The civil regulation of prosecutors

Fordham Law Review

Volumn 67, Issue 6, 1999, Pages 3441-3480

  Williams, Lesley E ^a  

^a NONE

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EID: 0033466171     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (361)

1. Imbler v. Pachtman, 424 U.S. 409, 428-29 (1976) (citations omitted).
2. 424 U.S. 409.
3. See id. at 429.
4. See id.
5. 42 U.S.C. § 1983 (1994).
6. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
7. See Imbler v. Pachtman, 424 U.S. at 429.
8. See infra Part IV.A-B.
9. See infra Part III.A-B.
10. See infra Part IV.
11. See, e.g., N.Y. Penal Law § 195.05 (McKinney 1999) (obstructing governmental administration). In New York, a person is guilty of obstructing governmental administration in the second degree when she "intentionally obstructs, impairs or perverts the administration of law or other governmental function . . . ." Id.
12. See, e.g., id. §§ 210.05, 210.10, 210.15 (perjury). The New York Penal Law does not contain a crime separately defined as subornation of perjury, but according to the doctrine of accomplice liability, see id. § 20.00, the person who suborns perjury is guilty of the perjury committed by the person who was suborned. See id. §§ 210.00-210.50 practice commentary, at 356.
13. See Brady v. Maryland, 373 U.S. 83, 87 (1963).
14. See Ted Gregory, Du Page 7 Attorneys Seek Delay in Trial: Tribune Series Cited as Adverse Publicity, Chi. Trib., Jan. 14, 1999, Metro Chi., at 1.
15. See id.
16. See id. Cruz was finally acquitted of the charges in November 1995 during his third trial. See id. By that time, he had been in prison for 12 years, 10 of which he spent on death row. See id. In dismissing the charges against Cruz, Judge Ronald Mehling of Du Page County criticized the Cruz investigation. See id. His comments led to the appointment of a special prosecutor and the grand jury probe of the case. See id.
17. See Ted Schneyer, Legal Process Scholarship and the Regulation of Lawyers, 65 Fordham L. Rev. 33, 40-41 (1996).
18. See id.
19. See Model Code of Professional Responsibility (1981).
20. See Model Rules of Professional Conduct (1997). The ABA first codified ethics rules in 1908 in the Canons of Professional Ethics. These were in effect for 62 years and functioned "not as a detailed guide to daily practice, but as an expression of the general norms to which a lawyer should conform . . . ." Frank O. Bowman, III, A Bludgeon by Any Other Name: The Misuse of "Ethical Rules" Against Prosecutors to Control the Law of the State, 9 Geo. J. Legal Ethics 665, 761 (1996). In 1969, the ABA supplanted the Canons with the Model Code of Professional Responsibility. The Model Code contains three tiers of norms: "Canons," which are short statements of general principle; "Ethical Considerations," which are "should" rules and aspirational in nature; and "disciplinary rules," which are "must" rules, imposing minimum standards of conduct. In 1977, the ABA attempted to replace the Code with the Model Rules of Professional Conduct, which consists of 54 statute-like rules that describe both prohibitions and conduct in which lawyers may engage in certain circumstances. See Model Rules of Professional Conduct (1998). ABA rules, however, have no binding legal effect unless they are adopted by a state's judiciary. Forty-two states have based their ethics rules on the Model Rules. See Model Rules: Virginia Makes Numerous Changes in Adopting ABA Model Rules of Conduct, 15 Laws. Man. on Prof. Conduct (ABA/BNA) 38 (Feb. 17, 1999). Other states follow the Model Code, or, like California, have developed their own rules. See State Ethics Rules, Laws. Man. on Prof. Conduct (ABA/BNA) 01:3 (Aug. 20, 1997). There have been several occasions when federal courts have intervened to nullify state bar regulations contrary to the Constitution or federal statutes. See Bowman, supra, at 748 nn.419-20; see also, e.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 278 (1985) (striking down residency requirements for bar membership and holding that the New Hampshire Supreme Court's refusal to swear in a Vermont resident who passed the bar examination violated the Privileges and Immunities Clause of the Fourteenth Amendment); In re Primus, 436 U.S. 412, 439 (1978) (holding that South Carolina's attempt to discipline an ACLU attorney for improper solicitation of a client was a violation of First and Fourteenth Amendments); Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39 (1957) (finding that the Due Process and Equal Protection Clauses of the Fourteenth Amendment place limits on states' ability to exclude a person from the practice of law for her admitted or suspected political beliefs).
21. See Model Rules of Professional Conduct (1997). The ABA first codified ethics rules in 1908 in the Canons of Professional Ethics. These were in effect for 62 years and functioned "not as a detailed guide to daily practice, but as an expression of the general norms to which a lawyer should conform . . . ." Frank O. Bowman, III, A Bludgeon by Any Other Name: The Misuse of "Ethical Rules" Against Prosecutors to Control the Law of the State, 9 Geo. J. Legal Ethics 665, 761 (1996). In 1969, the ABA supplanted the Canons with the Model Code of Professional Responsibility. The Model Code contains three tiers of norms: "Canons," which are short statements of general principle; "Ethical Considerations," which are "should" rules and aspirational in nature; and "disciplinary rules," which are "must" rules, imposing minimum standards of conduct. In 1977, the ABA attempted to replace the Code with the Model Rules of Professional Conduct, which consists of 54 statute-like rules that describe both prohibitions and conduct in which lawyers may engage in certain circumstances. See Model Rules of Professional Conduct (1998). ABA rules, however, have no binding legal effect unless they are adopted by a state's judiciary. Forty-two states have based their ethics rules on the Model Rules. See Model Rules: Virginia Makes Numerous Changes in Adopting ABA Model Rules of Conduct, 15 Laws. Man. on Prof. Conduct (ABA/BNA) 38 (Feb. 17, 1999). Other states follow the Model Code, or, like California, have developed their own rules. See State Ethics Rules, Laws. Man. on Prof. Conduct (ABA/BNA) 01:3 (Aug. 20, 1997). There have been several occasions when federal courts have intervened to nullify state bar regulations contrary to the Constitution or federal statutes. See Bowman, supra, at 748 nn.419-20; see also, e.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 278 (1985) (striking down residency requirements for bar membership and holding that the New Hampshire Supreme Court's refusal to swear in a Vermont resident who passed the bar examination violated the Privileges and Immunities Clause of the Fourteenth Amendment); In re Primus, 436 U.S. 412, 439 (1978) (holding that South Carolina's attempt to discipline an ACLU attorney for improper solicitation of a client was a violation of First and Fourteenth Amendments); Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39 (1957) (finding that the Due Process and Equal Protection Clauses of the Fourteenth Amendment place limits on states' ability to exclude a person from the practice of law for her admitted or suspected political beliefs).
