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Having seen the system from both sides, it has been my experience that most prosecutors are very serious about upholding the ethical canon that theirs is to seek justice, not convictions. Obviously the defense bar often has a markedly different concept of what constitutes justice. That point of clash is where the system finds its balance.

That said, lawyers are competitive types and what happens in a courtroom is a form of combat. The adrenalin pumps and in the heat of the moment it can be difficult not to overstep. Most prosecutors that I deal with will acknowledge overreach when it is pointed out to them and back off. Most, not all. The worst of the lot, both prosecutors and defense attorneys, are the “true believers.” To be absolutely sure you are right is to be absolutely sure your actions are justified. That is where the ethical breach is most common.

Judges in Wisconsin are elected and their behavior on the bench is influenced by the degree to which they are politically inclined. Those who are more politically minded often gravitate to the “friend of the cops” mode for the perceived political gain. Some have just been on the bench so long they have concluded, “If you’ve seen one guilty party, you’ve seen ‘em all.” Even the most conscientious of judges are stuck with the fact that the legislature and appellate courts seem to have drifted toward the position that “too many of these creeps are getting off because of that constitution thingy.” I think most of the judges I am in front of try hard to be fair, but objectivity comes hard when you get to grade your own papers. Most will stem real prosecutorial misconduct if you raise the alarm. No judge wants to try a case twice.

Most correction for overreach comes in the form of admonishment before the jury. No lawyer wants that embarrassment and the loss of momentum it entails. Egregious instances can go before the Office of Lawyer Regulation. Frankly, it needs to get pretty bad before anyone starts down that road. Paybacks are a…. well you know.

Kevin Earp
Law Office of J. Kevin Earp
P.O. Box 136, Richwood, OH 43344
(614) 579-2759
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In answer to your questions this month, I was not going to answer as I have never seen this happen in the six years I have been practicing law. However, it occurred to me that “never” is an answer in itself. I don’t doubt it happens, but I have no personal knowledge of an example.

As for the penalties, among other things they can include suspension, disbarment or even incarceration in some states for a prosecutor, and removal from the bench for judges who are aware of such behavior and overlook it or actively participate.

Bruce Finlay
Attorney at Law
P.O. Box 3, Shelton, WA 98584
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Prosecutors are entirely subject to the same biases and motivations as anyone else. Particularly the younger and less experienced prosecutors are susceptible to the pressure to win at all costs. Prosecutors have to win; if they charge a case, they are expected to win it. But they can’t win every case, so it is tempting to cheat. I have seen it happen many, many times in my 25 year career.

I would say most of them try to be ethical, but they are human. A few of them care about nothing but winning at all costs; the ends justify the means. And this varies from jurisdiction to jurisdiction, as well.