an excerpt, full article here:
Over the years, there have been many instances where, after a criminal defendant was convicted, the defendant’s lawyer has discovered that the prosecution did not turn over either Brady material or Giglio material. This has resulted in many guilty verdicts being set aside thanks to the hard work of the Innocence Project and similar organizations (like Centurion Ministries) which represent those who claim that they were unjustly convicted. The success rate of these organizations is quite impressive, which is a testament to their professionalism and the lack thereof by prosecutors who obtained wrongful conviction through gross negligence or intentional misconduct.
The Times editorial caused me to reflect on the difference between the way the criminal justice system treats misconduct by ordinary citizen/defendants and the way it treats prosecutors who engage in deliberate misconduct.
When a ordinary defendant is convicted, he or she is sentenced based on certain generic factors, usually (1) individual deterrence, (2) general deterrence, (3) protection of society and (4) retribution. General deterrence means sending a message to the public: if you commit a crime, you will be punished, so don’t do it! If there were no consequences to criminal behavior when the wrongdoer is caught, the shame of being caught, without some penalty, does not provide much of a deterrent. Therefore, general deterrence requires a combination of punitive sanctions (jail, fine, loss of license, etc.)and likelihood of getting caught. Without both, there can be no general deterrence.
And how does the criminal justice system deal with prosecutors who engage in grossly negligent or deliberately fraudulent conduct? The answer is: with kid gloves. Rarely does a prosecutor suffer any professional consequences for conduct which a court later finds was grossly negligent or fraudulent. Indeed, appellate courts that overturn a conviction based on prosecutorial misconduct sometimes do not even refer to the offending prosecutor by name, but instead, refer only to that person as “the Assistant U.S. Attorney on the case” or “the Assistant District Attorney on the case.” Not only do the offending prosecutors not face criminal charges themselves, they usually are not referred to their local bar association’s grievance committee for professional discipline.