The Innocence Project has published a major new report on prosecutorial accountability. The report uses the recent Supreme Court case of Connick v. Thompson, which absolved the New Orleans DA’s office of civil liability for purposely withholding, and destroying, exculpatory evidence in a murder case where they obtained a death penalty verdict. The report makes a number of specific recommendations for reform, including:
1.Open File Discovery: To address concerns regarding the disclosure of exculpatory material, states should require open le discovery. One model is the North carolina statute which requires prosecutors to provide to the defense before trial the complete investigative les, including any material obtained by law enforcement, investigators’ notes, the required recordation of all oral statements and any other information obtained during the investigation. In 2013, Texas passed a similar law that includes protections sought by prosecutors to ensure that witness privacy and safety is not jeopardized by disclosure of such information. e rules should provide for work product privileges to protect the prosecuting attorney’s mental process while allowing the defendant access to factual information collected by the state.
2. Independent Oversight: Prosecutorial oversight should be vested in an independent state agency or within an existing state agency (inspector general or attorney general—except where the attorney general supervises the prosecutor who is the subject of the investigation) with the authority and resources to investigate allegations of prosecutorial misconduct and impose remedies and/or sanctions.
3.Enact a Law Limiting Immunity for Prosecutors: States should de ne the immunity for prosecutors by statute. As retired Justice John Paul Stevens has powerfully argued
in the wake of the ompson decision, prosecutorial immunity is a federal judge-made rule of law that can and should be overturned or modi ed by congress through an amendment to Section 1983 of the civil rights Act.
John Gleeson, a retired U.S. judge and former prosecutor, describes his transition to understanding the excessive harshness of federal sentencing rules, and the injustice of an imbalance of power in the prosecutorial function: WSJ
The Open File website, which focuses on the accountability of prosecutors for misconduct, has published an excellent presentation on Ninth Circuit Judge Kozinski’s recent opinion on that very issue, in which the Judge names prosecutors responsible for withholding evidence in a criminal trial, and calls for their discipline: prosecutorialaccountability.com
Prosecutors have a constitutional (and some might say moral) obligation to turn over potentially exculpatory evidence they might have or find to the defense in a criminal trial. The constitutional and moral obligation is premised on fundamental fairness, and the unique role of the prosecutor as both advocate and guardian of institutional legitimacy. Yet, under the “Brady” case articulating this obligation, even a failure to disclose potentially exculpatory evidence does not mean that a conviction will automatically be reversed – the defendant still has to show that the evidence could really have changed the outcome of the trial. Confused? So is the Supreme Court. The confusion is artfully explained in this article.
The issue of personal accountability for misconduct or errors in the enforcement and prosecution of crimes is a largely over-looked issue in criminal justice reform. Without personal accountability in some significant form, there is very little systemic weight on the side of the scale to deter the very human and natural tendency to shade behavior, or the truth, or evidence, to try to “win” a conviction. In one recent example, though a lab technician who falsified drug test results ended up in jail, her supervisors, who ran a lab where this was possible, were found to have no accountability: Boston Globe Article
The Earl Warren Institute of Law and Social Policy at Berkeley Law has published an interesting study on the characteristics and costs of wrongful convictions in California: Criminal (In)Justice. Amongst other conclusions, the report estimates the taxpayer cost of those convictions at more than $282 million. The report also documents more than a quarter of the convictions were the result of plea bargains, once again highlighting the extent to which systemic problems, including over criminalization, can drive guilty or no contest pleas where the risks of going to trial out-weigh what should be the moral imperative of truth.