Should Prosecutors Who Withhold Exculpatory Evidence Face Criminal Charges?
Radley Balko | May 5, 2008, 12:28pm
First, have a look at this video, from last night's episode of 60 Minutes:
Brady v. Maryland was the Supreme Court case that made it illegal for prosecutors to withhold exculpatory evidence from defense attorneys. The problem is that there's rarely if ever any punishment for breaking the rule, even when it has led to wrongful convictions and imprisonment.
Dallas County District Attorney Craig Watkins, featured in the above video, is now publicly advocating that prosecutors who knowingly violate the rule (that is, who knowingly break the law) should face criminal charges, not just professional sanctions (which also rarely happen).
"Something should be done," said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. "If the harm is a great harm, yes, it should be criminalized."
Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.
Such ideas could not be more at odds with the win-at-all-costs philosophy that was the hallmark of legendarily hard-line Dallas County District Attorney Henry Wade and, to a lesser extent, of subsequent administrations.
It is rare for a prosecutor to advocate strict penalties for misconduct – even when it's intentional, said Mr. Gershman, a former New York prosecutor. "I couldn't give you five cases in the last 40 years of criminal charges against prosecutors," he said.
The Duke lacrosse case was great in that it brought national attention to the possibilty of wrongful prosecutions and prosecutorial misconduct. But it may have also fostered the misconception that prosecutors like Mike Nifong are routinely punished when they make the same mistakes he made. In truth, it almost never happens. Still, it's fun to watch law-and-order, "the law is the law" prosecutors backpedal when asked why they themselves shouldn't face charges when they violate the law.
Watkins, by the way, is a rock star. Read my interview with him here.
Add a comment ↓
Erÿk Boston, Pre-Esq. | May 5, 2008, 3:05pm | #
Just for a good laugh, here are the actual rules prosecutors are required to follow:
Model Rules of Professional Conduct
Advocate
Rule 3.8 Special Responsibilities Of A Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
CJ-in-Weld | May 6, 2008, 5:24pm | #
Just a reminder - prosecutors don't impose strict liability, legislators do. The question of when strict liability is ever appropriate is an interesting one, but it has to be decided by lawmakers as to each statute enacted.
There are really very few major crimes where strict liability applies. Statutory rape is one, in some jurisdictions. Felony murder (where someone engaged in a predicate offense like burglary or robbery is criminally liable for a death caused even by a co-defendant) is another. Off the top of my head, I'm not thinking of any other common ones.
The thing they have in common, is that the perpetrator is
already engaged in morally dubious activity, at least by the standards of the elected legislators when the statute was enacted: sex with an obviously young person in the one instance (duty imposed: make sure they're not
too young), some other predicate crime in the other (duty imposed: make damn sure that your already-serious felony isn't compounded by the death of an innocent).
This doesn't apply in the scenario I spun above. Under the rules of criminal procedure, the prosecution has discovery obligations that extend beyond their personal knowledge. If the police have exculpatory evidence, the prosecution is responsible to provide it to the defense
even if the prosecutor doesn't personally know about it. So strict liability doesn't really make sense in this context. It's not designed to deter wrongdoing, in other words, because the underlying activity - prosecution - isn't in and of itself an inherently illegal or immoral or dangerous activity like sex with people who might be children or burglarizing houses or robbing banks.
Unless you disagree with that premise. I'm beginning to wonder.
