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October 28, 2009

"No Accountability: Why are bad prosecutors so rarely punished?"

The title of this post is the headline of this important column by Radley Balko at Reason.  Here are just some of the potent parts of Balko's effective commentary:

As DNA exonerations continue to accumulate across the country, we're left with some tough questions about accountability for the public officials who put innocent people in prison. Certainly in some cases honest mistakes can be forgiven.  But what about cases, like that of John Purvis, where a prosecutor illegally withholds evidence of a suspect's innocence?  What about prosecutors who participated in multiple wrongful convctions?  Is it fair to hold them accountable years or decades later?  What of those who went on to become judges, and now preside over murder cases? ...

Something is wrong here.  It may well be true that the prosecutors noted above represent a tiny minority of those who serve or have served in the position.  But whatever the number of "bad apples," our criminal justice and political systems seem unconcerned about weeding them out.  Instead, they're often rewarded and promoted, despite long records of incompetence and misconduct.  In fact, in the sense that misconduct can help win convictions, such prosecutors are often rewarded because of it.  The Innocence Project estimates that prosecutorial misconduct factored into about a fourth of the wrongful convictions handled by the organization.  Yet in none of those cases did a prosecutor face any serious sanction.

Be it through state bar association actions, judicial investigations and discipline, or legislation creating some other means of oversight, bad and incompetent prosecutors need to be held to account.  When a prosecutor perpetrates misconduct or demonstrates incompetence that sends an innocent person to jail, it's a regrettable but understandable product of the fact that that any large system is going to have bad actors.  But when that prosecutor remains free to go on prosecuting other cases, with no repercussions, the very legitimacy of the criminal justice system is called into question.

Following up on Balko's points, I would be especially interested in reader opinions as to whether "bar association actions, judicial investigations and discipline, or legislation creating some other means of oversight" seems like the best way to try to start tackling this real problem. 

My first instinct is to wonder if some kind of "citizens' review board of prosecutorial actions," akin to review boards that are sometimes created to review police actions, might be useful.  Of course, grand juries are supposed to serve this role at the outset of criminal prosecutions, but their efficacy in discovering and dealing with bad and incompetent prosecutors is limited by a number of practical and institutional factors.  A back-end review board, which is only tasked with discovering and dealing with bad and incompetent prosecutors could perhaps achieve a lot of good.  But that's just my first thought and I'd like to hear a lot more from others.

October 28, 2009 at 09:55 AM | Permalink

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Nice to see conservatives express concern about the abuse of power rather than bowing to it. In answer to your question about whether bar association actions serve to "police" law enforcement, consider this opinion about a county judge in Nebraska:

"The complaint alleged that actions taken by Krepela before he became a judge constitute conduct prejudicial to the administration of justice which brings the judicial office into disrepute in violation of Neb. Rev. Stat. ยง 24-722(6) (Reissue 1995). The complaint alleges that in 1984, while serving as the county attorney for Madison County, Krepela altered a copy of a police report in a criminal case, provided the altered report to defense counsel, and asked the officer who made the report to either alter his original report or alter his testimony to conform to the changes made by Krepela. The complaint further alleges that Krepela did not disclose his actions to officials or entities and that he violated criminal statutes.

A special master concluded that in light of Krepela's otherwise good record, his actions did not constitute conduct prejudicial to the administration of justice which brings the judicial office into disrepute. The Commission found by clear and convincing evidence that Krepela altered the police report and asked the officer who wrote the report to alter the original. The Commission determined that Krepela's actions did constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute and recommended that Krepela be removed from office. We enter a judgment of suspension for 6 months without pay."

Altering a copy of a police report to remove the invocation of the right to counsel does "not constitute conduct prejudicial to the administration of justice" because of the judge's "otherwise good record."

Doesn't that answer your question?

Posted by: David | Oct 28, 2009 10:10:06 AM


I like the idea of citizen review boards, yet it's usually the powers that be, which typically includes the local prosecuting office, who appoints them.

I've often wondered why there is no apparent followup or sanction against prosecuting attorneys who exclude black jurors after a Batson objection is sustained. If anything, the offending prosecutor seems to be promoted: in one memorable case, where the prosecutor told the trial judge he struck two jurors because they were black women -- an admission that brought no relief until the direct appeal, see State v Holman, 759 S.W.2d 902 (Mo. App. 1988) -- the prosecutor went from the county prosecutor's office to the U.S. Attorneys. Even in this decade, AUSAs found by district court judges to have excluded black jurors based on race have suffered no apparent impediment to their advancement nor any other sanction which seems to contradict the supposed emphasis on public confidence the Batson decision championed.


