Philbrook McCoy, Ethics Investigator: The Case of the Pensive Prosecutor

Outside my office window, the rain had turned Alvarado Boulevard into a river of chocolate. Except you wouldn’t want your chocolate to be this shade of brown.  Across the mud river, some fool in a paddleboat was battling whitecaps on MacArthur Park Lake.  It was a dull day with nothing to do but wait for trouble.

McCoy

The phone rang.  “This is the long distance operator”, a nasal voice announced.  “A person to person call for Philbrook McCoy from Earl Warren.  Will you accept the call?”

“This is McCoy. With pleasure!” I barked.  Warren laughed. “McCoy. It has been too long.  I don’t think I’ve talked to you since you worked for me on those bootlegging cases.”

“A lot of mud over the dam since then, Earl” I said, “ I suppose you heard what happened with the State Bar?”

“Yeah, but it doesn’t change my view of you one bit.  I know you are a stand up guy and they were fools to let you go.  But I figure I can use your experience. I need some ethics advice.  I am a little steamed, to tell the truth. The State Bar is looking into the conduct of some of my prosecutors and I am damn mad about it.”

earlwarren

“I don’t know why, Earl, your boys are lawyers and subject to the same professional rules as everyone else.  Almost.  Unlike the civil lawyers, you are shielded by the immunity doctrines.   The US Supreme Court said so in Imbler v. Pachtman  (1976) 424 U.S. 409.   That immunity means that even a wronged criminal defendant has no civil redress against a prosecutor.  Without immunity, you guys would forever be looking over your shoulder, waiting to get sued.   But for that immunity you get the possibility of professional discipline for a malicious or dishonest prosecutor.  The Supremes said that a “prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers.”

“The Supreme Court?  What do they know? The State Bar?  They have never raised questions about what we do before!”

“Right. Despite the language in Imbler, it is no secret that prosecutors are hardly ever prosecuted by the disciplinary authorities.  Look at  Zacharias, The Professional Discipline of Prosecutors, 79 No. Carolina Law Review 722.   Zacharias characterizes the lack of reported discipline cases involving criminal prosecutors as “surprising” in light of the frequent references to prosecutorial misconduct in the case law.  A little rain has got to fall into everyone’s professional life now and then, Earl”

”When you deal with the State Bar, McCoy, it’s more like the deluge.  They say one of my prosecutors failed to provide exculpatory evidence and another misrepresented facts to a judge!  Of course, I don’t condone that but how can we take out gangsters if we are in constant fear of being second-guessed by the State Bar!  And I am running for attorney general next year!”

“Yes, withholding exculpatory evidence violates the Supreme Court’s holding in Brady v. Maryland (1963) 373 U.S. 83, providing that a criminal defendant is constitutionally entitled to it.  But it also violates Cal. Rule Prof. Conduct 5-220, forbidding an attorney from suppressing evidence that the attorney or client has an obligation to produce.

“Besides Earl, I know the standards you set in your office.  Are the State Bar’s standards really higher than your own?  You are a tough prosecutor but you believe in fair play and the Constitution.  You know, Earl, but you would make a hell of good judge.”

trouble

The line went silent.  Rain drops tapped at the window.  Finally, he spoke.

“Thanks. McCoy.  That puts it in perspective for me.  But forget that judge stuff, I am going to be attorney general, and then Governor and then President!  You are the one who should be a judge and you might have been if you had played ball.”

“Maybe in some other world, Earl.  As for you, you never know where the Fates of politics will take you.”

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