Inherent Flaws of Reporting Misconduct
On October 26 2015, disturbing revelations came to light when a St Louis Assistant Circuit Attorney (“ACA”) entered into a plea deal with DOJ prosecutors. The ACA, Bliss Barber Worrell, plead guilty to misprision of a felony; in exchange, she detailed the July 22-24, 2014 cover-up of the brutal beating of a man in police custody. The beating was perpetrated by twenty-five year veteran Detective Thomas Carroll, although his name specifically was not mentioned in the plea agreement. Moreover, according to Worrell’s plea, multiple officers participated that night. The suspect in question, Michael Waller, was charged with fraudulent use of a credit card as well as “escape.” But why was this man beaten? If you’re thinking this is another stereotypical “white cop beats black suspect” story, you are mistaken. Waller had the unfortunate luck of using a stolen credit card that belonged to the daughter of Detective Carrol.
In the plea, Worrell states that Detective Carroll called her late one night, detailed the account, and finally implored her to help him. Worrell stated specifically that he told her, “He threw Waller against a wall, beat him, threw a chair at him and shoved his pistol down the guy’s throat.” This behavior is disturbing in and of itself, but the cover up that followed was even worse. Worrell, whose career at the ACA Office had only lasted a year at this point, implored a fledgling Prosecutor, Katherine Dierdorf, to file the charges against Waller without any mention of the injuries he sustained. Even more damning, Worrell filed an extra “escape” charge in Dierdorf’s name to explain away the Defendant’s injuries. Fortunately, this whole scheme was discovered two days later and Worrell, Dierdorf, and “an unspecified number” of prosecutors were told to resign. For more details on the cover up itself, please see the plea deal.
Now, if the narrative ended there, this would just be another miscarriage of justice that was “remedied” in the end. The perpetrators were discovered, made to resign, are currently facing criminal charges (although Worrell will likely only receive probation), and may even face a civil suit later on. However, the especially disconcerting aspect of this cover up is the fact that Worrell was allowed to immediately enter into private practice following her resignation. For a little over a year, basically from the time of her resignation until her plea deal last month, Worrell opened a small firm and worked as a private defense attorney in the St. Louis area. She dealt with traffic offenses and general criminal defense, and even referenced herself as “a former St. Louis prosecutor” on her law firm’s website, which has since been taken down, and her Avvo account. Even though she was made to resign from her former position for this cover up, she was neither reported nor sanctioned by the local BAR or The Office of Chief Disciplinary Counsel (the section of the Missouri Supreme Court that handles ethics violations).
Now how could this be? The Defendant complained about the treatment to his family over a jailhouse phone call, law enforcement’s Internal Affairs Department investigated and reported to the lead Circuit Attorney, and then Worrell was subsequently asked to resign. There was even a news article that stated she had resigned her position amid internal investigation. Not a single person along this whole chain of complaints and investigations felt compelled to report this to the Office of Chief Disciplinary Counsel. And why did they not feel compelled to do so? Fear of professional repercussions? Or, in regard to the Defendant, was it because of the inherent difficulty of filing a complaint or fear of legal repercussions? The answer to the overarching question is most likely “D) All of the above.”
Private defense attorneys are constantly exposed to situations that could lead to ethical violations because they deal with clients on a daily basis. Moreover, the common ethical violations reported are in respect to fees/billing and “failing to diligently pursue a client’s claim.” Obviously, the fact that defense attorneys consistently deal with clients, coupled with those aforementioned common ethical complaints, make defense attorneys more likely to be reported for ethical violations. However, statistics on this topic are generally vague, given the options of public or private sanction, and often fail to distinguish defense vs. prosecution. Prosecutors, on the other hand, do not have to worry about displeased clients and/or their complaints concerning fees and not “diligently pursuing” their claims. As such, the most likely individual to report a prosecutor for misconduct is a fellow prosecutor, a defense attorney, or a judge.
Several issues arise that often block those three groups of individuals from reporting violations to the proper authorities. First, prosecutors who engage in willful misconduct likely do not want to be discovered and take steps to cover up their actions. For an example, see the St. Louis ACA plea deal above. Second, colleagues who witness such misconduct on either side may fail to report it for fear of professional repercussions from other colleagues. Third, the majority of known instances of prosecutorial misconduct have come to light only during the course of long and drawn-out proceedings. Basically, if these proceedings were dealt with via plea deal, which 90% of cases are, the misconduct would not have come to light. Finally, the three types of individuals who are most likely to report misconduct (fellow prosecutors, judges, and defense attorneys and their clients) are discouraged from doing so for strategic reasons. From the defendant’s perspective, there is little to no benefit or advantage to gain from filing a bar complaint and much to lose. A bar complaint could, in and of itself, negatively impact the outcome of the defendant’s current case via the ire of the prosecutor.
