Dear appellate court judges: prosecutors are laughing at you

When reading my weekly cases, I just saw that yet another prosecutorial misconduct decision was handed down by the appellate court.  Reading the decision reminded me how prosecutors are allowed tremendous leeway to blatantly violate the basic rules of trial practice—for example, by hiding evidence of innocence from the defendant or making improper comments to the jury—in order to win convictions.  And when defendants appeal their convictions, the appellate courts repeatedly decide that it’s not their job to deter prosecutorial misconduct, so they routinely tell the defendant: “yes, the prosecutor cheated, but too bad, your conviction stands.”  Now, that’s a big problem in itself, and I’ve written about it in the Seton Hall Law Review and the Marquette Law School Faculty Blog.  But it’s what happens next that really has our nation’s prosecutors holding their sides in laughter.   

After affirming the ill-gotten convictions, appellate courts typically go on to lecture the offending prosecutors about their improper conduct.  Essentially, it amounts to a “bad dog!” type of lecture.  Here are just three examples to give a flavor of the lofty judicial language: 

• “We are troubled by the prosecutor's repeated reference to [the defendant] as a ‘drug dealer’ in the face of the trial court's explicit instruction that she should refrain from making these improper remarks.” State v. Ihediwa.

• “[T]he prosecutor's misconduct . . . nevertheless reflects very poorly on the office of the district attorney . . . and demeans the trial process. At some point in the future, this type of conduct may very well be grounds for a determination of prejudice and reversal of a conviction.” State v. Jackson.

• “[T]he [prosecutor’s] remarks are nevertheless deserving of condemnation. . . . the remarks disparaged defense counsel and . . . reflect poorly on the prosecutor.  The remarks cannot be excused, as the State would have us do[.]” State v. Mayo.

The appellate courts’ message is the same every time, with only slight variations in the language used from case to case to case to case.  But keep in mind that, despite this tough talk, the defendants’ convictions are affirmed, and there are no repercussions for the rule-breaking prosecutors.  So while this lecturing might make the appellate courts feel good, I have news for them: the prosecutors that you chastise are laughing at you (quite literally, actually, as I’ve heard it firsthand).  In fact, they make it quite clear by their words and deeds that they do not respect you, and are not deterred by your empty warnings.  Instead, after many decades of these warnings, your little admonitions play like a broken record.  Further, you should know that your words have the opposite of their intended effect, and prosecutors continue to break the rules because you prove, time and again, that you are too weak to do anything about it.  So, unless you are going to start reversing convictions when prosecutors cheat, you need to come to terms with what a California appellate court realized back in 1987:

           This court has had occasion to twice address at length [the prosecutor’s] attitude toward, and treatment of, the judge, opposing counsel, witnesses, defendants, jurors and others in the court room. . . . Consequently, it is disheartening, to say the least, to learn that she takes pride in our admonitions, apparently because we did not reverse the [convictions]. People v. Congious, No. B0202709 (Cal. Ct. App. Dec. 4, 1987).

So, appellate court judges, you need to learn a lesson from the west coast.  Just take your medicine like this California appellate court did decades ago.  Quit pretending that you have some influence over the prosecutors, or that your opinion of their behavior matters to them.  If you’re going to keep affirming their ill-gotten convictions, then just do so and stop the meaningless threats.  That way I’d have fewer pages to read each week, and at least you would no longer be actively encouraging their misbehavior.