Posted by: SEH | Oct 28, 2009 10:37:27 AM

One might ask the same question about the lack of discipline for defense lawyers found to have been ineffective. That is ever rarer than proceedings against prosecutors.

I suspect that courts would be more reluctant to find ineffective assistance or prosecutor misconduct if they knew the finding would likely ruin someone's career.

-----------------------

"Of course, grand juries are supposed to serve this role at the outset of criminal prosecutions, but their efficacy in discovering and dealing with bad and incompetent prosecutors is limited by a number of practical and institutional factors."

I hereby nominate this sentence for Understatement of the Year.

Posted by: Kent Scheidegger | Oct 28, 2009 11:24:33 AM

Doug,

I cover these issues in my just-published article, Prosecutorial Regulation Versus Prosecutorial Accountability, in the U Penn Law Review. Briefly, judges and bar authorities seem to have bigger fish to fry (such as private counsel who embezzle funds or sleep with clients), and prosecutors are politically popular so legislatures rarely want to interfere. Don't get me wrong--I think it couldn't hurt to try citizens' review boards. But the more promising long-term strategy is to make prosecutors' offices more transparent and accountable, by giving voters better information about performance statistics and misdeeds so that they will check DAs. Then DAs need to use more lessons from management literature to supervise, train, and rein in line prosecutors. Right now, there's just not enough of a public or internal check to make DAs learn about and reward good behavior and weed out bad apples. I also like Adam Gershowitz's idea of prosecutorial shaming, publicizing intentional prosecutorial misconduct to impose its own reputational harms on bad apples.

Posted by: Stephanos Bibas | Oct 28, 2009 11:27:03 AM

I fear that prosecutors have insulated themselves enough that there is no viable fix. I would like to see prosecutors face qualified rather than absolute immunity but I don't see that happening. It won't surprise me if SCOTUS rules for the prosecutors in the upcoming case of evidence creation.

Posted by: Soronel Haetir | Oct 28, 2009 12:18:58 PM

In my 35 years of practicing law, I have found that teh great majority of prosecuotrs are honorable men and women who understand their duty to do justice. As for the others, we should not hesitate to report them to the bar. The disciplinary actions vary from the mild to the severe, but can still ruin a political career. See e.g., Disciplinary Counsel v. Wrenn, 99 Ohio St.3d 222, 790 N.E.2d 1195 (2003) (six-month stayed suspension imposed for assistant county prosecutor's concealment of exculpatory evidence in a criminal case); Disciplinary Counsel v. Jones (1993), 66 Ohio St.3d 369, 613 N.E.2d 178 (six-month actual suspension imposed for assistant county prosecutor's failure to advise court in criminal prosecution that he had found previously misplaced evidence that was potentially exculpatory or mitigating); In re Jordan 913 So.2d 775, 2004-2397 (La.,2005) (prosecutor who knowingly withheld Brady evidence from defendant would be suspended for three months, but in light of mitigating factors, this suspension would be deferred in its entirety); Committee on Professional Ethics v. Ramey, 512 N.W.2d 569, 572 (Iowa 1994)(indefinitely suspending prosecutor for failing to disclose police reports to the defense by arguing that the reports were not material and making a material misrepresentation to the court concerning evidence); Office of Disciplinary Counsel v. Jones, No. 92-32, slip op. at 4-6 (Ohio Misc. Dec. 4, 1992), 66 Ohio St.3d 369, 613 N.E.2d 178, 178 (1993)(suspending the prosecutor for six months for knowingly failing to disclose during the course of a trial the existence of evidence that tended to negate guilt, mitigate the degree of the offense or reduce the punishment); in the Matter of Zapf, 126 Wis.2d 123, 375 N.W.2d 654, 655 (1985)(publicly reprimanding district attorney for failing to disclose discoverable material in the course of a criminal trial);

Posted by: Michael R. Levine | Oct 28, 2009 1:39:19 PM

I honestly fail to see how suspension or ruination of a political career are great enough punishment for these types of offenses. Prosecutors should be monetarily liable to defendants they wrong.

I also see a great deal of difference between an ineffective defense lawyer and a prosecutor who commits misconduct. The former would not even be involved were it not for the actions of the latter. The defense attorney wrongs one client at a time, the prosecutor wrong society as a whole with every act of misconduct.

Posted by: Soronel Haetir | Oct 28, 2009 1:55:11 PM

Now I'm going to sound like SC but I think the biggest problem is self-dealt immunities. I think the proper course of action is the political process by the political process is hamstrung by self-dealt immunities. The main self-dealt immunity in this case is the requirement (at least here in NM) is that one must be a lawyer to be a prosecutor. In my rural county the prosecutor is incompetent and everyone knows it. But there might be ten lawyers in the whole county and it's a buddy system. They rotate the job. Competition has been artificially limited.

