Out of Order

How to Hold Bad Prosecutors Accountable: The Case for a Commission on Prosecutorial Conduct

Plagued by misconduct, New York is considering the establishment of independent review boards for prosecutors, just like the ones for judges. It’s about time.


American prosecutors are powerful officials. They have the power to deprive people of their liberty, destroy their reputations, and even take away their lives. They have virtually unlimited discretion in how they exercise their powers.

And yet, they are essentially exempt from any outside supervision, oversight, or accountability. As a result, they can abuse their powers with impunity. And prosecutors do just that, with devastating consequences both for individual defendants (especially people of color) and for the system as a whole. This situation needs to be changed—and the State of New York may soon be leading the way in doing so.

Legislation has been proposed to establish a state Commission on Prosecutorial Conduct—the first in the nation—to investigate and discipline prosecutors for misconduct.

The Commission on Prosecutorial Conduct is modeled after state commissions on judicial conduct, which exist in every state to review complaints of misconduct by judges and impose discipline. New York’s judicial commission was created in 1975 and has made a significant contribution to enforcing standards of judicial integrity. Indeed, for the previous 100 years, only 23 judges in New York State were disciplined. Since 1975, 826 judges have been disciplined, and 166 removed from office.

The Commission bill is supported by numerous organizations—United Teachers Association, Catholic Archdiocese, Legal Aid Society, New York Association of Criminal Defense Lawyers, and others. Committees in the state Senate and Assembly approved the bill late last term, but it did not reach the floor in time for a vote.

Flagrant misconduct by some prosecutors has received national attention—the prosecution of the late Senator Ted Stevens, the prosecution of the Duke Lacrosse defendants, and the exoneration of Michael Morton in Texas, who spent 25 years in jail for murdering his wife because the prosecutor suppressed evidence that would have proved Morton’s innocence. These cases get the headlines. But there are thousands of other cases involving anonymous persons accused of crimes and convicted because the prosecutor violated the rules. These cases are usually under the radar, and prosecutors are able to commit many abuses without public scrutiny.

One of the most pervasive violations, depicted in numerous cases including each of the above cases, involves a prosecutor hiding evidence that might prove a defendant’s innocence. A respected federal judge on the Ninth Circuit Court of Appeals, Alex Kozinski, recently asserted that suppression of evidence by prosecutors “has reached epidemic proportions.”

In New York State, convictions are often reversed because a prosecutor, either deliberately or recklessly, has violated the rules. It’s bad enough when “factually guilty” defendants are let go as a result, but worse is when, tragically, the defendants are innocent. For example, last year in Brooklyn, at least 13 defendants were officially exonerated, and misconduct by prosecutors contributed to many of these false convictions.

Such misconduct exacts a tremendous toll. Scarce taxpayer resources need to be spent to litigate and re-litigate cases involving misconduct. Public confidence in the criminal justice system is eroded and the public’s faith in the integrity of criminal trials is undermined. And most tragically, misconduct by some prosecutors has destroyed the lives of innocent people and their families. According to the National Registry of Exonerations, New York State ranks second nationally, topped only by Texas, in convicting innocent people. At least 192 innocent defendants have been exonerated in New York since 1989. And a prosecutor’s misconduct accounted for at least one-third of those wrongful convictions.

Despite the high costs of misconduct, existing review mechanisms are woefully inadequate.

First, there is no real check on misconduct within the appellate process. On the contrary, the so-called “harmless error rule” requires a court to uphold a conviction when it believes the evidence is sufficient to support it, even if there’s been clear misconduct. This perverse rule essentially tells prosecutors that their misconduct will not be evaluated according to legal or ethical standards. Rather, they can play the odds that an appellate court will ignore their misconduct as long as the remaining evidence is enough.

Second, prosecutors are hardly ever punished, even for egregious misconduct, like getting witnesses to lie, using fraudulent evidence, and hiding exculpatory evidence, because prosecutors are immune from being sued civilly. And prosecutors almost never are disciplined by their own office, and almost always seem to escape censure by professional disciplinary agencies.

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In upstate New York, for example, despite six trials in which the same prosecutor was harshly rebuked by state and federal courts for his misconduct, four of those cases resulting in reversals, the prosecutor was never disciplined. And despite numerous published reports of misconduct by prosecutors in the office of former Brooklyn District Attorney Charles Hynes, there is no report of any of those former prosecutors ever being disciplined. When a judge actually disciplines an offending prosecutor, as happened last year when a Bronx judge banished a prosecutor from his courtroom for life because of her flagrant misconduct in hiding evidence, it becomes headline news.

And the limited “grievance committees” that can work lack the time, resources, and expertise to investigate prosecutors. Their rules, standards, and procedures are not well suited to investigate the complex and often secretive world of prosecutorial conduct. A more robust review mechanism is needed.

Third, elections not only fail to hold prosecutors accountable, but they often incentivize misconduct by favoring “wins” over fairness, as last week’s Out of Order installment described in detail. Voters are generally uninformed about misconduct and unsympathetic to defendants. Not only do elections not work; they make matters worse.

Fourth, while the New York District Attorneys Association has claimed that the Commission idea is unnecessary because state prosecutors are effectively disciplined by local grievance committees, in fact there is no evidence to back up this claim—and plenty of evidence to the contrary, in the sorry record of misconduct we have reviewed here. A more robust review mechanism is needed.

Of course, a state commission will not be a silver bullet that eliminates all misconduct. But it would be a crucial first step, as long as it is independent from the legal profession and armed with the authority, resources, and expertise to investigate misconduct. Such a commission has the potential to achieve results similar to that of the judicial conduct commission on which it is based: enhancing the public’s confidence in the integrity of criminal prosecutions and safeguarding the rights of all.

Bennett Gershman is a professor at Pace Law School and one of the nation’s leading experts on prosecutorial misconduct.