We want wayward prosecutors to be held “accountable.” But does “accountable” only mean “punished?”
Or is there room for a “forward-looking accountability” that tries to find and eliminate the underlying conditions that will lead to future wrongful convictions if left untouched?
The growing list of high-profile exonerations features grotesque episodes of prosecutorial dishonesty. We have dozens of cases, imposing decades of wrongful—and avoidable—imprisonment on the wrong individuals, in which buried evidence of innocence would have made a difference.
At least one federal judge has argued that violations of the Brady v. Maryland rule requiring prosecutors to disclose evidence favorable to the defense are “epidemic.” The National Center on Exonerations reports that professional misconduct was implicated in 54 percent of all exonerations, and in 71 percent of homicide exonerations.
A New Weapon Against Wrongful Conviction
What infuriates people about this landscape is the nearly complete insulation of prosecutors from any consequences. They are generally immune from civil liability. They are almost never criminally prosecuted. The few widely scattered examples of Bar discipline actions against prosecutors for violations of ethical rules are reported in breathless man-bites-dog tones usually reserved for lightning strikes.
But last April, New York Governor Andrew Cuomo signed into law a bill creating a first-in-the-nation state Commission on Prosecutor Conduct aimed at addressing this problem. After a grueling series of meetings, re-draftings, and resubmissions, the state of New York now has on the books a multi-stakeholder body empowered to reprimand or censure prosecutors and recommend their removal to the Governor.
The Commission’s toolbox includes the power to subpoena witnesses and documents, to grant immunity, and to enforce confidentiality regarding its evidence. The internal arrangements of the Commission are intricate: the typed text setting out its membership criteria, notice requirements, and other details runs to seven pages.
The punishments the Commission is authorized to deploy aren’t exactly draconian. It can’t send anyone to jail, strip anyone of a law license, or impose damages. Still, the Commission’s advocates argue that it is better than nothing.
And the state District Attorney’s Association certainly seems to see the Commission as significant. That prosecutor’s group argues that the Commission is not only worse than nothing, but also unconstitutional on a number of grounds, and it has filed a lawsuit that is currently blocking the Commission’s operation.
Even so, the justifiable rage people feel watching prosecutors sail untouched past the lives they’ve wrecked shouldn’t blind us to the fact that while whacking rule-breakers is important, it is also a bad place to stop.
Blame Only, or Prevention Too?
The Commission provides a new weapon against miscarriages of justice. But the people who study resilience in medicine, aviation, and other safety critical fields would question whether we have aimed this weapon in the right direction.
Their argument would be that this Commission has the potential to do much more than slap wrists and (now and then) harm a career, hoping to make dire examples of individuals. In the safety thinkers’ view it is wrongheaded to believe that the challenge consists of protecting safe systems from dangerous humans. They would say that the problem is not humans or systems but humans in systems.
As things stand the Commission’s powers are pointed at the past, not at the future.
And the Commission’s inquiries now focus “down and in” to find and to punish the renegade individual who is the last in a causal sequence. They do not look “up and out” to identify the conditions and influences that led that player to zig when we now know he should have zagged.
With or without a Brady violation a wrongful conviction is a complex event. A plausible, crowd-sourced case for guilt had to be constructed before the prosecutor even got the file, let alone hid the exculpatory contradictions.
The New York Commission is currently oriented towards conducting performance reviews of the work of single lawyers.
But if future safety is our goal we need more than a punitive performance review; we need an event review.
Whack Bad Apples, Or Fix Unsafe Barrels?
The worst prosecutor in the world can’t produce a wrongful conviction on his own. The cops had to arrest the wrong guy; forensic investigations had to miss warning signs; the defense had to fail to uncover evidence of the mistake (and of the prosecutor’s misconduct); the judge, jury, and appellate courts had to fumble. A wrongful conviction is a system failure, not the work of one independent player.
Instead of examining the character failings of an individual, the Commission’s review could be looking upstream and downstream at people and processes that set the stage or failed to intervene.
And beyond whacking one mole to instill fear in the others (personally, I’ll shed no tears over that mole) the Commission could be analyzing the environment created by higher-ups in the prosecutor’s office, by tough-on-crime media, by see-no-evil traditions in local courts, and by underfunded defenders—in short, by all the conditions and influences that will still be in play when the next mole comes along.
In the punish-the-prosecutor version of the process these features are overlooked, pushed to the background, or sternly dismissed as “excuses.”
The fact is, the purely disciplinary process for finding and whacking moles recently has been made much more efficient because (thanks to the indefatigable advocacy of Barry Scheck and others) New York’s highest court now requires that trial judges issue “Brady orders” formally requiring disclosure of evidence. When these orders are violated, the violation can immediately form the basis of a straightforward prosecution for contempt of court.
If deterrence by punishment is our goal the contempt power presents a more direct and immediate route to that result. We should use it.
After an exoneration, media reports of Brady violations conjure up images of swashbuckling prosecutors shattering expectations and arrogantly breaking the rules in order to convict the innocent.
Maybe sometimes that does happen.
But at other times the prosecutor is motivated not by lust for victory but by fear of losing—by cowardice, not arrogance. Sometimes the pressure to persuade judges and juries affects the ability to recognize Brady material as well as the motivation for turning it over. Sometimes the mistaken belief that the defendant is really guilty motivates the shortcuts and violations. Sometimes the prosecutors have been tacitly trained to do just what they have done. Sometimes prosecutors are attempting to fulfill the expectations of their local cultures, not to repudiate those expectations.
None of these choices is excusable, but the fact remains they are different choices -different ways of making sense of the environments the frontline prosecutors find themselves in.
Every wrongful conviction is a tragedy, but as Dr. Donald Berwick, one of the pioneers of medicine’s patient safety movement, observed about medical error, every exposed wrongful conviction also provides a treasure house of lessons to learn.
Most of the prosecutors implicated in the known Brady violation cases are not outliers; they were assigned to homicide cases because they were successful veterans in their own offices who rose within their local systems by adapting to them.
Their Brady violations are not just independent “causes” of wrongful convictions; they are symptoms of abiding system weaknesses.
The tantalizing thing about the New York Commission on Prosecutor Conduct is that its architecture would allow for just the sort of forward-looking learning from error that we need. It has a staff; it has subpoena power; it is authorized to grant immunity. It has the ability to offer confidentiality protection to stakeholders who are frightened about civil liability.
It could provide something very close to what agencies such as Massachusetts’ Betsy Lehman Patient Safety Center provide in medicine: a neutral ground where all-stakeholders analysis of unexpected outcomes can point to repairs to an unsafe system, and promote public faith in that system.
Explorations along those lines are already underway through the demonstration sites enlisted in the NIJ/BJA Sentinel Events Initiative being assisted by the Quattrone Center at the University of Pennsylvania Law School.
What we need now are state and local institutions prepared to sustain and nourish cultural change: to bring everyone to the table and build the resilience that avoids convicting another innocent citizen, and leaving another dangerous perpetrator free to find new victims.
The Prosecutor Conduct Commission shows us a place where we could make learning from error what it needs to be: a regular, expected, routine practice.
It might be a good place to start. Every state could do it.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.