22. See Model Rules of Professional Conduct (1997). The ABA first codified ethics rules in 1908 in the Canons of Professional Ethics. These were in effect for 62 years and functioned "not as a detailed guide to daily practice, but as an expression of the general norms to which a lawyer should conform . . . ." Frank O. Bowman, III, A Bludgeon by Any Other Name: The Misuse of "Ethical Rules" Against Prosecutors to Control the Law of the State, 9 Geo. J. Legal Ethics 665, 761 (1996). In 1969, the ABA supplanted the Canons with the Model Code of Professional Responsibility. The Model Code contains three tiers of norms: "Canons," which are short statements of general principle; "Ethical Considerations," which are "should" rules and aspirational in nature; and "disciplinary rules," which are "must" rules, imposing minimum standards of conduct. In 1977, the ABA attempted to replace the Code with the Model Rules of Professional Conduct, which consists of 54 statute-like rules that describe both prohibitions and conduct in which lawyers may engage in certain circumstances. See Model Rules of Professional Conduct (1998). ABA rules, however, have no binding legal effect unless they are adopted by a state's judiciary. Forty-two states have based their ethics rules on the Model Rules. See Model Rules: Virginia Makes Numerous Changes in Adopting ABA Model Rules of Conduct, 15 Laws. Man. on Prof. Conduct (ABA/BNA) 38 (Feb. 17, 1999). Other states follow the Model Code, or, like California, have developed their own rules. See State Ethics Rules, Laws. Man. on Prof. Conduct (ABA/BNA) 01:3 (Aug. 20, 1997). There have been several occasions when federal courts have intervened to nullify state bar regulations contrary to the Constitution or federal statutes. See Bowman, supra, at 748 nn.419-20; see also, e.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 278 (1985) (striking down residency requirements for bar membership and holding that the New Hampshire Supreme Court's refusal to swear in a Vermont resident who passed the bar examination violated the Privileges and Immunities Clause of the Fourteenth Amendment); In re Primus, 436 U.S. 412, 439 (1978) (holding that South Carolina's attempt to discipline an ACLU attorney for improper solicitation of a client was a violation of First and Fourteenth Amendments); Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39 (1957) (finding that the Due Process and Equal Protection Clauses of the Fourteenth Amendment place limits on states' ability to exclude a person from the practice of law for her admitted or suspected political beliefs).
23. See, e.g., Model Rules of Professional Conduct Rules 3.3, 3.4, 3.6 (governing the general conduct of lawyers).
24. See Berger v. United States, 295 U.S. 78, 88 (1935). As Justice Sutherland eloquently opined: 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 twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor. . . . 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. Id.
25. See Model Rules of Professional Conduct Rule 3.8.
26. See Trial Conduct: Prosecutors, Laws. Man. on Prof. Conduct (ABA/BNA) 61:603 (Apr. 30, 1997).
27. Only one jurisdiction has adopted section "g," which was the ABA's 1994 amendment prohibiting extrajudicial statements likely to increase public condemnation of the accused. See Trial Conduct: Prosecutors, Laws. Man. on Prof. Conduct 61:601-06. Further, only several states have adopted section "f," which regulates prosecutors' issuance of subpoenas to lawyers. See id.
28. Only one jurisdiction has adopted section "g," which was the ABA's 1994 amendment prohibiting extrajudicial statements likely to increase public condemnation of the accused. See Trial Conduct: Prosecutors, Laws. Man. on Prof. Conduct 61:601-06. Further, only several states have adopted section "f," which regulates prosecutors' issuance of subpoenas to lawyers. See id.
29. See id. Prosecutors may also seek guidance in the ABA Standards Relating to the Administration of Criminal Justice: The Prosecution Function ("Prosecution Function") and the National District Attorney's Association: National Prosecution Standards ("District Attorney Standards"). No jurisdiction has adopted either the Prosecution Function or the District Attorney Standards in their entirety, see Bruce A. Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement?, 8 St. Thomas L. Rev 69, 74 (1995) [hereinafter Green, Policing], but courts often invoke them when they are interpreting law or formulating case-by-case disciplinary rules. See id.
30. See id. Prosecutors may also seek guidance in the ABA Standards Relating to the Administration of Criminal Justice: The Prosecution Function ("Prosecution Function") and the National District Attorney's Association: National Prosecution Standards ("District Attorney Standards"). No jurisdiction has adopted either the Prosecution Function or the District Attorney Standards in their entirety, see Bruce A. Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement?, 8 St. Thomas L. Rev 69, 74 (1995) [hereinafter Green, Policing], but courts often invoke them when they are interpreting law or formulating case-by-case disciplinary rules. See id.
31. See id. Prosecutors may also seek guidance in the ABA Standards Relating to the Administration of Criminal Justice: The Prosecution Function ("Prosecution Function") and the National District Attorney's Association: National Prosecution Standards ("District Attorney Standards"). No jurisdiction has adopted either the Prosecution Function or the District Attorney Standards in their entirety, see Bruce A. Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement?, 8 St. Thomas L. Rev 69, 74 (1995) [hereinafter Green, Policing], but courts often invoke them when they are interpreting law or formulating case-by-case disciplinary rules. See id.
32. See id. at 75-76.
33. See Bowman, supra note 20, at 750 & n.434. The Judicial Conference of the United States writes the rules of procedure that govern lawyers in federal courts. See Schneyer, supra note 17, at 40 n.37.
34. See Bruce A. Green, Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and How Should the Rules Be Created?, 64 Geo. Wash. L. Rev. 460, 463 (1996) [hereinafter Green, Whose Rules].
35. See Green, Policing, supra note 26, at 73.
36. See id. at 75-76.
37. For an examination of courts' supervisory power, see infra notes 45-52 and accompanying text.
38. See Green, Policing, supra note 26, at 75.
39. See id.
40. See id.
41. Department of Justice Manual (1990).
42. See 28 C.F.R. § 45 (1998) (codifying DOJ's ethical standards).
43. 2 Department of Justice Manual § 1-4.100 (1995-1 Supp.).
44. 28 U.S.C.A. § 530B (West Supp. 1999). The Act is informally known as the McDade Amendment because the original proposal was sponsored by Rep. Joseph McDade (R-Pa.), who was acquitted in 1996 of federal conspiracy and racketeering charges. See 14 Laws. Man. on Prof. Conduct (ABA/BNA) 498, 498 (Oct. 28, 1998). According to one of McDade's aides, the Congressman sought the new law, not to exact revenge for the lengthy, failed prosecution against him, but to ensure that the DOJ could not exempt itself from the ethical rules and guidelines that govern all other attorneys. See id. The Act drew harsh criticism from the DOJ. See id.
