Although prosecutors wield great power, at present, there are few mechanisms for holding them accountable when they engage in misconduct.
Lack of Accountability in Criminal Cases
There are many reasons for this. Because prosecutors frequently hide their illegal and unethical behavior, often misconduct does not come to light for years or even decades after it occurs. When misconduct is exposed, procedural rules like the mis-named “harmless error” doctrine often prevent criminal defendants from obtaining legal relief notwithstanding the fact that their convictions were procured through malfeasance. Even when criminal defendants do obtain legal relief, often the district attorney’s office and the offending prosecutor himself suffers no consequence.
In recent decades, through a series of decisions, like Imbler v. Pachtman federal courts have held that prosecutors and district attorney’s offices are generally immune from civil liability even when they engage in serious misconduct. This is a major hindrance to efforts to foster accountability.
In the landmark 2011 U.S. Supreme Court case, Connick v. Thompson, Justice Thomas ruled for a 5-4 majority that even though New Orleans prosecutors had intentionally hidden evidence that could prove John Thompson innocent, and even though Thompson had come within a month of being executed for a crime he did not commit, the Orleans Parish District Attorney’s Office nonetheless could not be held liable for their misconduct. Thomas’ opinion ignored a long and ongoing pattern of unethical and unconstitutional conduct at the Orleans Parish District Attorney’s Office. (To read more about the pattern of misconduct in New Orleans click here.)
In the aftermath of cases like Imbler and Connick, it is hard to see how civil liability could provide meaningful accountability.
Limits of Self-Policing within DA’s Offices
Another mechanism for creating accountability involves D.A.’s offices sanctioning their own when prosecutors violate ethical and legal rules. While this does happen on occasion, unsurprisingly, too often it does not. In some D.A.’s offices, aggressive, highly adversarial prosecutions that approach – and sometimes transgress – ethical limits, are rewarded rather than shunned. Even in more responsible offices, policing oneself and one’s colleagues can be challenging. As the Constitution’s Framers understood, humans, by their nature, have a tendency to abuse power; that tendency is best managed through external checks rather than self-policing.
We at Open File are hopeful about one currently underused mechanism for creating accountability: the bar complaint system. In each state, the bar serves as a professional licensing body for attorneys. It administers a set of rules for the profession; it determines who is and is not fit to practice law; and it has the power to sanction, suspend, or even dis-bar attorneys who violate its rules. At present, in many states, for a variety of reasons, the bar rarely receives complaints against prosecutors even for serious misconduct. When it does receive complaints, too frequently the bar fails to address those complaints in meaningful ways.
It need not be this way. The bar complaint system is one of the few avenues currently available for holding prosecutors accountable. In his opinion in Connick v. Thompson which otherwise might be seen as creating a sense of impunity, Justice Thomas assured the public that even though prosecutors were immune from civil liability, “an attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension and disbarment.” Too often this is not the case, because too often state bars fail to take seriously their responsibility to enforce the rules of the profession.
When one learns of serious misconduct by a prosecutor, one should file a complaint with the bar. And when complaints are filed against prosecutors, state bars should fulfill their responsibility to the legal profession and take those complaints seriously. When bars fail to do this, they do discredit to the legal profession.