Thursday, April 28, 2011

Prosecutorial Misconduct

Long time readers of this blog might remember that I often referred to 2010 as the year of prosecutorial misconduct. There were so many scandals it seemed that the topic was in the news constantly. As 2009 ended, the US Supreme Court heard oral arguments in what seemed to be a pretty important prosecutorial misconduct case (Pottawattamie County, Iowa v. Harrington), but then it settled.

Almost as soon as it settled, though, the Court granted review in another misconduct case (Connick v Thompson). I immediately speculated that the Court was just looking for a case to comment on the issue and to criticize what seemed to be widespread prosecutorial misconduct.

It is now pretty clear I was wrong. The Court decided Connick without making any comments about prosecutorial misconduct in general. For the majority, the facts of the case were an isolated - one time - incident.

There may be other opportunities for the Court to express itself on this growing issue, but I am not going to hold my breath.

Here is a link to a recent article by Erwin Chemerinsky, Dean of the UC Irvine School of Law, called "Head in the sand over prosecutorial misconduct" in which he criticizes the Court for failing to express itself about the problem and concludes:

These two cases [Van de Kamp v. Goldstein,decided in 2009 and Connick v. Thompson, decided this year)],share much in common. Both involved innocent men convicted and imprisoned for a long period of time because of prosecutors' failure to comply with the constitutional duty to turn material over to the defense. It is exactly the kind of misconduct that studies show happens with alarming frequency. In both cases, the Court rejected claims that constitutional violations occurred because prosecutors were inadequately trained and instructed as to their constitutional duty to disclose exculpatory and impeachment material.

Most importantly, in both cases, the Court ruled against the innocent victims of prosecutorial misconduct. In doing so, the Court has made it much harder to hold prosecutors accountable and has sent a disturbing message that it just doesn't realize that there is a serious problem that infects our criminal justice system.

For a lot more information, links and comments on Connick, Pottawatamie and other prosecutorial misconduct issues go to my section on Prosecutors here.

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