The killing of Ahmaud Arbery in Brunswick, Ga., last year sparked conversations nationwide about the prevalence of racism in law enforcement and the dangers of citizen’s arrest laws. But the recent indictment of Brunswick Judicial Circuit District Attorney Jackie Johnson, who initially handled the Arbery case, brought to the forefront an equally problematic aspect of our criminal system—conflicts of interest for prosecutors.
Johnson is accused on charges of violating her oath of office and obstructing police. One of Arbery’s alleged murderers reportedly worked for Johnson’s office as an investigator until 2019, and left a voice mail asking her for advice after the shooting of the young Black male jogger. Although it is too early to determine the strength of the criminal case, it is clear that the indictment relates to a personal relationship between Johnson and one of the accused murderers.
The conflict of interest at play in this case—in which the prosecutor personally knows the accused— is more likely to exist in a smaller jurisdiction. However, conflicts of interest can threaten the integrity of prosecutors’ offices of all sizes.
How Conflicts Arise
A frequent source of conflicts of interests is the prosecutor-police relationship. When police are accused of misconduct, the collaborative relationship between police and prosecutors can make it difficult for prosecutors to evaluate such cases in an objective way. When a prosecutor works with the same group of police officers on a regular basis—whether by official policy or informal practice—it can lead to friendly relationships that blind the prosecutor to mistakes or misconduct by the police.
For example, many midsize and large prosecutors’ offices—and their local police departments—have specialized units that focus on one category of crime, such as drug cases or sex crimes. Attorneys in these units often develop close relationships with the small group of police officers who exclusively investigate these cases.
A less obvious potential conflict with the police arises when officers bring cases directly to prosecutors with whom they already have a relationship. Doing so avoids the formal intake process, where a randomly assigned prosecutor receives the case and may be more likely to spot police errors.
Although most officers engage in this practice because they prefer to work with a specific prosecutor with whom they have a positive working relationship, and not for a particularly unethical reason, this informal practice heightens the potential for prosecutorial bias.
Prosecutor elections present another potential source of conflicts of interest. District attorney candidates must solicit donations, and that leads to conflicts when donors become involved in criminal matters.
For example, last December, the incoming district attorney in Bibb County, Ga., came under fire for accepting campaign contributions from those indicted in a racketeering and illegal gambling case. A recent study of campaign contributions to prosecutors revealed the role money plays in district attorney races, and the resulting potential for conflicts of interest.
Mitigating Prosecutorial Conflicts of Interest
Despite many sources of potential conflicts, there is little guidance to help prosecutors navigate these ethical quandaries. The American Bar Association’s Model Rules of Professional Conduct establish specialized rules for prosecutors, but none specifically relate to conflicts of interest with police or donors. Nor has the U.S. Supreme Court addressed how prosecutors should handle these issues.
Several solutions can mitigate the harms of such conflicts, across offices of all sizes. To start, state legislatures can remove the authority of local district attorneys to investigate and prosecute officer-involved fatalities. Last year, New York State lawmakers permanently established a unit within the state attorney general’s office to investigate police-involved deaths.
But prosecutors do not have to wait for lawmakers to act. Instead, they can implement internal mechanisms to mitigate the risks and harms of conflicts of interest.
First, larger offices should create committees to advise prosecutors regarding conflicts. Although assigning the task of evaluating conflicts to several attorneys may not be an option for smaller offices, those with fewer attorneys on staff can designate one attorney as the local expert on ethics and conflicts for other prosecutors in the office.
Second, all prosecutors should undergo training that illustrates the array of conflicts of interest attorneys may encounter so that they carefully scrutinize their own cases. Without such training, individual prosecutors are more likely to miss a potential conflict of interest and fail to address the issue with the appropriate person, whether it be a senior prosecutor in a small office or a conflicts committee in a larger office.
Third, prosecutors’ offices should not permit attorneys to accept cases directly from the police, rather than the formal intake process. At a minimum, offices that tolerate such a practice should require the line prosecutor to note in the file the way the case arrived, and inform a supervisor, so that the case receives heightened scrutiny.
Fourth, prosecutors must proactively track police misconduct to identify patterns of wrongdoing before an officer’s negligence or criminal behavior puts the prosecutor’s office in a conflicted situation.
Finally, candidates for district attorney must scrutinize who is donating to their campaigns, and decline or return contributions from those who present an immediate conflict of interest (such as police unions, police chiefs, sheriffs, defense attorneys, or those under investigation by the office).
In the wake of a grand jury’s decision to indict the prosecutor who originally handled the Ahmaud Arbery case, prosecutors should review their procedures to prevent conflicts of interest. By supporting legislation and creating internal processes to address these issues, prosecutors can create an office culture that ensures fair prosecutions.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owner.
Alissa Marque Heydari is the deputy director of the Institute for Innovation in Prosecution at John Jay College. Before joining the IIP, she was a prosecutor in New York County.
Ronald Wright is a law professor at Wake Forest Law School. He previously served as a trial attorney with the Department of Justice, prosecuting white-collar criminal cases.