I have written previously about the need to hold prosecutors accountable for misconduct in pursuing convictions. Prosecutors play a unique and powerful role in criminal justice: they often direct police investigations, they determine when and how to charge crimes, and they decide what information generated by law enforcement will be turned over to the defense prior to trial. Jurors commonly view prosecutors as altruistic and objective defenders of victims' rights and the common good, in contrast to "hired gun" defense attorneys. Therefore, an unscrupulous or overzealous prosecutor has an unparalleled opportunity to distort the criminal justice process.
Please don't misunderstand -- I am not out to get prosecutors. In fact, I have tremendous respect for the office and I admire a great many prosecutors whom I know professionally and personally. But as in any other profession, a few bad apples can taint the entire barrel.
When prosecutorial misconduct is serious enough to require overturning a conviction, consequences are in order. Prosecutors are largely immune from lawsuits based on their actions in prosecuting a case, so we must look elsewhere for disincentives. Many years ago, when the Chicago Tribune still supported in-depth investigative reporting on criminal justice, the paper ran a series that pointed out how prosecutors who commit misonduct are rarely identified by name in appellate court decisions: Chicago Tribune series: Trial and Error
Therefore, when these same prosecutors run for judge or other higher office, the public is unaware of this important information. For instance, when the Illinois Supreme Court reversed the conviction of Center on Wrongful Convictions client Alan Beaman last year because the prosecutor suppressed exculpatory information, the Court did not name the prosecutor, James Souk, who is now an elected judge in McLean County: Illinois Supreme Court decision in Alan Beaman case
Compare this to a recent decision by the Seventh Circuit Court of Appeals, blasting a federal prosecutor - by name - for her false and misleading statements at trial: Chicago Tribune article: federal judge scolds prosecutor Such judicial criticism might serve as a powerful deterrent against prosecutorial overreaching -- even for non-elected federal prosecutors.
A Texas legislator has suggested going so far as to criminalize prosecutorial failure to disclose exculpatory information to the defense. While this proposed bill may be extreme, it is a reaction to a large number of Texas wrongful convictions recently uncovered through DNA testing, some of which involved prosecutorial misbehavior: Fort Worth Star-Telegram article
Certainly some form of sanction for flagrant misconduct is appropriate: to educate young prosecutors, to dissuade the veterans from crossing the line, to inform the public, and to preserve the good name of the majority of prosecutors who uphold their oath of office with integrity and honor.