Relying on fellow prosecutors, defense attorneys or judges to report is similarly misplaced. These groups have little to gain from filing such a complaint during or after litigation. Fellow prosecutors do not want the professional repercussions of turning in one of their colleagues, and defense attorneys face similar professional repercussions considering their ongoing relationship with the prosecution. Defense attorneys face the same psychological hurdles in reporting their own colleagues for misconduct as well. Judges are reluctant to report for the same reasons and, in states where judges are elected, they could face political backlash or be seen as biased towards one side or the other. Effectively, there are stronger deterrents to reporting than there are incentives to reporting.
The ABA’s Model Rules of Professional Conduct serve as a baseline for many ethical rules found in the States. While these rules are not binding, many States have adopted key provisions of the Model Rules. Under the ABA’s Model Rules of Professional Conduct, private defense attorneys and prosecutors have the same ethical duties. However, Model Rule 3.8 is unique in that it promulgates “special ethical duties” unique to prosecutors, including an obligation not to pursue charges against an individual in the absence of probable cause and the affirmative responsibility to disclose exculpatory evidence in a timely fashion.
In some ways, Model Rule 3.8 is more stringent than constitutional case law and rules of criminal procedure. For example, under Brady a prosecutor is compelled to produce evidence “upon request” that he/she determines is “material either to guilt or to punishment.” In contrast, Model Rule 3.8(d) demands a prosecutor to voluntarily turn over all favorable evidence and to do so in a timely manner. Basically, this requires a prosecutor to turn over favorable evidence regardless of whether it is dispositive of the main issue in the case. Unfortunately, the ABA’s Model Rules are not flawless and have deficiencies concerning the vague terminology used. For example, there is little to no guidance on what “favorable” means in the context of Rule 3.8(d). Thus, the ABA Model Rules create vague guidelines for prosecutors’ ethical duties; as such, both laypersons and peer attorneys do not have a solid baseline for evaluating when to report misconduct or when the supposed misconduct would fall outside the lines of ethical violations.
Regardless of the deficiencies of the Model Rule 3.8, and the Model Rules generally, the Rules serve as a legitimate baseline to be used in States’ own ethical rules. For example, every state except for California has adopted a version of Model Rule 3.8. The unfortunate side of this statistic, however, is that very few have gone beyond its minimal standards and some have even watered-down the Rule so that substantive provisions are either omitted or substantially altered. This is a common situation amongst state versions of the Model Rules. Even more disconcerting is that generally speaking, whenever amendments to the Model Rules are promulgated by the ABA, the States are incredibly slow to follow suit. The failure of states to fully ratify Model Rule 3.8, as well as multiple other rules and amendments, has resulted in a hotchpot of ethics rules that lack uniformity and discourage individuals from reporting misconduct.
On the State level, the complaint process also discourages reporting based on how the reports are actually handled once received. Compiled data reveals that the amount of time between the filing of a complaint and the imposition of a public sanction, in some states, can take over one thousand days to come to fruition. This vast breath of time shows these complainants, individuals who have actually gathered the courage and invested the time to report misconduct, after they’ve passed all the previously mentioned hurdles both statutory and psychological, that this whole process and their complaint will hang over their head for years. This discourages the small percentage of people who actually do report misconduct, and assuredly incentivizes them to never be a part of this process again.
So, what can be done to combat this poor state of affairs? More than likely the answer is to make more substantial change at the state level. States could fully ratify the ABA Model Rules, or at least keep up with the amendments or create their personal state equivalent; they could also make the whole complaint process more accessible to laypersons. Another idea that has been promulgated in the past is an independent, random audit system at the state level to take a random sample and analyze the case. Since it is more difficult to combat the institutional dis-incentives faced by attorneys and judges to report misconduct, making the process more amenable to laypersons would be a step in the right direction. Making the process available online might be an option, as well as taking away some of the technical requirements of reporting misconduct. These options are not without their pitfalls, and could perhaps lead to an influx of superfluous claims of ethical violations. Encouraging more laypersons to be involved could in turn encourage more defense attorneys to be involved, and then the “domino-effect” will hopefully be in place.