Robert Johnson – the Bronx D.A. – has taken the bold step of putting a spanner in the spokes of the street patrols that subject residents of public housing projects to a reign of random searches and, often arrest.  Prosecutors often have trouble remembering that the public, not the police, are their clients.  Cops and prosecutors are, naturally, a team.  But the culture of aggressive patrols which characterizes life on the street for many Black and Hispanic New Yorkers has eroded police (and prosecutors?)  respect for basic principles like the need for reasonable suspicion to stop a person and probable cause for arrest.  One of the nastiest tricks is to stop people,  compel them to empty their pockets, then arresting them for open public possession of the marijuana cigaret the unwarranted search forced into the open.  – GWC
The Times reports:
In the Bronx, Resistance to Prosecuting Stop-and-Frisk Arrests – NYTimes.com:
by Joseph Goldstein

In a significant blow to New York City’s use of stop-and-frisktactics, the Bronx district attorney’s office is no longer prosecuting people who were stopped at public housing projects and arrested for trespassing, unless the arresting officer is interviewed to ensure that the arrest was warranted.
Prosecutors quietly adopted the policy in July after discovering that many people arrested on charges of criminal trespass at housing projects were innocent, even though police officers had provided written statements to the contrary.
By essentially accusing the police of wrongfully arresting people, the stance taken by Bronx prosecutors is the first known instance in which a district attorney has questioned any segment of arrests resulting from stop-and-frisk tactics…..

By Bruce Green

Are prosecutors adequately complying with their discovery obligations under the constitution and other laws – including state ethics rules based on ABA Model Rule 3.8(d)?  Do prosecutors’ offices take sufficient measures to promote compliance?  These are among the hottest subjects of discussion in criminal justice.  The discussion has been fueled in recent years by the Duke lacrosse and Ted Stevens prosecutions, among others, in which prosecutors have been found to have acted improperly.  Connick v. Thompson and other recent Supreme Court cases also illustrate the problem, which was the subject of a two-day Cardozo Law School conference not long ago and will be addressed at an upcoming Mercer Law School symposium.  Illustrating that discussions can be not just hot but also heated, the NYS Bar Association and the state prosecutors’ association recently got into a contretemps over a column written by the criminal defense lawyer who chairs the bar association’s criminal justice section.  The prosecutors took offense at a suggestion that prosecutors’ offices train their lawyers to violate their discovery obligations.  The two associations have now reportedly reached what, one might hope, is a resolution of the disagreement.  Ideally, this will allow lawyers on both sides of the aisle to go back to work, live in peace, and perhaps even collaborate productively in the bar association and other fora to improve the criminal justice process for the public benefit.

You can read more here.

By Bruce Green

A front-page NY Times article described partnerships between district attorneys and debt collection agencies.  Evidently, the agencies use DA letterhead to threaten to prosecute debtors unless they both make good on their bounced checks and pay an additional amount to fund an educational program on financial responsibility that they will then have to attend.  The prosecutors’ offices take a cut.

This scenario provides an opportunity to explore prosecutors’ special role and some of the limitations and obligations that come with it.  In particular, the scenario raises at least five questions relating to prosecutors’ role, responsibilities and exercise of discretion:

1. Evidently, no prosecutor is determining that there is a sound basis for threatening debtors with criminal prosecution.  A bounced check may not be enough in itself to establish a basis for a criminal prosecution if, for example, the checking account was overdrawn unknowingly.  May prosecutors threaten to prosecute individuals for writing bad checks without first determining that there is a basis – e.g., probable cause – to support a prosecution?  ABA Model Rule 3.8(a) requires probable cause before filing a charge.  Should the same be required before threatening to file one?

2. If some review of the evidence and exercise of judgment are necessary before making these threats, must they be made by a disinterested prosecutor, rather than by a collection agency acting with prosecutors’ authority and paying for the use of prosecutors’ letterhead?  Prosecutors have “the responsibility of a minister of justice,” says the Comment to ABA Model Rule 3.8.  Can they delegate that authority to a for-profit company acting on behalf of creditors who may or may not have legitimate civil claims?

3.  Do the prosecutors really intend to prosecute those who receive letters and do not make the demanded payments?  If the threats are empty, are the letters impermissibly misleading under ABA Model Rules 4.1(a) or 8.4(c)?

4. If the prosecutors do plan to carry out the threats, are they doing so for an improper purpose?  Prosecutors have vast discretion to decide whether to prosecute, or threaten to prosecute, bad check cases when there is evidence to support a charge.  But some bases for making this decision may be illegitimate.  One can imagine deciding to bring charges based on the amount of the check or the number of bounced checks.  But is it legitimate to single out debtors for threatened prosecution because a particular collection agency is paying the prosecutor’s office to do so?  Is this an abuse of power that is “prejudicial to the administration of justice” in violation of ABA Model Rule 8.4(d)?

5. Prosecutors may receive allegations of wrongdoing committed by the collection agencies with whom they are partnering – e.g., allegations that they defrauded debtors or committed frauds on the court.  If so, will the prosecutors have a conflict of interest under ABA Model Rule 1.7(a)(2) that interferes with their ability disinterestedly to investigate and address the allegations?  Do prosecutors have a duty to avoid partnering with collection agencies in order to avoid these possible conflicts?

A careful study of prosecutorial conduct by the New Jersey ACLU reaches some unsurprising conclusions: that [a]s general rule, prosecutors in New Jersey deserve praise for avoiding repeated error in the overwhelming majority of cases. But there is nonetheless significant repeated prosecutorial error which requires “policies that provide for training, supervision and discipline.”  That “summation errors…continue to occur with “numbing frequency.” And that  courts must develop policies — including publicly naming offending prosecutors and reporting them to appropriate  bodies — that will ensure that prosecutorial error happens less often. 
The ACLU authors (including Rutgers law professor George C. Thomas, III) notably conclude, in their most dramatic recommendation that:

A system of mandatory reporting of all findings of prosecutorial error to the Office of the Attorney General would create a database to track prosecutors with repeated violations. 

Under this model, the Office of the Attorney General would be required to forward a complaint to the appropriate district ethics board whenever error contributed to a reversal of a conviction and whenever a prosecutor had been cited for a subsequent finding of error.

– GWC

Trial and Error – A Comprehensive Study of Prosecutorial Conduct in New Jersey

 – ACLU of NJ
by Alexander Shalom and Prof. George Thomas

from the Executive Summary

As a whole, prosecutors understand the unique role they play in the administration of justice and take their responsibilities seriously. They seek diligently to avoid errors that could undermine both the integrity of the criminal justice system and the validity of their hard-fought convictions. They proceed confident in the knowledge that they seek not only convictions, but justice, and often without competitive remuneration.

When prosecutors err, and transgress rules established for their conduct, they generally learn from their mistakes and avoid repeated missteps. However, a small group of prosecutors commits multiple errors without seeming to learn from those missteps. This American Civil Liberties Union of New Jersey study aims to survey comprehensively prosecutorial error in New Jersey by examining the prevalence of error and determining which errors occur most frequently.

After compiling the foundational data, the study’s authors quantitatively analyzed the data’s meaning. Specifically, researchers examined the extent of inter-county disparities among rates of error, correlations between error and experience and prevalence of individual prosecutors with repeated instances of error.  The report examines the contexts in which prosecutors were cited for error on multiple occasions and explores the costs of prosecutorial error for criminal defendants,  for society and for individual prosecutors.