HUFFINGTON
08.04.13
THE UNTOUCHABLES
or Phillips. “The justification was
that there was no proof of a deal,
so there was no ethical violation,”
Cohen says. “But any first-year
law student could tell you why
that’s wrong. Even if there wasn’t
a deal, Greene’s letter shows that
he asked for and was expecting
one, and that’s what was driving
his testimony. ... The letter was
never disclosed, and he was allowed to testify that he was expecting nothing.”
(Just before publication, Cohen was informed that his appeal
of the ruling was successful, and
that his complaint against Phillips
would be reinstated.)
Plattsmier says he sympathizes.
“I understand the frustration. I
do. You hear about these overturned convictions, and then you
hear that only three prosecutors
have been disciplined in 20 years,
and the natural reaction is, ‘So
what’s wrong with the system?’”
Beyond a reluctance to report
misconduct, Plattsmier points
to other possible explanations
for the discrepancy between appeals court findings of misconduct
and so few disciplinary actions
against prosecutors. First, he
says, because disciplinary boards
usually only start investigating
a case after it has been resolved
both criminally and civilly, time
can be a factor. “Criminal cases
have long, long lives,” he says. “It
can be years or decades before
misconduct is discovered. You’re
then going back to piece together
Defense attorneys
are reluctant to file
complaints because of
the damage a complaint
could do to the working
relationships they have
with prosecutors.
events from long ago. That can be
a challenge. The prosecutor you’re
investigating may not even be a
prosecutor anymore, so there may
no longer be a file. That’s not an
excuse. It’s just a reality.”
Plattsmier also emphasizes that
a finding of “misconduct” by an
appeals court isn’t necessarily a
breach of ethics. To constitute an
ethical violation, the misconduct
must be willful. For example, if
defense attorneys discover after
conviction that a police officer
withheld information favorable to
the defendant, an appeals court
would likely classify that failure
to disclose as prosecutorial mis-