Wednesday, December 14, 2011

Prosecutors Rarely Disciplined for Misconduct

The considerable power of prosecutors in the US has been growing steadily while checks and balances in law enforcement and our Justice system have diminished.  From John Grisham’s “The Inocent Man” or Michelle Alexander’s “The New Jim Crow” to David K. Shipler’s “The Rights of the People”, there is growing recognition and alarm that prosecutorial misconduct and a disregard for our constitutional rights is reshaping who we are as a nation.  The pivotal roll prosecutors play is not well understood by the public and news media exposes to inform us are rare.  

A new study published in the Yale Law Journal took a scholarly look at prosecutorial misconduct and efficacy of  professional  responsibility measures  in  combating  prosecutorial  misconduct.  In one example, John  Thompson,  the  plaintiff  in Connick v. Thompson, spent fourteen years on death row because prosecutors concealed exculpatory blood evidence from his defense attorneys (a Brady violation). In rejecting Thompson’s attempt to hold the New Orleans District Attorney’s Office civilly liable the US Supreme Court substantially narrowed one of the few remaining avenues for deterring prosecutorial misconduct.  In effect, the courts are relying on the self-regulating mechanisms of organizations like the American Bar Association to keep prosecutor’s conduct in line. This is inadequate, as this study reveals. The only attorney sanctioned in the Thompson case was the lawyer who brought the prosecutor’s misconduct to the attention of the Louisiana's Office of Disciplinary Counsel.  "The Myth of Pros­ecutorial Accountability After Connick v. Thompson," 121 Yale L.J. Online 203 (2011).
In a follow-up opinion piece published in The National Law Journal by Deborah Jane Cooper, one of the researchers, she writes,The Supreme Court's Connick decision serves as a call to state supreme courts and bar associations. Although it is one of the few mechanisms that address prosecutorial misconduct, the bar complaint system is currently underutilized and largely ineffective as a regulatory authority for disciplining prosecutorial misconduct.” 
It is time that more attention be paid to the expanding powers invested in our prosecutor’s  and in restoring balance in our law enforcement and judicial systems.  

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