When Prosecutorial Immunity Means No Accountability

July 06, 2016 by

We see wrongful convictions all too often, but rarely are the prosecutors behind the charges held accountable. Prosecutors say that absolute immunity from liability is vital for them to be able to do their job. That often means one of the most influential legal positions, with ability to shape a person’s future, is shielded from accountability.

So, it’s not surprising that many say the only solution to combatting rogue prosecutors is through federal intervention, as has been done to address rogue police departments. The same way that repeated allegations of police misconduct have forced the Department of Justice (DOJ) to intervene in Ferguson, Baltimore, and many other cities to monitor and take corrective action, federal oversight would curb prosecutors who repeatedly ignore the rights of defendants.

Former Chief Judge of the 9th Circuit Court of Appeals, Alex Kozinski, called the practice of withholding evidence – a Brady violation – an epidemic that only judges can stop.

Prosecutors have been caught withholding evidence that would aid defendants in proving their innocence. Such actions led to the Michael Morton Act, which created an open discovery process and allowed defendants to see the evidence that would be used against them without getting a court order. In Morton’s case, the prosecutor was brought to justice because he violated a specific court order and lied to the judge, but this doesn’t happen all the time.

While there have been changes to the ability to access information, not much has been done to hold prosecutors accountable who violate that right. In fact, the ability to hold them accountable has diminished.

In 2011 the United States Supreme Court voted to overturn a $14 million jury verdict in favor of John Thompson, a Louisiana man who spent fourteen years on death row because prosecutors withheld DNA evidence from his defense attorneys.

Because of the difficulty in proving repeated prosecutorial misconduct, Thompson sued the Orleans Parish District Attorney’s Office on the basis of “failure-to-train,” as it was one of the few ways to hold prosecutors civilly liable for misconduct. Thomas argued that he was denied due process because the Office failed to train attorneys on proper disclosure procedures.

While the jury ruled in his favor, the higher court disagreed saying, “a single Brady violation – i.e., a one-time failure to disclose ‘material’ evidence – is insufficient to establish liability on a failure-to-train theory.”

The DOJ has the authority under a 1994 federal law to monitor law enforcement with recurrent accusations of misconduct. The law prohibits, “a pattern or practice of conduct by law enforcement officers…that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” It goes on to say that if the United States Attorney General has reasonable cause to believe these violations occurred they could step in with civil action to eliminate the practice.

This practice has been used in police departments across the country and since prosecutors are considered officers of the law, it should be equally applied to them. This may be one of the few times where federal government intervention actually proves helpful.

Another option, which has been explored in the State of New York, is the creation of a “Commission on Prosecutorial Conduct,” which would be tasked with investigating and disciplining prosecutors.

When John Thompson was asked about the Supreme Court overturning his favorable ruling he said:

“This isn’t about bad men, though [the prosecutors] were most assuredly bad men. It’s about a system that is void of integrity. Mistakes can happen. But if you don’t do anything to stop them from happening again, you can’t keep calling them mistakes.”

In a position where many evaluate their professional success on how many convictions they can rack up or how tough on offenders they can be, justice can easily take a back seat to raw ambition.

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About the Author

Charles operates the Houston office for Empower Texans/Texans for Fiscal Responsibility.