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“Prosecutorial Misconduct” – A Supplementary Comment

By William Wernz posted 03-21-2023 09:18 AM


Editor's note: A reply from the authors of the article discussed here has been appended to this post. See Response by the Authors ... below.


My article, Do Minnesota Prosecutors “Get Away” with Misconduct?, was published in Minnesota Lawyer and posted as a blog on this site on December 1, 2021. My article commented on several articles discussing prosecutorial misconduct. Another article on the subject was recently published.  Barry S. Edwards and Stacy L. Bettison, Getting Serious About Prosecutorial Misconduct:  What Can – And Should be Done, Bench & B. of Minn., March 2023, at 25. (hereinafter “Getting Serious”).  Both this blog and my 2021 article address subjects discussed in the article by Mr. Edwards and Ms. Bettison.


Getting Serious is primarily about prosecutorial misconduct nationwide in the criminal justice system, and only secondarily about the lawyer discipline response to prosecutorial misconduct.  I take no position on whether the criminal justice system or attorney discipline systems outside Minnesota respond sufficiently to prosecutorial misconduct.  I believe, however, that insofar as articles refer to the Minnesota discipline system, or appear in Minnesota publications, they should deal with the actual cases and trends in Minnesota. Getting Serious fails to do so.


One of the headlines in Getting Serious is “Professional discipline rare. . ..”  Because the article appears in a Minnesota bar publication, one expects to find under this headline both data on the frequency of disciplines of prosecutors in Minnesota and analysis of trends on the subject.  Getting Serious provides no such information.  Instead, the article cites only one Minnesota discipline case, the first disbarment of a Minnesota prosecutor. A claim that “professional discipline [is] rare” cannot be sustained by rarity in disbarments.  In fact, Minnesota public and private disciplines of prosecutors have become much more frequent in recent years.


Fifteen prosecutors have been publicly disciplined in Minnesota, ten of them since 2008, and four of them between 1987 and 2008. There were no such disciplines before 1987.  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 Fridell, 557 N.W.2d 208 (Minn. 1997); In re Graham, 744 N.W.2d 19 (Mem) (Minn. 2008); 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, 906 N.W.2d 260, 262 (Minn. 2018) (order); In re Larson, File No. A18-1843 (Minn. Dec. 28, 2018); In re Norine, 935 N.W.2d 436 (Minn. 2019); In re Pertler, 948 N.W.2d 146 (Mem) (Minn. 2020); In re Rubin, 2022 WL 164039 (Minn. Jan. 18, 2022); In re Bowers, File A21-1520 (Minn. Apr. 12, 2022); In re Bloomquist, File No. A21-1411 (Minn. March 21, 2023). 


In addition, in recent years at least four prosecutors have received private admonitions for not giving statutorily-required notices to victims. Susan Humiston, Private Discipline in 2020, Bench & B. of Minn., March 2021; Martin A. Cole, Summary of Admonitions, Bench & B. of Minn., Apr. 2009; Timothy M. Burke, The Unique Responsibilities of Criminal Prosecutors, Minn. Law., Oct. 6, 2008, at 5; and Martin A. Cole, Summary of Admonitions, Bench & B. of Minn., Feb. 2012, at 12, 13.


Clearly, in recent years Minnesota prosecutors have become much more likely to be subject to professional discipline. Getting Serious errs in describing Minnesota disciplines of prosecutors as rare. 


Getting Serious sounds a call to arms, “If the OLPR wants to begin proceedings against prosecutors who violate the rules, they need look no further than the court of appeals rulings published every Monday and search for ‘misconduct.’” To “begin proceedings,” however, OLPR must in fact look further than court of appeals rulings.  OLPR must actually investigate and evaluate, rather than rely on court of appeals rulings to determine whether there the clear and convincing evidence required for discipline is available.  There are several reasons that investigation is required before beginning proceedings.


First, appellate court findings are not preclusive in a discipline proceeding.  In re Murrin, 821 N.W.2d 195, 205 (Minn. 2012). 


Second, as my 2021 article reported, OLPR learned the hard way that “look[ing] no further than the court of appeals rulings” did not suffice for a successful proceeding against a prosecutor.  In re Olson, File No. A16-0280, Order for Dismissal, Sept. 9, 2016. In the criminal law matter underlying Olson, the Minnesota Court of Appeals harshly characterized the prosecutor’s conduct.  But the criminal justice system does not typically conduct evidentiary proceedings to determine the prosecutor’s state of mind or the basis for the prosecutor’s conduct.  In Olson, the prosecutor consulted extensively with colleagues to determine, in a murky area of the law, whether disclosure of certain non-exculpatory evidence was required. The alternative was that the evidence was “rebuttal evidence,” which does not have to be disclosed.  The colleagues opined the evidence was rebuttal evidence.  OLPR issued charges relying on the Court of Appeals opinion, without even interviewing the colleagues, one of whom was the Lawyers Board Chair!


