Michael Kiefer published his second installment in a series about prosecutorial misconduct for the Arizona Republic yesterday, honing in on the absence of accountability for Arizona prosecutors who violate their legal and ethical duties.

We wrote about the first part of the series here.

In Part 2, Kiefer uses long-time Arizona prosecutor Richard Wintory as a poster-child for prosecutors who learn that they can get away with unethical behavior because they are never pulled up for it – by the courts or by the state bar.

Wintory first came to our attention in March when accusations of prosecutorial misconduct surfaced in the Arizona Attorney General’s office and Wintory was forced off a murder case in which he was improperly communicating with a potential defense witness. Then in early October, the Arizona Republic reported that the State Bar of Arizona filed a formal complaint against Wintory, now a prosecutor at the Pinal County Attorney’s office, for his alleged misconduct in the incident.

In yesterday’s article, Kiefer notes how rare it is for prosecutors to be referred to the Arizona Bar for misconduct, “let alone be disciplined by the Bar or sanctioned by trial judges.” Even in those few cases where prosecutors are disbarred for misconduct, it takes a really long time.

Bill Montgomery, the Attorney for Maricopa County, which has faced more allegations of prosecutorial misconduct in death penalty cases than all the other Arizona counties combined, told Kiefer that he’s trying to “create an environment where prosecutors hold each other accountable.” Radley Balko illustrated the frailties of self-policing in his terrific article about the failure of our justice system to keep prosecutors in check. (“In asking Eric Holder to investigate Eric Holder, Obama illustrated the difficulty of adequately addressing prosecutorial misconduct as well as anyone possibly could: Prosecutors are relied upon to police themselves, and it isn’t working.”) If this is going to be Montgomery’s approach to addressing the problem in his office, history suggests he won’t be able to make much progress.

But more importantly, Montgomery doesn’t believe his own rhetoric. When it comes down to it, he still thinks it’s someone else’s job to keep his prosecutors in line:

Montgomery admitted he was not aware of many of the instances of misconduct or improprities that are described over the course of this series, even those that occurred while he has been in office.

That information rests with the middle-management supervisors, he said…

He said he does not weigh in on how prosecutors try their cases.

“The attorneys are trying the case, I’m not going to step in,” he said. “They’re on their own.” And if they need to be put in their place, “that’s the job of the judge. It’s the job of the defense attorney to object,” he said.

That seems to be one of the core problems with prosecutorial accountability that no-one wants to address. Who’s responsibility is it to hold prosecutors accountable? The U.S. Supreme Court says it’s up to state bars to hold prosecutors accountable. State bars say their job would be a lot easier if judges or lawyers referred cases to them. But then you hit “The Christmas Party Problem”, as Balko puts it: prosecutors and judges run in the same social circles – they are often friends or former colleagues, and attend each other’s Christmas parties. Furthermore, defense attorneys may be forgiven for deciding not to file an ethics complaint against a prosecutor who they will have to share a courtroom with for the forseeable future.

What both Kiefer and Balko illustrate is the fundamental miscalculation being made about how much power prosecutors wield, which is what makes it so difficult to regulate their profession. Balko describes the role of prosecutor in America today as “one of the most powerful positions in public service — a position that carries with it the authority not only to ruin lives, but in many cases the power to end them –“. When that power is fully grasped, it is evident how ridiculous it is to suggest that self-regulation could contain it.

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