Brian F. McEvoy
Emma R. Cecil
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 two-fold 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. Berger v. United States, 295 U.S. 78, 88 (1935)
While the majority of prosecutors adhere to ethical standards and perform their duties with integrity, studies and media reports indicate that prosecutorial misconduct is nevertheless a real problem. According to a March 12, 2014 report from the Project on Government Oversight (POGO), from 2002 through 2013, the Justice Department’s Office of Professional Responsibility (OPR) documented more than 650 instances in which DOJ lawyers had violated rules, laws, or ethical standards, including misleading courts and or opposing counsel; withholding exculpatory evidence; abusing prosecutorial and investigative power; violating constitutional rights; abusing the grand jury or indictment process; making improper remarks to a grand jury, during trial, or in pleadings; failing to comply with court orders or federal rules; and failing to comply with DOJ rules and regulations.” In more than 400 of those 650 instances of misconduct, OPR characterized the violations as reckless or intentional misconduct, as opposed to simple error or poor judgment.
Even if the extent to which prosecutorial misconduct pervades the halls of justice remains debatable, there can be no question that it exacts tremendous harm when it occurs, regardless of its frequency. As POGO’s report notes, the amount of misconduct may be relatively small, “[b]ut the potential stakes are high, from whether people facing federal charges get a fair day in court to whether the U.S. government is properly represented in disputes with corporations where taxpayer money is on the line. It’s not only that innocent people could be wrongly convicted and sent to prison; it’s also that, where the legal process has been tainted, convictions of guilty parties can be thrown out.” Perhaps most importantly, prosecutorial misconduct, no matter how exceptional, results in significant damage to the integrity of the criminal justice system, which “may be difficult to repair, and which affects the social fabric in a manner that implicates more widespread consequences.”
Despite the substantial societal and financial costs of prosecutorial misconduct, prosecutors who violate the law or their ethical duties in order to win convictions are rarely disciplined. The virtual nonexistence of any meaningful sanctions – even for gross and repeated acts of misconduct – is highlighted by the Center for Prosecutor Integrity’s survey of multiple studies analyzing the professional consequences of prosecutorial misconduct at the both state and national levels from 1963–2013. These studies revealed that out of the 3,625 instances of misconduct identified, public sanctions were imposed in only 63 cases – less than 2% of the time. In only 14 instances was a prosecutor suspended or disbarred.
In 2010, USA Today published a six-month investigation of 201 criminal cases in which judges cited Justice Department prosecutors for “flagrant” or “outrageous” misconduct, including withholding exculpatory or favorable evidence, making improper remarks to the jury, and breaching plea agreements. Although the investigation “found a pattern of serious, glaring [prosecutorial] misconduct” that “[had] put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions,” USA Today identified only one federal prosecutor who was barred even temporarily from practicing law for misconduct from 1998 to 2010.
The lack of professional consequences for engaging in prosecutorial misconduct only serves to encourage such misconduct. As Judge Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals, noted in the context of what he viewed as “an epidemic of Brady violations,” prosecutors’ lack of concern with constitutional mandates and protections “signifies a systemic problem: Some prosecutors don’t care about Brady because courts don’t make them care.” United States v. Olsen, 704 F.3d 1172, 1177 (9th Cir. 2013) (Kozinski, J., dissenting). Because sanctions are so rarely imposed, the specter of professional discipline has little, if any, deterrent effect on prosecutors who abuse their position.
REVERSAL OF CONVICTIONS, DISMISSAL OF CHARGES,
AND SENTENCE REDUCTIONS
While other remedies for prosecutorial misconduct – mistrial, dismissal of charges, reversal on appeal, etc. – are available, they are equally ineffective since they, too, so rarely invoked. Trial courts seldom grant mistrials, instead relying on curative instructions, and appellate courts are unlikely to reverse convictions since prosecutorial misconduct – even egregious misconduct such as deliberate Brady violations – is almost always found to have been harmless. As one commentator has noted, under the harmless error rule, “a defendant is not entitled to a trial free of prosecutorial misconduct as long as the trial judge, or later the appellate judge, decided that there was strong evidence of the defendant’s guilt even without the misconduct. In other words, if a defendant is obviously guilty as charged, he has no fundamental right to be tried fairly.” The consistent and persistent application of the harmless error doctrine thus emboldens prosecutors to engage in a host of improper conduct without fear of reversal.
