Plan to Stop Prosecutorial Misconduct

Prosecutorial misconduct is on the minds of people around the nation.  Hardly a week goes by that we don't hear news of someone who was wrongly convicted being exonerated - usually by DNA testing.  Not all of these exonerations were caused by prosecutorial misconduct, but some were.  The larger problem is how many misdemeanor cases are pushed through the system without the scrutiny of years of legal work and investigation that felony cases receive.  I have to wonder how many people have been wrongly convicted of misdemeanor cases. 

To think that only felony cases, or cases containing DNA evidence, are the ones where wrongful convictions occur is not only naive, but defies all logic.  Recent events in Harris County, Texas have brought this point into the hot spotlight of public and media attention.  Now is the time for new legislation that puts teeth to laws that criminalize prosecutorial misconduct.  If we fail to pass this legislation then our leaders are telling us citizens that wrongful convictions based on misconduct is not only permissible, but will encourage more such behavior. 

Existing laws do criminalize prosecutorial misconduct.  Civil rights laws are the most prevalent, but others exist as well.  Ethical rules that govern attorney conduct also provide sanctions against misconduct up to and including disbarrment.  These criminal and civil sanctions, however, are rarely - if ever - enforced against prosecutor's who abuse the trust and power we as a society give them.  Michael Nifong from North Carolina is the one case that comes to my mind - and the mind of the public - when I think about prosecutor's who have paid a price for their misconduct. 

New legislation is needed to send a message to those entrusted by us to enforce our laws that we will not tolerate abuse of power when the lives and livelihoods of our citizens are on the line.  The mere accusation of criminal wrongdoing can destroy a career, a marriage, or a life.  Wrongful accusations should not be tolerated.  A new law should be enacted that requires the following:

1. The prosecutor who signs the complaint and information or indictment should be required to sign a statement under oath that he or she has reviewed the facts of the case both for and against the accused and believes in good faith that the charges are warranted under law. 
2. Any prosecutor who offers or agrees to a plea bargain should be required to state under oath that he or she - and the prosecutor's office - has turned over all exculpatory, or potentially exculpatory information, as well as a written list of every witness or potential witness that the prosecutor's office has knowledge of that has any bearing on the case - whether it be a witness for the prosecution or defense.  Witnesses provided by the defense would be excluded from this requirement.
3. Any prosecutor who tries a case should be required under oath to state to the judge and in writing that he or she - and the prosecutor's office - has fully complied with all rules and laws of discovery and has provided the defense with the information listed in item number 2 above.
4. Prosecutor's should be required to swear under oath that in cases involving scientific evidence that they have no knowledge or implication that the scientific evidence relied upon by the prosecutor's office is faulty, has deficient, or is scientifically unreliable.
5. Prosecutor's should be required to divulge under oath the name of any police officer or police official they have had contact with regarding any issue of the case before a plea agreement is accepted by the judge.
6. Penalty for any violation of any part of this law should be the same class of crime the accused was charged with, and should immediately result in an investigation by the Chief Disciplinary Counsel's office.  If that office finds probable cause that such a violation has occurred the prosecutor's license should be immediately suspended for the duration of the investigation and prosecution of such charge, and that prosecutor should be forbidden to work for the prosecutor's office, or any other law enforcement related governmental entity until the case is fully resolved.
7. Any prosecutor who is found guilty of violating any provision of the law should be disbarred and forbidden from practicing in a prosecutorial capacity of any kind for life - even if their law license is eventually reinstated.
8. Any judge or other attorney who suspects a violation of any provision of this law should be immediately required to report those suspicions to the Chief Disciplinary Counsel's office, to the judge in front of which the case resides, and to the chief judge of district.
9. The state should waive any claims of immunity - governmental and private - for any prosecutor found guilty of violation of any provision of this law.  Damages for such violations should be capped at a reasonable amount, but the prosecutor's office and the prosecutor who violated the law should be jointly and severably liable for such damages.  Attorneys fees for bringing such suit should be paid by the prosecutor's office for which the prosecutor worked.

There will be changes to this proposal, but this law will put the burden on judges, private attorneys and prosecutors to better monitor the actions and inactions of prosecutors.   It will also eliminate the defense of the prosecutor's office saying that a prosecutor found guilty of violation of such law was a rogue prosecutor.  This law lays the responsibility squarely on the elected District Attorney to monitor the actions of those in his employ, and provide incentives to prosecutors to be more vigilant when they offer or accept a plea bargain in any case. 

By combining criminal and civil liability, and waiving immunity (which the Legislature has the power to do), this law provides teeth against prosecutorial misconduct.  Providing for attorneys fees for lawyers who bring such cases provides an incentive for private attorneys and organizations committed to preserving justice to get involved and stay involved in what is happening in criminal cases across the State of Texas.  These attorneys and agencies will, in a way, become a watchdog for better justice.

I expect that prosecutor's will argue that this new law, as I propose it, will result in less people wanting to become prosecutor's for fear of facing criminal or civil penalty if an error occurs.  I counter that argument by saying that honest and trustworthy men and women of the bar should not fear such a law.  This law only requires what the rules of ethics already require, but adds that such requirements be performed under oath, and provides a new class of advocates for a fair and impartial justice system by providing incentives to attorneys who expose and prosecute claims of prosecutorial misconduct.  This law will also provide a more direct line of accountability to the elected District Attorney, and to any prosecutor who tries a case, or accepts a plea agreement.

If you see a problem with this proposal or think it's a good idea, then let us know.