Author's Note: The article and update below were first published in Minnesota Lawyer on November 29 and December 1, 2021.  The update (1) clarifies a statement in the article; and (2) adds citations to blogs that provide more information on two cases cited in the article; and (3) adds citation and comment to a new case, filed November 24, 2021. 

A recent Washington Post article discussed “Why Prosecutors Get Away With Misconduct.”¹ The article focused on prosecutors who were not disciplined despite appellate court findings of misconduct. California supplied most of the article’s evidence, but the article also cited Minnesota and other states. Is it true that Minnesota prosecutors get away with misconduct? There is no authoritative answer, but several factors must be considered to begin formulating an answer.

Ten Minnesota county attorneys have been publicly disciplined, seven of them since 2008.² Almost all of them were first found by a court to have committed misconduct in a criminal proceeding. County attorneys have also been privately disciplined, most often for violating a statutory duty to notify victims of a dismissed charge or a plea bargain.³

The Director of the Minnesota Office of Lawyers Professional Responsibility published two articles in 2020 notifying prosecutors that OLPR will hold them to account.⁴ The first OLPR article discussed Rule 3.8, “Special Responsibilities of a Prosecutor.” OLPR notified prosecutors that at an early stage of proceedings they must disclose all exculpatory evidence, even where disclosure is not constitutionally required.

The second OLPR article described the disbarment of a county attorney who egregiously failed his obligations to disclose exculpatory evidence. His failures caused numerous convictions to be vacated and other cases dismissed. The article gave notice, “The lesson is that all prosecutor’s offices, state or federal, must put in place, train personnel about, and follow policies that are focused on ensuring that ethical and constitutional obligations are met in every case.” The article made the remarkable threat that prosecutors’ conduct that was even “close to the line” may result in “placing your license at risk.” The article cited a law review article and a large-scale national study that both concluded that prosecutors get away with misconduct.

The Washington Post article relied heavily on the reported experiences of a California law professor, Lara Bazelon. Bazleon filed eight ethics complaints against prosecutors whose misconduct resulted in reversals of convictions. Without disputing the conclusion that in many states prosecutors get away with misconduct, several corrections and qualifications are in order before considering whether the conclusion applies in Minnesota.

First, the Post and Bazelon allege that when prosecutors are accused of misconduct, discipline authorities “make sure you never hear about it.” The seven OLPR articles cited here show this statement is not applicable in Minnesota. In addition, Bazelon said, “I can’t say more because it could subject me to a complaint myself.” However, a former Minnesota OLPR Director correctly asserted the contrary. “The disciplinary system has no power to control or determine the use of a disciplinary decision by others. First of all, any gag rule that attempted to prevent complainants (or the attorney) from disclosing the result of a complaint likely would be unconstitutional … only the Director’s Office and other members of the disciplinary system are prevented from disclosing non-public matters.”⁵ In any state that respects the First Amendment, complainants are free to tell others exactly what happened to their discipline complaint. Moreover, in Minnesota an ethics complaint “may not serve as a basis for liability in any civil lawsuit brought against the person who made the complaint,... ”⁶

Second, an appellate court’s finding of “prosecutorial misconduct” does not necessarily mean the prosecutor engaged in misconduct is deserving of discipline. The term “prosecutorial misconduct” can include entirely innocent mistakes, such as not producing evidence that an assistant misfiled. Moreover, appellate findings of prosecutorial misconduct are not preclusive in a disciplinary matter.⁷ Discipline requires “clear and convincing evidence,” and the record in a criminal appellate proceeding normally has little or no evidence of the prosecutor’s state of mind.

