Scheck: Why Is So Little Done About Prosecutorial Misconduct?


The pending prosecutorial misconduct case against Texas Judge Ken Anderson in the Michael Morton wrongful conviction made national headlines because, as a recent article in the Yale Online Law Review documents, our system rarely disciplines, much less brings criminal charges against, prosecutors who have engaged in intentional misconduct. Barry Scheck of The Innocence Project writes in the Austin American-Statesman.

Far too often, prosecutors, who wield enormous power over our lives, aren’t investigated at all, even for intentional misconduct that has led to a wrongful conviction, much less “harmless” intentional misconduct in cases in which the defendant was guilty, Scheck says. What can be done to reform the system? One remedy, civil litigation, is increasingly unavailable. Last year, the U.S. Supreme Court severely limited the ability of wrongfully convicted plaintiffs to hold a district attorney’s office accountable for intentional acts of misconduct by line prosecutors. Scheck says that just because there are only a few bad actors doesn’t mean we should sit back and do nothing. When a bridge collapses, we conduct an investigation to find the root of the problem. When an airplane crashes, we do everything in our power to find out what went wrong. When a prosecutor withholds evidence that could have prevented someone from being wrongly convicted, we’re lucky if we ever find out about it.

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