Oversight of Prosecutorial Conduct

Website address: http://www.clarkcunningham.org/GeorgiaLegalEthics/OversightOfProsecutors.html

Conference on Oversight of Prosecutorial Decision Making and Conduct (August 18, 2023)

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

Recording of August 18 Conference at Georgia State University College of Law

Georgia Act Creating Prosecuting Attorneys Qualifications Commission (2023) ("SB 92")
-- "The commission, with the assistance of the Prosecuting Attorneys' Council of the State of Georgia, shall promulgate standards of conduct and rules for the commission's governance which will comport with due process and enforce the provisions of subsections (h) and (i) of this Code section; provided, however, that such standards and rules shall be effective only upon review and adoption by the Supreme Court."

In Re: Prosecuting Attorneys Qualifications Commission Rules and Code Of Conduct (Supreme Court of Georgia, Matter No. S24U0190 Nov. 22, 2023) (declining to review and approve the Commission’s draft standards of conduct and rules for the Commission’s governance)

Press Release by Prosecuting Attorneys Qualification Commission, Sep. 30, 2023
--"Today, the Commission has submitted both the Code of Conduct [for prosecuting attorneys] and the Rules [for the commission's governance] to the Supreme Court for their review."
-- "[T]he Commission ... will not consider conduct occurring prior to the completion of the Review Process and approval of the Code of Conduct and the Rules by the Supreme Court of Georgia."

Proposed to the Prosecuting Attorneys Qualifications Commission by the Prosecuting Attorneys' Council of Georgia (PACGA):
-- Proposed Code of Conduct of Prosecuting Attorneys of Georgia (PACGA)
-- Proposed Rules of the Prosecuting Attorneys Qualifications Commission (PACGA)

Submitted by the Prosecuting Attorneys Qualifications Commission (PAQC) to the Georgia Supreme Court on Sep. 30, 2023
-- Draft Code of Conduct of Prosecuting Attorneys of Georgia (PAQC)
-- Draft Rules of the Prosecuting Attorneys Qualifications Commission (PAQC)

Greg Bluestein, Top Senate Republicans seek to reprimand Fani Willis over Trump charges. Georgia Senate leaders ask new state panel to launch investigation into Fulton's top prosecutor, Atlanta Journal Constitution, Oct. 9, 2023
-- "Georgia Senate Republicans filed a formal complaint to punish Fulton County District Attorney Fani Willis after she sought charges against former President Donald Trump under a new law aimed at sanctioning “rogue” prosecutors. The complaint contends Willis “improperly cherry-picked cases to further her personal political agenda” and asks the newly formed Prosecuting Attorneys Qualification Commission to initiate an investigation and take “appropriate measures” to sanction her. “The integrity of our justice system is at stake, and the trust of the community in the District Attorney’s Office has been severely eroded,” states the complaint, which a group of eight state senators submitted hours after the law took effect Oct. 1. The Republicans don’t specifically mention Trump in the complaint, but they sought to link a spate of deaths in the Fulton County Jail to Willis’ decision to “empanel a special grand jury to investigate her political adversaries” amid a yearslong backlog of cases. The document, reviewed Monday by The Atlanta Journal-Constitution, was filed by a group that included Senate Majority Leader Steve Gooch and state Sen. Jason Anavitarte, another high-ranking Republican in the chamber. The complaint contends that Willis has “prioritized cases that align with her political party’s interests” rather than on the merits of each case. And it invokes the 10 inmates who have died in Fulton County custody in the past year. “Her selective prosecution has resulted in dangerous, deadly, and unjust overcrowding in the local jail and an unprecedented backlog of cases in the judicial system,” the complaint states. “These consequences are unacceptable and detrimental to our state.”

Rachel Maddow Show (MSNBC Aug. 24, 2023)
Could SB92 be used against DA Fani Willis? Guest: Professor Clark D. Cunningham

GSU law professor on new law that could remove district attorneys from office, Closer Look with Rose Scott, WABE Public Radio, Aug. 29, 2023 (starting at 15:20)

Yasmin Vossoughian Show (MSNBC Oct. 22, 2023)

Greg Bluestein, Why a GOP bid to sanction Fani Willis could be "DOA", Atlanta Journal Constitution, Oct.23, 2023
-"Georgia State University law professor Clark D. Cunningham, who reviewed the draft regulations for the Prosecuting Attorneys Qualifications Commission, said the complaint filed this month against Willis would “probably be dead on arrival” under the proposed rules. The draft policies, which were obtained by The Atlanta Journal-Constitution, have yet to be approved by the Georgia Supreme Court and could still be significantly revised. But the commission said that any conduct that occurs before the state Supreme Court approves the regulations won’t be subject to any discipline. That could complicate the complaint, since Willis brought the election-interference charges against Trump and 18 of his allies in August, Cunningham said. Other elements in the proposed regulations also would make it difficult to use the law to reprimand Willis, Cunningham said. One proposed rule says a complaint could only be made by someone who has “personal knowledge” that a prosecutor should be disciplined, and it would require complainants to file sworn affidavits detailing the alleged violation. Another indicates that a prosecutor could only be removed from office if they’re found to be “unfit” to serve — which Cunningham said sets a “very high bar” in its definition."

Rachel Maddow Show, MSNBC Nov. 28, 2023, Georgia Supreme Court ruling prevents GOP-backed commission for beginning to discipline prosecutors (Cunningham interview 3:20 - 9:00)

Lawsuits seeking to enjoin implementation of SB 92
Boston v State of Georgia: complaint
Boston v Cowart
-- Motion for Preliminary Injunction (with exhibits)
-- Amicus brief in support of plaintiffs - 84 Current and Former Elected Prosecutors, Attorneys General, Former US Attys, DOJ Officials
-- Amicus brief in support of plaintiffs - 109 Legal Scholars
-- Amicus brief in support of plaintiffs - Institute for Innovation in Prosecution, John Jay College
- Defendants' Reponse to Motion for Preliminary Injunction
- Plaintiffs' Reply Brief
Order Denying Plaintiffs' Motion for Interlocutory Injunction


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 disqualified district attorney, Official Code of Georgia § 15-18-5(a) (“When a district attorney’s office is disqualified from interest or relationship to engage in a prosecution ... the executive director of the Prosecuting Attorneys’ Council of the State of Georgia shall: (1) Request the services of and thereafter appoint a district attorney, a solicitor-general, a retired prosecuting attorney … or an attorney employed by the Department of Law; (2) Designate an attorney from the Prosecuting Attorneys’ Council …; or (3) Appoint a competent attorney to act as district attorney pro tempore in place of the district attorney.”).

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 & 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/


Eric Levenson, Jamiel Lynch, Amir Vera & Nouran Salahieh, Prosecutor to dismiss charges against Atlanta police officers involved in fatal shooting of Rayshard Brooks, CNN Aug. 23, 2022 (successor DA to Howard recuses due to concerns over Howard's possible misconduct, special prosecutor appointed who reviews and dismisses the murder indictment filed by Howard).

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

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

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/

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/

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/

Brunswick District Attorney Jackie Johnson and the Ahmaud Arbery Case

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

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/

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/

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/

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

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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