What punishment exists for prosecutor misconduct?

A libertarian blogger whose blog I sometimes poke in on had a story on a Supreme Court case that negated a lawsuit brought up by a man in Louisiana who sued the prosecutor’s office (run by Harry Connick Jr.'s dad!), claiming they deliberately withheld evidence of his innocence.

Says one commenter on the case (PDF warning for this link, the official opinion):

Now, I’ve read comments on this blog before and asked about them, and in those cases the legal eagles here said that they were overreacting. What about this case?

Or, if you want to talk about generalities, how do we walk the fine line between not letting prosecutorial misconduct slide, and watching an avalanche of frivolous suits and claims from disgruntled defendants?

Look at what happened to Mike Nifong, the infamous prosecutor in the Duke lacrosse team rape case. Disbarred, found in criminal contempt, removed from office, filed bankruptcy, and possibly still facing civil lawsuits.

You need to define “misconduct”.

If it criminal then they are in trouble in a number of ways.

Generally though such officials are protected from lawsuits and such while doing their job.

Proving they were criminal as opposed to negligent is a tough bar to get over. I do not think negligence or incompetence will get them in trouble (beyond maybe losing their job).

The immunity of prosecutors from suit is similar to the immunity judges have from being sued. It is not unique to the US. Prosecutors should be disinterested in making decisions about the conduct of trials, not constantly looking over their shoulder and acting defensively for fear of personal reprisals by disgruntled patrons of the criminal justice system.

Because the immunity is absolute, it means that said disgruntled patrons can’t get an action off the ground; any nutjob who wants to bring one will rapidly have it struck out without any major disruption to the affairs of the prosecutor’s office. But if there were exceptions, then everyone would be bringing actions trying to say they were within the exceptions and the work of the prosecutor’s office would bog down in responding to such actions, even if they were for all practical purposes frivolous. Harrassing lawsuits against prosecutors would become an intimidatory tactic.

But this only applies to civil suits for damages. There are lots of other ways to dissuade prosecutors from misconduct - dismissal, professional disbarment, criminal prosecution are just some. To pretend that it is open slather for misconduct or that the door is somehow open just because of the immunity is a silly overstatement.

My sense is the Bar Association is rather weak at punishing members.

Sure it happens but it is an uphill battle.

To me it is akin to the Blue Wall of Silence among cops. You just do not bust your own unless their actions are really egregious (if then).

That of course inhibits criminal prosecution too which again is rare.

When I see the number of Death Row inmates being proven innocent I have no choice but to question the justice system. How could prosecutors get it so wrong with such frequency short of negligence (at a minimum)?

It’s frustrating 'cause there is no sense of accountability here. You don’t have to hold people liable to make them accountable. We tend to let everyone slide here on this issue.

The cops say, it’s my job to arrest and let the courts sort it out.

The grand jury says, “We just go with what our gut says and pass it on to the jury”

The prosecutor says, “It’s not my job to find out the truth, it’s my job to find the guy guilty.”

The defense says, “It’s my job to get the guy off.”

So no one is accountable in our system. We’re taught that our judicial system is about justice, it is not.

And it’s not just today this goes back ages and ages. I am a fan of true crime and it’s ludicrous to see the sheer negligence of everyone even more than a hundred years ago in just mucking up the case.

And it scares people to realize that they one day may be at the mercy of people who they think will help them. While they need that help to stay out of prison, or even to save their lives, to everyone else it’s just a job.

And as I said, you CAN and SHOULD hold people accountable but you don’t have to make them liable. Too often we confuse that and feel we can’t separate the two so bad things happen.

In the Supreme Court case under discussion, there’s really no way the office should have been liable. A single prosecutor chose to withhold a blood test that would have shown the accused was not guilty. That’s an obvious act of misconduct, and it wouldn’t have been solved by more training or different hiring practices. This was an individual prosecutor doing something his office didn’t want him to do, and he knew it and deliberately hid his malicious conduct from his office as well as from the defense.

The individual prosecutor is shielded from civil liability but not criminal liability, and (as mentioned above) is also vulnerable to professional sanctions, to include disbarment… as Mike Nifong learned.

Each of these is a slight misstatement of the real duties involved.

The cop should say, “It’s my job to develop probable cause to arrest and develop evidence that will permit the prosecutor to gain a conviction – that is, evidence beyond a reasonable doubt of guilt.”

The grand jury should say, “It’s our job to determine if probable cause actually exists.”

The prosecutor should say, “It’s my job to convict, but my dual duty is to ensure that justice is done, which means that even if I can convict an innocent person, I am not permitted to.”

And the defense should say, “It’s my job to zealously represent my client’s interests, within the ethical boundaries of the law.”

Why isn’t this in GQ? I haven’t trampled all over it with uninformed rants about judicial corruption yet, so it seems like a GQ thread.

Oh, well, maybe I can get it to the Pit. Damn, Hell, Gevalt, blah blah, Santorum…

Why does the frequency impact whether it is negligence or not?

It’s not the prosecutor’s job to prove innocence. Their role, and the role society has given them is to prosecute cases based on evidence collected by the police and any evidence that they may find during trial.

