Why don't we prosecute, prosecutors who've committed misconduct?

A ProPublica analysis of more than a decade's worth of state and federal court rulings found more than two dozen instances in which judges explicitly concluded that city prosecutors had committed harmful misconduct. In each instance, these abuses were sufficient to prompt courts to throw out convictions.

Yet the same appellate courts did not routinely refer prosecutors for investigation by the state disciplinary committees charged with policing lawyers. Disciplinary committees, an arm of the appellate courts, almost never took serious action against prosecutors. None of the prosecutors who oversaw cases reversed based on misconduct were disbarred, suspended, or censured except for one former DA Claude Stuart.

Nor were any but Stuart punished by their superiors in the city's district attorney offices. In fact, personnel records obtained by ProPublica show, several received promotions and raises soon after courts cited them for abuses.

The damage from prosecutorial misconduct can be devastating, not only allowing guilty people like Bennett to go free, but also putting innocents behind bars. In 10 cases identified by ProPublica, defendants convicted at least in part because of a prosecutor's abuse were ultimately exonerated, often after years in prison.

"It's an insidious system," said Marvin Schechter, a defense attorney and chairman of the criminal justice section of the New York State Bar Association. "Prosecutors engage in misconduct because they know they can get away with it." (Schechter said he was expressing his own opinion, not that of his bar section.) 

When prosecutorial misconduct goes unchecked, said Hal Lieberman, a former chief counsel for a New York grievance committee, it "undermines the integrity of the entire system." 

"Assistant district attorneys do not emerge from law school with a genetic disposition to hiding Brady material," he wrote in a July 2012 letter to the bar association published in the New York Criminal Law newsletter. "Instead this is something which is learned and taught."

"We have a broken system," said New York University legal ethics professor Stephen Gillers. "We disbar lawyers for taking two hundred dollars from a client's escrow account, even if they return it. But there are rarely consequences for someone who has stolen someone else's due-process rights and possibly put an innocent person in jail." 

Though prosecutors are public employees, members of the public have virtually no way to find out if they have been sanctioned privately or why. 

Richard D. Willstatter, former president of the New York State Association of Criminal Defense Lawyers, argues that prosecutorial oversight should be more transparent. 

"We understand the need to protect attorneys from scurrilous complaints, of course, but we don't think these rules should apply to public officials like judges or prosecutors," Willstatter said. "If the information is brought to the attention of the public, then it is more likely that there will be pressure to make the system fairer." 

To critics like Yaroshefsky and Willstatter, private discipline can be a grossly inadequate way to hold prosecutors accountable.

There have been a variety of reports over the years, both national and local, that documented a substantial array of serious misconduct involving front-line and senior prosecutors alike. Across those years, there has been at least one constant: the inability or unwillingness to meaningfully punish the offending prosecutors. 

ProPublica, in the latest analysis, examined the years 2001 to 2011, chiefly scrutinizing instances in which state or federal courts identified misconduct serious enough to throw out a conviction. The analysis also incorporated civil cases during those years, virtually all of which resulted in financial awards being given to the victims of such misconduct.

The analysis found a total of 30 cases that met those criteria. Four of them involved civil cases addressing harmful misconduct that took place as far back as 1985. Again, in all those cases, no prosecutor other than Stuart was seriously disciplined for misconduct. 

Calculating the full extent and impact of prosecutorial misconduct can be difficult. More than 90 percent of criminal cases never go to trial, so the public has no way of knowing how prosecutors conduct themselves in the tens of thousands of cases every year that, for instance, end in plea deals. 

Moreover, state appellate courts — in theory the first check on misconduct allegations — often criticize prosecutorial tactics but let convictions stand if they conclude the conduct did not decide the outcome of the case. 

ProPublica identified more than 50 instances in which appeals courts essentially gave prosecutors such no-harm, no-foul free passes. In a 2009 ruling, for example, a court found that a Manhattan prosecutor should have disclosed a co-conspirator's statement that the defendant wasn't actually involved in the shooting he was charged with, but concluded there was "no reasonable possibility that the failure to disclose … contributed to the verdict."
http://www.propublica.org/article/who-polices-prosecutors-who-abuse-their-authority-usually-nobody