It’s hard to draw many conclusions from the raw number of incidents, because most prosecutor misconduct goes unreported. For example, the failure to turn over exculpatory evidence often becomes apparent only once a defendant has exhausted his or her appeals, after which the defense gets access to the prosecutor’s files. But by this point, many defendants no longer have legal counsel. When defense attorneys do find misconduct by prosecutors, there are also some strong incentives against reporting it. Most criminal defense attorneys will also have several other clients being prosecuted by the same office, perhaps even the same prosecutor. Reporting misconduct could jeopardize the attorney’s ability to bargain for those clients. Often, the more enticing option is use the discovery of misconduct as a bargaining chip to get a better deal for the defendant in that case and perhaps earn favor from the prosecutor in others.
So it’s probably safe to say that these numbers are low. The more important figure to look at is the percentage of prosecutors who are disciplined once misconduct is discovered. Most incentives push prosecutors toward overcharging and overprosecuting — put as many people behind bars for as long as possible. If there’s evidence of pushback when prosecutors are caught breaking the rules, it’s a pretty good indication that misconduct is a problem.
And here the Massachusetts study, like many others in other states before it, is alarming. In the 2011 case Connick v. Thompson, the U.S. Supreme Court denied compensation to a man who had twice been wrongly convicted. One of those convictions resulted in a death sentence. Justice Clarence Thomas’s opinion argued that instead of holding prosecutors and the municipalities that employ them civilly liable for misconduct in such cases, the better option is to rely on professional organizations such as state bars for discipline. But the Massachusetts study found that since 1980, just two prosecutors have been publicly disciplined by that state’s bar. Nine others were disciplined, but the public was prevented from knowing their names. And it isn’t as if the bar is averse to disciplining attorneys. Since 2005, it is has imposed sanctions on more than 1,400 non-prosecutors.
The study points out that many of the prosecutors found by appeals courts to have committed misconduct went on to higher office: “Three went on to become judges, one became Massachusetts attorney general, and others rose to top positions in district attorneys’ offices and state legal-ethics bodies.” We’ve recently seen efforts in some parts of the country to hold bad prosecutors accountable at the polls. But it’s hard to do that if we don’t even know who the bad prosecutors are. The study found that of the numerous times state courts have found misconduct, the courts mentioned the offending prosecutor’s name just four times. To its credit, the New England Center for Investigative Reporting uncovered the names of 22 others and is inviting the public to help name more.
As I mentioned, this is far from the first study showing little accountability for misconduct. I summarized a handful of similar studies in a piece for the Huffington Post a few years ago:
— In 2003, the Center for Public Integrity looked at more than 11,000 cases involving misconduct since 1970. Among those, the center found a little over 2,000 instances in which an appeals court found the misconduct material to the conviction and overturned it. Less than 50 cases resulted in any professional sanction for the prosecutor. (Over 200 prosecutors were cited more than once.)— In 2010, USA Today published a six-month investigation of 201 cases involving misconduct by federal prosecutors. Of those, only one prosecutor “was barred even temporarily from practicing law for misconduct.” The Justice Department wouldn’t even tell the paper which case it was, citing concern for the prosecutor’s privacy.— A 2006 review in the Yale Law Journal concluded that “[a] prosecutor’s violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by courts, and almost never by disciplinary bodies.”— An Innocence Project study of 75 DNA exonerations — that is, cases where the defendant was later found to be unquestionably innocent — found that prosecutorial misconduct factored into just under half of those wrongful convictions. According to a spokesman for the organization, none of the prosecutors in those cases faced any serious professional sanction.— A 2009 study (PDF) by the Northern California Innocence Project found 707 cases in which appeals courts had found prosecutor misconduct in the state between 1997 and 2009. But of the 4,741 attorneys the state bar disciplined over that period, just 10 were prosecutors. The study also found 67 prosecutors whom appeals courts had cited for multiple infractions. Only six were ever disciplined.— Most recently, in April, ProPublica published an investigation of 30 cases in New York City in which prosecutor misconduct had caused a conviction to be overturned. Only one prosecutor was significantly disciplined.
In fact, critics of the criminal justice system have been trying to ring this bell for decades. It really wasn’t until the onset of DNA testing that they were finally taken seriously.
There are a handful of ways to keep wayward public officials honest. There’s civil liability, which doesn’t really apply here. Prosecutors have absolute immunity from civil lawsuits, even when their misconduct is especially egregious. (A federal appeals court once ruled that even if a prosecutor had arrested defense witnesses on manufactured charges solely to prevent them from testifying at the defendant’s trial, the prosecutor would still be protected by absolute immunity.) There’s professional discipline. But that clearly doesn’t seem to be working, either. There’s notoriety and public shame. But again, if courts and bars don’t publicize the names of prosecutors even when they’ve found misconduct, shaming is out, too. About the only thing left is electoral accountability. Here there have been some recent successes. But relying on voters to keep prosecutors honest is a risky proposition. As we explored in a post Tuesday, the groups more likely to be victimized by excessive prosecutors are also the groups with the least amount of political power.