Prosecutors Must be Held Accountable for Misconduct

Charged with dual roles as advocates and ministers of justice, prosecutors are the most powerful actors in our criminal justice system. They have sole responsibility for decisions regarding what charges to bring against an individual, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. Clearly, these decisions have a lasting impact on all those under the purview of the justice system. However, despite the great power of prosecutors, few are held accountable for violations of their ethical obligations.

Today, the Supreme Court will hear oral arguments in Pottawattamie County v. McGhee, which is a wrongful conviction case about prosecutorial immunity. Specifically, the Court will decide whether the prosecutors in a 1978 murder trial may be sued as individuals for the wrongful conviction of Curtis McGhee Jr. and Terry Harrington. McGhee and Harrington allege that the prosecutors violated their rights by coercing false testimony during the investigation and using that testimony at trial. The attorneys representing the prosecutors in question argue that while prosecutors are immune from lawsuits when acting within the scope of their job, state bar and disciplinary agencies provide sufficient punitive mechanisms to punish prosecutors for misconduct. It has been our experience that state bars and disciplinary agencies fall woefully short of holding prosecutors accountable for their misconduct.

No matter the outcome of this particular case, it is yet another example of why it is so important for states to enact reforms to ensure that prosecutors who abuse their powers are held accountable for their actions. The Justice Project's policy review, Improving Prosecutorial Accountability outlines suggested reforms such as the establishment of prosecutorial review boards to sanction prosecutors who abuse their power within the criminal justice system. Without the threat of meaningful professional discipline, prosecutors cannot be held accountable for their actions and are likely to continue to abuse their power to secure convictions, which threatens our public safety and the integrity of our criminal justice system.

Implementation of disciplinary measures that create a culture of accountability will result in a more fair and accurate justice system. Such measures will also encourage prosecutors to better fulfill their multiple and critical roles of convicting the guilty, protecting the innocent and guarding the rights of the accused. Until prosecutors face the real threat of discipline, such as fines, suspension, or even disbarment, it is likely that the egregious acts of prosecutorial misconduct that threaten 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.

 

Comments

[bnewmiller]

When prosecutors frame an innocent defendant, the real perpetrator is the big winner. Essentially, the state through its errant officials becomes an accessory to the crime.

[Hdaryl01]

Excellent article. However, too narrow. I am a lawyer and would expand this argument and apply it to ALL LAWYERS who serve as officers of the court-be it in a criminal setting, or in a civil setting. State bars and disciplinary agencies fall woefully short in holding LAWYERS of all stripes that serve as officers of the court accountable for their misconduct.

I presume you have had the joyous experience of filing professional misconduct or grievance complaints with such authorities. And, that you have experienced the circling of the wagons in a confidential proceeding with lawyers adjudicating rules written by lawyers against other lawyers....Foxes, write your own rules and serve as judge, jury, and executioner (or not) in non-public, confidential proceedings as you apply the rules to other foxes for "alleged misconduct" while guarding the henhouse...

In my experience, not only do some lawyers grossly abrogate their officer of the court duties, but they gravitate to serving on the ethics committees! And there is no recourse! One can't initiate a disciplinary proceeding in the original jurisdiction of the licensing authority-the Supreme Court of the state in most cases. After exhausting all preliminary circle the wagons steps in confidential settings with foxes, one can only appeal on very narrow grounds to the Supreme Court-like "arbitrary, capricious, and unreasonable".

Prosecuters, like the Pottawatamie ones, should be tried for attempted murder in my book. And analogous civil lawyers should be summarily disbarred and tried for fraud and conspiracy.

[Brian G]

I understand that prosecutors need protection from lawsuits that would result from doing their job, but when a prosecutor knowingly presents falsified evidence, how can anyone say they are rightfully doing their job?!

[CSDofNM]

It really needs to be this simple:

When prosecutors engage in misconduct, the penalty for them has to be the penalty they seek for the other. In this case, life behind bars, without possibility of parole.

As Lincoln observed about his request for the President to be able to hang one man each year without review by any tribunal "It would not be necessary to actually do it to him. It would be enough to let him know that he was up for the honor."