When prosecutors go bad

I deal with quite a few prosecutors in my line of work (usually child abuse cases), and I hold them in very high esteem. Most of the prosecutors I've met are honest, hard working, and underpaid heroes who strive for justice for the most vulnerable people.

There are, however, exceptions. Nancy Gertner and Barry Schneck of the Innocence Project have a fine essay in the Wall Street Journal entitled How to Rein In Rogue Prosecutors.

Excerpt:

On Thursday, a special prosecutor released his report on the botched prosecution on corruption charges of the late Sen. Ted Stevens. It's worth noting the lessons learned from this investigation. Otherwise, wrongful convictions will continue. 

The special prosecutor, Henry Schuelke, found that Justice Department lawyers committed ethics violations by the deliberate and "systematic" withholding of critical evidence pointing to Stevens's innocence, but he declined to go further. The reason: There was no court order expressly directing the government lawyers to turn over the evidence. Criminal charges can only be brought when there is a knowing and intentional violation of an order. 

In sharp contrast, on Friday, Feb. 17, the chief judge of the Texas Supreme Court convened a court of inquiry to determine whether the former Williamson County district attorney violated state laws by failing to turn over evidence that could have prevented Michael Morton from spending 25 years in prison after his 1987 conviction for a murder that DNA evidence now proves he didn't commit. 

The judge in the Morton case could deal directly with the prosecutor's alleged misconduct while the judge in the Stevens case could not. The Texas prosecutor had been expressly ordered by the trial court to turn over the lead investigator's complete report, an order that made certain all exculpatory evidence would be disclosed. The obligations of the Stevens prosecutors, while based on the Constitution and the disciplinary rules of the profession, were not formally embodied in a court order. 

The two cases present a simple solution for dealing with prosecutorial misconduct: Thirty days before trial, or at some reasonable time, the trial judge should convene a conference and issue a specific order directing prosecutors to produce all evidence that "tends to negate the guilt of the accused or mitigate the offense," as required by the American Bar Association's ethics rules. This should include the requirement that prosecutors contact the relevant law-enforcement personnel to make certain all such evidence is disclosed as soon as possible.

The Innocence Project is a wonderful organization that has been able to overturn wrongful convictions of hundreds of innocent people, many of whom have served decades in prison. The problem of prosecutorial misconduct is a very real one, and it needs to be addressed vigorously.

The devotion of prosecutors to justice, and not to winning cases, must be sacrosanct, and Gertner and Schneck propose a reasonable approach to combatting one of the most common and most egregious manifestations of prosecutorial misconduct-- the intentional or grossly negligent withholding of exculpatory evidence by the prosecutorial team.

Intentional withholding of evidence that bears on the outcome of the judicial process is obstruction of justice, and should be prosecuted as such.