Innocence Project Research Illustrates Lack of Accountability for Prosecutors Who Commit Misconduct

Panel Discussion at Cardozo Law School Will Address Systemic and Legal Approaches for Reducing Prosecutorial Error and Misconduct

Contact:  Paul Cates, 212-364-5346, cell 917-566-1294, pcates@innocenceproject.org

                

(New York, NY; February 6, 2012) — Innocence Project data released today illustrates the lack of accountability and transparency for prosecutorial misconduct in New York State. The research is being released in advance of a symposium at Cardozo Law School this evening that will include panelists with backgrounds from all aspects of the criminal justice system who will address systemic and legal approaches for reducing prosecutorial error and misconduct. 

“The most troubling finding from our research is how little transparency and accountability there is concerning the actions of public servants who wield incredible power over people’s lives,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.  “What’s most important is to develop internal and external systems to distinguish between error and misconduct so that prosecutors who make honest mistakes can avoid them in the future and those few who engage in serious misconduct can be appropriately sanctioned.”

To try to gauge the scope of the problem, the Innocence Project teamed with the Veritas Initiative, which issued a groundbreaking report on prosecutorial misconduct in California last year.  The groups reviewed all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004-2008. To see what, if any, consequences prosecutors face for their misconduct, the groups looked at New York attorney grievance committees for each of the four judicial departments between 2004 and November 2011.   

From 2004 to 2008, courts found that prosecutors committed error in 151 cases.  Of these, the courts upheld the conviction in 114 of the cases, finding that the error was “harmless.”  In 35 of the cases, the court ruled that the error was “harmful” and reversed the conviction.  From 2004 until November 2011, only 3 prosecutors were disciplined by New York grievance committees for misconduct.  However, this disciplinary action was not for the misconduct found by the courts in the 151 cases.   

According to the Innocence Project, this review doesn’t begin to fully illustrate the scope of the problem. Almost all of the errors identified were of cases where defendants went to trial (less than 10% of all criminal cases) and had access to an attorney who raised the error on appeal.  Courts declined to directly address the issue in many of the cases where the issue was raised. Additionally, many opinions are not in writing and many aren’t published. Furthermore, the distinction between harmful and harmless is problematic because it doesn’t illustrate how serious the misconduct was, merely that the court determined that it wouldn’t have affected the ultimate outcome of the trial.   

“It is virtually impossible to gather accurate data to find out the scope of the problem because over 90% of defendants plead guilty,” said Ellen Yaroshefsky Clinical Professor of Law and Director of Jacob Burns Center for Ethics in the Practice of Law at Cardozo School of Law.  “Intentional misconduct may be rare but, even in those cases, prosecutors are rarely publicly disciplined.” 

 

Of the 151 cases where error was found, improper argument was the leading type of error confirmed by courts, occurring in 88 of the cases, but only 13 of the reversals.  Courts were more likely to reverse in cases where prosecutors failed to turn over “Brady” material (information that pointed to the defendant’s innocence), which occurred in 28 of the cases and 13 of the reversals. 

Misconduct was found most often in murder cases, which made up 38 of the cases, but only 4 of these cases were reversed.  Rape cases were most likely to be reversed, representing 24 of the cases and 10 of the reversals. 

“This is a terribly complicated issue.  Prosecutors have tremendous responsibility and the vast majority of them do an outstanding job,” said Stephen Saloom, Policy Director of the Innocence Project.  “But there is no state agency in charge of oversight, and most prosecutor’s offices don’t even have internal systems for dealing with misconduct.  We don’t accept this for any other government entity where life and liberty are at stake, and there’s no reason we should do so for prosecutors.”    

The data will be addressed tonight at the first stop in the national Prosecutorial Oversight tour that will be headlined by John Thompson, a  death row exoneree who was stripped of $14 million in civil damages for prosecutorial misconduct by the U.S. Supreme Court in Connick v. Thompson, which granted prosecutors nearly complete civil immunity for their misconduct.  Participants with backgrounds from all aspects of the criminal justice system will discuss systematic and policy solutions for making prosecutors more accountable.  Innocence Project Executive Director Maddy deLone will moderate the discussion that will include Thompson; Yaroshefsky; Hon. Richard Buchter, New York Supreme Court Judge and former Queens Assistant District Attorney;  Hon. Elisa Koenderman, New York Supreme Court Judge and former Bronx Assistant District Attorney; Sarah Jo Hamilton, Principal at Scalise & Hamilton, LLP, and a former trial counsel and first deputy chief counsel to the Departmental Disciplinary Committee for New York’s First Judicial Department; and Ross E. Firsenbaum and Shauna Friedman,  Senior Associates at Wilmer Hale, who represented Dewey Bozella, who was wrongly convicted of murder due to police and prosecutorial misconduct and was exonerated after serving 26 years in New York prisons. 

The tour is being organized by Thompson; the Innocence Project; the Veritas Initiative, Northern California Innocence Project’s prosecutorial accountability program; the Innocence Project of New Orleans; the Jacob Burns Center for Ethics in the Practice of Law at Cardozo School of Law; and Voices of Innocence.    

Additional information about Thompson and the tour, including a live stream of the Cardozo panel discussion and additional information about the New York research is available at http://www.prosecutorialoversight.org.   

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