45. See id.
46. See id.
47. See id. at 500.
48. See id.
49. See id. at 498.
50. See Lyn M. Morton, Note, Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal, or Discipline, 7 Geo. J. Legal Ethics 1083, 1089-90 (1994).
51. See United States v. Giovanelli, 897 F.2d 1227, 1230 (2d Cir. 1990).
52. See Green, Policing, supra note 26, at 80-83.
53. See, e.g., United States v. Williams, 504 U.S. 36, 45-55 (1992) (holding that courts have no authority to prescribe a duty to disclose exculpatory evidence to the grand jury).
54. 487 U.S. 250 (1988).
55. See id. at 254.
56. See id. at 255.
57. See id.
58. 2 Department of Justice Manual § 1-4.100, at 1-193-94 (1995-1 Supp.).
59. See id.
60. See Green, Policing, supra note 26, at 88.
61. See id.
62. See id.
63. See Charles W. Wolfram, Modern Legal Ethics § 3.4.4, at 107 (1986).
64. Public reprimand or suspension are two examples. See id. § 3.5.3, at 126-28.
65. See U.S. Const. amends. V, XIV.
66. See Oyler v. Boles, 368 U.S. 448, 456 (1962).
67. See Wayte v. United States, 470 U.S. 598, 610 (1985).
68. See McCleskey v. Kemp, 481 U.S. 279, 298-99 (1987).
69. See United States v. Armstrong, 517 U.S. 456, 458 (1996).
70. See Blackledge v. Perry, 417 U.S. 21, 28-29 (1974) (holding that a prosecutor may not upgrade the defendant's charges after the defendant invokes the right to a trial de novo).
71. See United States v. Goodwin, 457 U.S. 368, 380-81 (1982).
72. Brady v. Maryland, 373 U.S. 83, 87 (1963).
73. See United States v. Agurs, 427 U.S. 97, 110-11 (1976).
74. See United States v. Bagley, 473 U.S. 667, 674-75 (1985).
75. See Kyles v. Whitley, 514 U.S. 419, 434 (1995). Due process guarantees also prevent a prosecutor from coercing guilty pleas from defendants. See Brady v. United States, 397 U.S. 742, 750 (1970); Machibroda v. United States, 368 U.S. 487, 493 (1962).
76. See Miranda v. Arizona, 384 U.S. 436, 476 (1966).
77. See Edwards v. Arizona, 451 U.S. 477, 482 (1981).
78. See Michigan v. Jackson, 475 U.S. 625, 629-30 (1986); Massiah v. United States, 377 U.S. 201, 205 (1964).
79. See Morton, supra note 45, at 1089-90.
80. See Bank of Nova Scotia v. United States, 487 U.S. 250, 255-56 (1988); Rose v. Clark, 478 U.S. 570, 576-79 (1986); Smith v. Phillips, 455 U.S. 209, 215-18 (1982).
81. See United States v. Hasting, 461 U.S. 499, 507-09 (1983).
82. See United States v. Williams, 504 U.S. 36, 46-47 (1992); Bank of Nova Scotia, 487 U.S. at 255-56.
83. 42 U.S.C. § 1983 (1994). After the Civil War, acts of terrorism were perpetrated by the Ku Klux Klan and other vigilante groups against blacks and Union sympathizers. See Eric Foner, Reconstruction 1863-1877: America's Unfinished Revolution 119-23, 425-59 (1988). Although almost all these acts were violations of state law, local officials rarely intervened and sometimes overtly supported the lawless behavior. See id. To remedy the situation, Congress passed the Ku Klux Klan Act of 1871. See id. Section 1 of the Act is now codified at 42 U.S.C. § 1983.
84. See Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
85. 42 U.S.C. § 1983. Individuals alleging prosecutorial misconduct may also file state common law claims for malicious prosecution. State claims for malicious prosecution are routinely dismissed for failure to state a claim because of the immunities available to prosecutors at common law.
86. In Bivens, 403 U.S. at 388, the Supreme Court recognized a cause of action parallel to that of § 1983 against federal officials who, while acting under the color of federal law, violate a person's constitutional rights. See Megan M. Rose, Note, The Endurance of Prosecutorial Immunity: How the Federal Courts Vitiated Buckley v. Fitzsimmons, 37 B.C. L. Rev. 1019, 1021 (1996). Actions brought against federal employees to remedy violations of federal law have become known as Bivens actions. In Bivens, six federal agents allegedly violated the plaintiff's Fourth Amendment right to be free from unreasonable searches and seizures. See Bivens, 403 U.S. at 389-90. The Supreme Court has been very reluctant to expand Bivens to new contexts. See Schweiker v. Chilicky, 487 U.S. 412, 414 (1988) (holding that a Bivens action is unavailable for alleged violations of due process by government officials who administered the Federal Social Security program); see also Bush v. Lucas, 462 U.S. 367, 368 (1983) (refusing to create a Bivens remedy for a First Amendment violation when a federal employee was demoted for making public statements critical of the agency in which he worked); Chappell v. Wallace, 462 U.S. 296, 304 (1983) (holding that a Bivens action was unavailable for enlisted military personnel who were allegedly injured by the unconstitutional actions of their superior officers). But see Carlson v. Green, 446 U.S. 14, 20 (1980) (recognizing a Bivens action against federal prison employees); Davis v. Passman, 442 U.S. 228, 234 (1979) (recognizing a Bivens cause of action under the Fifth Amendment Due Process Clause for a congressional employee who alleged sexual discrimination). To state a claim under Bivens, a plaintiff must show that a person acting under the color of federal law deprived her of a federally protected constitutional right. See Rose, supra, at 1021.
87. Section 1983 provides, in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. Section 1983 actions can be brought in state and federal courts. Though it was passed in the latter half of the nineteenth century, the statute lay unused until Monroe v. Pape, 365 U.S. 167 (1961), in which plaintiffs sued local police officers under § 1983 for unlawful search and arrest. See id. at 168-69. The Supreme Court upheld the complaint. See id. Plaintiffs alleged that 13 police officers broke into their home without search or arrest warrants and ransacked every room while plaintiffs stood naked nearby. See id. Monroe was held for 10 hours in the police station without being arraigned or permitted to call his family or attorney. See id. Monroe was released without charges being filed. See id.
88. See Monroe, 365 U.S. at 168-69.
89. See Maine v. Thiboutot, 448 U.S. 1, 7 (1980).
90. See id. at 4 (holding that the § 1983 remedy broadly encompasses violations of constitutional as well as federal statutory law).