In one memorable case out of the Central District of California, however, Judge Cormac J. Carney dismissed a federal prosecution against William Ruehle, the former CFO of Broadcom, and another defendant charged in a stock options backdating case, upon a finding of prosecutorial misconduct. Judge Carney also vacated the guilty plea of a third defendant who had cooperated with the Government. Judge Carney found, among other things, that the prosecutors had violated the defendants’ Sixth Amendment rights by having intimidated and improperly influenced key witnesses. Specifically, prosecutors contacted the employer of one witness who refused to cooperate, causing her to be fired, and subjected her to 26 “grueling interrogation” sessions, during which they threatened that she would not receive the benefits of cooperation unless she changed her former testimony. Prosecutors coerced another witness, whom the court described as “a brilliant engineer and a man of incredible integrity,” into an “unconscionable plea agreement” pursuant to which he would “plead guilty to a crime he did not commit and pay a ridiculous sum of $12 million,” after forcing the witness to endure 30 interrogations by the lead prosecutor.
In a blistering ruling, Judge Carney took the prosecutors to the woodshed, condemning their behavior as “shameful and contrary to American values of decency and justice,” and finding that
[t]he cumulative effect of that misconduct has distorted the truth-finding process and compromised the integrity of the trial. To submit this case to the jury would make a mockery of Mr. Ruehle’s constitutional right to compulsory process and a fair trial. The Sixth Amendment to the United States Constitution guarantees the accused the right to compulsory process for witnesses in its defense. For this constitutional right to have true meaning, the Government must not do anything to intimidate or improperly influence witnesses. Sadly, [the] Government did so in this case.
United States v. Ruehle, Case No. 8:08-cr-00139-CJC, Doc. 828 at 5195. The full transcript of Judge Carney’s ruling is attached as Appendix A.
In United States v. Dicus, the district court reduced the defendant’s sentence as a result of the prosecution’s “clear” and “egregious” breach of the plea agreement. In that case, the government had agreed in plain and unambiguous terms in a written plea agreement that, apart from an enhancement for the defendant’s role in the offense, there would be no other enhancements, and that his adjusted offense level would be 25. At sentencing, however, the prosecutor argued for the career offender enhancement and for an offense level of 29. In support of his decision, the sentencing judge stated that he “would otherwise have sentenced the defendant at the top of his guidelines range based on his sales of marijuana to minors, which was a factor not reflected in his advisory guidelines range,” but for the fact that the Chief Judge of the district “had already found the prosecution’s breach of the plea agreement to be prosecutorial misconduct.” A sentence reduction was therefore “the appropriate sanction for such serious and recidivist prosecutorial misconduct.”
While courts do sometimes grant the kind of extraordinary relief that was ordered in Ruehle and Dicus, such cases are the exception, not the rule. Courts are reluctant to grant remedies such as the reversal of convictions, dismissal of charges, and exclusion of evidence, because these remedies often result in windfalls for guilty defendants. The problem, of course, is that in an effort to avoid such windfalls, the court is left with no remedy at all. And when courts determine that the prosecutor has committed misconduct but fail to impose any punishment, it “gives the impression that the courts are powerless in the face of prosecutorial misuse of authority,” which undermines the integrity of the system and the appearance of a fair trial. At the very least, courts should avail themselves of the other tools at their disposal to police prosecutorial misconduct, including contempt citations, fines, reprimands, suspension from the court’s bar, removal or disqualification from office, and recommendations to bar associations to take disciplinary action.
As the foregoing illustrates, professional discipline systems and judicial remedies fail to provide an adequate and effective check on prosecutorial misconduct. Exacerbating the problem, prosecutors are not personally liable for their misconduct. In Imbler v. Pachtman, the Court held that prosecutors enjoy absolute immunity from suit for conduct “intimately associated with the judicial phase of the criminal process.” Thus, during the course of a trial, a prosecutor is absolutely immune from civil liability arising from his or her misconduct, whether innocent or malicious. Prosecutors are, however, subject to liability for actions taken in an investigative or police role – that is, when they step “outside the bounds of their protected quasi-judicial function” – but even in such cases, they still enjoy qualified immunity.
