Oversight of Prosecutorial Conduct

Conference on Oversight of Prosecutorial Decision Making and Conduct (Georgia State University College of Law August 18, 2023)

-- Biographies of Conference Speakers
--Conference Presentations (ppt) (pdf)

Georgia Act Creating Prosecuting Attorneys Qualifications Commission (2023) ("SB 92")

Constitution of Georgia, Article VI, Section VIII: District Attorneys ("There shall be a district attorney for each judicial circuit, who shall be elected circuit-wide for a term of four years. ... No person shall be a district attorney unless such person shall have been an active-status member of the State Bar of Georgia for three years immediately preceding such person's election. ... District attorneys shall enjoy immunity from private suit for actions arising from the performance of their duties. ... Any district attorney may be disciplined, removed or involuntarily retired as provided by general law.")

The Georgia Rules of Professional Conduct are enacted and amended by order of the Supreme Court of Georgia and are binding on all lawyers in Georgia.
Georgia Rule of Professional Conduct 1.7: Conflict of Interest (a “lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests  … will materially and adversely affect the representation ... The maximum penalty for a violation of this rule is disbarment.”)
Georgia Rule of Professional Conduct 3.8, Special Responsibilities of a Prosecutor ("The prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause [and shall] make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or that mitigates the offense ... The maximum penalty for a violation of this rule is disbarment.)
Georgia Rule of Professional Conduct 8.4, Misconduct ("It shall be a violation of the Georgia Rules of Professional Conduct for a lawyer to engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation ... The maximum penalty for a violation is disbarment.")

Prosecuting Attorneys: Oath of Office, Official Code of Georgia § 15-18-2 (The district attorney shall take the following oath: "I do swear that I will faithfully and impartially and without fear, favor, or affection discharge my duties as district attorney and will take only my lawful compensation.")

Appointment of substitute for absent or disqualified district attorney, Official Code of Georgia § 15-18-5(a) (“[w]hen a district attorney’s office is disqualified from interest or relationship to engage in a prosecution, the district attorney shall notify the Attorney General of the disqualification”).

Appointment of a Substitute in the Event of a District Attorney Absence or Disqualification, Office of the Attorney General, State of Georgia (June 19, 2020) (Office of the Attorney General can only appoint another prosecutor if a district attorney disqualifies himself/herself or a court disqualifies him/her)

McLaughlin v Payne, 761 Southeastern Reporter2d 289 (Supreme Court of Georgia 2014) (conviction reversed; District Attorney had a personal interest in case because his daughter was a classmate of the victim; “to have a conflict in such a case is contrary to public policy”; "[w]hen the elected district attorney is wholly disqualified from a case, the assistant district attorneys --- whose only power to prosecute a case is derived from the constitutional authority of the district attorney who appointed them -- have no authority to proceed")

Criminal Justice Standards for the Prosecution Function (American Bar Association) (Standard 3-1.7 (a): “[w]hen a conflict requiring recusal exists … the prosecutor should recuse from further participation in the matter [and the] office should not go forward until a non-conflicted prosecutor … is in place”), https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/

National District Attorneys Association, National Prosecution Standards (3rd ed. 2009) (“The prosecutor should excuse himself or herself from any investigation, prosecution, or other matter where personal interests of the prosecutor would cause a fair-minded, objective observer to conclude that the prosecutor’s neutrality, judgment, or ability to administer the law in an objective manner may be compromised,” Standard 1-3.3(d). The new lawyer appointed when a prosecutor is disqualified “should be perceived as having sufficient detachment from the prosecutor’s office so as not to be influenced by any actual or potential conflict,” Standard 1-3.5(a).)

Bill Rankin, Justice Department conducting criminal probe of Fulton DA (Atlanta Journal Constitution Sep. 23, 2020), https://www.ajc.com/news/atlanta-news/new-justice-department-conducting-criminal-probe-of-fulton-da/6VSDXSPGIVF6XKWP62QGDRQ4DQ/

Christian Boone, Fani Willis unseats 6-term Fulton DA Paul Howard (Atlanta Journal Constitution Aug. 12, 2020), https://www.ajc.com/news/crime/early-results-show-fulton-da-challenger-in-the-lead/X23G6PDMIFBVHJKYH6UVTQMQ54/

