Prosecutor’s book about Baltimore’s Gun Trace Task Force raises ethics questions | GUEST COMMENTARY
I suspect that many prosecuting attorneys — even high-powered assistant U.S. attorneys — have thought about writing a book based on one of their trial wins. However, after considering the potential conflicts of interest that could arise from going public with their insider’s account, they did not publish. If prosecutors do decide to pursue such a project, they often do so after they’ve retired or changed professions.
Not Leo Wise.
While working as an assistant United States attorney, Mr. Wise wrote a book, published last year, that promised to tell “the inside story of the prosecutor who took down Baltimore’s most crooked cops.” It is virtually unheard of for a sitting prosecutor to publish from an actual case, and for good reason.
In an interview with a Maryland journalist in August, Wise mentioned two authors whom he used as models for his book: Vincent Bugliosi, who prosecuted Charlie Manson and published the acclaimed “Helter Skelter” after leaving office; and Truman Capote, who wrote “In Cold Blood,” but as a journalist, not a prosecutor.
Federal prosecutors know that telling the true story about the “bad” guys they prosecute must be balanced against the potential harm to the office, and to future cases. A trial prosecutor’s impatience to publish the “inside story” of a victory as a crime fighter should never overcome his or her responsibility to the public.
Being a professor of professional ethics, I thought of these issues while reading Wise’s book recently. It tells the story of how the elite Gun Trace Task Force of Baltimore police officers had engaged in a decade-long crime spree targeting drug dealers. They stole millions of dollars, expensive jewelry and drugs that they later resold on the street. The officers knew the crime victims would never report the actions of their own vulnerability.
During Mr. Wise’s prosecution of two detectives on the corrupt task force, people learned how law enforcement acted like fearsome criminals rather than protectors of a community they had sworn to serve. The trial exposed task force members operating without supervision, filing inflated time sheets that cost taxpayers oodles of money and planting evidence resulting in false charges against innocent people. Escaping detection, the officers received kudos for removing guns from the Black community.
Surely, the story of police corruption needed to be told, but not from the prosecuting attorney. Wise’s narrative revealed details of internal relations between Baltimore police and federal investigators. Imagine the surprise when a named city official whom Mr. Wise characterized as “our guide” and praised for disclosing information “to investigate his own officers” learned he had been identified as the snitch. Other cooperating and future witnesses promised confidentiality might be alarmed at disclosures that threaten their lives and safety.
More consequences could follow a book like this. A reluctant witness may decline to testify for the government, fearing that the prosecutor’s next book will “out” him. A defense lawyer may be unwilling to speak candidly during plea negotiations, concerned that the communication will appear in a future book. A defendant whom prosecutors wanted to “flip” into becoming a government witness might not do so.
The list gets longer, should Mr. Wise’s colleagues decide to publish their personal accounts of cases they prosecuted. Such accounts might give the public more reason to question the integrity of a prosecutor’s decision to prosecute, thinking it is based on personal gain rather than professional necessity. That could result in the prosecutor’s office falling short of reaching its goal of impartial justice.
Mr. Wise’s revelations further opened the door to prisoners seeking to vacate their convictions because of the task force’s unlawful conduct. One such prisoner, convicted of gun possession, is currently in the pipeline hoping to be released because a task force detective allegedly “planted” the gun for which the man is serving a five-year sentence. Mr. Wise’s book may have highlighted the prisoner’s just claim that the prosecution never revealed the full extent of police misconduct.
Prosecutors have the highest duty to abide by ethical rules of professional conduct. American Bar Association Standard 3-1.11(c) requires a prosecutor to obtain the office’s consent regarding disclosures contained in a literary work. Even if a supervisor gave written approval, one nagging question remains: Why would the prior chief prosecuting attorney grant approval, considering the consequences?
While no rule expressly prohibits an active prosecuting attorney from publishing a book about a recent prosecution, that’s been the accepted practice for decades. Wise’s publication calls for the profession to consider a rule prohibiting current prosecutors from doing so because of the potential for serious harm to the administration of justice.
Doug Colbert (dcolbert@law.umaryland.edu) is a law professor at the University of Maryland.