Yesterday I featured an editorial written by Barry Scheck, arguing that prosecutors need to held more accountable for their conduct. Here is a response by Shannon Edmonds , director of governmental relations for the Texas District & County Attorneys Association, a nonprofit association providing legal training and assistance to prosecutors throughout Texas. Edmonds previously served as a prosecutor in Travis County for seven years:
Good government rarely merits the attention of the nightly news, but a gripping story of justice gone awry is something that everyone finds compelling.
Lately, though, the public conversation about these rare cases has taken a curious turn at the direction of advocates who want the public to believe that “prosecutorial misconduct” is a frequent and major cause of wrongful convictions that must be addressed with drastic changes in state law. In doing so, some of these activists are violating the tried-and-true “fence rule,” a handy rule of thumb reminding us that it is important to understand why a fence was put up before we consider taking it down.
Prosecutors wield substantial power in our criminal justice system, and rightly so; any profession tasked by law with the primary duty “not to convict, but to see that justice is done” must have at its disposal the tools necessary to carry out that duty. Those tools include the power to charge someone with the commission of a crime and to clear someone of criminal responsibility. To ensure prosecutors are free to make those hard decisions and pursue justice wherever it may lead them, the courts have given prosecutors legal immunity from being sued for most things that occur in the context of a criminal prosecution.
The results of prosecutors’ decisions can lead to serious consequences, both for those charged and those doing the charging, and prosecutors should be held accountable for improperly and intentionally tipping the scales of justice in their favor. However, some solutions now being proposed for that situation could tear down important fences like prosecutorial immunity while ignoring why those fences were originally built, a formula likely to cause more problems than it cures.
What, then, do you need to know about prosecutorial misconduct? The first thing to understand is that there is no epidemic of it in Texas. Yes, it happens, but it is newsworthy precisely because it is so rare. As with past exaggerations about the threat of shark attacks, current claims about the prevalence of prosecutorial misconduct have been blown out of proportion, in this case by proponents of change playing fast and loose with the facts in an effort to bolster their claims.
It should also surprise no one that most criminal defendants have selfish incentives to claim misconduct by the prosecutor in their individual cases. (Ironically, there is little or no accountability for making a false accusation of prosecutorial misconduct.) This helps to explain both why so many allegations of misconduct are raised and why almost all of them are routinely denied by the courts.
For example, from 2004 to 2008, Texas appellate courts reviewed about 69,000 criminal cases. After a cursory review of those cases, a California group claims to have found 91 instances of prosecutorial misconduct in Texas’ appellate records. Even if every one of this group’s claims are true (which is questionable), those cases would constitute a minuscule 0.1 percent of criminal appeals handled during that same period. Additionally, of those 91 alleged cases of misconduct, the courts found 72 of those errors to be harmless, meaning that the prosecutor’s mistake had no effect on the outcome of the case.
Accordingly, even under the most pessimistic of assumptions, Texas appellate courts reversed a conviction because of a prosecutor’s error only 19 times in four years, or less than once out of every 3,600 criminal appeals. (During that same four-year stretch, Texas prosecutors processed more than 4.3 million criminal cases!) Every unnecessary reversal is regrettable, but prosecutors’ low error rate is something that most government employees can only dream of.
Not only are verified acts of prosecutorial misconduct rare, but even those that are confirmed by the courts are often misleading because the term is frequently used to describe situations that involve neither. In other words, the legal concept of prosecutorial misconduct may not involve a prosecutor, and it may not involve purposeful misconduct — at least not in the common understanding of that word.
This is because the courts have expanded this ground of legal relief to include the actions of any participant in a criminal prosecution — including people working outside a prosecutor’s office — and to include actions that are neither intentional nor malicious. Under this broad definition, prosecutorial misconduct can include a criminal defendant failing to receive helpful evidence that even a scrupulous prosecutor never knew existed. That is hardly the kind of thing that most people in the real world would label misconduct in their own job, but it is the sort of thing for which some defendants demand a prosecutor’s head on a platter.