Eliot C. McLaughlin, DA in Rayshard Brooks case ousted in runoff after 23 years in office (CNN Aug. 12, 2020), https://www.cnn.com/2020/08/12/us/paul-howard-fulton-da-rayshard-brooks-loses-fani-willis/index.html

Bill Rankin, Brad Schrade & Joshua Sharpe, Dark legacy of overturned convictions trails longtime prosecutor (Atlanta Journal Constitution July 24, 2020) (“The Brunswick Judicial Circuit has been terribly ill-served by [John] Johnson’s brazen misconduct, yet he is astonishingly still employed,” said Brian Kammer, a Mercer University law school professor … In a statement, District Attorney Jackie Johnson, who is no relation, defended her longtime chief deputy. “John B. Johnson III has prosecuted hundreds of murders and violent crimes,” she said.”), https://www.ajc.com/news/dark-legacy-of-overturned-convictions-trails-longtime-prosecutor/4SDCY5SP3FGKPJ4GVUTM4OLAMM/

Bill Rankin & Brad Schrade, In Georgia, few options to hold prosecutors accountable (Atlanta Journal Constitution July 24, 2020) (The state’s punishment for prosecutors who violate codes of conduct, such as withholding exculpatory evidence from the defense, is among the weakest in the country, said Clark D. Cunningham, a Georgia State University law school professor. The maximum punishment is a public reprimand. “The situation in Georgia in terms of monitoring and deterring prosecutorial misconduct is completely inadequate,” he said.), https://www.ajc.com/news/in-georgia-few-options-to-hold-prosecutors-accountable/G4BXBWGFPJAANMIWGDICBXSOOU/

David L. Hudson, Jr., Prosecutorial ethics are in the spotlight after the death of Ahmaud Arbery (American Bar Association Journal July 16, 2020) ("“A DA oversight commission could have a significant effect in deterring, disclosing and remedying prosecutorial misconduct,” says Cunningham. “If Georgia creates this commission, it would, I believe, be the first of its kind in the nation.”), https://www.abajournal.com/web/article/prosecutorial-ethics-are-in-the-spotlight-after-the-shooting-of-ahmaud-arbery

Christian Boone, Glynn County commissioners say DA blocked arrests after fatal shooting (Atlanta Journal Constitution May 13, 2020), https://www.ajc.com/news/local/watch-gbi-updates-following-arrests-ahmaud-arbery-shooting/1aJbZe2uL9HrndjyWYjB2L/

GBI Receives Request from AG Carr to Conduct Investigation into Handling of Ahmaud Arbery Case, Georgia Bureau of Investigation (May 12, 2020) ("Attorney General Chris Carr requested that the GBI open an investigation into a case involving possible prosecutorial misconduct by the offices of the District Attorneys of the Brunswick and Waycross Judicial Circuits.  The Attorney General is concerned that the actions of these offices in possibly misrepresenting or failing to disclose information during the process of appointing a conflict prosecutor to investigate the death of Ahmaud Arbery may have constituted unprofessional conduct under O.C.G.A. § 45-11-4 or other crimes."), https://gbi.georgia.gov/press-releases/2020-05-12/gbi-receives-request-ag-carr-conduct-investigation-handling-ahmaud-arbery

Carr Requests DOJ to Conduct Investigation into Handling of Ahmaud Arbery Case, Office of the Attorney General (May 10, 2020) ("The request to the U.S. Department of Justice includes, but is not limited to, investigation of the communications and discussions by and between the Office of the District Attorney of the Brunswick Judicial Circuit and the Office of the District Attorney of the Waycross Judicial Circuit related to this case."), https://law.georgia.gov/press-releases/2020-05-10/carr-requests-doj-conduct-investigation-handling-ahmaud-arbery-case

National District Attorneys Association, Statement on District Attorney Recusal and Comments on Ahmaud Arbery Case (May 9, 2020) ("In this case, District Attorney Barnhill determined he had a conflict in pursuing the investigation into Mr. Arbery’s death. At that point, his involvement should have ceased. Instead, District Attorney Barnhill wrote a letter, which has now become public, in which he offered a gratuitous and detailed opinion regarding the hurdles to any prosecution of the individuals involved in the shooting of Mr. Arbery. These actions can have an intended or unintended ability to influence potential grand jurors or trial jurors, while also making the new special prosecutor’s job to objectively seek the truth significantly more difficult.”), https://ndaa.org/wp-content/uploads/NDAA-Statement-on-Ahmaud-Arbery-Case-FINAL.pdf

