Friday, October 8, 2010

Holding Prosecutors Accountable: The Supreme Court Takes Another Look

by Matt Kelley
In the last few terms, the right-leaning majority on the U.S. Supreme Court has seemed eager to reinforce the immunity that prosecutors have traditionally enjoyed from being sued in civil court for any wrongdoing. But that immunity was tested again in a case heard by the court yesterday, Connick v. Thompson, which centers on whether a prosecutor's office can be held liable for failing to train its attorneys to follow the rules.

The justices returned for a new term this week (with the newly arrived Justice Elena Kagan) and the transcript of yesterday's arguments shows that they jumped right in. Attorneys for defendant John Thompson were arguing that a New Orleans jury was right to award him damages after finding that the office run by prosecutor Harry Connick had been negligent in failing to train its attorneys in proper handling of evidence -- which led to his wrongful conviction and near execution. Lawyers for Connick's office argued that Thompson had failed to show a pattern of misconduct.

The justices had tough questions for both sides, and the media analysis is all over the map. Writing at, Tony Mauro points out the Ruth Bader Ginsburg in particular seemed peeved that several prosecutors in Connick's office had failed to follow evidence standards set under the critical case Brady v. Maryland. But there was skepticism from the bench as well, with Justices Samuel Alito and Sonia Sotomayor asking exactly how much training would be enough to meet a constitutional standard. Knowing the makeup of this court and its steadfast protection of prosecutors, I'm not holding my breath for a ruling holding prosecutors accountable for their actions. (Read more after the jump.)

But even with a reluctance from federal courts to act on this issue, prosecutorial misconduct has been grabbing headlines recently as more wrongful convictions and DA oversteps come to light. Charles wrote Tuesday about a scathing new report from California showing that prosecutors are almost never held accountable there for breaking the rules. And the Golden State is not an outlier. Another recent report from USA Today looked at allegations of misconduct by federal prosecutors and found that almost none of them had been punished either.

I’ve complained before in this space that the uniquely American practice of electing our prosecutors is a recipe for tough-on-crime DAs and a dangerous oversimplification of the complex issues of crime, prosecution and sentencing. But polls show that voters are getting much smarter on crime (or maybe we never were the problem and campaigns just aimed for a nonexistent imagined lowest common denominator). The ballot box might be our last line of defense to punish prosecutorial misconduct.

Prosecutors are sworn to seek justice, not convictions. If the Supreme Court won’t hold them to this charge, we might have to take matters into our own hands and vote ‘em out.

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