Tea Party types who want to strike a blow against governmental abuse and constitutional violations need not travel to Washington, D.C., to find a target for their protests. They can go instead to the nearest state or federal courthouse, where prosecutors are quite likely to be committing negligent mistakes or willful misconduct far more often than commonly acknowledged.
The incidence of prosecutorial misconduct is unknown and unknowable. Even more than police, prosecutors commit their wrongdoing most commonly, withholding evidence from defense lawyers behind closed doors. This much is known: The few offending prosecutors who are caught are rarely punished in any meaningful way.
These conclusions reflect long-held beliefs among defense lawyers, civil libertarians and many criminal justice experts. They gain confirmation now from two critical studies: a six-month investigative project covering federal prosecutors by USA Today and a decade-long review of state cases in California by the Northern California Innocence Project at Santa Clara University Law School. Both find statistical evidence of prosecutorial wrongdoing, often linked to wrongful convictions, with hardly any of the errant D.A.’s suffering any form of punishment.
The two studies were published in September just as the U.S. Supreme Court was preparing to hear arguments in a notorious case of prosecutorial misconduct, Connick v. Thompson. John Thompson spent 14 years on death row in a Louisiana prison and came within hours of execution for a murder that he did not commit. He was convicted in part because a prosecutor knowingly withheld crucial evidence from the defense lawyer, evidence that the prosecutor was ethically and legally obliged to turn over.
Now freed from prison, Thompson wants some compensation for the years of freedom that the criminal justice system wrongfully took from him. But the Supreme Court has made it virtually impossible to sue an individual prosecutor. Prosecutors are immune for any official actions directly related to a criminal trial. In any event, the trial prosecutor, who surreptitiously removed forensic evidence from the storage room, died a few years back. He had confessed his misconduct to a colleague, but had taken no other action to right his wrong.
With personal liability foreclosed, Thompson instead is trying to hold the New Orleans district attorney’s office itself responsible for failing to train assistant D.A.’s properly about the so-called Brady rule. The rule, established by the Supreme Court in Brady v. Maryland (1963), requires prosecutors to turn over any potentially exculpatory evidence to the defense.
Thompson’s federal civil rights lawsuit runs into an obstacle. The Supreme Court's decision in another case, Monell v. Dep’t of Social Services of New York (1978), allows a municipality to be held liable for a constitutional violation by one of its officials only if the plaintiff proves “deliberate indifference” on the municipality’s part. In Supreme Court arguments on Oct. 6, the justices got tied up in knots over the question of whether a single egregious instance could show “deliberate indifference.” They also pressed the former inmate’s lawyer to specify exactly what training the district attorney’s office should have been required to provide to new prosecutors.
Legally, it may be a close case. In real-world terms, it is not. New Orleans’ longtime district attorney, Harry Connick Sr., appears to have fostered a lopsided attitude toward Brady in the office: Disclose nothing unless you absolutely have to; don’t worry about being called on the carpet for withholding. The training manual for the office actually misstated the Brady rule.
Impunity for Brady violations and other prosecutorial misconduct appears to be the rule in other jurisdictions. In the USA Today package, reporters Brad Heath and Kevin McCoy documented 201 federal criminal cases since 1997 in which judges “blasted prosecutors for ‘flagrant’ or ‘outrageous’ misconduct” such as “hiding evidence,” “lying to judges or juries,” or breaking plea bargains. (Disclosure: Heath is a former student of mine at Georgetown University Law Center.)
The Justice Department’s internal watchdog investigates such cases: 42 in 2001, 61 last year. But the department refuses, on privacy grounds, to say whether any of the prosecutors was punished. Using state bar records, however, Heath and McCoy found that since 2001 only one federal prosecutor has been suspended even temporarily from law practice because of misconduct. In the flagrant example they used to start the story, the federal prosecutor who concealed unfavorable information about the government’s major witnesses got a slap on the wrist: a one-day training session on ethics.
In the California study, the Santa Clara law school project combed state appellate court decisions from 1997 through 2009 and identified 707 cases in which courts “explicitly found that prosecutors committed misconduct.” The vast majority of convictions (548) were nevertheless upheld: no harm, no foul, apparently.
More troublingly, an examination of state bar records found public disciplinary actions against only 10 state prosecutors during the period, only six of them for trial-related violations. As Professor Kathleen Ridolfi and visiting journalist Maurice Possley conclude, judges, prosecutors, and the California State Bar are “casting a blind eye to prosecutors who place their thumbs on the scales of justice.”
The Supreme Court could play a role in changing the lax attitude toward errant prosecutors, but the justices’ questions in Thompson’s case point in the opposite direction. One more sign of the justices’ solicitude toward government attorneys came today (Oct. 18) when they agreed to hear former Attorney General John Ashcroft’s appeal in a case, Ashcroft v. Al-Kidd, testing whether he can be held individually liable for alleged misuse of the federal material witness statute during the post-9/11 roundup of hundreds of wrongfully accused individuals.