So the “ethical lesson” of the scandal at Penn State is something along the lines of: if you see something, say something.
Easier said than done.
Within the practicing legal profession it would not be an exaggeration to say that we “see something” all the time. Every day. At what point do you “say something”?
The question only looks simple in hindsight, and even then only when what was seen is acknowledged by more powerful others. In our fantasies of how it works the truth comes out, the good are rewarded, the evil are punished, justice is done, the world is improved and the ship of state is righted.
That’s the fantasy. The reality is quite different.
The more likely outcome is that the whistle blower is fired, blackballed or ruined. Or worse. Nobody likes the guy who’s spoiling the party. Nobody likes a nay-sayer, not even the courts. Not even the Supreme Court.
In the legal profession we confront the problem of prosecutorial misconduct. Or it might be better to say that we don’t. Some law students at Yale seem to be wrestling with this.
Even a scrupulous prosecutor who witnesses a colleague engage in misconduct may nevertheless fail to report it for fear of professional repercussions…
Finally, those in the best position to report misconduct—namely judges, other prosecutors, and defense attorneys and their clients—are often disincentivized from doing so for both strategic and political reasons. From the defendant’s perspective, there is little to gain from filing a bar complaint and much to lose. As one state judge has written:
In other words, a bar complaint could itself negatively impact the outcome of ongoing litigation, if the prosecutor’s need to defend against disciplinary proceedings, or simple resentment at being reported to the authorities, results in less favorable treatment of the defendant. From the defense attorney’s perspective, there is little time for bar complaints when trying a case or handling an appeal. These attorneys are also understandably reluctant to turn in their colleagues, especially given their ongoing professional relationships.
The students at Yale are gauging the impact of the infamous Connick v. Thompson case, which essentially killed off any chance at redress for those wrongfully convicted through prosecutor misconduct. The only remaining avenue for redress does not belong to the injured party; it belongs to the government, through its bar “disciplinary” committees.
Of course, there’s an awareness that so far this remedy has been – how can we put this – utter bullshit. Consider this little tidbit from the Connick debacle itself:
Indeed, only one of the five prosecutors responsible for violating John Thompson’s constitutional rights has ever been disciplined by the attorney grievance system in place in Louisiana. Ironically, that prosecutor is Michael Riehlmann, the only one of the five who was not directly involved in prosecuting Thompson’s case or implicated in any of the Brady violations that occurred and the only attorney to ever report the violations to Louisiana’s Office of Disciplinary Counsel (ODC).
That’s right, folks. The only attorney who was ever disciplined over the constitutional violations that put an innocent man on death row for 14 years was the very attorney who reported the violations. Everyone else got a pass, got promoted. “Moved on”, as they say. The innocent man can move on, too, but of course the 14 years on death row are a sunk cost of the legal system’s not so occasional perfidy. The innocent man bears it by himself. Don’t dwell on the injustice of this: that would be whining.
You might have the impression that the turn of events at Penn State was too swift and too severe. And maybe that’s true. But the allegations are that this was a situation that went on for years, decades even. How many reports were made that never saw the light of day? How many whistle blowers faded into an obscure and substantially diminished life, while those who wronged them flourished?
There is already discussion of large numbers of Penn State victims that will surface. The trouble is, after they surface they will be expected to deliver themselves to a far more broken institution than the one that has injured them, to seek their redress.
Before they bother, maybe they should talk to John Thompson of New Orleans, who got a belly full of that institution’s modus operandi.