Appellate courts confronted with prosecutorial misconduct struggle to find a means to effectively communicate their disapproval of the misconduct without reversing the conviction.  Consequently, appellate judges sometimes admonish the appellate prosecutor during oral argument and then issue a decision affirming the conviction upon a finding that the misconduct was harmless error.  Of course, the discomfort experienced by the appellate counsel is unlikely to produce a change of behavior in the trial prosecutor who obtained the conviction which was affirmed. Indeed, more than a quarter of a century ago one commentator wrote that

Perhaps the most significant reason for the continued presence of prosecutorial misconduct is the harmless error doctrine. Under this doctrine, an appellate court can affirm a conviction despite the presence of serious misconduct during the trial. (Bennet Gershman, Why Prosecutors Misbehave).

Thus, back in 1991, the chapter on  Appeals in Criminal Cases, which  I co-authored for the New York State Bar Association's Criminal Practice Handbook, noted the ineffectiveness of "reprimands without reversals" in cases of prosecutorial misconduct, and urged that if court's were not going to reverse for misconduct court's could more effectively reduce misconduct "by identifying the offending prosecutor by name if the published decision."  (p. 775, n.171).

Not surprisingly, this suggestion was ignored, prosecutors continued to engage in misconduct and appellate courts continue to find the misconduct harmless and on and on.

So last year in this blog, I suggested that "maybe the Court could deter the misconduct by simply naming in its decision the trial prosecutor who engaged in misconduct. The current practice of affirming while noting that the unnamed prosecutor acted improperly is a demonstrated failure at impacting behavior."

Today, while reading the decisions of the Appellate Division, Fourth Department, I experienced a pleasant shock The decision in People v Huntsman (2012 NY Slip Op 04476  [4th Dept 6/8/12]) begins as follows:

On appeal from a judgment convicting him following a jury trial of 10 separate offenses stemming from multiple incidents, defendant contends, inter alia, that misconduct on the part of the prosecutor, Assistant District Attorney Jeffrey L. Taylor, requires reversal. Although defense counsel failed to object to any of the alleged acts of misconduct and thus failed to preserve defendant's present contention for our review (see People v Paul, 78 AD3d 1684, 1684-1685, lv denied 16 NY3d 834), we are nevertheless compelled to exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). This Court has repeatedly admonished Mr. Taylor for various acts of misconduct (People v Wildrick, 83 AD3d 1455, 1458, lv denied 17 NY3d 803; People v Morrice, 61 AD3d 1390, 1391-1392; People v Carter, 31 AD3d 1167, 1169), yet the record on this appeal establishes that his misconduct has continued. We again admonish Mr. Taylor and remind him that prosecutors have "special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process" (People v Santorelli, 95 NY2d 412, 421). With respect to the trial at issue on this appeal, however, we "cannot say that his [mis]conduct . . . jeopardize[d] the fairness of the trial" (People v Johnson, 62 AD2d 555, 560, affd 47 NY2d 785, cert denied 444 US 857; see [*2]People v Alicea, 37 NY2d 601, 603; Paul, 78 AD3d at 1685). 

In case you are wondering, Jeffrey Taylor was the unnamed prosecutor whose misconduct was so egregious that it led to reversal, even absent objection in People v Morrice  (61 AD3d 1390 [4th Dept 2009]) (see).

 Hopefully the word will get out that in the Fourth Department the price for misconduct has just gone up and.that this decision in Huntsman will have the desired chilling effect on the behavior of other trial prosecutors considering engaging in misconduct.