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.