The Business Litigation Blog

Is Prosecutorial Misconduct a Growing Problem?

Some members of the legal profession have become concerned with prosecutorial misconduct. Most notably, highly respected Federal judge Chief Judge Alex Kozinski wrote a dissenting opinion critical of the actions of a prosecutor in a Federal case in the Ninth Circuit of Appeals, which covers the West coast.

The judge wrote that he was highly concerned about the lack of transparency by the prosecutor who failed to notify the judge or the defense counsel about potential problems with certain forensic evidence. While the evidence was important for the case, the prosecutor withheld that the forensic lab analyst who developed the work was under investigation for sloppy work in other cases.

Unfortunately for Kozinski, a majority of his fellow judges felt that the matter was only tangential to the case at hand and did not materially affect the outcome of the case, and therefore, outvoted him. Kozinski, as well as other judges and attorneys, has become particularly alarmed at the cavalier attitude that some prosecutors have taken in the recent years in undertaking their cases. 

License to Lie?

Former Federal prosecutor Sidney Powell recently released a surprising new book, Licensed to Lie: Exposing Corruption in the Department of Justice, that exposes corruption among United States Attorneys.

Ms. Powell worked as an Assistant United States Attorney, which is a Federal prosecutor, for ten years under nine different United States Attorneys. A U.S. Attorney is a regional manager of Federal prosecutors who is selected by high level officials in the Justice Department and the White House.

After leaving the U.S. Attorney’s Office and practicing privately as a defense attorney for several years, Ms. Powell felt obligated to write the book in order to bring this issue to light. She felt that since courts were not aggressively confronting the issue and state and local bar associations dared not complain about heavy-handed tactics by prosecutors, such behavior would go unnoticed.

Ms. Powell believes that judges either have become disillusioned, overworked, or are simply oblivious to the attacks on personal rights of defendants that some prosecutors have engaged in over recent years. She believes that many judges do not intentionally overlook such behavior but have felt overwhelmed either by the prevalence of overly aggressive tactics of prosecutors or by the overall volume of work, and as a result, have failed to notice it.


Ms. Powell argues in her book that at least two actions should be taken to reduce prosecutorial abuses. First, she believes that all judges should enter what she called a “ Brady compliance order.” The purpose of this order would be to affirm that the court is following the requirements of the landmark U.S. Supreme Court case, Brady v. Maryland, which held that prosecutors may not withhold evidence that may be helpful to the defendant.

Second, she argues that Congress should pass the Fairness in Disclosure of Evidence Act to help review potential violations of the Brady decision.
If you have additional questions about legal malpractice or attorney ethics, call or email the attorneys at the Patterson Law Firm.

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