The Countdown to the Convention series previews some of the outstanding panels and events at our upcoming 2015 National Lawyers Convention. Join us November 12-14, 2015 in Washington, DC for three days of debates, discussions, and networking with preeminent legal minds. 17 days to go...

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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 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.

These words, which every prosecutor—state or federal—knows, were penned by Justice George Sutherland writing for the unanimous Court in the seminal 1935 case Berger v. United States. Every prosecutor knows that he or she is supposed to live up to this standard, but do they do so? 

It is clear that sometimes they do not, as evidenced by the revelations following the conviction of former United States Senator Ted Stevens (which, in turn, cost him his re-election and shifted the balance of power in the Senate) and the reversal of the convictions obtained against five former New Orleans police officers for the murder of two unarmed people (four others, also unarmed, were seriously wounded) on Danziger Bridge in the aftermath of Hurricane Katrina. In the former case, it was discovered that prosecutors withheld exculpatory material from Stevens’ lawyers, and in the latter case, federal prosecutors involved in the case utilizing pseudonyms posted numerous inflammatory online comments that deprived the defendants of a fair trial and then lied about it. It is worth noting that in both cases, such misdeeds might not have come to light had it not been for the persistence of the respective trial judges (Emmett Sullivan in the Stevens case and Kurt Engelhardt in the Danziger Bridge case) who sensed that, as Marcellus said to Horatio in Shakespeare’s Hamlet, something was “rotten in the state of Denmark.”    

Then there’s the old expression, “Don’t make a federal case out of it,” which some federal prosecutors, no doubt well intentioned, seem to ignore from time to time, perhaps because, like a finely-tuned racehorse, they are wearing blinders and occasionally lose perspective. How else can one explain the misguided federal prosecution of spurned wife Carol Anne Bond for allegedly violating the Chemical Weapons Convention Implementation Act for her amateurish and ineffectual attempts to retaliate against her estranged husband’s paramour, or the federal prosecution of commercial fisherman John Yates who ordered a fellow crew member to throw some undersized red grouper overboard and ended up being charged with violating the anti-shredding provision of the Sarbanes-Oxley Act, a law passed in the wake of the Enron fiasco that was designed to protect investors by preventing the destruction of financial documents? 

Other problems, such as faulty (and sometimes fraudulent) forensics or improperly coached (and sometimes coerced) testimony, have also resulted in injustices.

To paraphrase former White House Counsel (and future criminal defendant) John Dean, such instances of blatant misconduct, overcharging, and flawed evidence constitute a cancer on our justice system. But how widespread is this cancer, and is it metastasizing or in remission?

In a recent law review article, Judge Alex Kozinski of the Ninth Circuit Court of Appeals issued a damning bill of particulars in which he challenges the soundness of many of the building blocks that serve as the foundation of our criminal justice system.  In it, he said:

Prosecutors hold tremendous power, more than anyone other than jurors, and often much more than jurors because most cases don’t go to trial. Prosecutors and their investigators have unparalleled access to the evidence, both inculpatory and exculpatory, and while they are required to provide exculpatory evidence to the defense under Brady, Giglio, and Kyles v. Whitley, it is very difficult for the defense to find out whether the prosecution is complying with this obligation.

Prosecutors also have tremendous control over witnesses: They can offer incentives—often highly compelling incentives—for suspects to testify. This includes providing sweetheart plea deals to alleged co-conspirators and engineering jail-house encounters between the defendant and known informants.

Sometimes they feed snitches non-public information about the crime so that the statements they attribute to the defendant will sound authentic. And, of course, prosecutors can pile on charges so as to make it exceedingly risky for a defendant to go to trial. There are countless ways in which prosecutors can prejudice the fact-finding process and undermine a defendant’s right to a fair trial.

And, while acknowledging that most of the prosecutors he has dealt with over the course of his long and distinguished career have been “fair-minded, forthright and highly conscientious,” he continued:

But there are disturbing indications that a non-trivial number of prosecutors—and sometimes entire prosecutorial offices—engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.

In light of Judge Kozinski’s charges, it is fair to ask: Have prosecutors run amok? And if so, what should be done about it?

On Saturday, November 14, 2015, the Professional Responsibility Practice Group of the Federalist Society will present a panel to discuss this controversial and potentially explosive topic. The program will be moderated by Justice Keith Blackwell of the Georgia Supreme Court, and the panelists will include Judge Kozinski, former Deputy Attorney General George Terwilliger III (now a Partner at McGuireWoods LLP), Darpana Sheth of the Institute for Justice, and myself.

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Learn more about the 2015 National Lawyers Convention and register today.