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58 U. Louisville L. Rev. 415 (2019-2020)
Deterring Prosecutors from Abusive Behavior: A Former Federal Prosecutor's View

handle is hein.journals/branlaj58 and id is 435 raw text is: DETERRING PROSECUTORS FROM ABUSIVE BEHAVIOR: A FORMER FEDERAL PROSECUTOR'S VIEW Brett L. Tolman* I. INTRODUCTION Many have written on the role of prosecutors in today's criminal justice system and the need for meaningful reform and greater accountability in order to more properly deal with misconduct.' Some argue for limiting or even abolishing prosecutorial immunity.2 Others argue for creating new rules of professional responsibility to address the increase in prosecutorial misconduct or, at the very least, revamping existing rules.3 Indeed, the issue of deterring prosecutorial misconduct has led reformers to propose a variety of creative solutions. One author, with compelling logic, argues for appellate courts publicly naming and shaming those prosecutors found to have committed significant misconduct that results reversal of the underlying conviction.4 However, among the breadth of writings on prosecutorial misconduct, there is a noticeable lack of authorship by practitioners of criminal law. * The author served as the U.S. Attorney for the District of Utah, 2006-2009. He also served as Chief Counsel over Crime and Terrorism in the United States Senate Judiciary Committee, 2003-2009. In 2018 he founded The Tolman Group, which focuses on government reform and public policy. This Article expresses the author's own perspective and not that of the Offices of the United States Attorneys. Many statements in this Article are drawn from the author's experience working in the criminal justice system and his recollections regarding specific cases in which he served as counsel. E.g., Bruce Green & Ellen Yaroshefsky, Prosecutorial Accountability 2.0, 92 NOTRE DAME L. REV. 51, 51 (2016); Anthony C. Thompson, Retooling and Coordinating the Approach to Prosecutorial Misconduct, 69 RUTGERS L. REV. 623 (2017); Bidish Sarma, Using Deterrence Theory to Promote Prosecutorial Accountability, 21 LEWIS & CLARK L. REV. 573 (2017); Sonja B. Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, 97 Geo. L.J. 1509 (2009). 2 See, e.g., Malia N. Brink, A Pendulum Swung Too Far: Why the Supreme Court Must Place Limits on Prosecutorial Immunity, 4 CHARLESTON L. REV. 1 (2009); Margaret Z. Johns, Reconsidering Absolute Prosecutorial Immunity, 2005 BYU L. REV. 53 (2005). ' See, e.g., Samuel J. Levine, Disciplinary Regulation of Prosecutorial Discretion: What Would a Rule Look Like?, 16 OHIO STATE J. CRIM. L. 347 (2019); Walter w. Steele Jr., Unethical Prosecutors and Inadequate Discipline, 38 SW. L.J. 965 (1984). 4 See Adam M. Gershowitz, Prosecutorial Shaming: Naming Attorneys to Reduce Prosecutorial Misconduct, 42 U.C. DAVIS L. REV. 1059 (2009). 415