‘Mindset of Untouchability’ Spurs Prosecutor Misbehavior: Paper

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"Courtroom" painting by Phillip Guston (1970). By Sharon Mollerus via Flickr

The absence of effective punishment has allowed prosecutorial misconduct to flourish almost unchecked across the U.S., and needs to be addressed through tougher oversight by state attorneys general, says an editor of the Mississippi Law Journal.

“Prosecutors, endowed with virtually limitless power, continuously engage in misconduct and face little or no consequences due to a lack of accountability,” writes Jennifer Lee, a J.D. Candidate at the University of Mississippi School of Law, and a staff editor of the school’s law journal.

“The vague standards guiding prosecutorial behavior that are currently in place do not clearly define what behavior is considered inappropriate and worthy of disciplinary action, nor do they lay out specific punishments for different types of misconduct.

“As a result, prosecutors rarely answer for their bad behavior.”

In a paper entitled ‘Justice for All’: The Necessity of New Prosecutorial Accountability Measures, Lee recommends that states adopt a version of a Connecticut Bill enacted last year, mandating that all state prosecutors operate with “fairness and transparency.”

The bill, SB880, requires prosecutors to collect and publish data of all cases that go through their offices, including information about which cases they declined to prosecute, and which ones went ahead with charging and sentencing.

Such information offers a “valuable metric by which to assess ethics and help voters make informed decisions during prosecutorial elections,” Lee wrote.

But she added it is only a start in tackling a problem endemic to the American system of prosecution, in which prosecutors use their powers arbitrarily—displaying what she said, citing a phrase used by the Center for Prosecutor Integrity, was as a “culture of prosecutorial infallibility.”

Lee said research has shown that prosecutors too easily succumb to the lure of favorable media coverage, career advancement and public pressure.

“They take bigger risks when gaps in evidence indicate against their suspect’s guilt because they are safeguarded by unqualified civil immunity and shielded from discipline,” she wrote.

“This mindset of untouchability has only cultivated rampant corruption.”

The problem is further complicated by the reluctance of public defenders and judges to call out the misbehavior of prosecutors, she wrote.

Defense attorneys are typically “reluctant to report prosecutors for unethical conduct for fear of hindering professional working relationships,” and judges are “reluctant to report prosecutors because they wish to appear ‘tough on crime’ to voters,” said Lee, creating a system that is “inherently flawed.”

Lee provided numerous anecdotal examples of the aggressive “mindset” that has flourished in many DA’s offices, such as a prosecutor who was quoted as saying he would only hire attorneys “who had already ‘tasted blood’ and liked it.

In one figure suggesting how deep the problem goes, Lee pointed to National Registry of Exonerations statistics showing that nearly 71 percent of exonerations of wrongfully convicted were due at least in part to misconduct.

The lack of disciplinary action adds to prosecutors’ sense of untouchability, wrote Lee, citing a 2003 study conducted by the Center for Public Integrity which found that in over 2,000 cases overturned on appeal since 1970 as a result of misconduct, just 44 resulted in disciplinary action—and seven of those actions were dismissed.

Lee said efforts to address the problem of prosecutorial overreach date to the 1963 Brady v. Maryland Supreme Court ruling, in which an inmate convicted of murder and sentenced to death discovered that the prosecutor withheld a statement from his accomplice in the crime admitting to the actual homicide. Since then, the so-called Brady Rule has established that withholding exculpatory evidence is a violation of constitutional protections of due process.

But the Brady Rule is honored more in spirit than in practice, Lee wrote.

For example the 400-lawyer Bronx (NY) District Attorney’s Office, one of the largest in the U.S., has never imposed sanctions on prosecutors for violating Brady rules, a situation likely encouraged by the fact that the office has no code of conduct, no formal disciplinary rules indicating when sanctions will be imposed, no procedures for investigating or reprimanding prosecutors, and no records of prosecutorial disciplinary actions, noted Lee.

While hundreds of convictions nationwide have been reversed due to Brady violations, Lee called it “shocking to compare the number of egregious violations committed by prosecutors to the number of times these prosecutors are actually disciplined.”

She quoted one scholar as saying: “one would naturally expect that a prosecutor who abetted the conviction of an innocent person by suppressing exculpatory evidence would be a prime candidate for severe disciplinary action.”

“Sadly,” wrote Lee. “This is not the case.”

Although some states such as New York have enacted tough new discovery laws imposing sanctions for violations of Brady rules, most have yet to follow suit.

A key to more effective reforms that can replace prosecutors’ “culture of infallibility” with a “culture of integrity” is to strengthen the role of state attorneys general, Lee wrote.

Each state attorney general should create “internal discovery policies that guide the operations of all prosecutors’ offices in their jurisdiction, and assemble an independent prosecutorial review panel, which Lee calls an Office of Professional Responsibility (OPR).

The OPR would “conduct investigations into prosecutorial misconduct complaints [and] be responsible for recommending punishments should they find an attorney at fault,” she wrote. “The state supreme courts would then decide whether to accept the punishment recommendation and if they do, then enforce the punishment,” 

Lee also said prosecutors should be required to face election. Most states and counties in fact now have elections for DAs, but some observers note that many prosecutorial elections are one-candidate races and offer voters little choice.

However, in the past two years, a wave of so-called “progressive prosecutors” have swept into office around the country, sparking in turn a backlash by tough-on-crime advocates, law enforcement, and even Attorney General William Barr, who charged that they threatened public safety.

Lee’s full paper can be downloaded here.

TCR staff writer Andrea Cipriano contributed to this summary.

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