Justice? What Justice?
There is more bad news out of Ferguson, because everything is horrible. Prosecutor Robert McCulloch, of Darren Wilson grand jury fame, unable to restrain himself from telling those who don’t believe cops should be killing people in the street willy-nilly what to do to their own orifices, gave an interview during which he nonchalantly admitted to suborning perjury during the aforementioned grand jury proceedings. Naturally, this led to some excitement in the normal-people world, as in: is it possible something could be salvaged out of the whole Ferguson mess in the name of justice? As a pessimist with a lot of experience in the legal field, I have to answer that question as “no, probably not.” McCulloch wouldn’t be gloating about all the false testimony he deliberately introduced if he was in any danger of incurring penalties.
Suborning perjury is a crime, of course, and for a lawyer it’s a disbarrable offense. The ethical rules of every state contain a provision that prohibits attorneys from introducing evidence that they know, or have reason to believe, is false. But there is law that’s on the books, and then there is practice.
Undeniably, new applicants to the bar are subjected to, at times, ludicrously intrusive background checks and get rejected on the most Puritanical grounds (it’s a bit of a hurdle to get a law license if you’ve been divorced, for instance — in some jurisdictions more so than in others). At the same time, however, disciplinary committees generally take a lax approach to ethics violations committed by those already licensed. (If you permit me to be a bit pedantic here, what McCulloch did was an ethical violation by virtue of the fraud, but also because it was a crime.)
Generally speaking, the only transgression such committees consistently take seriously is monkeying with client accounts. Take 10K out of a client’s account for a gambling weekend in Vegas, and your state’s disciplinary committee will be all over you like white on rice. But virtually everything else — up to and including fabricating evidence — is met with a “meh” attitude. Judges are empowered to punish those who commit fraud on the court, but all they can do is enter a ruling for the opposing party, slap the offending lawyer with a fine and refer him to the disciplinary committee. Which then promptly
files away tosses the referral in the trash.
On rare occasions when a state disciplinary committee chooses to make an example of an unethical attorney, the subject is almost always what the public ignorantly calls “an ambulance chaser” — more accurately described as a solo practitioner or a small law firm with no political connections, catering primarily to poor people. But white shoe law firms and government attorneys? Fuggedaboutit. Short of one of those guys raping a small child in open court in the presence of a dozen witnesses and a court reporter, they can get away with anything. Putting on a witness they know is lying? The gods of lawyer discipline don’t give a shit. It’s only wrong when one of the little people is doing it. The fact that a lawyer works for the government or for a “respectable” (read: rich people’s) law firm is in and of itself deemed to be a defense against any charge of impropriety.
I know you are thinking, perhaps, “But Mike Nifong got fired and disbarred!” Yes, great. But realize, while the Duke Lacrosse case proves it’s not impossible, it is still exceedingly rare for a prosecutor to get disbarred (or disciplined at all). When a prosecutor is “disgraced”, it usually means he resigns under pressure, lays low for a while, then goes on the lecture circuit, writes books and/or goes into private practice. Very rarely is the license of a prosecutor or a big-shot corporate lawyer in jeopardy. Whatever the exceptions, the policy of disciplinary committees throughout this country is to give these lawyers tremendous latitude to win cases (or strategically lose, as is the case with Darren Wilson) by hook and by crook.
Alright, so if we can’t expect any action from Missouri’s disciplinary committee, could we maybe prosecute McCulloch seeing as how subornation of perjury is a crime? I’d say that’s even less likely. If the disciplinary committee probably just doesn’t care, prosecutors — whether the state AG or federal — would actively resist this. Prosecuting McCulloch would mean prosecuting their colleague. Whoever would have to do this case may actually know McCulloch personally and have a rapport with him. Ultimately, whether or not such a prosecution happens would be determined by the amount of political pressure applied to the powers that be — and in this particular case, that pressure would have to be tremendous.
So don’t get your hopes up, kids. It’s much likelier McCulloch will get stacks of awards and buildings named after him for introducing false evidence to exonerate Darren Wilson, rather than face punishment for it.