Prosecutor Jail Time – An Emerging Trend? We Can Only Hope.

We’ve read much recently about former Texas prosecutor Ken Anderson being sentenced to jail time for his conduct in the Michael Morton case.  You can read Mark Godsey’s excellent editorial on the subject here.

The NY Times Editorial Board recently published a commentary on the sanctions against Ken Anderson – read that NY Times editorial here.  One of the points made in the opening paragraph of the editorial is, “the 10-day jail sentence for the prosecutor, Ken Anderson, is insultingly short.”  After all, Michael Morton spent 25 years in prison as a result of the wrongful conviction by Anderson.  I’m sure most would agree that this punishment certainly doesn’t come close to fitting the crime.

However, as “insultingly short” as Anderson’s sentence might be, it’s still more than the sentence given to former Durham County, NC District Attorney Mike Nifong.  Nifong was the prosecutor in the 2006 Duke lacrosse rape case.

The North Carolina State Bar filed ethics charges against Nifong in December, 2006 over his conduct in the case, accusing him of making public statements that were “prejudicial to the administration of justice” and of engaging in “conduct involving dishonesty, fraud, deceit, or misrepresentation.”  Subsequent to that, the NC State Bar filed a second round of ethics charges accusing Nifong of a “systematic abuse of prosecutorial discretion … prejudicial to the administration of justice” when he withheld DNA evidence to mislead the court.

The fact that the North Carolina Attorney General, after a careful review of the case, dismissed all charges, and that the prosecution case never went to trial, in no way mitigates the gravity of Mr. Nifong’s ethical violations.  Nifong was disbarred.  A first for North Carolina prosecutors, and in 2007, he served 1 day in jail on criminal contempt charges, and paid a $500 fine – hardly even a slap on the wrist, but he did go to jail.

Make no mistake about it.  As short as these jail terms were (are), these are two very important precedents, and perhaps they represent a crack in the fortress of prosecutorial unassailability.  Prosecutors do have absolute immunity from civil actions arising out of their prosecutions – unless their actions involve criminal conduct.  Both Anderson and Nifong were jailed on criminal contempt charges.  This is the key that the courts must focus in on.  I quote from Mark Godsey’s editorial, “…. this will happen only if judges across the country do what the judge did more than 25 years ago in the Morton case: issue an order requiring proper disclosure to the defense, or risk criminal contempt proceedings.”

And finally, let me throw one more oar in the water.  It’s crystal clear that Mike Nifong’s misdeeds were motivated by his impending bid for re-election.  This is one of the major flaws in the justice system.  By having “prosecutor” be an elected political position, it has the effect of placing the motive of personal ambition above that of seeking justice.  It’s inescapable.  It’s human nature.

Without accountability and the specter of sanctions, (some) prosecutors will continue to trample on the ethics of the justice system.  Again … it’s human nature.