Resolving ethical questions raised by prosecutor’s book | READER COMMENTARY

It was no surprise when former Assistant United States Attorney Joyce McDonald defended her colleague, Leo Wise, after my commentary suggested that he may have committed an ethical violation (“Prosecutor’s book about Baltimore’s Gun Trace Task Force raises ethics questions,” April 17).

I welcome McDonald’s response (“Criticism of Leo Wise was wrong on facts and the law,” May 17) because it promotes further discussion of the important issue of whether Wise or any active prosecutor should ever publish “the inside story” of a criminal prosecution.

My op-ed focused on a prosecutor’s legal ethics — not any criminal violation — and highlighted the potential conflicts of interest that could arise when a prosecutor provides a public personal account of one of their criminal prosecutions. A prosecutor’s mission to render impartial justice becomes compromised when considering a case’s value as a potential best seller and not just another routine plea bargain.

To gain the trust of witnesses from heavily policed communities, prosecutors must persuade them to testify, if necessary.  Many witnesses will be reluctant to do so if they fear their identity will appear in a prosecutor’s crime story.

McDonald argued forcefully that Wise violated no federal law, but no one ever suggested that he did. The real issue involves ethics, not law. Until Wise’s book, prosecutors generally embraced a well-accepted ethical prohibition against book publication. In fact, the view is so widely recognized that neither he nor I could find a single example of an active prosecutor writing such a book. Not one.

The more interesting question in the case is whether Wise complied with the American Bar Association’s standard that requires a prosecutor to obtain supervisory approval prior to publication. Yet we do not know that.

It’s reasonable to expect McDonald would have informed us had the nation’s attorney general or other high-ranking U.S. Department of Justice official approved publication. One is left wondering whether Wise acted on his own initiative and never received permission from his immediate supervisor, the U.S. Attorney in Maryland.

To protect against future “wild card” prosecutors telling us about their conquests, the ABA should draft an explicit rule that protects witnesses against unwarranted disclosures. Such a rule would remind prosecutors they represent the government entity as a “minister of justice.”

— Doug Colbert, Baltimore

The writer is a professor of law at the University of Maryland Francis King Carey School of Law.

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