The resignation of Missouri Governor Eric Greitens (R), a result that appears to have been over-due, deserved, and necessary, also involved a common form of unethical prosecution. The device is called Release-Dismiss, and it looks, smells and feels unethical. Nevertheless, the Supreme Court and most of the states continue to allow it. They shouldn’t.
Greiten’s resignation came as a result of a plea deal after St. Louis Circuit Attorney Kim Gardner agreed to dismiss charges that Greitens tampered with a computer donor list of a veterans’ charity he founded. The deal also included Grietens’ promise not to sue Gardner or her office.
Greitens’ legal fees were over $2 million, he said, and he could not afford to go to trial on the charges. Gardner said she was confident she had the evidence required to convict Greitens. (That’s what they all say.) But the fact remains that the threat of criminal prosecution was used to pressure Greitens into giving up his civil rights.
In a scholarly paper on this maneuver, one authority writes,
A phenomenon exists in the criminal justice world which allows a prosecutor to strike a bargain with a criminal defendant, permitting them both to cut their losses and walk away from a mutually bad situation. On occasions where arrested individuals may have been wronged by public officials in the course of their arrests, prosecutors may legally agree to dismiss defendants’ criminal charges in exchange for releases by the defendants of any civil claims arising from the arrests. The release-dismissal agreement, and variations upon its theme,’ have been the subject of controversy for several years.
Its supporters rely on the obvious efficiency embodied in the situation. Despite this efficiency, such agreements are dangerous, detrimental to the criminal justice system, and against the better interests of society.
I agree. So does Professor Turley, who wrote,
In my view, these conditions should be viewed as improper from a public policy standpoint. In negotiating an agreement with an alleged felon, Gardner should not be adding conditions to benefit herself or her office. Likewise, it should be treated as improper to force a defendant to negotiate protections for the prosecutors as a condition for his having charges dropped….As Missouri looks at this scandal for possible reforms, it would be wise to consider a ban on prosecutors negotiating for their own immunity or protection from lawsuit. If there are grounds for such lawsuits, it is in the public’s interest to have those allegations adjudicated.
One problem that blocks reform is that the Supreme Court, in Town of Newton v. Rumery, 480 U.S. 286 (1987), refused to find such deals unconstitutional, basically citing, I kid you not, the rationalizations of “Everybody does it” and “It’s not the worst thing.” Almost all of the states have refused to find the tactic unethical, with Colorado and California being notable exceptions. Virginia, in Legal Ethics Opinion 1867, expressed the more typical state bar policy:
In the absence of other factors indicating misconduct, the prosecutor’s exercise of discretion to dismiss pending charges pursuant to a release-dismissal agreement does not indicate that Rule 3.8(a) was violated.
A prosecutor, like any other lawyer, is subject to Rule 3.4(i), which forbids presenting criminal charges solely to obtain an advantage in a civil matter. If charges were initiated or trumped up in order to coerce a defendant into accepting a release-dismissal agreement, then the prosecutor’s conduct would violate this Rule. However, as in the case of accord and satisfaction agreements or agreements to pay restitution, if there is probable cause to maintain the charges and there is no other evidence that the charges were brought/maintained solely to coerce settlement of the civil matter, this Rule would not be violated by the negotiation of a release-dismissal agreement.
Although the Committee concludes that there is no need for a per se ban on release-dismissal agreements, any such agreement will be subject to intense legal and ethical scrutiny, as the Rumery court made clear. Thus, a prosecutor should not require release-dismissal agreements as a matter of course in dismissing criminal charges. To comply with Rule 3.4(i), a prosecutor should not seek a release of civil claims that are unrelated to the criminal charges at issue.
I don’t buy this reasoning. If there is valid misconduct to justify a lawsuit, the state’s legal representative should not try to block the suit. If there isn’t, then the state’s message should be “Take your best shot.” First, the tactic is inherently unethical because it suggests “the appearance of impropriety,” something a government employee, including a prosecutor, must avoid. Second, as Justice Stevens wrote in his vigorous dissent in Rumery:
[A]…person accused of crime should not be required to choose between a threatened indictment and trial, with their attendant publicity and the omnipresent possibility of wrongful conviction, and surrendering the right to a civil remedy against individuals who have violated his or her constitutional rights.