Someone being shown to be innocent is pretty rare. If we’re talking about the concept of “Actual Innocence” which comes up in some jurisdictions post-conviction, where a demonstration of actual innocence can be used as grounds for reversing a conviction–that is insanely rare.

Even if it was more common, that wouldn’t affect whether it is a sign of negligence or not. Someone can be actually innocent and yet be prosecuted and convicted appropriately. Perhaps the collection of evidence was perfectly just and the evidence strongly pointed to the individual and the jury fully believed the individual to be guilty of the charges. Sometimes life fucks you and you can end up in a situation like that.

If you have an aortic dissection, the procedure to repair the dissection has one of the highest mortality rates of any surgery (maybe the highest?) That does not mean the surgeons performing that surgery are negligent (in individual cases, they certainly could be), it simply means that it’s a very bad situation that often can’t be remedied even by a good surgeon.

If a lot of evidence is found that points to you, even a good prosecutor can send you to prison if you’re innocent.

Lots of cases of actual innocence that I have read about have relied upon DNA testing exonerating a convicted person. In many of those cases DNA testing simply wasn’t sophisticated enough (or perhaps not around at all) when the original trial was conducted, so to blame the conviction on prosecutorial negligence is a bit far fetched.

This is not especially relevant to the legal issues, but should be noted in relation to the story itself.

The prosecution misconduct was not in the murder case for which the defendant sat 18 years in prison. It was in a separate armed robbery case. The basis for vacating the murder conviction was that had Thompson not been saddled with the armed robbery conviction he might have testified in his defense at the murder trial.

In actual fact, Thompson eventually did testify in his own defense at his murder retrial, after the original conviction was vacated, and he was found innocent. However - not knowing a whole lot about the case - it’s quite possible that his change of fate was not based so much on his newfound ability to testify, so much as the fact that it was so many years after the crime. Most notably, in his testimony at the later trial, Thompson pinned the rap on a man who had died in the long interval between the trials.

As such, there’s a very good chance that he was guilty as charged, in which case it’s a good thing that he’s not making off with $14M.

Note that not all common law jurisdictions take this approach of absolute individual immunity.

In Canada, Crown prosecutors can be sued for the tort of malicious prosecution, if four elements are met:

See: Miazga v. Kvello Estate.

Although much of what you just said found its way into Scalia’s concurrence, virtually none of it is supported by the actual record in the case. It’s unfortunate that some members of the Supreme Court now think themselves fact-finders.

I don’t agree with this statement at all. The record clearly reflects that only one instance of misconduct was alleged:

Assuming the Fifth Circuit did not also fabricate the record or create findings of fact out of thin air, this shows that there was but a single incident alleged.

And the single instance arose not from a prosecutor confused by “gray areas” of the Brady requirement, but one who deliberately withheld material he knew was exculpatory and he knew was required disclosure under Brady. Again from the circuit court:

How much more clear can it be that this was not a mistaken act that would have been solved with more training, and was instead a deliberate act by a prosecutor that knew what he was doing was wrong?

So what was in my summary that didn’t come from the record? Specifically, please.

I’ll get you a paper and carbons for your written apology.

First, multiple prosecutors had an obligation to disclose the evidence, not just Deegan. As the dissent correctly states, “Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight.”

Second, the actual fact-finder in this case found that the failure to disclose the evidence was caused by the failure to train, not by misconduct. The jury was asked: “Was the Brady violation in the armed robbery case or any infringements of John Thompson’s rights in the murder trial substantially caused by Connick’s failure, through deliberate indifference, to establish policies and procedures to protect one accused of a crime from these constitutional violations?” They said “yes.” The fact that Scalia suggests the answer should have been “no” is a disagreement over facts, not law, and completely inappropriate for a Justice sitting two levels removed from the facts.

I disagree. That’s a question of law.

If they had asked, “did Connick fail, through deliberate indifference, to establish policies and procedures to protect one accused of a crime from these constitutional violations?”, that would be a question of fact.

At the very most, it is a mixed question of fact and law. The jury clearly found, based on the evidence discussed in Part II.A.2 of the dissent, that failure to train was a substantial cause of the violation. Now, the conclusion that this particular failure to train is sufficient to impose municipal liability is obviously a complicated question as to which the majority has a reasonable position. But the implication that this was exclusively about bad faith misconduct and not about training completely contradicts the findings of the jury.

Where does the record reflect that fact that anyone other than Deegan actually knew about the blood test?

The jury’s answer to that question was against the manifest weight of the evidence and has no support in the record.

Joint Appendix pages 15, 48, 189, and 280. Specifically, Williams and Dubelier admitted they knew about the blood evidence, and the circumstantial evidence strongly suggests Whittaker knew too.

You state that with authority, but you’re not even familiar with the evidence in the case. You should read the Respondent’s brief and Part II.A.2 of the Dissent.

I’ve read both, and you’re hoplessly confused.

Here’s a hint: when an expert witness testifies that a prosecutor is “still not sure of his obligations under Brady,” that is not a question of fact. It’s irrelevant that the jury credited that testimony.