The oversight of prosecutors, either by their offices or the courts, is “either failing or nonexistent,” according to a new Innocence Project report examining five states, including New York.
The organization called on prosecutors, judges, disciplinary and defense lawyers as well as legislators to create “a comprehensive system of prosecutorial oversight to ensure the quality of prosecutorial behavior.”
Scrutinizing cases in New York, Texas, California, Arizona and Pennsylvania between 2004 and 2008, the Innocence Project found 660 cases where a court determined prosecutorial error or misconduct.
Of those cases, prosecutorial errors were deemed harmful in 133 instances. And from those instances, just one district attorney from Texas was disbarred, the March 29 report said.
That was the only disciplinary action cited in the report.
State and federal cases in New York accounted for 148 of the 660 total cases; of those cases 34 were deemed harmful and all were overturned, the organization said.
“Regardless of the extent of error or misconduct committed by a prosecutor—from the simplest of mistakes to the intentional withholding of exculpatory evidence—these actions undermine the accuracy of criminal trials and threaten to create wrongful convictions at unacceptably high rates,” it said.
The March 29 report said prosecutors must devise formal written policies, enhance ethics and discovery obligation training and create internal review systems to evaluate misconduct findings.
It also encouraged judges to hold pretrial conferences on Brady obligations and said bar oversight entities needed adequate resources to probe complaints against prosecutors.
On the legislative side, the Innocence Project called for a law that would put prosecutorial oversight in an independent state agency.
Nina Morrison, an Innocence Project senior staff attorney and one of the people who worked on the report, said “our hope is to start a dialogue that leads to real solutions.” She noted that there are “no simple answers … No one wants to create a culture that is reflexively punitive.”
Morrison said many current prosecutors had taken wrongful conviction cases in recent years to heart, but still, “we need a robust and prompt way to address allegations,” she said.
Members of the New York prosecutorial community said they have already been focusing on issues discussed in the report.
“Everybody in the criminal justice system, whether prosecutors or defense attorneys or police, we recognize you have to strive for zero tolerance,”said Rockland County District Attorney Thomas Zugibe, current president of the District Attorneys Association of New York.
“One instance of pure misconduct is unacceptable,” he said, adding it was not only to protect the rights of defendants, but victims as well.
Kristine Hamann, executive director of the Prosecutors’ Center for Excellence, a Manhattan-based think tank, noted that New York’s DA association has had a best practices committee since 2009.
Hamann said the committee, which she chairs, convened in response to wrongful convictions in New York and elsewhere and has addressed “how to enhance our work, how to get it right the first time.”
The committee already has been working on recommendations advised by the report, she said. For example, the state DA group has distributed a handbook to prosecutors called “The Right Thing” since 2011.
Hamman said the state DA group was now doing its own analysis of New York court decisions in the last five years to determine frequency of trial error and misconduct. “There has to be distinction between error and misconduct,” she said.
Morrison said the need for distinction was “true to an extent” and said she “agreed in principle” that some things deserved bar discipline while others did not.
Nevertheless, she said if, for example, a prosecutor made prejudicial remarks to a jury without consequence, the practice could continue for years unchecked.
Patrice O’Shaughnessy, a spokeswoman for Bronx District Attorney Darcel Clark, who took office this January, said the office agreed with “having a formal written policy, enhanced training, and internal review.” She said there has not been a determination on whether to make public the finding of internal reviews.
The report followed prosecutor oversight forums by the Innocence Project and others beginning in 2012, a year after the U.S. Supreme Court overturned a $14 million jury award for a Louisiana man who spent 14 years on death row until a defense-side investigator found an undisclosed lab report.
The 5-4 majority in Connick v. Thompson, 131 S. Ct. 1350, said the prosecutors could not be held liable on a “failure to train” theory
Morrison said the Connick court ruled “civil rights lawsuits for damages, by and large, are not permitted versus prosecutors” reasoning that possible criminal and disciplinary oversight were “robust enough.”
Morrison said the report’s question was how the accountability contemplated in Connick worked in practice. “What we found in our survey was: Not well,” she said.
One of the sources cited in the Innocence Project report was a 2011 Fordham Law Review article by defense attorney Joel Rudin of Manhattan, who has obtained multimillion dollar settlements for wrongful convictions in Brooklyn, the Bronx and Queens, where he argued a failure to discipline after a pattern of Brady violations.
Rudin said the report offered an “excellent overview of the cause of prosecutorial misconduct and Brady violations and the need to have real weapons to fight against it.”
He noted, “my very subjective opinion is that there is somewhat more sensitivity now to Brady in prosecutors’s offices, but I don’t get the sense there’s much more supervision to ensure compliance.”
A bill currently before the Judiciary committees in both the state Senate and Assembly, A1131/S24, would create a statewide commission styled on the Commission on Judicial Conduct to investigate and recommend punishment for breaches of ethical conduct by prosecutors in the state.
The bill was first introduced in 2014 (NYLJ, June 10, 2014). The bill made it to the Rules Committees in each chamber in 2015.
The New York DA association has raised a number of objections to the measure, including whether a commission can be created legislatively or would need authorization by voters through an amendment to the state constitution.
Last September, a commission on attorney discipline recommended that instead of establishing a new office to handle prosecutorial misconduct claims, the state court system should ensure allegations were sent to the appellate courts’ pre-existing disciplinary committees (NYLJ, Sept. 28, 2015).
The Administrative Board of the Courts has not taken up the recommendation at this time, according to court spokesman Lucian Chalfen.