In more than 100 cases since 1980, Massachusetts courts of appeal have thrown out criminal convictions based on prosecutorial improprieties, and in 20 of those cases they have used the words “egregious” or “misconduct” or both to describe impropriety. Both numbers are likely to be lower bounds for impropriety that reaches judicial notice, given the number of cases in which prosecutorial missteps are addressed by trial judges, or take place in cases that result in acquittals or are not appealed. Because prosecutors are virtually immune to suit, professional discipline and public exposure are left as among the few ways to deter misconduct or bad practice.
But the Massachusetts study found that since 1980, just two prosecutors have been publicly disciplined by that state’s bar. Nine others were disciplined, but the public was prevented from knowing their names. And it isn’t as if the bar is averse to disciplining attorneys. Since 2005, it is has imposed sanctions on more than 1,400 non-prosecutors.
The study points out that many of the prosecutors found by appeals courts to have committed misconduct went on to higher office: “Three went on to become judges, one became Massachusetts attorney general, and others rose to top positions in district attorneys’ offices and state legal-ethics bodies.” We’ve recently seen efforts in some parts of the country to hold bad prosecutors accountable at the polls. But it’s hard to do that if we don’t even know who the bad prosecutors are. The study found that of the numerous times state courts have found misconduct, the courts mentioned the offending prosecutor’s name just four times.
P.S.: From Texas, prosecutor John Jackson faces possible sanctions in the case of Cameron Todd Willingham, executed after his conviction for murder by arson in 2004 [Balko]