Pubdate: Mon, 06 Jun 2016
Source: New York Times (NY)
Copyright: 2016 The New York Times Company
Contact: http://www.nytimes.com/ref/membercenter/help/lettertoeditor.html
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298

TO STOP BAD PROSECUTORS, CALL THE FEDS

Prosecutors are the most powerful players in the American criminal 
justice system. Their decisions - like whom to charge with a crime, 
and what sentence to seek - have profound consequences.

So why is it so hard to keep them from breaking the law or violating 
the Constitution?

The short answer is that they are almost never held accountable for 
misconduct, even when it results in wrongful convictions. It is time 
for a new approach to ending this behavior: federal oversight of 
prosecutors' offices that repeatedly ignore defendants' legal and 
constitutional rights. There is a successful model for this in the 
Justice Department's monitoring of police departments with histories 
of misconduct.

Among the most serious prosecutorial violations is the withholding of 
evidence that could help a defendant prove his or her innocence or 
get a reduced sentence - a practice so widespread that one federal 
judge called it an "epidemic." Under the 1963 landmark Supreme Court 
case Brady v. Maryland, prosecutors are required to turn over any 
exculpatory evidence to a defendant that could materially affect a 
verdict or sentence. Yet in many district attorneys' offices, the 
Brady rule is considered nothing more than a suggestion, with 
prosecutors routinely holding back such evidence to win their cases.

Nowhere is this situation worse than in Louisiana, where prosecutors 
seem to believe they are unconstrained by the Constitution.

This month, the Supreme Court will consider the latest challenge to 
prosecutorial misconduct in Louisiana in the case of David Brown, who 
was one of five men charged in the 1999 murder of a prison guard. Mr. 
Brown said he did not commit the murder, but he was convicted and 
sentenced to death anyway. Only later did his lawyers discover that 
prosecutors had withheld the transcript of an interview with another 
prisoner directly implicating two other men - and only those men - in 
the murder.

This is about as blatant a Brady violation as can be found, and the 
judge who presided over Mr. Brown's trial agreed, throwing out his 
death penalty and ordering a new sentencing. But the Louisiana 
Supreme Court reversed that decision, ruling that the new evidence 
would not have made a difference in the jury's sentence.

David Brown's case is a good example of how every part of the justice 
system bears some responsibility for not fighting prosecutorial 
misconduct. State courts often fail to hold prosecutors accountable, 
even when their wrongdoing is clear. Professional ethics boards 
rarely discipline them. And individual prosecutors are protected from 
civil lawsuits, while criminal punishment is virtually unheard of. 
Money damages levied against a prosecutor's office could deter some 
misconduct, but the Supreme Court has made it extremely difficult for 
wrongfully convicted citizens to win such claims.

This maddening situation has long resisted a solution. What would 
make good sense is to have the federal government step in to monitor 
some of the worst actors, increasing the chance of catching 
misconduct before it ruins peoples' lives. The Justice Department is 
already authorized to do this by a 1994 federal law prohibiting any 
"pattern or practice of conduct by law enforcement officers" that 
deprives a person of legal or constitutional rights.

The department has used this power to monitor police departments in 
Los Angeles, New Orleans, Detroit and Seattle, among other 
municipalities with a history of brutality, wrongful arrests, 
shootings of unarmed civilians and other illegal or unconstitutional 
practices. For the most part, the results have been positive. Since 
prosecutors are also "law enforcement officers," there is no reason 
they and their offices should be immune from federal oversight.

Of course, many district attorneys' offices will balk at being put 
under a federal microscope. But nothing else has worked to prevent 
misconduct by prosecutors, and the Justice Department is uniquely 
equipped to ferret out the worst actors and expose their repeated 
disregard for the law and the Constitution.
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MAP posted-by: Jay Bergstrom