'Heated and hyperbolic,' 'arrogant and extreme': Prosecutorial rhetoric on professional regulation

In the wake of the Michael Morton exoneration and the pending court of inquiry related to alleged prosecutor misconduct in his case, Texas has witnessed calls for greater regulation of prosecutors that will likely lead to concrete legislative proposals in the coming year. So, in anticipation of that debate, I was interested to see an academic publication from Bruce Green at Fordham University law school focused on prosecutor attitudes toward professional regulation. The article opened thusly:

Much is expected of prosecutors. The bench and bar take the view that prosecutors are “ministers of justice” with a responsibility to uphold higher professional standards than other lawyers, and prosecutors generally agree. But not so much is required of them. Few professional conduct provisions specifically target their work, and those provisions are mostly undemanding. Courts often interpret the generally applicable rules of professional conduct as less restrictively applied to prosecutors than to other lawyers. When prosecutors engage in questionable conduct that does implicate professional conduct rules, professional discipline rarely follows. For every case in which a prosecutor is publicly sanctioned for egregious misconduct, there are many more in which prosecutors’ questionable conduct goes unpunished. Although the U.S. Supreme Court, in recognizing prosecutorial immunity, assumed that prosecutors are adequately policed by regulators of the bar, in reality, there is no reason for prosecutors to fear professional regulation: in making, interpreting, and enforcing rules of professional conduct, the legal profession’s regulators are highly deferential to them.

Even so, prosecutors often express mistrust of professional regulators, their rules, and their processes. Twenty years ago, prosecutors’ mistrust may have been more understandable. Prosecutors perceived, probably unfairly, that the organized bar had been captured by defense lawyers who were seeking to use professional regulation to impose limits on criminal investigative authority that the law did not otherwise recognize. Today, this perception is even further from the reality, but it has persisted in the rhetoric prosecutors employ in discourse regarding their professional conduct, even in contexts such as rule-making where prosecutors are not representing one side in an adversary process but purport to express personal views. This article explores prosecutors’ public attitude toward professional regulation, beginning with a brief account of their responses to perceived over-regulation two decades ago, then offering three recent illustrations, and finally exploring the significance of prosecutors’ rhetorical challenges to external regulatory efforts. It suggests that the rhetoric reflects a departure from prosecutors’ professional obligation to act in the public interest and that the rhetoric may have various negative repercussions, including a likely negative impact on the culture of prosecutors’ offices.

Prof. Green pointed out that not all prosecutors engage in over-the-top rhetoric in public policy debates, but in analyzing the arguments of those who do, he presaged the likely response to reform proposals next year aimed at prosecutors in Texas. Examining three high-profile case studies, Green found that "prosecutors’ rhetoric was sometimes heated and hyperbolic," not to mention "arrogant and extreme." Indeed, "The anti-regulatory rhetoric in the three examples described in Part II was largely inflammatory and superficial; it was not predicated on well-developed arguments, but bordered on sloganeering." Moreover, "Besides being facile and inchoate, prosecutors’ arguments against professional regulation were also indiscriminate and overbroad."

Prosecutors frequently worry that their own reputations will be unfairly sullied through misconduct allegations, noted Green. "Yet prosecutors often show little concern for the reputations of individuals whom they accuse of criminal conduct in public filings, press conferences, or elsewhere. Even when mistaken, they rarely take steps to repair the reputations of those who are acquitted or against whom charges are not filed. Likewise, prosecutors claim to worry that the risk of discipline will chill them in performing their professional tasks, but discredit complaints about the chilling effect of aggressive criminal prosecutions on others’ legitimate professional activities."

The article concluded that, "To the extent that prosecutors’ inflammatory anti-regulation rhetoric reflects genuine belief, it seems likely that the belief is atavistic, vestigial, unexamined, and shaped by the continued utility of exaggerated rhetoric as an advocacy tool." In other words, prosecutors may or may not believe their own bullshit (there are moments when it seems unlikely), but they employ such tactics because they work. Prof. Green's analysis provides a context for evaluating such Chicken Little rhetoric, which is a good thing, since in the near future we're certain to be hearing more of it.