In June, the New York Times published an interesting editorial article discussing the lack of oversight currently in place to hold state and district prosecutors accountable for their actions. The editorial board’s proposed solution was federal intervention, proposing to “monitor some of the worst actors, increasing the chance of catching misconduct before it ruins peoples’ lives.” The article specifically mentioned the New Orleans District Attorney’s (DA) Office, depicting them as one of the most egregious offenders of prosecutorial misconduct in the country, to highlight how an absence of safeguards that provide oversight and ensure accountability can lead to the imprisonment of innocent people and the undeserved devastation of lives. Louisiana alone has seen at least 36 convictions overturned from violations of the Brady Rule, a rule named for the U.S.
Supreme Court case Brady v. Maryland, which requires prosecutors to disclose exculpatory evidence (any evidence favorable to the accused, including evidence that goes towards negating a defendant’s guilt or reducing a defendant’s potential sentence) to the defense. If the defense proves beyond a reasonable doubt that there would be a difference in the outcome of the trial had the evidence been disclosed by the prosecution, the prosecutor will be found culpable of violating the “Brady Rule,” and consequently, be deemed responsible for violating due process and infringing on the defendant’s constitutional rights.
It is not difficult to locate reasons explaining why “Brady violations” are viewed as one of the most egregious examples of prosecutorial misconduct; the failure to disclose exculpatory evidence can result in innocent people convicted for the most serious of crimes. John Thompson spent fourteen years on death row before a private investigation found that multiple prosecutors in the New Orleans DA office had lied for years about a crime-lab report. The new findings would ultimately exonerate Thompson in 2003. In November of 2015, prosecutors again from the New Orleans DA office disclosed almost a two-decade old memo revealing the concealment of exculpatory evidence against Robert Jones that would have likely undermined his conviction for perpetrating a 1992 kidnapping, rape, and murder; Jones, like Thompson, was exonerated soon after the Brady violation was uncovered.
Evaluating the tremendous power that prosecutors wield, coupled with John Thompson, Robert Jones, and other case studies that display the appalling consequences of prosecutorial misconduct and Brady violations, one would think that providing federal oversight to monitor prosecutors is common-sense reform that should have been instituted years and perhaps decades ago. We have recently seen an increase in federal oversight over and varying institutional progress in another area of the justice system: law enforcement. Are prosecutors not “officers of the law” as well? Why are they and their offices immune from federal oversight? In my view, the editorial article is correct in certain aspects, but there are arguments that can and should be made to collectively notice the oversimplification in their rationale for federal involvement.
The article is mostly correct in its argument that the mechanisms to ensure discipline and accountability are virtually nonexistent. A 2010 report by the Northern California Innocence Project cited 707 cases in which state courts found prosecutorial misconduct over an eleven year period, but counted only six prosecutors disciplined; even more alarming was that the courts upheld 80% of the convictions in spite of evidence of misconduct or other improprieties. Such statistics suggest, albeit in some states and localities more than others, that a pattern of infallibility, absolute immunity, and a dearth of accountability exists. District or state’s attorney offices in larger cities like Cook County, Philadelphia, and New York County have conviction integrity units to ensure that prosecutors did not violate any constitutional rights or commit misconduct. However, given the multitude of cases prosecutors handle (prosecutors in the Cook County Criminal Prosecutions Bureau handle all aspects of more than an estimated 30,000 felony cases and several hundred thousand misdemeanor cases each year), and the reality that over 90% of state cases result in plea bargains, it is highly likely that conviction integrity units are constrained by limited resources that prevent effective investigations into prosecutorial misconduct. Because state courts often fail to criminally charge obviously harmful prosecutors, let alone put them on trial, the most serious charges that prosecutors tend to face if accused of prosecutorial misconduct are disbarment and/or professional sanctions, which are handled by the professional ethics board (called by some the disciplinary or grievance committee) and/or the state bar. Disciplinary committees depend largely on complaints filed by the defense, but defense attorneys are not always motivated to come forward, given their own busy caseloads and their reluctance to antagonize a prosecutor with whom they must continue to interact with and argue against in court. Unsurprisingly, the state bar and professional ethics boards rarely discipline prosecutors. Ironically, the federal justice system, the editorial’s advocated provider of oversight, also deserves some culpability for deflecting accountability away from prosecutors.