91. See Daniels v. Williams, 474 U.S. 327, 330 (1986).
92. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104-06 (1976) (holding that to demonstrate a constitutional violation arising from prison officials' alleged withholding of a prisoner's medical care, the prisoner must prove deliberate indifference to serious medical needs).
93. See Monroe, 365 U.S. at 184.
94. See West v. Atkins, 487 U.S. 42, 49-50 (1988).
95. This is a complicated question of fact and law. The Supreme Court has developed several tests to determine when private parties may be considered state actors for the purposes of § 1983. See, e.g., West, 487 U.S. at 54 (delegation test); Lugar v. Edmondson Oil Co., 457 U.S. 922, 931 (1982) (joint participation test); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172-73 (1972) (nexus test); Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-61 (1970) (state compulsion test and joint participation test); Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961) (symbiotic relationship test); Terry v. Adams, 345 U.S. 461, 469 (1953) (public function test).
96. See Imbler v. Pachtman, 424 U.S. 409, 410 (1976).
97. See 1A Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Claims and Defenses 2 (3d ed. 1997).
98. See id. at 478.
99. See Rose, supra note 81, at 1022-23. For example, the plaintiff must prove that the conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or been the subject of a federal court's issuance of a writ of habeas corpus." Id. at 1023.
100. The Eleventh Amendment prevents individuals from suing states. Under Ex Parte Young, 209 U.S. 123 (1908), neither states nor state officials in their official capacities may be named as defendants under § 1983. See id. at 150. Plaintiffs must name state officials in their individual capacities to avoid Eleventh Amendment immunity. The concept of state action embodied in the Eleventh Amendment is much narrower than the color of law requirement of § 1983 or the state action principle of the Fourteenth Amendment. Thus, as long as public officials are named in their individual capacities, they can be found to have been acting under the color of state law without triggering the Eleventh Amendment immunity. See Price v. Akaka, 915 F.2d 469, 473 (9th Cir. 1990). The Eleventh Amendment does not apply to municipalities, counties, or other localities. A plaintiff may name a municipality as a defendant of a § 1983 claim, but pursuant to the doctrine of municipal liability set out in Monell v. Department of Social Services, 436 U.S. 658 (1978), a municipality cannot be held liable under a respondeat superior theory for § 1983 claims caused by a municipal official. See id. at 993-94. To maintain a claim for municipal liability, a plaintiff must show that the municipality had a policy or custom made by a final policy maker that actually and proximately caused the injury. See id. at 694. The question of who is a final policy maker is a question of state law and should be resolved as a matter of law by the judge. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). Under the traditional doctrine of sovereign immunity, the United States cannot be sued without its consent. See United States v. Shaw, 309 U.S. 495, 500-01 (1940). Sovereign immunity is derived from the concept in English law that the king could do no wrong. See Note, Government Tort Liability, 111 Harv. L. Rev. 2009, 2009 (1998) (citing 1 William Blackstone, Commentaries on the Laws of England 238 (1765)). The United States could not be sued in tort until Congress passed the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1994 & Supp. II 1996)), in 1948. The federal government retains immunity as a sovereign from certain enumerated intentional torts, including assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, and interference with contract rights. See id. § 2680(h).
101. See infra Part III.A.
102. See infra Part III.B.
103. See IB Schwartz & Kirklin, supra note 92, at 202.
104. See id.
105. 341 U.S. 367 (1951).
106. See id. at 376; Douglas J. McNamara, Buckley, Imbler and Stare Decisis: The Present Predicament of Prosecutorial Immunity and an End to its Absolute Means, 59 Alb. L. Rev. 1135, 1138 (1996). Tenney involved immunity for state legislators, which was granted to federal legislators in the Constitution and by English and American common law to prevent nuisance suits from hindering the law-making process. Id. at 1139. In Pierson v. Ray, 386 U.S. 547 (1967), the Court held that the common-law absolute immunity available to judges for "acts committed within their judicial jurisdiction" was preserved under § 1983. See id. at 554.
107. See, e.g., Briggs v. Goodwin, 569 F.2d 10, 17 n.8 (D.C. Cir 1977); Rose, supra note 81, at 1023.
108. The Supreme Court applies absolute immunity only when justified by public policy. There is a presumption that qualified immunity is sufficient to protect government actors in their official acts. See Burns v. Reed, 500 U.S. 478, 486-87 (1991).
109. See Imbler v. Pachtman, 424 U.S. 409, 427 (1976).
110. See 1B Schwartz & Kirklin, supra note 92, at 207-08.
111. See id.
112. See id.
113. See Imbler, 424 U.S. at 424-26.
114. See Lake Country Estates, Inc. v. Tahoe Reg'1 Planning Agency, 440 U.S. 391, 405 (1979) (regional legislators); Gravel v. United States, 408 U.S. 606, 616 (1972) (federal legislators); Tenney v. Brandhove, 341 U.S. 367, 376 (1951) (state legislators).
115. See Stump v. Sparkman, 435 U.S. 349, 364 (1978).
116. See Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982).
117. See IB Schwartz & Kirklin, supra note 92, at 204.
118. See McNamara, supra note 101, at 1139.
119. See id.
120. See Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 29 (1st Cir. 1995).
121. See 1B Schwartz & Kirklin, supra note 92, at 336-37.
122. See Rose, supra note 81, at 1023-24.
123. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
124. See Anderson v. Creighton, 483 U.S. 635, 641 (1987).
125. See id.
126. See Gomez v. Toledo, 446 U.S. 635, 640 (1980).
127. See, e.g., Angarita v. St. Louis County, 981 F.2d 1537, 1548 (8th Cir. 1992) (holding that county police officers, who failed to raise the issue of qualified immunity before the district court in a § 1983 action, failed to preserve qualified immunity for appeal); Moore v. Morgan, 922 F.2d 1553, 1557 (11th Cir. 1991) (stating that the failure to plead qualified immunity may result in a waiver of the defense); Kelson v. City of Springfield, 767 F.2d 651, 657 (9th Cir. 1985) (same); Barrett v. Thomas, 649 F.2d 1193, 1201 (5th Cir. 1981) (same).
128. 424 U.S. 409 (1976).
129. See id. at 431.
130. See id. at 430.
131. See id. at 431 & n.33.
132. See id. at 431 n.33.
133. See id. at 418.
134. See Burns v. Reed, 500 U.S. 478, 485 (1991); Rose, supra note 81, at 1025-26. The Supreme Court of Indiana was one of the first American courts to award a prose-cutor absolute immunity from civil suit. See Griffith v. Slinkard 44 N.E. 1001, 1002 (Ind. 1896). The United States Supreme Court first held a prosecutor absolutely immune from civil actions for malicious prosecution in 1927. See Yaselli v. Goff, 275 U.S. 503 (1927) (per curiam), aff'g 12 F.2d 396 (2d Cir. 1926).
