Prosecutors who flout basic ethics are out of control

Prosecutors who flout basic ethics are out of control
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The KKK-adjacent Louisiana district attorney. The alleged "sexual predator" Louisiana district attorney, convicted of obstructing justice. And, unsurprisingly, the corrupt Louisiana district attorney.

That the ranks of elected top local prosecutors in the state have included such men is less shocking than it should be, when Louisiana ranks first for the number of federal convictions for public officials.

Corruption in the state is a trope, though it is not a badge worn with pride. Residents can and do try to recall their elected officials, sometimes for substantive reasons like ethical issues, sometimes because of politics.

But a soul-wrenching case out of Jackson, Louisiana shows once again that the recall procedure is not enough. Meet District Attorney Samuel D'Aquilla, who serves East and West Feliciana Parishes.

Holding the office since 2003, DA D'Aquilla has been a lightning rod for controversy and scandal. He has been disciplined by the Louisiana Supreme Court after he sued the West Feliciana Parish Council and some of its members for alleged violations of open records laws; the court decided he had an impermissible conflict of interest, since he had previously represented the parish council.

According to a 2018 court filing, the local Democratic Party endorsed his opponent in 2014 because "[w]e do not want a district attorney who will use his office for personal gain or one who will target his enemies for prosecution and let his political friends escape accountability."

In one strange saga, DA D'Aquilla cheated on his wife with the former county coroner, who ended up getting prosecuted for corruption. The FBI was reportedly investigating the DA's involvement, as well as alleged domestic abuse, at the bequest of his wife's divorce attorney. So the DA attempted to prosecute the divorce attorney—who previously ran against him for the DA seat—with child molestation. (The allegation had enough merit for a grand jury to indict the divorce attorney at the request of the state attorney general's office—but DA D'Aquilla should not have been in charge of the case in the first place because of his conflict of interest.)

D'Aquilla was also accused in a court filing of "destroying DNA that ties his bloodline to a man convicted of sexual crimes against children," WBRZ reported in 2018.

But it is DA D'Aquilla's most recent reported conduct that Judge James C. Ho—a Trump appointee on the United States Court of Appeals for the Fifth Circuit who once defended the legality of torture at the Justice Department—described as "sickening."

According to a new lawsuit, an assistant warden at Louisiana State Penitentiary (Angola), where prisoners are still forced to farm cotton on plantations like slaves, repeatedly raped his cousin-in-law on the prison's grounds. DA D'Aquilla then allegedly sabotaged his office's case against the man in various ways—such as refusing to examine the rape kit, contradicting the victim's narrative to the grand jury, and more.

Because of the legal doctrine of "absolute immunity," prosecutors cannot be sued on a personal level for conduct on the job, so Judge Ho ordered the lower court to throw out the suit against the DA.

But the Fifth Circuit did not deny that D'Aquilla "for whatever reason declined to help her." And Judge Ho's colleague, Judge James E. Graves, Jr., noted that if the rest of the allegations are true, the DA has done "inestimable harm to the public's perception of the legal profession."

So what recourse do concerned members of the public have? Waiting for an opponent to possibly dispatch D'Aquilla electorally in 2026 is inadequate. So, too, is relying on the Louisiana state bar to investigate—sitting DAs are rarely disciplined, and virtually never hit with an actual suspension from legal practice. It all points to the need for an emergency tool for state governments to neutralize the tenure of elected prosecutors who go this far off the rails.

Some states already give this power to governors, which makes sense. Prosecutors are appropriately understood as part of the executive branch, and, on the state level, the governor is the chief executive.

But in New York, for example, that power is broad, vague and basically never used. The state's constitution says that "The governor may remove any elective sheriff, county clerk, district attorney or register within the term for which he or she shall have been elected; but before so doing the governor shall give to such officer a copy of the charges against him or her and an opportunity of being heard in his or her defense."

The removal power granted the Florida governor is also found in the state's constitution, and it is narrower and better defined, if a bit antiquated. Specifically, "the governor may suspend from office any state officer not subject to impeachment . . . for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony."

Ideally, a governor's removal power must be limited so as to not invite its over-politicization or encroachment on legitimate criminal justice policy debates. For example, it should not have been possible for Florida's governor to use this power to force a prosecutor to seek the death penalty: not seeking the death penalty is not the same as refusing to hold people who commit murder accountable.

On the other hand, former Rensselaer County, New York, DA Joel Abelove repeatedly dismissed cases against political allies under shady circumstances, for crimes ranging from political corruption to beating their kids. To protect a killer cop, he also refused to comply with the governor's 2015 executive order that allowed the state attorney general to handle local police shooting cases.

Abelove ending up leaving office because he lost re-election, not because of state action. He was prosecuted then acquitted of official misconduct and perjury charges. Instead of enduring the unreliability of juries, the governor could have avoided local injustice and embarrassment by giving Abelove the professional snip.

We are supposed to be able to count on prosecutors to uphold the rights of victimized people, and not to insulate their friends from the consequences of serious wrongdoing. Putting prosecutors back in a chain of command, with some sensible and limited powers for governors to remove them, is needed when we're faced with acute crises of trust.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

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