The Supreme Court in Imbler v. Pachtman ruled that a prosecutor has absolute immunity from civil liability while pursuing a criminal prosecution. Moreover, the Court dismissed claims in Pottawattamie County v. McGhee that prosecutors were not immune from civil damages even after violating an individual’s due process rights. The Court even ruled in Connick v. Thompson that a prosecutor's office could not be held liable for the illegal conduct of one of its prosecutors when there has been only one violation resulting from lack of training. Connick, incidentally, included John Thompson as the plaintiff, the same John Thompson who was put on death row in New Orleans and exonerated after there was clear evidence of prosecutorial misconduct and a violation of the Brady Rule. The three Supreme Court case rulings contain some overarching themes: prosecutorial liability will affect court performance, investigators in the case are more responsible unless the prosecutor discovered and gathered the evidence him or herself, and district and state attorney’s offices should be entitled to reasonably rely on professional responsibility measures to prevent prosecutorial misconduct. Overall, with minimal to nonexistent criminal punishment, civil suits against prosecutors are seemingly not an option, and with a lack of discipline from state courts or the state bar, prosecutors are rarely if ever impelled to answer to a higher authority or have their cases reviewed in regards to misconduct or other evidence of malfeasance.
What many seem to forget is that the vast majority of prosecutors do not commit misconduct, and the fact that prosecutors do not have mechanisms that enforce accountability provides a counterargument. Despite the lack of oversight, a majority of prosecutors, basically through the values of civil service, belief in the justice system, and code of professional ethics and high ethical and legal standards, prosecute individuals while following the letter of the law and U.S. Constitution. What distinguishes prosecutors from police officers is the heightened sense of oversight that law enforcement possessed before the Justice Department intervened; every police department has a Bureau of Internal Affairs; state courts, as we have seen, are more receptive to putting individual and multiple police officers on trial, and unlike prosecutors, police officers are liable for punitive damages. Putting all prosecutors under the federal microscope by instituting a system that provides federal oversight, in my opinion, would create more problems than solutions. It would negatively affect prosecutorial efficiency, allow criminal defendants to file charges and counterclaims that could damage the legitimacy of trials, and damage the public’s faith in the justice system.
Despite my reluctance to involve the federal government in investigating prosecutorial misconduct and violations of the Brady Rule, I still possess strong beliefs that this serious problem should be addressed. The involvement, in my view, should be on state oversight, not federal intervention. Two solutions I propose would precede more direct accountability-enforcing mechanisms, but could assist in providing subtler ways to deter misconduct. One solution would be for state legislatures to mandate the formation, by state and municipal courts, of casefile repositories, whether electronically or through paper files. The casefiles would display all inculpatory and exculpatory evidence against the defendant in that specific case. Given the overwhelming majority of criminal and civil cases that result in plea deals, the accused are usually rendered incapable of witnessing the evidence. Besides creating opportunities for defendant access, it would allow those responsible for reviewing convictions to examine the evidence and monitor for any withheld or falsified information that could question the integrity of the conviction. There are drawbacks to creating this casefile repository, with the most notable being that it could allow defendants, seeing a perceived lack of evidence against them, to decide against a plea deal and instead elect to prove their innocence at trial. Given the well-known reality that our justice system is sharply constrained by limited money and resources, an increase of defendants going to trial by even a small percentage would cause a severe burden on our justice system. In this instance, I consider the benefits of creating opportunities for the accused and conviction review boards to see available evidence in every case, which would include curbing the prosecutorial incentive to withhold, destroy, or falsify evidence, to outweigh the pitfalls. The second proposal would be increasing access to records of complaints and disciplinary actions against prosecutors. While prosecutors are public employees, members of the public rarely hear about prosecutors who have been disciplined or why, since most are reprimanded privately. Though disciplinary committees cite confidentiality laws for refusing to comply, increased transparency and the initiation of “naming-and-shaming,” could exert pressure to make the justice system fairer, and would likely influence the prosecutor’s best interests to not to have his or her reputation in court damaged by prosecutorial misconduct.
