THE FIX FOR THE PUBLIC'S INCREASING DISTRUST OF PROSECUTORS, A LA NIFONG

Nifong is just a high profile reminder of where we stand in the post OJ era. The public neither trusts nor respects prosecutorial authority.

The short term fix in a given community is for the DEFENSE LAWYERS, of all people, to express confidence in the integrity of the local prosecutor's office. In most cases, while they have their tiffs, local prosecutors and area defense lawyers believe in one another's integrity. Of course, it's natural for any lay person to wonder why defense attorneys would help a prosecutor. The biggest reason would be that they are standing up for the system, to increase public confidence in it. That is among the basic Canons of Ethics to which we all subscribe. It would take a little cooperation among local defense lawyers and, frankly, might require a little nudge from local judges.

That's a a short-term bandaid.

An additional repair is to change the way we select prosecutors. By electing prosecutors, in most states, on a partisan political ballot, we eliminate critical review of their skills in exchange for partisan fealties. If we were to elect prosecutors in a non-partisan election, where there were no reference to parties, the elected prosecutor would not start out with a built-in 30% or so "enemies" and the candidates would have to propose ideas to distiguish themselves. This is a small thing but the difference would give the public much greater "ownership" of their local prosecutor.

Another interesting possibility has been put forward by Richard Haynes and Gerry Spence, the idea of certain attorneys being asked to a "Prosecutor by the Case". Unlike Special Prosecutors where the assignment would be made only in the event of disqualification of the local DA, PBC's would happen regularly. Let's assume that we have a town of 100,000 people and there are 15 really distinguished defense attorneys there. Every tenth felony would be assigned to one of these PBC's. The assigned PBC would not be assigned another one until the one he or she has completed the current assignment. The assumption is that the PBCs would know what it's like to be treated poorly by prosecutors and would perform to a high ethical and effective standard. The disclosure would be prompt and documented, there would not be any misleading of the other side. That higher standard would become the "community standard". Another side benefit would be that the PBCs, of necessity, would interact with the very police agencies against whom they often appear this would increase trust and collegiality. Some permutation of PBC would probably enhance public trust and infuse some diverse talent into the prosecutorial ranks.

Probably, the longest term fix is a twist on industrial Quality Management, ISO 9xxx and the like. A private organization, such as the National College of District Attorneys, could easily come up with a rigorous on site accreditation program which would include disclosure and integrity issues as well as ticklers and redundancies to make sure required information was shared with both defense and victims. There are literally a million measuring sticks that could be used. The key is the accreditation process would have to be "owned" by someone trustworthy, not any Attorney General or certainly not the Justice Department. I suggest the NCDA because it's only goal is to improve professionalism among prosecutors, they're university-affiliated and they could be counted upon to employ objective criteria. Just as in the Police arena, citizens could take comfort and confidence their prosecutor's office reflected the honesty, diligence and diversity of the community it serves.

But, to go back to the starting point, we have to walk before we can run. Right now, the salvation of ethical prosecutors must lie in the care of a responsible defense bar. That may be ironic, but it is still true.