Requiring Prosecutors To Play By The Rules

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 recent years.

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.


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.


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.


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