I do understand the goal of bringing professionalism to the system and the idea of being an officer of the court. Such ideas work very well in big city environments where there is a large enough base of competent people to draw upon. But it has been devastating to rural communities who already suffer from a small pool of people to begin with, and then it is narrowed down to what really is an oligarchy of lawyers.

I believe in the long run the political process will work. But I'm afraid to say that this is one area where SC theories are spot on.

Posted by: Daniel | Oct 28, 2009 3:43:38 PM

Daniel,

I honestly don't believe it works a whole lot better in cities, it's just hidden better.

Posted by: Soronel Haetir | Oct 28, 2009 4:10:04 PM

In California prosecutors who engage in misconduct become judges. See People v. Morris and the then DA (now judge) Art Jean.

Posted by: bk | Oct 28, 2009 7:39:37 PM

Prof. Berman: When you were in Philadelphia, I wanted you to speak to local prosecutors, to find out if they were at will employees. From the website, it sounds as if they are, "in accordance with the interest of the prosecutor's office."

If they are at will employees, that means they may be severely punished, lose pension vestments, etc., all at the snap of a finger. I have spoken to some elsewhere, and they live in fear, not of accountability to the public, but of crossing the politicians holding elected DA positions.

Posted by: Supremacy Claus | Oct 28, 2009 7:49:12 PM

Kent:

There you go again. Not a fact in sight with your allegation that defense attorneys who are found to be ineffective face less trouble than prosecutors. In many jurisdictions, such as Texas being found to be ineffective means a bar referral. Then there are malpractice insurance fees which I suspect you have never paid that can wipe profitability out for many small firms and solos. Then again there is the fact that being found to have rendered ineffective assistance of counsel isn't exactly good for advertising.

Posted by: .. | Oct 28, 2009 8:59:48 PM

An Assistant United States Attorney in Dallas withheld Brady evidence (the amount of drugs involved) for which Section 2255 relief was granted, sentence vacated, and defendant resengtenced to time served. 871 F.2d 1257 (5th Cir. 1989). A disciplinary action was commenced against the AUSA before the Texas Bar and no action was taken nor was the prosecutor asked to show cause for his unprofessional, unethical conduct; nor did the Court take any action to ensure "accountability."

Posted by: benson weintraub | Oct 29, 2009 8:19:54 AM

Double period, are you a different person from single period or are we watching cell division in progress?

The rarity of bar discipline for crim. defense IAC is my impression from reading my state bar rag for many years. In addition, the frequency with which capital case trial counsel fall on their swords rather than defend their defense suggests that they don't see much downside to an IAC finding. While criticizing the lack of facts in my comment (which is, after all, a comment and not a brief or law review article), you offer essentially none of your own. Bar referral means practically nothing if the bar regularly files them in the trash. If you have facts that they don't, let's hear them.

Posted by: Kent Scheidegger | Oct 30, 2009 12:38:08 PM

SEH said: "I suspect that courts would be more reluctant to find ineffective assistance or prosecutor misconduct if they knew the finding would likely ruin someone's career."

I suspect attorneys would be reluctant to provide ineffective assistance and prosecutors would be reluctant to perform misconduct, if they knew their actions would likely ruin someone's LIFE! Then again, maybe they wouldn't.

Posted by: Emma | Nov 3, 2009 2:48:42 PM

Isn't really serious prosecutorial misconduct, such as fabricating evidence, the crime of obstruction of justice, or worse? In some cases I think special prosecutors from other counties should be appointed to pursue such misconduct criminally. Politically, that may be a non-starter. Creating personal tort liability for bad prosecutors and the counties that tolerate them would probably be more efficacious.

Posted by: Michael O'Reilly | Nov 5, 2009 3:15:03 AM

"I suspect that courts would be more reluctant to find ineffective assistance or prosecutor misconduct if they knew the finding would likely ruin someone's career."

Valid concern in theory, though in my jurisdiction, I'm not sure courts could *get* more reluctant to do either of these things, especially the latter.

Posted by: anon | Nov 5, 2009 9:52:52 AM

My brother is being falsely accused of child molestation. His lawyer says the evidence is so weak that it should not be going to trial. Trial starts this week. Defense lawyer has told my brother that the olny reason it is going to trial is because the assistant prosecutor(s) is facing layoff due lack of work. Do you think we need some sort of citizens review board to watch over the case load?

Posted by: volkof | Feb 8, 2010 5:42:07 PM

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