135. See supra note 129.
136. See Imbler v. Pachtman, 424 U.S. 409, 425 (1976).
137. See id. at 425-26.
138. See id. at 426 & nn.23-24.
139. See id. at 428.
140. See id. at 429.
141. 500 U.S. 478 (1991). In Burns, the Court opined that "qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties" and that the Court had been "quite sparing" in its recognition of absolute immunity. Id. at 486-87. The Court reasoned that its role was not "to make a free-wheeling policy choice, but rather to discern Congress' likely intent in enacting § 1983." Id. at 494.
142. See id. at 495-56.
143. See id. at 487.
144. Id. at 493.
145. See id.
146. See id.
147. 509 U.S. 259 (1993).
148. See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
149. See id. at 273.
150. See McNamara, supra note 101, at 1151.
151. See Buckley, 509 U.S. at 274.
152. See infra Part III.C.
153. The Court explained that a prosecutor's actions were advocacy functions only after the existence of probable cause. See Buckley, 509 U.S. at 274.
154. See McNamara, supra note 101, at 1160.
155. See Buckley, 509 U.S. at 274.
156. See Burns v. Reed, 500 U.S. 478, 485-86 (1991); Imbler v. Pachtman, 424 U.S. 409, 427 (1976).
157. See Imbler, 424 U.S. at 428. The state of mind of the prosecutor is irrelevant. Immunity applies regardless of whether the prosecutor's behavior is in good faith, negligent, reckless, wanton, or malicious. See id. at 427.
158. Id. at 428 (citing Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)).
159. 55 F.3d 26 (1st Cir. 1995); see Reid v. New Hampshire, 56 F.3d 332, 338 (1st Cir. 1995).
160. See Guzman-Rivera, 55 F.3d at 31. The evidence consisted of interviews with three of the real murder's co-conspirators who unanimously stated Guzman-Rivera was innocent. See id. at 28.
161. See id. at 31.
162. See id.
163. Id.
164. See Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994); Casey-El v. Hazel, 863 F.2d 29, 29-30 (8th Cir. 1988); Campbell v. Maine, 787 F.2d 776, 778 (1st Cir. 1986).
165. 34 F.3d 257.
166. See id. at 259-60.
167. See id. at 262.
168. See, e.g., Moore v. Valder, 65 F.3d 189, 194 (D.C. Cir. 1995) (concluding that absolute immunity insulated the prosecutor for allegedly manipulating and concealing evidence before the grand jury); Pinaud v. County of Suffolk, 52 F.3d 1139, 1149 (2d Cir. 1995) (holding that a prosecutor was entitled to absolute immunity for misstatements); Fields v. Soloff, 920 F.2d 1114, 1120 (2d Cir. 1990) (finding that a prosecutor was protected by absolute immunity in the grand jury context); see also Burns v. Reed, 500 U.S. 478, 490 n.6 (1991) (dictum). The Supreme Court has made clear, however, that fabrication of evidence must occur after the existence of probable cause, that is, after the prosecutor has made a decision to indict, for it to be considered an advocacy function and thus covered by absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
169. 45 F.3d 653 (2d Cir. 1995).
170. See id. at 659.
171. See id. at 656-58.
172. See id.
173. See id. at 658. Hill was unable to post bail. See id. She remained incarcerated for almost eight months. See id. During this time, her children were placed in foster care. See id. at 657. Hill gave birth to another child while shackled to a hospital bed. See id. This infant was also taken from her care and placed in a foster home. See id. The prosecutor filed two statements with the New York courts, claiming that no exculpatory material existed. See id. at 658. Hill found out about the first tape when the prosecutor responded to a request for the tape used in the grand jury by accidentally sending the first tape to Hill's lawyer. See id. The indictment was ultimately dismissed on December 18, 1991, over 10 months after Hill first discovered that her son had been abused at his foster home. See id.
174. See id. at 661-62.
175. See id.
176. See id. at 656.
177. See id. at 663.
178. 971 F. Supp. 1166 (M.D. Tenn. 1997).
179. Id. at 1171.
180. See id.
181. See id.
182. See id. at 1171-72. Spurlock was convicted of murder and sentenced to life in prison, despite the absence of non-fabricated evidence linking him to the crime. See id. at 1172. Five years after the conviction, the real killers confessed to the crime. See id. at 1173. Spurlock's conviction was vacated. See id.
183. See id. at 1169.
184. See id. at 1187.
185. 660 F. Supp. 1459 (N.D. Ill. 1987).
186. See id. at 1461.
187. See id.
188. See Yin Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993); Harrington v. Almy, 977 F.2d 37, 40 (1st Cir. 1992); Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir. 1990); Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990).
189. In Manetta v. Macomb County Enforcement Team, 141 F.3d 270 (6th Cir. 1998), a prosecutor arrested and indicted a woman and her boyfriend for extortion because they were attempting to settle a sexual harassment claim against the woman's employer. See id. at 271-73. The couple had consulted with an attorney several times about filing a sexual harassment suit, but first attempted to settle out of court. See id. at 272. The prosecutor decided to investigate the couple for extortion when the woman's employer contacted him about the settlement attempts. See id. at 273. After a preliminary hearing, a state court judge dismissed the extortion charges. See id. at 274. The couple then filed a § 1983 lawsuit against the prosecutor for violations of their Fourth Amendment rights arising from the investigation and arrest for extortion. See id. The district court concluded there was no probable cause to arrest the couple. See id. According to the district court, the "indicia of probable cause were so lacking" that no reasonable official could have believed that the couple was violating Michigan's extortion law. See id. The Sixth Circuit reversed and granted the prosecutor qualified immunity for his role in the investigation and absolute immunity for his actions in obtaining the arrest warrant and prosecuting the woman and her boyfriend. See id. at 274-77.
190. See Rose v. Bartle, 871 F.2d 331, 344 & n.8 (3d Cir. 1989); Fullman v. Graddick, 739 F.2d 553, 558 & n.2, 559 (11th Cir. 1984).
191. See Pinaud v. County of Suffolk, 52 F.3d 1139, 1149 (2d Cir. 1995).
192. These agreements refer to the dropping of criminal charges in exchange for the defendant's dismissal of related civil rights actions. See Schloss v. Bouse, 876 F.2d 287, 290-91 (2d Cir. 1989); McGruder v. Necaise, 733 F.2d 1146, 1148 (5th Cir. 1984).
