove a defendant's innocence. And accompanying these reports of prosecutor abuses is another curious finding - despite easily proven misconduct, prosecutors almost always don't get punished for their derelictions. Indeed, they often get promoted, sometimes within their office, sometimes by being elevated to a judgeship.
This is one of the central findings of the recent report by ProPublica, a Pulitzer-Prize winning group of investigative journalists who examined New York cases between 2001 and 2011 in which state and federal courts identified serious misconduct by prosecutors sufficient to throw out the conviction. The analysis found thirty cases in which courts vacated convictions because of the prosecutor's misconduct, and more than fifty cases in which courts found misconduct but insufficient to overturn the conviction. Two findings by ProPublica stand out. First, offending prosecutors were almost always not penalized for their misconduct. Courts did not refer offending prosecutors for investigation by state disciplinary bodies, and even though disciplinary bodies were aware of the misconduct, they took disciplinary action only once against a prosecutor who was a serial offender. According to ProPublica, the "one constant" in its report is "the inability of unwillingness to meaningfully punish the offending prosecutors." Secondly, records obtained by ProPublica show that several of the offending prosecutors actually received promotions and raises soon after courts cited them for their abuses.
Contrast this flawed and dysfunctional disciplinary system with the much more aggressive system in sports. It is commonplace that athletes who cheat by taking steroids or other performance enhancing drugs, if caught, routinely get punished. Indeed, testing and other investigative procedures are in place to ensure that athletes play by the rules, and to deter those who might be tempted to deviate from the rules. But a system in which a prosecutor can cheat, cost a defendant his liberty, but face no penalty or any meaningful form of accountability, is, as the ProPublica report describes, an insidious system that not only fails to deter misconduct but actually encourages misconduct if it helps the prosecutor to win and not have to worry about the consequences.
Prosecutors often complain, according to the report, that the identified misconduct occupies only a small and isolated portion of the far larger universe of criminal cases, and that the vast majority of prosecutors are honorable people. That may be true. But the same can be said for the world of sports, in which most athletes play by the rules, but the few who cheat typically get punished, not promoted. Prosecutors also complain, according to the report, that the alleged misconduct often is attributable to "mistakes," "inadvertent errors," and "disagreements over the requirements of the law." Interestingly, athletes often make similar excuses, but usually to no avail. Ryan Braun is the rare case in which a professional athlete succeeded in challenging a drug finding. The hundreds and hundreds of cases in which prosecutors are found to cheat - often by hiding evidence from the defense - reveal that prosecutors most of the time are making a conscious and deliberate decision, and are not making a mistake, an inadvertent error, or can blame it on the police.
Given that prosecutors occupy a special "quasi-judicial" function, it would seem that a special disciplinary body should be created to investigate misconduct by prosecutors similar to the special disciplinary bodies that investigate the misconduct of judges. It's a mistake to lump onto professional disciplinary bodies the task of investigating misconduct by lawyers generally with the very different type of investigation necessary to find misconduct by prosecutors. As a special part of the executive branch, with functions very different from those of lawyers generally, a prosecutor is an appropriate subject for regulation and enforcement of discipline separate from lawyers generally, and by a body with the expertise to investigate and enforce proper standards of conduct. Otherwise, as the ProPublica report concludes, prosecutors can cheat with impunity, get away with it, and even get promoted