Third, some key legal concepts are ill-defined. For example, an OLPR article on prosecutors’ closing arguments states, “[A] lawyer may not insinuate that a witness or party is a ‘liar’ or that testimony constituted ‘perjury’ when such a remark is purely the lawyer’s personal impression of the evidence.” It is true that the prosecutor may not use words like “liar” and “perjury” expressly, but as the court has stated, “We have recognized that the state is free to argue that particular witnesses were or were not credible.”⁸

A 2016 case shows the importance of these qualifications. A prosecutor did not produce letters from an incarcerated defendant to a friend, attempting to concoct a false alibi. The Minnesota Court of Appeals reversed a conviction and harshly described prosecutorial misconduct. Based on this description, and without any ethics complainant, a disciplinary proceeding was brought against the prosecutor. The prosecutor provided evidence that she had consulted with several other prosecutors, including the Lawyers Board Chair. She and the colleagues concluded defendant’s letters were “rebuttal evidence,” exempt from production requirements. The discipline referee found the prosecutor acted in good faith and the discipline case was dismissed.⁹ The appellate and discipline files are available to whoever may wish to determine whether justice was served or a prosecutor got away with misconduct.

A second case shows how prosecutors have been publicly disciplined even for unintentional misconduct. A prosecutor failed to disclose certain evidence and failed to correct a statement regarding the evidence. However, OLPR stipulated that an independent review found “no evidence from which one could reasonably conclude that [the prosecutor] knowingly and intentionally concealed this information in an attempt to mislead the court and/or defense counsel.” Moreover, the prosecutor self-reported to OLPR. Nonetheless, the prosecutor was publicly reprimanded.¹⁰

A third case shows that courts sometimes erroneously find that prosecutors engage in misconduct. In State v. Chauvin, a judge disqualified an entire county attorney’s office from trial and pre-trial, for purportedly violating Rule 3.7. The rule provides that, with limited exceptions, a lawyer conducting a trial may not also testify. Four county attorneys had interviewed a key witness, without a non-lawyer investigator. The judge found this conduct to be both “sloppy” and in violation of Rule 3.7. Upon request for reconsideration, however, the judge acknowledged that he erred – Rule 3.7 applies only at trial, not pre-trial – and modified his order.¹¹

Nationwide, the controversy over discipline of prosecutors rages on. In New York, law school professors filed and publicized ethics complaints after convictions were reversed for prosecutorial misconduct. The professors believed that judges and defense counsel should be filing complaints but fail to do so. The prosecutor’s employer filed ethics complaints against the professors for publicity in alleged violation of a Judiciary Law. The professors responded by suing in federal court, seeking a declaration of First Amendment protection for their actions.

In Minnesota, the OLPR Director reports she has been “heavily influenced by the lack of serious discipline for prosecutors who have engaged in serious misconduct.”¹² She appears to be referring to academic studies, rather than to Minnesota cases. She has announced an aggressive posture. Particularly in the period 2008-2021, any claim that Minnesota prosecutors “get away with misconduct” would require evidence that the seven prosecutors publicly disciplined during that period were far too few.

