This is something I posted to a group of Constitutional Law professors with whom I participate in discussing legal matters related to the subject we teach:
Prosecutors are rewarded, not punished, for prosecuting.
Date: April 15, 2007 9:46:04 AM PDT
To: CONLAWPROF
The false accusation of rape that damaged members of the Duke lacrosse team for a year or more seems to have struck a chord of outrage among some list members and in general. 'How can we punish the DA and sue him and the government?' seems to be the theme. But as the posts suggest, while possible, this may not be be easy.
The NYT published an article the other day showing how difficult it is to overturn allegedly false convictions when accusers recant. If the accusing or identifying witnesses were credible enough to convict, then why not when they try to un-convict? Because they might have been reached, goes the argument.
The Supreme Court in Herrera v. Collins (1993) 506 US 390 granted cert on the question, as Justice Scalia explains in his concurrence, "whether it violates due process or constitutes cruel or unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be "actually innocent.""
The opinion was written by Chief Justice Rehnquist, so I'll let you figure out the answer to the question.
The trial is "show-time," seems to be the holding, and if you're not ready with your exculpatory evidence then, that's tough. So convictions tend to stand, absent DNA.
Meanwhile, prosecutors who succeed in gaining convictions in jury trials tend to go on to bigger and better things, such as the bench.
The last thing we want to see is that a hard won conviction was false, absent DNA, and sometimes with, especially as any number of people typically believe the conviction was necessary, whether or not entirely just, for all sorts of reasons. The prosecutor on the bench doesn't want to lose that government job. Private practice has little appeal.
Since considerations of race are always in play in America, and last week was a big race-week, what with Don Imus being hounded out of a job for racially charged comments about women on the championship Rutgers basketball team (calling beautiful kids "nappy-headed ho's"), and today being Jackie Robinson Day in MLB, commemorating the 50th anniversary of his breaking the color line in what was then the national pastime, it is perhaps not remiss to note that the outrage against the North Carolina prosecutor, Mr. Nifong, in the Duke case, occurs where the players are white. Where was the outrage when the falsely accused were black?
Granting the need to immunize prosecutors and other government officials who exercise discretion in the performance of their duties for exercising their honest business judgment, there are other things that might be considered to rein in allegedly rogue prosecutors, none of them a panacea, or even necessarily good.
Prosecutors find it easier to kick a case along to let someone else decide, rather than to dump it. Under separation of powers doctrine, courts cannot second guess the decision to prosecute, assuming not made on invidious or selective grounds, which are usually hard to prove. In hot-potato cases, prosecutors will frequently defer to grand juries, which the DA almost always controls. When was the last time you heard of a 'runaway' grand jury?
State court judges might be given greater power to over-ride the DA's charging decision, but few such judges, who must stand for election, are apt to be willing to do that. 'Let the jury decide' is the far easier option. The risk and expense of this is borne by the individual defendant, his family, and supporters, if any he has. His tough luck, in other words, not the DA's or the judge's.
The expense of a prosecution is usually not known by the public. When the DA elects to move a case forward, no one knows how much that costs the county. It is hard for the county board to deny the DA who claims the need to go after criminals or an especially unpopular accused one. However, the cost of defense is known to the defendant and his family, or to the public defender, and to the board of supervisors of the county which authorizes the budget of the public defender. Where things get sticky for the DA is when expensive lab testing is required, say $25,000 worth (as in a recent case I'm familiar with). Out of whose budget does this come, police or DA? Much delay in investigating can occur while competing bureaucracies fight over who pays.
If the public knew how much money it was wasting on ill-considered prosecutions, matters might improve. DA candidates don't usually campaign on how much money they're going to save by not prosecuting the innocent. And DAs certainly don't reveal the cost of failed efforts. The closest you see of this is when a special prosecutor such as Kenneth Starr, in the Clinton investigation, set up a whole law and investigative firm, at the cost of millions, to try to bring down a president. The effect was to distract and ruin, essentially, a presidency. But that's politics, intersecting with justice, isn't it.
As the Duke case, and the Starr-Clinton case suggest, it is the power to investigate, and the power to prosecute, which are truly the powers to destroy.
I'm not sure we've got it figured out properly, yet.
In this regard, let's contrast the medical, engineering, and legal professions. When someone dies in surgery, the hospital has a committee to review the procedures to help insure, as I understand it, if human error contributed to the death, that it doesn't happen again. I'm presuming that this practice helps. I read about a lot of hospital induced medical error which makes me wonder, however.
Do our county justice systems review DA practices? I don't think so.
What about our state appellate courts? They're in the business of upholding convictions. Error, but harmless, they say. Trial judge and DA can smile with relief.
What about the federal courts, which may review state convictions provided the defense attorney remembered to federalize objections, is that a sufficient guaranty to insure justice? I don't think so. Congress keeps passing acts like AEDPA, designed to limit appeals from state to federal court.
The Supreme Court? Which accepts 80 cases a year? I don't think so, even more emphatically.
The result is that by and large, the district attorney, protected by strong immunity, is more in control of what passes for justice than any judge or court.
There is very little real recourse against a DA who does wrong. See Scott Turow's thin volume on the death penalty errors in Illinois, where they seem to have had a practice of convicting innocent men of capital crimes, and John Grisham's excellent non-fiction account of a wrong conviction entitled something like "A Case of Innocence."
Again, the politics of the alleged war on crime deters the sort of self-correction seen in other professions such as medicine and engineering. When the Challenger disaster occurred, a panel was appointed which may have tried to cover up the cause, bad engineering, until Richard P. Feynman did his little rubber O-ring demonstration in a glass of ice-water on national television
Improving the criminal justice system as a whole, or any aspect of it, is one of the most difficult undertakings imaginable, because so many people do not wish to see any change that represents giving up power or control, or incurring responsibility, especially where the beneficiaries of any reform seem to be bad people, meaning any accused but them.
Just an observation...
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