05/12/2009 08:54 am ET | Updated May 25, 2011

How Can We Hold Prosecutors Accountable for Misconduct?

Prosecutors are rarely held accountable for acts of misconduct or abuses of power in our country. Yet another example of this reality comes from a case out of Florida, where prosecutors engaged in egregious, intentional courtroom misconduct throughout the trial. The Third Circuit Court of Appeals ultimately upheld the conviction in the case because they found that the misconduct did not affect the outcome of the trial.

The law provides judges with tools that guide them to weigh prosecutorial misconduct against the facts of a case to determine whether the misconduct was severe enough to affect the outcome of the trial. Regardless of what appellate courts decide (i.e., to uphold the conviction or remand it for retrial), the simple truth is that misconduct has occurred. Unfortunately, the system does not provide judges with tools to guide them on how to address acts of prosecutorial misconduct. While defense attorneys, fellow prosecutors, and judges are ethically obligated to report acts of misconduct by prosecutors to the proper disciplinary authority, this reporting rarely happens. When prosecutors do face disciplinary proceedings, meaningful sanctions are uncommon and rarely go further than a public censure.

As a result, prosecutors can predict how much misconduct will be tolerated by the system before a case even goes to trial. As long as the misconduct doesn't prejudice the outcome of a trial to the point that a conviction is reversed, the misconduct will slip through the cracks and the prosecutor will not face any consequences.

Many actors within the system recognize that prosecutorial misconduct in our nation's courtrooms is a pervasive problem, and that prosecutors need to be held more accountable for abuses of discretion. In the Florida case mentioned above, Justice Ramirez stated in his dissenting opinion that, "over the years, it has been my unfortunate experience to see a long procession of assistant State attorneys repeatedly violate clear precedent in their zeal to convict." He also makes clear his intention to publish the names of the prosecutors in the Southern Reporter--a rare move considering many judges often actively withhold the names of offending prosecutors from their published opinions.

Unfortunately, the prosecutors in the Florida case will likely face little or no punishment for their misconduct. As explained in The Justice Project's recent publication, Prosecutorial Accountability: A Policy Review, when reviewing claims of prosecutorial misconduct, appeals courts must abide by the "harmless error" rule, in which a conviction must be upheld if the evidence against the defendant is strong enough--regardless of the misconduct committed by prosecutors. As a result, the convictions in the vast majority of prosecutorial misconduct cases are upheld, seldom resulting in reversals or modifications of convictions.

Appellate judges' have their hands tied by the harmless error rule, and even if they do identify prosecutors by name, as Justice Ramirez intends to do in the Florida case, or report the misconduct, state disciplinary authorities typically do not effectively respond to prosecutorial misconduct.

Why not create mechanisms to hold prosecutors accountable for all acts of misconduct--harmless or not? The Justice Project's policy review recommends jurisdictions establish prosecutorial review boards responsible for investigating all allegations of misconduct and imposing sanctions. In order to ensure the review board is aware of all allegations of misconduct, our policy review also recommends jurisdictions statutorily require trial and appellate judges to report acts of misconduct, regardless of whether the misconduct was deemed "harmless error."

With such a review board in place, appellate judges like Ramirez in the Florida case would have the tools available to them to contribute to the process of holding prosecutors accountable by reporting them to an appropriate and effective disciplinary authority. Until prosecutors face the real threat of discipline, such as fines, suspension, or even disbarment, it is likely that the pervasive abuses of power and egregious acts of misconduct that exist in our criminal justice system will only continue.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.