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No Consequences for Prosecutors’ Bad Behavior

It is not unheard of that the quest for justice occasionally ends in a mistrial.

That the defendant would then be retried six times for the same crime, however, is less of a misfire than it is a miscarriage of justice—especially when four of the verdicts were thrown out due to prosecutorial misconduct.

Curtis Flowers’ legal purgatory has stretched into its third decade as he awaits a seventh trial for allegedly murdering four people in 1996.

He has never wavered from maintaining his innocence, yet Doug Evans, the district attorney now serving his eighth term for the Fifth Circuit Court district in Mississippi, has consistently resorted to illicit tactics to obtain guilty verdicts against Flowers. The U.S. Supreme Court overturned the most recent one in June 2019 after court records showed Evans attacked the credibility of witnesses without reason, introduced inadmissible evidence, and used race to disqualify potential jurors. Despite Mississippi’s large Black population, Flowers’ juries routinely lacked any fellow Blacks.

Evans’ flagrant violations of courtroom procedure not only were overlooked by the voters who returned him to office last year, but he also managed to avoid any public discipline for his actions. While people in other regions of the country may be tempted to attribute this to merely another example of long-entrenched Southern racism, the utter absence of consequences for prosecutorial misdeeds has become an American standard.

A report by the Innocence Project that examined criminal cases in five states in 2011 found 660 involving misconduct by prosecutors. Just one received public censure.

The National Registry of Exonerations calculated that the 30-year period from 1989-2019 saw more than 2,500 wrongful convictions overturned. Roughly 30 percent of those cases were attributed to prosecutorial misconduct, but less than 5 percent of the offending attorneys faced any discipline whatsoever.

A 1976 U.S. Supreme Court ruling, Imbler v. Pachtman, has shielded prosecutors from being sued for malpractice, instead leaving the taxpayers they represent to foot the bills for wrongful convictions. Prosecutors may be charged with crimes such as bribery or burying evidence. However, examples are rare, and the resulting sentences miniscule.

Michael Morton served over 20 years in Texas prison after being wrongfully convicted of murdering his wife in 1987. Ken Anderson, the now-former prosecutor who withheld exculpatory evidence at Morton’s trial, received a paltry 10 days in jail for his actual crimes that sent an innocent man to prison for two decades.

Efforts are being made in some areas to hold prosecutors accountable for flagrant violations of the law. New York Governor Andrew Cuomo approved a bill in 2019 that would establish an independent commission to investigate misdeeds by judges and lawyers, but it was halted by a District Attorneys Association lawsuit that will be decided by a state trial court.

Other localities have set up conviction integrity units that have been responsible for nearly 400 exonerations since 2003. A growing shift away from “tough on crime” politics has also seen the election of some district attorneys more focused on equal treatment than on obtaining convictions at any cost. While such measures are a step in the right direction, the road to achieving justice for all remains a long one. 


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