Scheck: Better remedies needed on prosecutor misconduct

Barry Scheck of the national Innocence Project (with whom, in the interest of disclosure, my employers are affiliated through the national Innocence Network) has an  op-ed in the Austin Statesman today titled, "Errant prosecutors seldom held to account." Wrote Scheck, "as a recent article in the Yale Online Law Review thoroughly documents, our system rarely disciplines, much less brings criminal charges against, prosecutors who have engaged in acts of intentional misconduct. Far too often, prosecutors, who wield enormous power over our lives, aren't investigated at all, even for intentional misconduct that has led to a wrongful conviction, much less 'harmless' intentional misconduct in cases in which the defendant was guilty."

Incidentally, the Yale Online Law Review essay Scheck mentioned is an especially effective discussion of prosecutorial misconduct and its oversight, or the lack thereof. Here's a sample from their description of the dilemma:

What little evidence we do have indicates that prosecutorial misconduct is a serious problem. A 2003 study by the Center for Public Integrity, for instance, found over two thousand appellate cases since 1970 in which prosecutorial misconduct led to dismissals, sentence reductions, or reversals. Another study of all American capital convictions between 1973 and 1995 revealed that state post-conviction courts found “prosecutorial suppression of evidence that the defendant is innocent or does not deserve the death penalty” in one in six cases where the conviction was reversed. Other scholars and journalists have also documented widespread prosecutorial misconduct throughout the United States.

Available statistics significantly underreport the extent of prosecutorial misconduct, not only because of the empirical challenges discussed above, but also because courts have embraced a “harmless error” standard when reviewing criminal convictions. In order to win a reversal, a defendant must not only prove misconduct, but must also show that the misconduct substantially prejudiced the outcome of his or her trial. Courts can therefore avoid making a finding of misconduct altogether by finding that the alleged error, even if proven, was harmless. By reducing the likelihood of reversal, the harmless error standard substantially weakens one of the primary deterrents to prosecutorial misconduct. Knowing that “minor” misconduct is unlikely to jeopardize a conviction on appeal, prosecutors may be more likely to bend the rules in the pursuit of victory.

There is an obvious need for an effective check on prosecutorial misconduct. Yet, as this Essay will show, no such check currently exists. (Citations omitted.)

Returning to Scheck's column, he recited some Texas data Grits has adumbrated in the past, then asked, "What can be done to reform the system? One remedy, civil litigation, is increasingly unavailable. Last year, the U.S. Supreme Court in Connick v. Thompson severely limited the ability of wrongfully convicted plaintiffs to hold a district attorney's office accountable for intentional acts of misconduct by line prosecutors."

Arguing to limit the absolute immunity from civil liability presently afforded prosecutors, Scheck added, "While we all agree that prosecutors juggle enormous responsibilities and should not be gratuitously second-guessed, it's worth noting that no other profession with so much power over life and death enjoys anywhere near this level of immunity from civil liability for intentional misconduct — not doctors, not other lawyers, not police officers, not teachers, not construction workers, not farmers." He then echoes a point made by UT law prof Jennifer Laurin that the external controls the courts say should substitute for civil liability are largely dysfunctional:

What about internal systems that the district attorney groups claim will prevent misconduct? With a handful of exceptions — primarily offices that have "conviction integrity units" designed to address miscarriages of justice and misconduct — most prosecutors do not have written internal guidelines for differentiating between error and misconduct, audits of old cases handled by line prosecutors and supervisors who commit acts of misconduct, or processes for doing root-cause analysis when there is significant finding of error or misconduct by courts — quality assurance and control protections we routinely require in hospitals, financial institutions and factories.

Similarly, relying on judicial monitoring and reporting of misconduct has been a failure. In California, where judges are required by law to report prosecutorial misconduct to the State Bar when it results in reversal of a conviction, a study by the Veritas Initiative shows that over a 10-year period involving 159 reversals, not one case was referred by judges to the State Bar.

The column closed suggesting a few other possible remedies for prosecutorial misconduct besides expanded civil liability: "Solutions discussed include developing better internal systems to deal with misconduct, greater oversight from the disciplinary arms of state bar associations, better reporting of misconduct from judges with better systems for dealing with their complaints, and the creation of an independent state agency with the authority and resources to investigate allegations of prosecutorial misconduct."

MORE: The Statesman paired Scheck's op ed with one from Shannon Edmonds of the prosecutors' association, who argues that "Prosecutors rarely go wrong, should not be hindered."

See related Grits posts:

• Oddsmaker: When judge finds willful Brady violation, what are chances state bar will discipline?
• Blackwell: Texas state bar 'not set up to oversee prosecutors'
• Michael Morton, John Thompson highlight prosecutor misconduct forum
• Study: Prosecutor misconduct in Texas rarely disciplined
• Transcript of interview with Prof. Jennifer Laurin on prosecutorial oversight
• Professor Jennifer Laurin previews forum on prosecutorial misconduct
• Why aren't prosecutors held accountable when courts find knowing misconduct? 
• Eliminate judge-made immunity for prosecutor misconduct
• SCOTUS seems indifferent to prosecutorial misconduct
• Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
• A 'perverse' position on prosecutors fabricating evidence ... from the Obama Administration
• Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?
• Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence
• Prosecutorial hubris, entitlement, on display in recent cases
• Improving prosecutorial accountability
• What sanctions for prosecutors who cheat to win?
• What can the Texas Legislature do to reduce prosecutorial misconduct?