THE HYDE AMENDMENT
One potential remedy for prosecutorial misconduct is a Hyde Amendment claim. Under the Hyde Amendment, a district court, “in any criminal case (other than a case in which the defendant is represented by assigned counsel paid for by the public) … may award to a prevailing party, other than the United States, a reasonable attorney’s fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.” In sponsoring the Amendment, Congressman Henry Hyde’s hope was that an award of attorneys’ fees would “curb improper prosecutions, restrain the government’s abuse of power, and protect innocent defendants.” Although Hyde Amendment claims might, in theory, incentivize prosecutors to avoid misconduct, the reality is that they are rarely successful.
The Eleventh Circuit Court of Appeals has held that in order to prevail on a Hyde Amendment claim, a fee-seeking defendant must show that “the government’s position underlying the prosecution amounts to prosecutorial misconduct –a prosecution brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous.” As interpreted by the Eleventh Circuit, “[t]he Hyde Amendment allows for the extraordinary remedy of invading the public fisc to pay an acquitted criminal defendant's attorney’s fees, and this rare waiver of sovereign immunity applies only when a court determines that the entire position of the United States was vexatious, frivolous, or in bad faith.” According to the court in Shaygan, so long as the charges were supported by probable cause, the prosecution was “objectively reasonable,” and therefore not in bad faith, regardless of the frequency and degree of misconduct that occurred at trial.
It is also somewhat unclear what constitutes a “prevailing party,” as that term is not defined in the statute. Courts have held that a party prevails when it obtains a dismissal, whether with or without prejudice, but not when it obtains a dismissal without prejudice of a grand jury subpoena. Even where a defendant is a “prevailing party,” satisfying the burden of showing that the entire prosecution was without foundation is nothing short of a “daunting obstacle.”
Although success on a Hyde Amendment claim is rare, it is not unheard of. In United States v. Aisenberg, the district court awarded the defendants $2,680,602.22 after dismissing a federal prosecution arising out of the disappearance of the Aisenberg’s five-month-old daughter. The Eleventh Circuit later reversed the award and remanded the case to the district court to enter judgment in favor of the Aisenbergs for $1,298,980.00 in attorney’s fees, plus litigation expenses of $195,670.32, for a total of $1,494,650.32, after concluding that no special factors existed warranting departure from the $125 per hour cap.
In another Eleventh Circuit case, the court held that the defendant was entitled to attorneys’ fees where the government had included a bank fraud charge in a conspiracy prosecution, “with full knowledge that it was contrary to recent and controlling precedent.” Because the government’s conduct evidenced bad faith, the court remanded to the district court for a determination of the amount of fees and expenses to which defendants were entitled under the Hyde Amendment.
The Hyde Amendment’s deterrent effect nevertheless remains questionable, since the financial burden is imposed on the government, and not the individual prosecutor or prosecutors. Moreover, even if the threat of a Hyde Amendment claim were enough to rein in an overzealous prosecutor, the Amendment only applies in cases where the defendant has retained private counsel.
RULE 16 AND OPEN-FILE DISCOVERY
Federal Rule of Criminal Procedure 16, which governs discovery and inspection of evidence in federal criminal cases, entitles the defendant to receive, among other things, documents and tangible objects within the government’s possession that “are material to the preparation of the defendant’s defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.” Rule 16 also imposes upon the government a continuing duty to disclose additional evidence or materials that the government discovers prior to or during the trial. Finally, Rule 16 grants the court discretion to issue sanctions or other orders “as are just” in the event the government fails to comply with a discovery request made under the rule.
The Advisory Committee on Criminal Rules (Advisory Committee) has in the past considered whether Rule 16 should be amended to incorporate the government’s constitutional obligation to provide exculpatory and impeachment evidence to the defense or, instead, to create a broader disclosure obligation. Such an amendment would provide defendants with an enforceable right to any and all exculpatory evidence, not just evidence the government deems “material.” So far, the Advisory Committee has decided not to codify the Brady rule. However, as Judge Kozinski has noted, “[i]t … behooves the government to interpret the disclosure requirement broadly and turn over whatever evidence it has pertaining to the case,” since an appropriate remedy for its failure to comply with its Rule 16 obligations may be a mistrial.
As another measure aimed at preventing Brady violations, open-file discovery policies are being endorsed by a growing number of defense lawyers and commentators. Under an open-file discovery policy, the prosecution is required to provide defense counsel with everything in the prosecution’s investigative file, without regard to its materiality or to whether the prosecution plans to introduce it at trial. Proponents of open-file policies argue that the “quest for truth” outweighs any possible arguments against broader discovery, and that “better-informed defendants will lead to more efficient dispositions of criminal cases.”
