prudent prosecutor, The

less error review encourages a `winning is everything' attitude with fairness being a mere afterthought. Accordingly, many defendants have had their convictions affirmed despite clear prosecutorial overreaching."106 Courts will frequently refer errant prosecutors to disciplinary offices rather than issue sanctions in the midst of a criminal case.

Like courts, disciplinary agencies have reasons not to review prosecutorial misconduct rigorously. Professor Zacharias has stated that "[tlo the extent discipline requires an investigation of the workings of a prosecutor's office, disciplinary agencies may consider it invasive of the authority of a coordinate branch of government."107

My focus here is on prosecutorial discretion, not on all categories of prosecutorial misconduct. The Model Rules encapsulate the general standard for all attorney discipline: the violation of mandatory, but not discretionary, rules is subject to professional discipline. "Some of the Rules are imperatives, cast in the terms 'shall' or `shall not.' These define proper conduct for purposes of professional discipline. Others, generally cast in the term `may,' are permissive and define areas under the Rules in which the lawyer has professional discretion. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion."108 We have seen that offices provide guidelines to steer prosecutorial discretion. "Guidelines, however, do not have the force of law, are easily evaded, and can be revoked at will."109

Professor Zacharias has demonstrated that prosecutors rarely face discipline for their discretionary decisions.110 "Allegations of prosecutorial misconduct typically concern five broad areas of activity: abuse of office in the charging stage; abuses in investigating crimes, including misuse of grand juries; pretrial misconduct (particularly, misconduct in discovery); trial misconduct; and miscellaneous other activity."111 Consistent with the Model Rules, however, Zacharias explains that misconduct "does not always rise to the level of a disciplinable offense. Disciplinary authorities, for the most part, are limited to enforcing direct violations of specific prohibitions in the professional rules."112 Discretionary decisions are unlikely to be sanctioned.

Similarly, some consider aggressive charging within constitutional limits to be a valid exercise of discretion, while others consider it to be "overcharging."113

Accordingly Zacharias concludes that findings of prosecutorial misconduct are more appropriately limited to the narrow range of areas that "include[s] primarily pretrial and trial conduct that is specifically forbidden in the codes, engaging in pretrial publicity, and the prosecutor's obligations to report other lawyers."114

The Annual Reports of the Justice Department's Office of Professional Responsibility ("OPR"), which oversees the professional competence of federal prosecutors, provide some support for Zacharias' conclusions. Their categories of misconduct include abuse of prosecutorial or investigative authority; misrepresentation to the court or opposing counsel; unauthorized release of information (including grand jury information); improper oral or written remarks to the court or grand jury; conflicts of interest; failure to perform duties properly; negligence; unprofessional behavior; failure to disclose exculpatory, impeachment or discovery material; criminality; and improper contacts with represented parties.115 Many of the categories appear to cover violations of mandatory standards. Moreover, the case summaries suggest that discretionary decisions are not sanctioned. For example, four substantial assistance motions cases were dismissed without findings of misconduct.116 OPR found no misconduct in one case of allegations of improper issuance of a subpoena. Moreover, there was no misconduct in a 1996 case in which the defendant alleged that she was charged because she had testified against the government at a different trial.117