New York State is poised to become the first state in the nation to create a
public commission specifically
designed to investigate complaints of misconduct by prosecutors and
impose discipline upon prosecutors who violate the rules. The commission
is modeled after
commissions on judicial conduct, which exist in every state, including New York, to regulate the conduct of judges. Given the prosecutor's unique role as a
"minister of justice" who
occupies a "quasi-judicial" position, the huge costs on the criminal
justice system from prosecutorial misconduct, and the abject failure of
other mechanisms to discipline prosecutors, it is essential to the
integrity of the justice system and the public's confidence that the
system functions fairly and accurately, that this commission be created.
The
incidence of misconduct by prosecutors in New York and across the
country is escalating. Flagrant misconduct by prosecutors has been
documented in several recent high-profile cases: late
Senator Ted Stevens' conviction was thrown out because of egregious misconduct by federal prosecutors; the Duke Lacrosse prosecutor
Michael Nifong was disbarred and jailed because of his misconduct; and prosecutor
Ken Anderson,
who hid evidence that wrongfully convicted Michael Morton and sent him
to jail for 25 years, also was disbarred and jailed. But these cases are
the tip of the iceberg. They illustrate the terrible consequences of
misconduct that occurs regularly in thousands and thousands of other
cases but do not receive the same publicity.
Prosecutors claim
that reports of misconduct are exaggerated, and that misconduct is the
work of a few bad apples, or a handful of rogue prosecutors. Indeed,
some prosecutors in New York even claim that the prosecutor commission
has been created to
retaliate against
the Moreland Commission, which subpoenaed legislators in connection
with its investigation into public corruption. But given the extent of
misconduct nationally and in New York, and the fact that this proposed
commission has been studied for several years, this response by
prosecutors is misguided and misinformed. Indeed, in a remarkable
opinion
by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals, in
which he was joined by several colleagues, Kozinski writes that the
culture of prosecution has changed dramatically in recent years; no
longer is misconduct by prosecutors the "exception" or "a rare blemish."
One of the most pervasive forms of misconduct - hiding favorable
evidence that could prove a defendant's innocence -- "has reached
epidemic proportions." Judge Kozinski concludes, just as so many courts
and commentators have previously concluded, that "some prosecutors turn
a blind eye to misconduct because they're more interested in gaining a
conviction than achieving a just result."
The increasing incidence
of misconduct by prosecutors is not surprising. The phenomenon is
closely linked to the post-9/11 legal and political culture of fear,
secrecy and repression in which the power of law enforcement, especially
of prosecutors, has become much more dominant and aggressive.
Prosecutors see themselves almost exclusively as "Accusers and
Convicters." This unsettling spectacle has replaced almost completely
the prosecutor's other important function to respect the rights of
everybody, including defendants, and ensure justice for all persons. In
this changed climate, the goal of finding the truth becomes submerged in
an overly-aggressive law enforcement culture. In this troubling period
of criminal justice, prosecutors get the message that they can
prosecute as hard as they want and as far as they want, and there is
virtually nothing to stop them. This new climate is manifested by
massive and warrantless electronic surveillance, far broader leeway for
law enforcement to search, seize and get confessions, a huge increase in
drug arrests and prosecutions, a huge increase in the prison
population, and more and more legislatively and judicially-created
weapons in the hands of prosecutors to help them get convictions.
Full Article & Source:
New Commission to Regulate Prosecutorial Misconduct
