Another Study Finds Few Consequences For Prosecutor Misconduct

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Blogger Radley Balko of the Washington Post describes how a large-scale study from the New England Center for Investigative Reporting discovered that systemic prosecutor misconduct in Massachusetts dated back to 1985.

The report found more than 1,000 cases in which misconduct was alleged by criminal defendants and 120 in which a state appeals court reversed conviction due to misconduct. The group found an additional 134 verdicts reversed or thrown out due to misconduct after reviewing data from the state bar.

Balko says it’s difficult to draw conclusions from the raw number of incidents because most prosecutor misconduct goes unreported. He says the failure to turn over exculpatory evidence often becomes apparent only once a defendant has exhausted their appeals, after which the defense gets access to the prosecutor’s files. But by this point, many defendants no longer have legal counsel.

Additionally, Balko poignantly describes why defense attorneys intentionally do not report prosecutorial misconduct:

“When defense attorneys do find misconduct by prosecutors, there are also some strong incentives against reporting it. Most criminal defense attorneys will also have several other clients being prosecuted by the same office, perhaps even the same prosecutor. Reporting misconduct could jeopardize the attorney’s ability to bargain for those clients. Often, the more enticing option is to use the discovery of misconduct as a bargaining chip to get a better deal for the defendant in that case and perhaps earn favor from the prosecutor in others.”

The topic is not new to Mr. Balko. He summarized a handful of similar studies in a piece for the Huffington Post a few years ago.

“There are a handful of ways to keep wayward public officials honest,” says Balko.  He believes in the success of electoral accountability as a viable option. Still, relying on voters to keep prosecutors honest is a risky proposition. “The groups more likely to be victimized by excessive prosecutors are also the groups with the least amount of political power.”