Prosecutorial misconduct leading to exonerated defendants has been a recurring
theme as of late, according to an article shared on The New York Times.
A 2011 ruling even showed that five justices of the Supreme Court do not
believe offices with lying prosecutors should be held accountable, nor
that those affected by this conduct should be compensated.
The Fourth Department is located here in Rochester, New York. They hear
appeals from all criminal cases from Syracuse to Buffalo – Lake
Ontario, to the Pennsylvania state line. A convicted criminal has an automatic
right to appeal in New York. There are four appellate courts in New York,
then the highest court the New York Court of Appeals, in Albany. The Fourth
Department has been very aggressive towards prosecutorial misconduct in
Prosecutorial misconduct is treated differently throughout the nation.
Recently two men went all the way to the Supreme Court of the United States.
They were convicted of a 1975 murder, leading them to spend 27 years behind
bars. Then, they were exonerated in 2002 because of evidence that was
withheld by local prosecutors. These same men are now petitioning for
a review of their case
and permission to sue the New Orleans prosecutor's office.
Prosecutorial Immunity and Constitutional Rights Violations
The men believe that their constitutional rights were violated when prosecutors
withheld evidence. It appears they might be right, according to Brady
v. Maryland. This Supreme Court decision states that prosecutors are required
to divulge any information that could exonerate a defendant. Punishing
prosecutors who don't is a rather different story.
Individual prosecutors are protected from lawsuits. The only way to penalize
those who misbehave, therefore, is to find repeated events of prosecutors
who were not correctly trained on the Brady rule. The prosecutor's
office involved in the 1975 murder case seems to fit the bill, but not
according to the United States Court of Appeals for the Fifth Circuit.
The U.S. Court of Appeals denied any misconduct by the prosecutor's
office and threw the two men's lawsuit out. It appears that it will
be a long road to pin liability on any group of prosecutor's, let
alone a single individual.
Robert King Weighs In
Areas other than just New Orleans are falling prey to the same kind of
behavior, leaving defendants vulnerable to mistreatment. New York, Ohio
and North Carolina require prosecutors to turn over certain criminal defense
files to the defense in an effort to combat the problem. Recently Monroe
County, New York seven million dollar civil settlement resulting from
a civil suit with a man wrongfully convicted of Murder many years ago.
The very first day I was a prosecutor my boss sat me down in his office
and said "you now have tremendous power - your job is to do what's
right. If you have any question about what that is come talk to me. "
To me that is where ethics for a prosecutor begins and ends. Do what is
right. I think full disclosure of the evidence by the prosecutor is critical
to justice being served. Fortunately, New York requires that relevant
documents be turned over. In addition, several local Disctrict Attorney's
Offices use an "open file policy" – meaning defense attorneys
get everything that DA has – because they think it is fair. I agree
with the open file policy and if I was DA that's what I would implement.
I recently had a case with a Monroe County prosecutor, Christine Callanan,
where she did everything an ethical prosecutor should. I suspected I could
prove my client was innocent of the charged shooting. Most importantly
Ms. Callanan listened to what i had to said, instead of dismissing my
position as a ploy. She then turned over the video from the incident immediately
so I could begin my own investigation. Next, Ms. Callana agreed to release
my client from the jail on the condition he wear a gps ankle bracelet
while I completed my investigation, so he would not be unfairly held,
if he was not the shooter. A few weeks later we showed her that my client
was not the shooter and she withdrew the charges at the next court date.
I give credit to Ms. Callanan, and her superiors, for doing the right thing.
That said, I can think of nothing in this profession that is more wrong,
horrible, and evil than a prosecutor burying evidence that tends to support
the defendant. Anyone who does that is not a lawyer and not a professional.
At a minimum, they should lose their job immediately and be civilly liable
for the risk they have caused another member of society. Intentionally
burying evidence favorable to the defendant goes against the theory of
law – the idea that rules can be used to make America a fair and
just place. In my opinion it is nothing short of criminal. Nobody should
want innocent people locked up. Withholding evidence favorable to the
defense is one way that could happen. It should never ever be allowed.
Punishment should be swift and harsh.