1. Radley Balko, Nov. 18, 2021.
2. In re Morris, 408 N.W.2d 859 (Minn. 1987); In re Serstock, 432 N.W.2d 179 (Minn. 1988); In re Evans, 461 N.W.2d 226 (Minn. 1990); In re Fink, 2008 WL 11186118 (Minn. Sept. 25, 2008); In re Backstrom, 767 N.W.2d 453 (Minn. 2009); In re
   Scannell, 861 N.W.2d 678 (Minn. 2015); In re Mollin, 910 N.W.2d 459 (Mem) (Minn. 2018); In re Larson, File No. A18-1843 (Minn. Dec. 28, 2018); In re Norine, file No. A19-1086 (Minn. Nov. 15, 2019); In re Pertler, 948 N.W.2d 146 (mem) (Minn. 2020).
3. Susan Humiston, Private Discipline in 2020, Bench & B. of Minn., March 2021; Timothy M. Burke, The Unique Responsibilities of Criminal Prosecutors, Minn. Law., Oct. 6, 2008; Martin A. Cole, Summary of Admonitions, Bench & B. of Minn., Apr. 2009; and Martin A. Cole, Summary of Admonitions, Bench & B. of Minn., Feb. 2012. 
4. Susan Humiston, Prosecutorial Ethics -- Holding Ministers of Justice to Account, Bench & B. of Minn., Oct. 2020 and Susan Humiston, Prosecutorial Ethics -- Part Two, Bench & B. of Minn., Nov. 2020.
5. Martin A. Cole, When Malpractice is an Ethics Issue, Bench & B. of Minn. (Dec. 2002). OLPR’s position is well-anchored in case See, e.g. In re Warner and Rando, (La. Apr. 17, 2009); R.M. v. Sup. Ct., 883 A.2d 369 (N.J. 2005); Doe v. Doe, 127 S.W.3d 728 (Tenn. 2004); Doe v. Gonzalez, 723 F. Supp. 690 26 Overview of Professional Responsibility System (S.D. Fla. 1998); Petition of Brooks, 678 A.2d 140 (N.H. 1996); Doe v. Sup. Ct., 734 F.Supp. 981 (S.D. Fla. 1990).
6. Rule 21, Law. Prof. Resp.
7. In re Murrin, 821 W.2d 195, 205 (Minn. 2012). Of course a criminal conviction of an attorney would be preclusive in a discipline case.
8. Cassie Hanson, Improper Statements in Closing Argument, Minn. Law., Apr. 5, 2010; State v. McCray, 753 N.W.2d 746, 752 (Minn.2008).”
9. In re Olson, No. A16-0280 (Minn. 9, 2016). The author represented Olson.
10. In re Fink, File A08-1534 (Minn. Sept. 25, 2008).
11. State v. Chauvin et al. Hennepin County Dis. Ct., File No. 27-CR-20-12646. The author filed an expert affidavit on behalf of the county In the author’s opinion, the modified order also erred on the law, but it was not appealed because it did not present any unacceptable burden.
12. Susan Humiston, Prosecutorial Ethics —Part Two, Bench & of Minn., Nov. 2020.

Article update: Dec. 1

The article accurately quoted the stipulation between OLPR and Fink. The stipulation recited that OLPR and Fink offered to the Court, “by way of mitigation” an independent investigator’s finding that there was no evidence Fink’s misconduct was knowing and intentional. However, in the same stipulation Fink admitted all the allegations of the petition for disciplinary action. Among these allegations were that Fink’s conduct violated Rules 3.3(a)(1) and 3.4(c). Both these rules apply only where there is clear and convincing evidence that the lawyer “knowingly” engaged in the proscribed conduct. The problem with citing In re Fink is that the stipulation is internally inconsistent as to Fink’s state of mind and one cannot confidently determine whether Fink’s conduct was or was not knowing and intentional. It should also be noted that discipline orders that are based on stipulations, like the Fink case, are not precedential.

Two other cases cited in the article, In re Olson, No. A16-0280 (Minn. Sept. 9, 2016) and State v. Chauvin, Hennepin County Dis. Ct., File No. 27-CR-20-12646 are discussed at greater length elsewhere. Olson is discussed in Minnesota Legal Ethics Blog, Dec. 2016 . Chauvin is discussed in Minnesota Legal Ethics, Rule 3.7 V. B. (11th ed.).

On November 24, 2021, OLPR filed a Petition for Disciplinary Action, seeking reciprocal discipline against Paul Benjamin Rubin, a prosecutor employed in Arizona and also licensed in Minnesota. The petition alleges, “the basis for this discipline was respondent’s misconduct in his capacity as a prosecutor in 2019, by negligently failing to disclose portable breath test (PBT)/horizontal gaze nystagmus (HGN) test results of a testifying witness (alleged victim) during a criminal trial, in violation of his Brady duty November 24, 2021 2 to disclose. As a result of respondent’s failure to disclose information regarding a witness’s PBT/HGN test which the defense later discovered after defendant was convicted, the criminal matter was dismissed with prejudice as a sanction.” OLPR also filed a Stipulation for Reciprocal Discipline, signed by Rubin and by OLPR. The Stipulation provides, “The appropriate discipline is imposition of identical discipline as that imposed in Arizona—that of a public reprimand and one-year probation pursuant to Rule 12(d), RLPR,... ”

The Minnesota Supreme Court normally signs orders approving stipulations for reciprocal discipline. As with In re Fink, such an order would not be precedential in Minnesota. However, OLPR has, in at least one case, cited Fink as if it were precedential.