Christian Boone, Attorney for Garrett Rolfe seeks Fulton DA’s recusal (Atlanta Journal Constitution July 20, 2020), https://www.ajc.com/news/crime/attorney-for-garrett-rolfe-seeks-fulton-das-recusal/S2QQNDICRBALPP7QTZ5VJAGDKU/ ("The attorney for the fired Atlanta police officer charged in the shooting death of Rayshard Brooks filed a motion late Monday seeking Fulton County District Attorney Paul Howard’s recusal from the case. Noah Pines, who represents Garrett Rolfe, cited three reasons behind his motion.")

Richard Fausset, Swift Charges Against Atlanta Officers Met With Relief and Skepticism (NY Times June 30, 2020) ("The worry that Mr. Howard might be playing politics extends beyond optics, with some experts saying it could hinder his office’s ability to successfully prosecute what will likely be among the most closely watched trials in the nation. “That’s going to give powerful ammunition to the defense to argue that this is an improperly motivated prosecution,” said Clark D. Cunningham, a law professor at Georgia State University and director of the National Institute for Teaching Ethics and Professionalism."), https://www.nytimes.com/2020/06/30/us/rayshard-brooks-paul-howard.html

Michael Berens & John Shiffman, Thousands of U.S. Judges who broke laws or oaths remained on bench (Reuters June 30, 2020), https://www.reuters.com/investigates/special-report/usa-judges-misconduct/

Kevin Riley, Editor, Opinion: Taking time to tell a fuller story (Atlanta Journal Constitution June 30, 2020) (“District Attorney Paul Howard faces criticism for his quick decision about the charges while he’s in a battle to be re-elected.”), https://www.ajc.com/news/opinion/opinion-taking-time-tell-fuller-story/HC9QQyt9Z2qFUCxN5ShGxL/

Allison Sherry, Colorado's Governor Appoints A Special Prosecutor To Look Into Elijah McClain's Death (All Things Considered, NPR June 26,. 2020) ("Last year the county prosecutor investigated the incident with reports given to him by the Aurora Police Department, and the DA decided there weren't grounds enough to charge the three officers with anything beyond a reasonable doubt."), https://www.npr.org/2020/06/26/884039367/colorados-governor-appoints-a-special-prosecutor-to-look-into-elijah-mcclains-de

State legislators want to create commission to provide oversight for district attorney offices (WSBTV-Channel 2 June 24, 2020) (Clark Cunningham interviewed by TV 2 invesigative reporter Richard Belcher), https://www.wsbtv.com/video/local-video/state-legislators-want-create-commission-create-even-remove-district-attorneys/YQD4R5FFXTYIGHCDNTK4G2MMCA/

Bill Torpy, Opinion: Fulton DA hopes putting cops in jail will keep him in office (Atlanta Journal Constitution June 24, 2020), https://www.ajc.com/news/local/opinion-fulton-hopes-putting-cops-jail-will-keep-him-office/PChwPPpA4OZNe7UH5qzUYK/

J.D. Capelouto, Rep. Collins renews call for DA Howard to step aside (Atlanta Journal Constitution June 22, 2020),https://www.ajc.com/news/local-govt--politics/pro-police-rally-rep-collins-renews-call-for-howard-step-aside/98OmKrR4ybJ4r6XW0POu9N/

Bill Rankin, Fulton County DA leads one investigation and is the subject of another (Atlanta Journal Constitution June 19, 2020) ("“He should step aside as Fulton County DA until the GBI investigation of himself is complete,” said Georgia State University law professor Clark Cunningham. “Atlanta’s chief law enforcement official should not be making unreviewable decisions about who to prosecute in this critical moment — for example in the Brooks shooting — while under the cloud of possibly being a felon himself.”), https://www.ajc.com/news/local/fulton-county-leads-one-investigation-and-the-subject-another/SCcg7PBghbcMzb0Za0L4UN/

Appointment of a Substitute in the Event of a District Attorney Absence or Disqualification, Office of the Attorney General, State of Georgia (June 19, 2020) (Office of the Attorney General can only appoint another prosecutor if a district attorney disqualifies himself/herself or a court disqualifies him/her)

