Please, don’t ‘Call the Feds’ to ‘Stop Bad Prosecutors’

Stephen Cooper_thb

by Stephen Cooper

In a convoluted crackpot of a column called, “To Stop Bad Prosecutors, Call the Feds” (June 6), The New York Times proves that the ideas of journalists, however well-meaning, are not likely to ever be the panacea for meaningful and lasting criminal justice reform.

Bemoaning a lack of accountability around the country for repeated and outrageous instances where prosecutors have failed to comply with Brady v. Maryland – a seminal 1963 Supreme Court decision requiring the government, in a criminal case, to turn over favorable evidence material to the guilt or innocence of the accused (or to sentencing, in the event of a guilty verdict) – The New York Times’ Editorial Board calls upon the Justice Department to exercise “federal oversight of [state] prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights.”

Not only would this proposed encroachment upon state prosecutor offices be doomed as a matter of law given states’ rights and the limits of federal power enshrined in our Constitution, but also, as The Times’ Editorial Board piece itself both frustratingly and plaintively concedes, theirs is a completely unworkable suggestion (“Of course, many district attorneys’ offices will balk at being put under a federal microscope.”).


“Many” is a gross low-ball of an understatement when it’s impossible to imagine a single state with even a solitary (and righteous) prosecutors’ office willing to have its internal (ethical) decision-making probed and policed by the feds.

Moreover, The New York Times’ wrongheaded and dead-on-delivery proposal is a bad idea to begin with – as it plainly ignores that federal prosecutors have a poor track record themselves of complying with Brady v. Maryland – a fact The Times’ own reporting shed light upon just last year (“Ex-Justice Dept. Officials Argue Against Federal Prosecutors in Supreme Court Brief”). The Times noted then with respect to allegations of prosecutorial misconduct on the part of federal prosecutors that there is “a widespread feeling that there is a lot of hiding going on.” As quoted by The Times, federal appellate judge Alex Kozinski put it a mite more bluntly: “There is an epidemic of Brady violations abroad in the land,” Kozinski wrote.

Judge Kozinski’s blistering observation, which notably came as a result of a federal and not a state prosecutor’s malfeasance, was clearly directed as much, if not more, at the Department of Justices’ lawyers than it was at state prosecutors.

From infamous examples everyone knows about – like the bungled prosecution of now-deceased Alaskan senator Ted Stevens – to more pedestrian cases filling the federal criminal docket, federal prosecutors have not shown themselves to be shining stars of professional ethics.

This is indeed a sad state of affairs because the ideal, as Supreme Court Justice George Sutherland wrote over 80 years ago, and as The Office of the United States Attorney for the District of Columbia – the largest office of federal prosecutors in the country – rightly extols on its website:  “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 the case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935).

So, what can be done about this pernicious dearth of upstanding prosecutors nationwide, on both the state and federal level, prosecutors who, as Justice Sutherland put it, “prosecute with earnestness and vigor” but while “strik[ing] hard blows [do not] strike foul ones?”

There is no easy answer to this grave problem plaguing our country’s criminal justice system – on that The Times’ Editorial Board gets it absolutely right. But, as for its facile and feckless proposal to address the problem, it couldn’t be more naïve, and wrong.

Stephen Cooper is a former federal and D.C. public defender. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California.