Barriers to Accountability

The prosecutor is tasked with representing the government in adversarial criminal proceedings. That means that prosecutors have an even higher standard to uphold than other attorneys. As described in the ABA Criminal Justice Standards for the Prosecution Function, “[t]he primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.” Despite this heightened responsibility, there are often no consequences for prosecutors who fail to meet these standards.

Misconduct Dismissed as “Harmless Error”

The number of misconduct reversals and exonerations is only the tip of the iceberg of cases in which courts have recognized that prosecutors have committed misconduct. In many instances, prosecutorial action that violates defendants’ statutory or constitutional rights does not lead to reversal because the reviewing court rules that the violation would not have affected the outcome of the trial. Although DPIC did not attempt to comprehensively document the number of cases in which courts dismissed prosecutorial misconduct as “harmless error,” previous studies including capital and non-capital cases have demonstrated the pervasiveness of unredressed error.

A 2016 study conducted by the Innocence Project, Innocence Project New Orleans, Resurrection After Exoneration, and the Veritas Initiative found 660 cases from 2004 – 2008 in five states in which courts determined that prosecutors had committed misconduct. Judges nevertheless upheld the convictions 80% of the time (527 cases), stating that the constitutional violation had been harmless. Courts reversed the convictions in 133 of the cases. A 2003 study by the Center for Public Integrity of 11,452 judicial opinions involving allegations of misconduct found 2,012 cases across the United States since 1970 in which a judge reversed a conviction, reduced a sentence, or dismissed charges at least in part because of prosecutorial misconduct. During the same time period, 8,709 instances of misconduct were dismissed as harmless error. Similar results have been found in reviews of individual jurisdictions. The Northern California Innocence Project reviewed 4,000 cases decided between 1999 and 2009 involving allegations of prosecutorial misconduct. Of these cases, courts found misconduct in 707 instances, but only found harmful misconduct in 159 cases.

As rare as reversals are, professional discipline and civil liability are even rarer.

Rare Professional Discipline for Misconduct

Of the 660 cases of documented misconduct reviewed in the Innocence Project study discussed above, only one prosecutor was disciplined. In 2013, ProPublica reporter Joaquin Sapien examined federal and state court rulings in New York City between 2001 – 2011. Sapien’s study found 30 cases in which judges held that New York City prosecutors had committed “harmful misconduct.” In these 30 cases, only one prosecutor was removed from their position as a consequence of the misconduct. Even then, the prosecutor was removed only after having been found to have committed additional misconduct in a second case. In conjunction with its 2003 study of appellate court misconduct decisions, the Center for Public Integrity reviewed 44 cases of misconduct that resulted in disciplinary review of a prosecutor. 20 of the cases resulted in only a reprimand with no further action. Only two of those resulted in disbarment, and only twelve resulted in the temporary suspension of an attorney’s license.

These studies demonstrate that, for many prosecutors, there is no real punishment for misconduct. Theoretically, prosecutors could lose their jobs or be disbarred for their actions, but this rarely occurs. Even when reversals occur, prosecutors are often given warnings and are advised not to repeat the misconduct without disciplinary action. Courts rarely even name the offending prosecutor. This absence of consequences means that prosecutors can continue violating constitutional rights and ethical duties with relative impunity.

Broad Immunity from Civil Liability

The U.S. Supreme Court has held that prosecutors are absolutely immune from federal civil rights lawsuits for “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259 (1993). Absolute immunity does not bar all suits against prosecutors but is often an insurmountable barrier to civil liability.

For example, the U.S. Supreme Court reversed a judgment of $14 million against New Orleans prosecutors for withholding evidence in the case of John Thompson. Thompson had been convicted and sentenced to death but was later exonerated after the suppressed exculpatory evidence was uncovered through the work of a private investigator. Thompson spent 18 years in prison including 14 years on death row and faced imminent execution several times. Thompson was prosecuted by the Orleans Parish Assistant District Attorney’s office during the administration of District Attorney Harry Connick, Sr. He sued the D.A.’s office for violation of his constitutional rights.

However, Justice Clarence Thomas, writing for a bare 5 – 4 majority of the Court, held that Thompson did not prove that the entire district attorney’s office was responsible for the individual prosecutors’ negligence. “[T]he only issue before us is whether [D.A.] Connick, as the policymaker for the district attorney’s office, was deliberately indifferent to the need to train the attorneys under his authority,” Thomas wrote. The Court held that a district attorney’s office cannot be held responsible for failure to train its prosecutors based on a single violation of the standards requiring them to turn over to the defense any evidence that would cast doubts on the defendant’s guilt or sentence.