The proposed solution for an enforcement-accountability mechanism actually models on a legislative solution that state lawmakers in New York are currently pushing towards, an independent “Commission of Prosecutorial Misconduct” established to review and investigate complaints of misconduct, and if, warranted, issue sanctions, including censure, suspension, or disbarment. I would broaden the scope of the commission compared to New York’s concept to include any cases involving serious criminal or civil charges, including imprisonment of over ten years and capital punishment, and for civil cases, claims of at least five million dollars. Resembling the commission that New York aspires to create, the proposed commission would be staffed by appointees from the governor, and would ideally be a mix of leaders of the state legislature and high-ranking appellate or federal judges. The main limitation of such a commission would be its designation of establishing only quasi-oversight, since it handles prosecutors and alleged prosecutorial misconduct on a case-by-case basis. Some opponents of the legislation in New York have also questioned how state and federal level could levy charges against public corruption if the commission were staffed by high-ranking legislative and executive officials. It will be interesting to see if the bill in New York passes, and if the commission proves to be a judicial model that encourages other states to follow suit.
The whole issue of prosecutorial misconduct has proven to be more complex for a variety of reasons. Even facts about the issue have been disputed, as some believe that prosecutorial misconduct and the concealment of exculpatory evidence is significantly overreported and remain unconvinced that a problem exists. Others have perceived the issue to be significantly underreported, arguing that Brady violations, in the words of US Ninth Circuit Judge Alex Kozinski, are so widespread that they are considered an “epidemic.” While statistics pertaining to the frequency of prosecutorial misconduct remain inconclusive, it cannot be disputed that Brady violations are some of the most serious instances of prosecutorial misconduct. It also cannot be overstated that the intentional withholding of exculpatory evidence can and does ruin innocent lives, absolves the actual perpetrator of the crime, and undermines public trust in the justice system. While the non-intentional lack of disclosure of exculpatory evidence is still problematic, whether caused by negligence or clerical error, mistakes happen, and prosecutors are more likely to learn from those errors. Conversely, prosecutors who intentionally withhold, falsify, or destroy evidence, whether through the prosecutor’s perverse belief that an accused individual is guilty, intense pressure to convict a perpetrator (possibly because of the seriousness of the crime), or a depraved sense of ego and Machiavellian desire to win against the defense, could continue to commit such egregious instances of prosecutorial misconduct, which simply reflects an institutional failure that needs to change.
While self-regulation has kept a majority of prosecutors in check, and I would deduce that a majority of prosecutors are not so morally bankrupt or have such a warped interpretation of justice, the adversarial process, or their own sense of power that they could intentionally conceal exculpatory evidence. However, for the prosecutors who have committed such egregious instances of misconduct and for the district and state attorney’s offices that have witnessed multiple convictions overturned due to misconduct, especially Brady violations, there needs to be, at the very least, proposed solutions. Mine, as I have stated, entail a casefile repository; “naming-and-shaming;” access to all complaints and disciplinary action against prosecutors; and an independent commission that creates mechanisms to ensure that Brady violations never occur again or that those who commit them will be held accountable, simply because of the immense ramifications of such misconduct. My problem with federal oversight is that it is better suited for broad reformative measures; with state and local prosecutors committing Brady violations and other prosecutorial misconduct, state accountability reforms would be more direct and more effective at providing oversight for particularly problematic prosecutors and DA offices at a case by case basis. We can and should also have debates over whether there should be harsher penalties for such corrupt prosecutors. While I would personally advocate for criminal punishment coupled with disbarment and sanctions, including the possibility of imprisonment, mechanisms would need to be in place first before we can even have a serious consideration of further reforms.
The main task of prosecutors is seeking justice for those wronged by a criminal act. Importantly, though, they are also responsible for improving the administration of criminal justice. Prosecutorial misconduct left unchecked does the opposite and has the chance of undermining the very system that prosecutors are trying to uphold. Besides the immense consequences that prosecutorial misconduct can have on an individual level, it can certainly affect the legitimacy of the justice system on an institutional level as well. Indeed, while the number of instances of prosecutorial misconduct and Brady violations might seem small in comparison, people’s lives and public trust in the justice system are at stake. It simply cannot continue to be ignored.