Those who oppose open-file discovery argue that it may create an unmanageable burden on defendants by overwhelming them (intentionally or unintentionally) with information and frustrating their ability to locate and synthesize critical evidence. Open-file policies could therefore invite even more discovery abuses by encouraging “discovery dumps” by prosecutors seeking to hide exculpatory evidence. The effects would be felt most acutely in the context of indigent defense, where counsel’s resources are extremely limited. Another potential problem with open-file discovery is that prosecutors may intentionally or unintentionally fail to include records from law enforcement files. Thus, even if all of the prosecution’s files are made available to a defendant, prosecutors could still take affirmative steps to conceal pieces of favorable information by omitting that information from the official investigative file. Although it may even the playing field to some degree, open-file discovery does not appear to be the “win-win” proposition some supporters claim.
As prosecutorial misconduct shows no signs of abating, it is clear that current remedies provide prosecutors with no real incentive to stay within the bounds of their legal and ethical duties and are thus largely ineffective. While initiatives such as open-file discovery might help stem the tide of Brady violations, the need for strengthened disciplinary sanctions for prosecutors who violate the law or their ethical duties cannot be ignored or underestimated. In limiting, if not eviscerating, civil liability for prosecutors, the Supreme Court has repeatedly touted professional discipline as the appropriate method of addressing prosecutorial misconduct. Nevertheless, prosecutors are rarely held accountable for their misconduct, thus making the practical unavailability of other remedies even more problematic. Until judges are willing to call prosecutors to the carpet when they behave unethically, prosecutorial misconduct will continue to infect the criminal justice process. Although case remedies are rare, prosecutorial misconduct is still a viable issue for appellate review. Defense attorneys must therefore be sure to make a timely and specific objection to the misconduct, request any necessary curative instructions, and move for a mistrial in order to ensure that their clients’ rights have some chance of vindication on appeal.
 See Hundreds of Justice Department Attorneys Violated Professional Rules, Laws, or Ethical Standards: Administration Won’t Name Offending Prosecutors, March 12, 2014, available at http://pogoarchives.org/m/ga/opr-report-20140312.pdf. at 2.
 Id. at 4.
 Michael D. Cicchini, Prosecutorial Misconduct at Trial: A New Perspective Rooted in Confrontation Clause Jurisprudence, 37 Seton Hall L. Rev. 335, 344 (2007) (footnote and citation omitted).
 Deborah Jane Cooper, A Call For Prosecutorial Accountability, December 12, 2011, available at http://www.law.yale.edu/news/14698.htm (“New research analyzing the policies and procedures for disciplining attorneys in each state and in the District of Columbia shows that prosecutors are rarely held accountable when misconduct occurs.”).
An Epidemic of Prosecutor Misconduct, Center for Prosecutor Integrity, 2013, available at http://www.prosecutorintegrity.org/wp-content/uploads/EpidemicofProsecutorMisconduct.pdf
 Brad Heath and Kevin McCoy, Prosecutors’ Conduct Can Tip Justice Scales, USA Today, September 23, 2010, available at http://usatoday30.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N.htm?csp=usat.me
 Cicchini, supra note 5, at 336 (“Decades of court decisions have proved that judges will rarely grant a defendant’s request for mistrial no matter how blatant or harmful the prosecutor’s misconduct.”).
 Sonia B. Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, 97 Geo. L.J. 1509, 1514 (2008).
 Cicchini, supra note 4, at 370 (internal quotations, alterations, and citation omitted).
 See Rose v. Clark, 478 U.S. 570, 588-89 (1986) (Stevens, J., concurring) (“In addition to giving inadequate respect to constitutional values besides reliability, adopting a broad presumption in favor of harmless error also has a corrosive impact on the administration of criminal justice. An automatic application of harmless-error review in case after case, and for error after error, can only encourage prosecutors to subordinate the interest in respecting the Constitution to the ever-present and always powerful interest in obtaining a conviction in a particular case.”); see also David Keenan, Deborah Jane Cooper, David Lebowitz & Tamar Lerer, The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale L.J. Online 203 (2011) (“By reducing the likelihood of reversal, the harmless error standard substantially weakens one of the primary deterrents to prosecutorial misconduct. Knowing that “minor” misconduct is unlikely to jeopardize a conviction on appeal, prosecutors may be more likely to bend the rules in the pursuit of victory.”).
