HUFFINGTON
08.04.13
THE UNTOUCHABLES
state. Of those, 99 alleged prosecutorial misconduct. Just one of
those reached the stage of a formal hearing.
After a forum on wrongful convictions last year at Tulane University, Plattsmier asked the Innocence Project of New Orleans
for a list of cases in which an innocent person had been convicted
due to prosecutor misconduct. “I
checked the list to see how many
of the prosecutors had been reported to our office. Even I was
surprised when we found that
none of them had. No one had
filed a complaint.”
Though defense attorneys may
seem most likely to file those
complaints, few of them do — and
there are some good reasons why
not. For one, ethics complaints
usually aren’t considered until
criminal and civil trials are settled. That way, if a state supreme
court makes a finding of ethical
misconduct, it will have no impact on a client’s criminal appeal
or his lawsuit. More important,
Plattsmier says, defense attorneys
are reluctant to file complaints
because of the damage a complaint could do to the working
relationships they have with prosecutors. A complaint could make
an aggrieved prosecutor and his
colleagues less likely to cut deals
or to ask judges for leniency for an
attorney’s other clients.
There’s also the problem Harvey
Silverglate described: When a defense attorney does find evidence
of misconduct, it can be a bargaining chip, explicitly or implied, to
negotiate a better plea bargain —
with the understanding that the
misconduct not be made public.
“You have to remember
that nearly all
judges are former
prosecutors... so there’s
a certain collegiality
there. They run in the
same social circles.
They attend the same
Christmas parties.”
So while mass reporting of misconduct by criminal defense attorneys as a whole would likely be of
enormous benefit to the criminal
justice system and to defendants
and general, there’s little incentive
for an individual attorney to report an individual prosecutor.
“That’s why what Sam Dalton
is doing is so important,” says