Steve Patrick, South Georgia lawmaker calls for governor to remove Brunswick district attorney (New4Jax (WJXT) June 18, 2020), https://www.news4jax.com/news/georgia/2020/06/18/south-georgia-lawmaker-calls-for-governor-to-remove-brunswick-district-attorney/

House Bill 1214 (Georgia General Assembly Introduced June 16, 2020 by House Minority Leader Robert Trammel) (to create the District Attorneys Oversight Commission, closely modeled on statute establishing the Judicial Qualfications Commission), http://www.legis.ga.gov/legislation/en-US/Display/20192020/HB/1214

Bill Rankin, GBI opens probe of Fulton DA Paul Howard over use of nonprofit funds (Atlanta Journal Constitution May 5, 2020), https://www.ajc.com/news/local/gbi-opens-probe-fulton-paul-howard-over-use-nonprofit-funds/cgSq6UgzmHbCfGNJcxMJ6O/

Bill Rankin, Fulton DA Howard accused of 12 public disclosure violations (Atlanta Journal Constitution April 16, 2020), https://www.ajc.com/news/local/fulton-howard-accused-public-disclosure-violations/yCGruh2OCf5N03rVGv0G3L/

Bill Rankin, Nonprofit meant to stem gang violence used to pay Fulton DA (Atlanta Journal Constitution April 16, 2020), https://www.ajc.com/news/local/nonprofit-meant-stem-gang-violence-used-pay-fulton/2R2GzLNG6K4Ecj83Fz7fzH/

New York Commission on Prosecutorial Conduct

-- New York Senate Bill S3934
amending law establishing state commission on prosecutorial conduct (June 17, 2021)

-- After two years in limbo, a statewide commission meant to investigate charges of prosecutorial misconduct may be inching toward action, by Raga Justin (Times Union Feb. 10, 2023)

Deanna Paul, New York Court Rules Prosecutorial Misconduct Commission Unconstitutional (Wall Street Journal Jan. 28, 2020), https://www.wsj.com/articles/new-york-court-rules-prosecutorial-misconduct-commission-unconstitutional-11580273906

Soares v State of New York (Supreme Court: County of Albany N.Y. Jan. 28, 2020) (statute creating Commission on Prosectorial Conduct violates NY constitution by interfering with Appellate Division's jurisdiction over attorney discipline)

Peter A. Joy & Kevin C. McMunigal, New York Creates Commission on Prosecutor Conduct, 34 Criminal Justice 62 (Fall 2019)

Bruce Green & Rebecca Roiphe, Rethinking Prosecutors’ Conflicts of Interest, 58 Boston College Law Review 463 (2017) ("Conflicts of interest are endemic to almost all prosecutors' discretionary decisions, and are the source of many instances of misconduct and abuse. The traditional regulatory system barely addresses the problem and could never effectively do so.") (Professors Green and Roiphe are both former prosecutors.) Available at Social Science Research Network (SSRN): https://ssrn.com/abstract=2849658

Bruce Green & Ellen Yaroshefsky, Prosecutorial Accountability 2.0, 92 Notre Dame Law Review 51 (2016), available at SSRN: https://ssrn.com/abstract=2722791 or http://dx.doi.org/10.2139/ssrn.2722791

Bruce Green & Samuel Levine, Disciplinary Regulation of Prosecutors as a Remedy for Abuses of Prosecutorial Discretion: A Descriptive and Normative Analysis, 14 Ohio St. J. Crim. L. 143 (2016), available at SSRN: https://ssrn.com/abstract=2880637

Duke lacrosse prosecutor disbarred (CNN June 17, 2007), https://www.cnn.com/2007/LAW/06/16/duke.lacrosse/

North Carolina State Bar v. Michael B. Nifong (Disciplinary Hearing Commission, N.C. State Bar 2007) (disbarring District Attorney, Durham County, for withholding exculpatory evidence and other misconduct relating to prosecution of the "Duke Lacrosse Team" defendants).

State Bar v. Nifong, Comments of Disciplinary Panel Chair (N.Y. Times June 17, 2007) ( "[T]here are very few deterrents upon prosecutorial misconduct. For very good policy reasons, prosecutors are virtually immune from civil liability. About the worst that can happen to them for the conduct of a case is that the case can be overturned. The only significant deterrent upon a prosecutor is the possibility of disciplinary sanction.")

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