 579 F.Supp.2d 1142 (N.D. Iowa 2008).
 Id. at 1152.
 Id. at 1144.
 See, e.g., United States v. Price, 566 F.3d 900 (9th Cir. 2009) (reversing denial of defendant’s motion for a new trial on grounds that prosecutor’s failure to disclose criminal history of star witness in defendant’s firearm possession trial violated defendant’s due process rights and was prejudicial to the outcome of the case); United States v. Mahaffy, 693 F.3d 113 (2d Cir. 2012) (vacating property fraud component of defendants’ convictions on grounds that prosecution mishandled material exculpatory and impeaching evidence, in violation of Brady); United States v. Freeman, 650 F.3d 673 (7th Cir. 2011) (mistrial proper where government knew, or should have known witness presented false testimony).
 Starr, supra note 10, at 1511.
 Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 Wash. U. L.Rev. 713, 717 (1999).
 Cicchini, supra note 4, at 344 (“Even more costly than a reversal, when left unchecked the misconduct undermines the integrity of the system itself, thereby threatening the equally important appearance of a fair trial.”).
 United States v. Wilson, 149 F.3d 1298, 1304 (11th Cir. 1998).
 424 U.S. 409, 430 (1976).
 Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (holding that where prosecutors act as investigators, outside the bounds of their protected quasi-judicial function, they are not absolutely immune from suit).
 Pub. L. 105-119, § 617, Nov. 26, 1997, 111 Stat. 2519, codified as a note following 18 U.S.C. § 3006A.
 Lynn R. Singband, The Hyde Amendment and Prosecutorial Investigation: The Promise of Protection for Criminal Defendants, 28 Fordham Urb. L.J. 1967, 1982 (2000).
 United States v. Gilbert, 198 F.3d 1293, 1296 (11th Cir. 1999).
 United States v. Shaygan, 676 F.3d 1237, 1239 (11th Cir. 2012) (en banc).
 Id. at 1250 (Martin, J., dissenting).
 United States v. Gardner, 23 F. Supp. 2d 1283 (N.D. Okla. 1998); United States v. Ranger Elec. Commns., Inc., 22 F. Supp. 2d 667 (W.D. Mich. 1998).
 In re Grand Jury Subpoena Duces Tecum, 31 F.Supp.2d 542, 543-44 (N.D. W.Va. 1998)
 Mike Scarcella, Hyde Amendment Fee Awards Rarely Granted, The National Law Journal, May 7, 2012, available at http://www.markuslaw.com/userimages/nljhydeamendment.pdf.
 247 F.Supp.2d 1272 (M.D. Fla. 2003).
 United States v. Aisenberg, 358 F.3d 1327 (11th Cir. 2004).
 United States v. Adkinson, 247 F.3d 1289, 1292 (11th Cir. 2001) (internal quotation marks, alterations, and citation omitted).
 Id. at 1293.
 Pub. L. 105-119, § 617.
 Stephen R. Pivack, Troubling the Heavens: Production of Evidence Favorable to Defendants by the United States, THE CHAMPION, January/February 2010 (noting that the amendment “would codify the government’s obligation to provide exculpatory and impeaching information regardless of its perceived materiality and would grant defendants a right that is enforceable in court and is not currently recognized by most courts absent a showing of materiality”).
 United States v. Hernandez-Meza, 720 F.3d 760 (9th Cir. 2013) (vacating conviction and remanding for evidentiary hearing into whether prosecution’s failure to disclose material evidence was willful and directing district court to impose appropriate sanctions if it was).
 Brian P. Fox, An Argument Against Open-File Discovery in Criminal Cases, 89 Notre Dame L. Rev. 425, 429-30 (2013).
 Laurie L. Levenson, Discovery from the Trenches: The Future of Brady, 60 UCLA L. Rev. Disc. 74, 84 (2013) (noting that “[o]ne way to hide critical evidence is to give the defense so much evidence to look for that discovering the exculpatory evidence is like finding a needle in a haystack”).
 Fox, supra note 39 at 430 (“The belief is that the moral justifications for permitting defendants access to prosecutors’ files, combined with the cost savings for prosecutors, make open-file discovery a ‘win-win’”).
 Starr, supra note 10, at 1513 (“Prosecutorial misconduct has been a widespread and widely criticized problem in the U.S. criminal justice system for decades.”).