DEMON EST DEUS INVERSUS

Currently, prosecutors’ offices address only extreme conflicts of interest, those that almost anyone would consider improper.179 _{When conflicts are less}

serious, courts cannot disqualify prosecutors or overturn convictions without potentially exceeding their constitutional or statutory authority.180 _{The elec-}

tion or appointment of a prosecutor as a public official is an act of political will with which courts cannot lightly interfere.181 _{Consequently, there are}

many situations where prosecutors’ judgment may be affected, but not signif- icantly enough for a court or the prosecutor herself to deny the public its cho- sen counsel.182

By default, the assigned prosecutor determines the scope and severity of the conflict.183 _{The prosecutor cannot defer to a client, as a private attorney}

would.184 _{Left to their own devices, individual prosecutors may address the}

question without much thought or deliberation. Even when prosecutors do consider conflicts, their thought processes are invariably internal, opaque, and clouded by biases and presuppositions.185 _{If individual prosecutors do analyze}

the question thoughtfully, others in the office cannot benefit from their think- ing when they later encounter similar problems.186

Particularly in high profile cases, the most self-interested prosecutors are usually responsible for recusal decisions. Those in the office with the most at stake and the greater likelihood of being swayed by the interests of the institu- tion may have sole responsibility for making the decision on whether or not to recuse.187 _{The chief prosecutor may also have substantial power to influ-}

ence the decisions in that case if she chooses to proceed despite the conflict. Even if the process is collaborative, prosecutors’ offices do not necessarily

179 _{See supra notes 96–176 and accompanying text.} 180 _{See supra notes 96–176 and accompanying text.}

181 _{In his dissent in Morrison v. Olson, Justice Scalia argued that the main check on prosecu-}

torial power is political. 487 U.S. 654, 728 (1988) (Scalia, J., dissenting).

182 _{Many scholars disagree and call for a more aggressive policing of prosecutorial decisions.}

See infra notes 208–209 and accompanying text.

183 _{See Levine, supra note 11, at 1477–78.}

184 _{MODEL RULES OF PROF’L CONDUCT r. 1.7 cmts. 18–19 (emphasizing the importance of}

consulting with a client).

185 _{See Burke, Improving Prosecutorial Decisionmaking, supra note 12, at 1603–13 (cata-}

loguing types of prosecutorial biases).

186 _{Consistency or at least rationality should certainly be a goal in prosecutorial decision-}

making. In administrative law, courts have recognized the importance of following precedent. See Yoav Dotan, Making Consistency Consistent, 57 ADMIN.L.REV. 995, 1009–10 (2005) (reviewing the Chevron doctrine’s effect on consistency in administrative law).

187 _{For a discussion of the political motivations of chief prosecutors in high-profile cases, see}

Medwed, supra note 78, at 182–83 (noting that “the institutional culture of most prosecutors' of- fices treasures convictions”).

record their deliberations and therefore need not address conflicts in a con- sistent and principled way.188 _{Once a prosecutor or office decides against}

recusal, the prosecutors in the case may fail to consider the effect that their conflicting interests could have on their discretionary decisions.189 _Although

a new Department of Justice policy requires that all prosecutors receive train- ing in implicit biases, which often overlap with conflicts of interest, the De- partment does not offer comparable training in how to acknowledge and min- imize the effect of conflicts of interest in general.190

Prosecutors’ failure to recuse themselves from investigating local police in civilian shootings has undermined public confidence,191 _{leading at times to}

violent protests.192 _{The lack of transparency in the recusal decision and the}

presumed lack of rigor in the deliberations have deepened public suspicion of the criminal justice system among certain groups of citizens—particularly African Americans.193 _{Of course, the problem of police force is complex, and}

no simple prosecutorial reform could repair the relationship between African- American communities and the criminal justice system. Together with other structural reforms, however, addressing this problem might help assure the public of the legitimacy of controversial decisions. The abuse of police power lends urgency to the need to improve the quality of prosecutors’ decision-

188 _{For a description of how courts enforce consistency in the administrative law context, see}

Dotan, supra note 186, at 1008–29.

189 _{Green & Zacharias, supra note 9, at 838–39 (discussing how prosecutors are often criti-}

cized for a lack of neutrality).

190 _{Press Release, Dep’t of Justice, Department of Justice Announces New Department-Wide}

Implicit Bias Training for Personnel (June 27, 2016), https://www.justice.gov/opa/pr/department- justice-announces-new-department-wide-implicit-bias-training-personnel [https://perma.cc/4HMZ- 7JHK]; see supra notes 86–89 and accompanying text (examining cognitive bias research).

191 _{See David A. Lieb, Court Report Raises Conflict of Interest Concern in Ferguson, WASH.}

TIMES (May 11, 2015), http://www.washingtontimes.com/news/2015/may/11/court-report-raises- conflict-of-interest-concern-i/ [https://perma.cc/2XQ9-AWSM] (noting Department of Justice inves- tigation into Ferguson Police Department “raised concerns”). More recently, civil rights attorneys filed a petition seeking appointment of a special prosecutor to prosecute a police officer in Chicago accused of shooting teenager Laquan McDonald sixteen times. The petition alleged that the Cook County State’s Attorney has a conflict of interest because of her close relationship with the Fraternal Order of Police and her political endorsement from the police union. Rev. Jesse Jackson Joins Others

in Seeking Special Prosecutor for Jason Van Dyke Case, CHI.SUN TIMES (Feb. 26, 2016), http:// chicago.suntimes.com/news/rev-jesse-jackson-joins-others-in-seeking-special-prosecutor-for-jason- van-dyke-case/ [https://perma.cc/2WZZ-98AT].

192 _{Mariah Stewart, Ferguson Protests Flare as Baltimore Reignites the Cause, HUFFINGTON}

POST (Apr. 30, 2015), http://www.huffingtonpost.com/2015/04/30/ferguson-baltimore_n_7177128. html [https://perma.cc/4D3S-LHDQ].

193 _{Lydia Polgreen, From Ferguson to Charleston and Beyond, Anguish About Race Keeps Build-}

ing, N.Y. TIMES (June 20, 2015), https://www.nytimes.com/2015/06/21/us/from-ferguson-to- charleston-and-beyond-anguish-about-race-keeps-building.html?_r=0 [https://perma.cc/2R6W-UNZH] (reporting widespread “anguish and soul-searching” after failures to obtain indictments in police shoot- ing cases).

making.194 _{Internal reform addressing the root cause of defects in prosecuto-}

rial decision-making may strengthen public confidence.

Even in ordinary cases, prosecutors are not necessarily disinterested. They suffer from biases as well as pressures to succeed within the office and in their careers generally.195 _{We cannot, nor would we want to, eliminate}

these pressures entirely. They are entwined with desirable qualities such as personal conviction and passion. Changes in institutional design can help prosecutors acknowledge hidden motivations and address them more deliber- ately.196 _{Even when conflicts do not require recusal, they are a significant}

problem that should be addressed.