193. See Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 31 (1st Cir. 1995).
194. See Grant v. Hollenbach, 870 F.2d 1135, 1138-39 (6th Cir. 1989); Mullinax v. McElhenney, 817 F.2d 711, 715 (11th Cir. 1987).
195. See Burns v. Reed, 500 U.S. 478, 486-87 (1991).
196. See Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en bane).
197. 127 F.3d 424 (5th Cir. 1997).
198. See id.
199. See id. at 434.
200. See id. at 433.
201. See id. at 449-50.
202. Id. at 450.
203. See Ying Jing Gan v. City of New York, 996 F.2d 522, 534-35 (2d Cir. 1993); Barbera v. Smith, 836 F.2d 96, 101-02 (2d Cir. 1987).
204. 685 F. Supp. 486 (D. Md. 1988).
205. See id. at 488-89.
206. See Id. at 488.
207. See id.
208. See id.
209. Id. at 489.
210. See id. at 493.
211. See id.
212. 99 F.3d 1200 (1st Cir. 1996).
213. See id. at 1204.
214. See id.
215. See id. at 1204-05.
216. See id. at 1204.
217. Id. at 1206.
218. See id. at 1205-06.
219. See id. at 1206.
220. See id.
221. See id. at 1216.
222. For a similar situation, see Schrob v. Catterson, 948 F.2d 1402 (3d Cir. 1991). The prosecutor initiated a forfeiture proceeding to seize property under the Comprehensive Drug Abuse Prevention and Control Act. See id. at 1405. The prosecutor seized the wrong person's business and subsequently made statements in the press linking the person and the business to drug activities although neither the person nor the business were ever implicated or investigated for the underlying crime. See id. at 1417 n.15. In spite of several requests by plaintiff, federal officials never issued any retraction statements to correct the error in public. See id. Plaintiff filed a Bivens action, but the prosecutor was protected by qualified immunity. See id. at 1420.
223. See Powers v. Coe, 728 F.2d 97, 103 (2d Cir. 1984).
224. See Mullinax v. McElhenney, 817 F.2d 711, 715 (11th Cir. 1987).
225. See Slavin v. Curry, 574 F.2d 1256, 1264-65 (5th Cir. 1978).
226. See Manetta v. Macomb County Enforcement Team, 141 F.3d 270, 275 (6th Cir. 1998); Rhodes v. Smithers, 939 F. Supp. 1256, 1264 (S.D.W. Va. 1995). In Rhodes, a prosecutor advised the police to target a correctional officer in a prison contraband investigation based on witness statements that were false and misleading, obtained by coercion, and contrary to earlier (non-coerced) reports that exculpated the officer. See id. at 1262-63. The court awarded the prosecutor qualified immunity for these actions. See id. at 1264.
227. See Hart v. O'Brien, 127 F.3d 424, 449-51 (5th Cir. 1997); Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990).
228. See Houston v. Partee, 978 F.2d 362, 365-66 (7th Cir. 1992).
229. Model Code of Professional Responsibility EC 7-13 (1981).
230. See Model Rules of Professional Conduct Rule 3.8 (1998); Model Code of Professional Responsibility DR 7-103.
231. See Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 Vand. L. Rev. 45, 103-04 (1991) [hereinafter Zacharias, Structuring].
232. Specifically, Model Rule 3.8 requires that a prosecutor: (1) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause, (2) make reasonable efforts to assure that the accused has been advised of her right to obtain counsel and has been given the opportunity to do so, (3) not seek from unrepresented parties a waiver of important pretrial rights, (4) make timely disclosure to the defense of all evidence that tends to negate the guilt of the accused, (5) refrain from making extra-judicial statements that are likely to materially prejudice the adjudicative proceeding or increase public condemnation of the accused, (6) use reasonable care to prevent prosecutorial agents from making extra-judicial statements that are likely to materially prejudice the adjudicative proceeding or increase public condemnation of the accused, and (7) subpoena a lawyer as a witness only in extreme circumstances. See Model Rules of Professional Conduct Rule 3.8. Not all states have adopted all of these provisions. See Trial Conduct: Prosecutors, Laws. Man. on Prof. Conduct (ABA/BNA) 61:602-05 (Apr. 30, 1997). Most state rules imposing special responsibilities on prosecutors require that a prosecutor: (1) refrain from prosecuting a charge the prosecutor knows is not supported by probable cause and (2) make timely disclosure to the defense of all evidence that tends to negate the guilt of the accused. See id.
233. See supra notes 193-98 and accompanying text; Model Rules of Professional Conduct.
234. See Model Rules of Professional Conduct Rule 3.3.
235. See supra notes 218-23 and accompanying text.
236. See supra notes 199-200 and accompanying text; Model Rules of Professional Conduct.
237. See Buckley v. Fitzsimmons, 509 U.S. 259, 262, 276-77 (1993); Aversa v. United States, 99 F.3d 1200, 1204-05 (1st Cir. 1996); Schrob v. Catterson 948 F.2d 1402, 1417 n.15 (3d Cir. 1991).
238. Model Rules of Professional Conduct Rule 3.8(g).
239. See Trial Conduct: Prosecutors, Laws. Man. on Prof. Conduct (ABA/BNA) 61:603 (Apr. 30, 1997).
240. See Model Rules of Professional Conduct Rule 3.6.
241. See id.
242. See Gentile v. State Bar, 501 U.S. 1030, 1048-51 (1991).
243. See Model Rules of Professional Conduct Rule 3.8(a); Trial Conduct: Prosecutors, Laws. Man. on Prof. Conduct 61:601 (ABA/BNA) (Apr. 30, 1997).
244. See Model Rules of Professional Conduct Rule 3.8(a); Trial Conduct: Prosecutors, Laws. Man. on Prof. Conduct 61:601 (ABA/BNA) (Apr. 30, 1997).
245. See supra notes 154-58 and accompanying text; Model Rules of Professional Responsibility.
246. See Roberta K. Flowers, A Code of Their Own: Updating the Ethics Codes to Include the Non-Adversarial Roles of Federal Prosecutors, 37 B.C. L. Rev. 923, 925-26 (1996).
247. See Zacharias, Structuring, supra note 226, at 107.
248. See Bowman, supra note 20, at 768.
249. See id. at 764.
250. See id. at 770.
251. See Rory K. Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 Fordham L. Rev. 355, 360-62 (1996).
252. See Congress Enacts Statute that Subjects Federal Prosecutors to State Laws and Rules, 14 Laws. Man. on Prof. Conduct (ABA/BNA) 498, 502 (Oct. 28, 1998).
253. See id.
254. 132 F.3d 1252, 1257 (8th Cir. 1998).