Third, a court may find “prosecutorial misconduct” without finding any blameworthy conduct. “Prosecutorial misconduct” is a term of art, applied both to intentional misconduct and to mere mistakes. Under Rule 3.8, R. Prof. Conduct, “Special Responsibilities of a Prosecutor,” the prosecutor must have actual knowledge before the obligations relating to probable cause and production of evidence apply.  Rule 1.0(i). A prosecutor may commit “prosecutorial misconduct,” for criminal law purposes, without having the actual knowledge required for discipline purposes. Of course, a prosecutor may not turn a blind eye to evidence nor incompetently fail to take reasonable measures to learn of relevant evidence.


Fourth, “prosecutorial misconduct” is often determinable by very fine distinctions.  For example, Getting Serious gives as an example of prosecutorial misconduct, “The prosecutor may not interject personal opinions about the veracity of a witness.”  However, there are numerous appellate cases drawing fine lines between permissible argument that a witness is not credible and voicing personal opinion. In one such case, the prosecutor asserted six times that the witness “lied,” and the appellate court rejected an appeal based on alleged prosecutorial misconduct.  State v. Schmiedt, 2017 Minn. App. Unpub. LEXIS 579 (Minn. App. Ct., July 3, 2017). Lawyers are not normally disciplined for failures to reach the correct conclusion about arguable distinctions.


OLPR may wish to review appellate court findings of prosecutorial misconduct to begin an inquiry, but not, as Getting Serious would have it, to “begin disciplinary proceedings.”  After all, OLPR itself engages in prosecutions of ethics charges and it would be prosecutorial misconduct for the Director to issue charges without a sufficient investigation.


Finally, it should be noted that in the 2023 case, In re Bloomquist (above), the Court reiterated and clarified that public attorneys will be subject to more serious discipline if their misconduct involves intentional conduct resulting in an abuse of power or denial of constitutional rights. 


Response by the Authors of Getting Serious About Prosecutorial Misconduct

>> The following is a response to William Wernz's blog post above, written by Stacy L. Bettison and Barry S. Edwards, authors of the article, "Getting Serious About Prosecutorial Misconduct," that is mentioned in the post. [Response added April 5, 2023]

Mr. Wernz offers a tepid criticism of our article, Getting Serious About Prosecutorial Misconduct: What Can – and Should – Be Done in a blog post. Yet we are compelled to respond.


He argues that we fail to address cases of attorney discipline in Minnesota when those attorneys happen to be prosecutors. First, Getting Serious is an article about prosecutorial misconduct, not attorney discipline. Our article addresses the problem first in a national context, then turns to Minnesota and the current state of prosecutorial misconduct in this state.


Second, we state that discipline for prosecutorial misconduct is rare, and we consider certain national data concerning attorney discipline to support our contention. Mr. Wernz complains that because the article appears in a Minnesota publication, a reader expects Minnesota-specific data and trend analysis. We do offer a single data point – because that’s all there is when it comes to disbarment for prosecutor-related misconduct in Minnesota: one prosecutor in 2020.


Mr. Wernz sets out the data and trends analysis he believes we should have presented and names in his blog post 14 public cases in which prosecutors were disciplined since 1987. Two points about Mr. Wernz’s analysis:


1)      There is an important distinction between discipline for prosecutorial misconduct and discipline for other kinds of professional misconduct. About half of the 14 cases he cites for which discipline was meted out involved professional misconduct, including failing to timely file tax returns, conflicts of interest, sexually harassing another county employee, unauthorized practice of law because of failure to maintain CLE credits, and misusing political influence against a county board official. The fact that they were prosecutors when they engaged in professional misconduct does nothing to undermine our contention that discipline for prosecutorial misconduct is vanishingly rare.


2)      The number of cases he cites in which there has been discipline for prosecutorial misconduct only proves our point: Fewer than 10 instances of public discipline for prosecutorial misconduct in 36 years is paltry—that’s less than three per decade.  By comparison, in the year 2021 alone, 28 lawyers were publicly disciplined: four attorneys were disbarred, 17 were suspended, four were reprimanded and placed on probation, and three were reprimanded. Eighty-eight were admonished.


Mr. Wernz further takes issue with our statement that “If the OLPR wants to begin proceedings against prosecutors who violate the rules, they need look no further than rulings published every Monday and search for ‘misconduct’.” He points out that for the OLPR to “begin proceedings,” they must look further than court of appeals decisions and investigate, then evaluate, whether there is clear and convincing evidence that discipline is available. That’s a fair point. “Begin proceedings” was a rhetorical flourish to illustrate that there are ways to address prosecutorial misconduct by simply considering the misconduct that was found to have occurred but to have been harmless error under the appellate standard of review.


Finally, Mr. Wernz argues that “prosecutorial misconduct” is a “term of art” because it includes both intentional misconduct and “mere mistakes.” The United States Supreme Court has made clear that prosecutorial misconduct is much more than a “term of art” and has provided specific examples of what constitutes such misconduct. We set forth those examples in our article.


What’s more, an accused who was denied a fair trial because of prosecutorial misconduct would beg to differ with Mr. Wernz’s characterization of this term. People are sitting in prison because prosecutors did not disclose exculpatory evidence, and it makes little difference to them whether it happened due to malice or neglect. “Constitutional rights” is a term of art, too; but either way, theirs were violated.