Prosecutorial Misconduct--Part 2

USA Today's series on prosecutorial misconduct has continued with an article discussing whether prosecutors' offices that hid exculpatory evidence should be immune from prosecution. This issue is in the news because of the case--Connick v. Thompson (09-571)--that was argued before the Supreme Court on October 6. "The court's answer could determine the extent to which prosecutors' employers are also shielded if they fail to make sure attorneys comply with their constitutional responsibilities." The Thompson case is a particularly egregious example of prosecutorial misconduct.

John Thompson was convicted of murder and carjacking in New Orleans and sentenced to be executed for the murder.

A month before his execution date, his lawyers discovered that prosecutors had deliberately covered up a police lab report that showed he could not have committed the carjacking. Then they uncovered still more evidence that undermined his murder conviction.

Thompson was released in 2003 after serving eighteen years in prison, including fourteen on death row. Today he runs a non-profit organization in New Orleans, Resurrection After Exoneration, to help other victims of wrongful convictions. Thompson is not suing the individual prosecutors who tried his case; he is suing the district attorney's office, alleging that it "didn't train its attorneys about their legal obligation to turn over evidence that could help defendants prove their innocence." My colleague, Professor Bennett Gershman, who has written extensively about prosecutorial misconduct, is quoted by USA Today:

"The importance of [Thompson's] case is prosecutorial accountability--whether or not violations of constitutional rights make a difference, or whether the prosecutors can just walk away without any accountability, any liability, any punishment, for breaking the law."

Prosecutors around the country will be watching the Thompson case closely.

Prosecutorial Misconduct

USA Today's article entitled "Prosecutors' Conduct Can Tip Justice Scales" makes for upsetting reading. The paper launched an investigation of "201 criminal cases ... in which judges determined that Justice Department prosecutors ... violated laws or ethics rules." The high-profile Duke lacrosse case demonstrated that prosecutors can badly overstep and misstep, but the USA Today investigation shows that the same abuses are rampant in the federal system. The consequences have been serious--"the abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions." One of my colleagues at Pace Law School, Professor Bennett L. Gershman, was interviewed for the USA Today story. He is a former prosecutor himself, having worked for the prestigious Manhattan District Attorney's Office for six years. Professor Gershman has written extensively about prosecutorial misconduct on both the federal and state level, and many of his law review articles are available by hypertext link from his faculty page (linked to above). According to Professor Gershman, the abuses detailed in the article are the "'tip of the iceberg' because many more cases are tainted by misconduct than are found. In many cases, misconduct is exposed only because of vigilant scrutiny by defense attorneys and judges." The article is accompanied by a compelling videotape that focuses on the case of Nino Lyons, who was incarcerated for nearly three years after a prosecutor failed to disclose exculpatory evidence; he was eventually declared innocent and released, but his life will never be the same. The prosecutor, Bruce Hinshelwood, was ordered to pay $1,111.80 in costs and to attend an ethics workshop, but stayed on the job until 2008 and has since opened his own practice. He was never punished by the Department of Justice or by the Florida Bar.