255. See Congress Enacts Statute that Subjects Federal Prosecutors to State Laws and Rules supra note 246, at 502.
256. This, of course, refers to attempts by the DOJ to promulgate regulations for federal prosecutors concerning contacts with unrepresented parties. The Thornburgh memorandum refers to an internal document written by then Attorney General Thornburgh saying that United States Attorneys and Assistant United States Attorneys were subject to DOJ no-contact rules only and could thus ignore any state regulations on the subject as well as Model Rule 4.2. See Little, supra note 245, at 362 & n.29.
257. See Green, Whose Rules, supra note 29, at 487.
258. See id.
259. See Zacharias, Structuring, supra note 226, at 108.
260. See id.
261. See id.
262. See supra notes 160-62 and accompanying text.
263. See Brady v. Maryland, 373 U.S. 83, 87 (1963).
264. Non-disclosure of exculpatory evidence also violates Model Code provision DR 7-103(B) and various internal procedure provisions. See Department of Justice Manual § 9-11.233 (Supp. 1992).
265. See Trial Conduct: Prosecutors, Laws. Man. on Prof. Conduct 61:616 (Apr. 30, 1997).
266. See id.
267. See id.
268. See infra note 297 and accompanying text.
269. See supra notes 159-62 and accompanying text.
270. 34 F.3d 257 (4th Cir. 1994).
271. See McNamara, supra note 101, at 1188 & n.433.
272. See id. At the time of this writing, William T. Burch remains a prosecutor in Loudon County, Virginia. Search of WESTLAW, West Legal Directory File (Dec. 1, 1998).
273. Model Rule 3.3(a)(4) states: "A lawyer shall not knowingly offer evidence that the lawyer knows to be false." Model Rules of Professional Conduct Rule 3.3(a)(4) (1998).
274. Model Rule 3.4(b) states: "A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law." Id. Rule 3.4(b).
275. See Trial Conduct: Candor to Tribunals, Laws. Man. on Prof. Conduct (ABA/ BNA) 61:301 (1997).
276. Model Rule 3.3(d) states: "In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse." Model Rules of Professional Conduct Rule 3.3(d).
277. See 14 Laws. Man. on Prof. Conduct (ABA/BNA) 498, 502 (Oct. 28, 1998).
278. See Model Rules of Professional Conduct Rule 3.8 cmt. 1. The DOJ Manual advises that prosecutors must disclose exculpatory evidence to the grand jury. See 7 DOJ Manual § 9-11.233 (Supp. 1992).
279. See United States v. Williams, 504 U.S. 36, 51-54 (1992).
280. Burns v. Reed, 500 U.S. 478, 492 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)).
281. See Moore v. Valder, 65 F.3d 189, 194 (D.C. Cir. 1995); Hill v. City of New York, 45 F.3d 653, 661-62 (2d Cir. 1995); Spurlock v. Whitley, 971 F. Supp. 1166, 1187 (M.D. Tenn. 1997).
282. See Buckley v. Fitzsimmòns, 509 U.S. 259, 273 (1993) (fabricating evidence); Lyles v. Sparks, 79 F.3d 372, 377 (4th Cir. 1996) (suborning perjury); Hill, 45 F.3d at 662 (fabricating evidence).
283. See supra Part III.C.1.
284. See Model Rules of Professional Conduct Rules 3.3, 3.4 (1998).
285. See 45 F.3d 653 (2d Cir. 1995).
286. See, e.g., In re Shannon, 876 P.2d 548, 560 (Ariz. 1994) (holding that because a lawyer did not know that answers to interrogatories were false, he did not violate Arizona Ethical Rule 3.4(b), which is analogous to Model Rule 3.4(b)).
287. See Hill, 45 F.3d at 657-58.
288. See id.
289. See id.
290. See id.
291. Search of WESTLAW, METH-CS database (Mar. 4, 1999).
292. See Model Rules of Professional Conduct Rule 3.3(a) (1998).
293. That is, "intimately associated with the judicial phase of the criminal process." See Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
294. See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
295. See Spurlock v. Whitley, 971 F. Supp. 1166, 1187 (M.D. Tenn. 1997).
296. See Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).
297. See Model Rules of Professional Conduct Rule 3.4(b).
298. See Burns v. Reed, 500 U.S. 478, 487 (1991); West v. City of Parsons, 983 F. Supp. 1027, 1031 (D. Kan. 1997); cf. Kalina v. Fletcher, 522 U.S. 118, 131 (1997) (awarding the prosecutor absolute immunity for preparing and filing a motion for an arrest warrant, but only qualified immunity for swearing to the truth of the facts in a certification that accompanied the other motion documents).
299. See Burns, 500 U.S. at 489-91; Schrob v. Catterson, 948 F.2d 1402, 1416-17 (3d Cir. 1991).
300. See supra notes 272-74 and accompanying text.
301. See McNamara, supra note 101, at 1187 n.422.
302. See Green, Policing, supra note 26, at 88-89; Morton, supra note 45, at 1107-08.
303. See Green, Policing, supra note 26, at 88-89. According to Douglas J. McNamara, a search of published disciplinary cases revealed 31 cases since 1958 involving the disbarment of prosecutors. Most of the disbarments occurred after the prosecutors were convicted of a crime. See McNamara, supra note 101, at 1187 n.422. According to McNamara, only two of the prosecutors disbarred engaged in conduct that possibly could have been actionable under § 1983. See id.
304. See Ken Armstrong & Maurice Possley, The Verdict: Dishonor, Chi. Trib., Jan. 10, 1999, News, at 1.
305. See id.
306. See Green, Policing, supra note 26, at 89.
307. See id.
308. See id. at 90.
309. See id.
310. See Wolfram, supra note 58, § 13.10.2, at 761.
311. See Armstrong & Possley, supra note 298.
312. See id.
313. See id.
314. See id.
315. See supra notes 174-80 and accompanying text.
316. 971 F. Supp. 1166 (M.D. Tenn. 1997).
317. See Armstrong & Possley, supra note 298.
318. See Schneyer, supra note 17, at 42.
319. See Morton, supra note 45, at 1089.
320. See id.
321. See McNabb v. United States, 318 U.S. 332, 341 (1943).
322. See United States v. Williams, 504 U.S. 36, 55 (1992) (holding that a district court may not dismiss an otherwise valid indictment because the government failed to disclose to the grand jury that it possessed substantial exculpatory evidence); Bank of Nova Scotia v. United States, 487 U.S. 250, 254-55 (1988) (holding that a federal court may not use supervisory powers to dodge the harmless-error inquiry of the Federal Rules of Criminal Procedure and that a district court may not dismiss an indictment because of prosecutorial misconduct unless the misconduct was so great as to deny the defendant a fair trial); United States v. Mechanik, 475 U.S. 66, 72-73 (1986) (upholding petit jury's verdict despite "any conceivable error in the charging decision that might have flowed from [prosecutorial misconduct]"). These cases addressed the use of supervisory powers in the grand jury context, but their effect is felt throughout the trial process.
323. See Bank of Nova Scotia, 487 U.S. at 254-55.
324. See United States v. Lopez, 4 F.3d 1455, 1464 (9th Cir. 1993); United States v. Page, 828 F.2d 1476, 1480 (10th Cir. 1987).
325. See Office of Prof'l Responsibility, Department of Justice, Fiscal Year 1996 Annual Report 1 [hereinafter DOJ, 1996 Report].
326. See id.
327. See id.
328. USDOJ Memorandum from Philip B. Heymann, Deputy Attorney General, to Michael E. Shaheen, Jr., Counsel Office of Professional Responsibility 1 (Dec. 13, 1993) (on file with the Fordham Law Review).
329. See DOJ, 1996 Report, supra note 319, at 2.
330. See Green, Policing, supra note 26, at 85.
331. See id. at 86.
332. Telephone Interview with unnamed employee, Office of Professional Responsibility (Feb. 8, 1999). In fiscal year 1996, the most recent for which data is available, OPR opened a total of 121 matters, all of which involved allegations of misconduct by Department Attorneys. See DOJ, 1996 Report, supra note 319, at 4. This number was a 37% decrease from the 192 attorney related matters opened in fiscal year 1995. See id. OPR closed a total of 144 matters in fiscal year 1996. See id. at 6. Allegations of professional misconduct were substantiated in 15, or 11%, of the 139 attorney matters closed. See id. The misconduct complaints received in fiscal year 1996 were quantified and classified as follows: abuse of prosecutorial or investigative authority - 34 complaints; unauthorized release of information - 16 complaints; conflicts of interest - 15; misrepresentation to the court - 14; failure to perform duties properly, negligence -10; failure to disclose exculpatory, impeachment, or discovery material - 9; improper oral or written remarks to the grand jury or court-6; criminality - 6; unprofessional behavior - 6; improper contacts with represented parties - 2; other (including unauthorized practice of law and violation of civil rights) - 3. See id. at 5.
333. See supra notes 207-17 and accompanying text.
334. See supra notes 216-17 and accompanying text; see also Office of Prof'l Responsibility, Department of Justice, Summary of the Investigation by the Office of Professional Responsibility into the Conduct of Assistant United States Attorney Paul Kanter in United States v. Van Engel 5-6 (n.d.) (on file with the Fordham Law Review) (finding that the AUSA did not engage in professional misconduct although the court stated that the "legal foundation for the government's investigation was virtually nonexistent"); Letter from Jo Ann Harris, Assistant Attorney General, United States Department of Justice, to the Honorable James M. Ideman, District Court Judge, United States District Court for the District of Los Angeles 1-2 (May 2, 1994) (on file with the Fordham Law Review) (explaining that OPR concluded that an AUSA had not intentionally made misrepresentations to the district court, although the district court had referred the case to OPR because the AUSA should have turned prior inconsistent testimony over to the defense).
335. See Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996).
336. Office of Prof'l Responsibility, Department of Justice, Summary of the Investigation by the Office of Prof'l Responsibility into the Conduct of Assistant United States Attorney Patrick M. Walsh and Former United States Attorney Jeffrey R. Howard in United States v. Aversa 6 (1997).
337. 476 U.S. 79 (1986).
338. See id. at 84.
339. See Abbe Smith, "Nice Work If You Can Get It": "Ethical" Jury Selection in Criminal Defense, 67 Fordham L. Rev. 523, 543 n.90 (1998).
340. See, e.g., Michael Matza, Jury's Out on Whether Ethics Were Violated, Phila. Inquirer, Apr. 2, 1997, at 33 (detailing the disclosure of a controversial decade-old training videotape, which was full of racial stereotyping and race-based strategies for picking juries, created by a former Philadelphia prosecutor).
341. See Maurice Possley & Ken Armstrong, Prosecution on Trial in Du Page, Chi. Trib., Jan. 12, 1999, News, at 1.
342. See id.
343. See id.
344. See id. One of the prosecutors who faced criminal charges was Patrick Brophy, who had conspired with sheriff's officials to hide evidence and persuaded witnesses to lie against organized crime figures. See id. Brophy was convicted of a single misdemeanor count for eliciting perjury and suppressing evidence and was fined $500. See id.
345. See Imbler v. Pachtman, 424 U.S. 409, 429 (1976).
346. See supra notes 318-33 and accompanying text.
347. The term "specific" in this Note refers to specificity in the scope of conduct the rule covers and particularity of the acts the rule prohibits. See Fred C. Zacharias, Specificity in Professional Responsibility Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics, 69 Notre Dame L. Rev. 223, 239-40 (1993) [hereinafter Zacharias, Specificity].
348. A disciplinary rule could mirror § 1983 and Bivens. Perhaps prima facie violations of 1983 and Bivens (i.e., where, if it were not for immunity awarded prosecutors, plaintiffs would be entitled to relief) should act as a red flag that triggers a parallel disciplinary review. The mechanics of this must be flushed out. There is no guarantee that a new rule or rules would be any more effective in addressing ethics violations by prosecutors than the present rule system, but at least stakeholders in the legal community would publicly address the impropriety of prosecutors' civil rights violations.
349. See supra notes 21-26 and accompanying text.
350. See supra notes 21-26 and accompanying text.
351. See Bowman, supra note 20, at 770-80.
352. See Flowers, supra note 240, at 964.
353. See Zacharias, Specificity, supra note 341, at 241.
354. See id. at 284.
355. See Model Rules of Professional Conduct Rule 4.2 (1998).
356. See id. Rule 3.8(f).
357. Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
358. See generally Thomas J. Foltz, Prosecutorial Immunity No Longer Absolute: A Shaky Bridge over Troubled Water, 8 Crim. Just., Winter 1994, at 21 (discussing the types of immunity the Supreme Court has awarded to prosecutors in various circumstances).
359. See supra notes 147-50 and accompanying text. One person writing on the ibject of prosecutorial immunity has suggested that the Supreme Court should mainiin a narrow definition of a prosecutor's advocate role to avoid frustrating the purose of § 1983 claims. See Anthony Meier, Note, Prosecutorial Immunity: Can § 1983 rovide an Effective Deterrent to Prosecutorial Misconduct?, 30 Ariz. St. L.J. 1167, 169 (1998). This solution, however, does not avoid the problem of determining hich function applies in the way abolishing absolute immunity for prosecutors alto-ether would.
360. See supra notes 103-22 and accompanying text.
361. See id.