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The Justice Project Improving Prosecutorial Accountability 2009

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Improving Prosecutorial
Accountability
A Policy Review
By John F. Terzano, Esq.,
Joyce A. McGee, Esq.,
& Alanna D. Holt

THE
JUSTICE
PROJECT

“The prosecutor has more power
over life, liberty, and reputation
than any other person in America.”
—U nited S tates A ttorney G eneral and
S upreme C ourt J ustice R obert H. J ackson

THE JUSTICE PROJECT

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ABOUT THE JUSTICE PROJECT
The Justice Project (TJP) is a non-profit, nonpartisan organization dedicated to improving the
fairness and accuracy of the criminal justice system.
TJP’s Campaign for Criminal Justice Reform seeks
to reaffirm America’s core commitment to fairness
and accuracy. By designing and implementing
national and state-based reform efforts, the
Campaign for Criminal Justice Reform addresses
significant flaws in the American criminal justice
system.

osecutorial
Improving Pr
y
Accountabilit
iew
A Policy Rev

no, Esq., Joyce
By John F. Terza
Holt
& Alanna D.

A. McGee,

THE
JUSTICE
PROJECT

Esq.,

“The prosecutor has
more power over life,
liberty, and reputation
than any other person
in America.”
—United States Attorney General
and Supreme Court Justice
Robert H. Jackson

The Justice Project Staff
John F. Terzano, President
Joyce A. McGee, Executive Director
Robert L. Schiffer, Executive Vice President
Kirk Noble Bloodsworth, Program Officer
Edwin Colfax, Director of State Campaigns
Rosa Maldonado, Controller
Leah Lavin, Development Coordinator
Alanna Holt, Policy Coordinator
Lauren Brice, Policy Associate
Amber Rudolphi, Intern

Table of Contents
Executive Summary . ..................................................... 2
Recommendations & Solutions .................................... 5
Legal Landscape ......................................................... 16
Benefits and Costs ...................................................... 17
Profiles of Injustice ...................................................... 18

ACKNOWLEDGEMENTS
The Justice Project would like to express special
thanks to the following people for their contributions
in the development of this policy review:
Professor Bennett Gershman, Pace Law School
Christopher Hill, State Strategies Coordinator,
ACLU Capital Punishment Project
Timothy P. O’Toole, Miller & Chevalier, Chtd.,
Washington D.C.
Former TJP Staff and Interns: Delia Herrin, Eric
James, and Daniel Aaron Weir.
Graphic design by Barking Dog Design.

Texas Office
510 S. Congress Avenue, Suite 304
Austin, TX 78704
(512) 391-2320 • Fax (512) 391-2330
www.thejusticeproject.org/state/texas
©2009 The Justice Project — All Rights Reserved.

Voices of Support ....................................................... 23
Model Policy ............................................................... 24
Literature ..................................................................... 29
Endnotes ..................................................................... 30
NATIONAL AGENDA FOR REFORM

For information on ordering additional copies of
this report, contact our office at (202) 638-5855
or info@thejusticeproject.org.
1025 Vermont Avenue, NW, Third Floor
Washington, DC 20005
(202) 638-5855 • Fax (202) 638-6056
www.thejusticeproject.org

Snapshots of Success . ................................................ 21

The Justice Project (TJP) has developed a national program of initiatives
designed to address the policies and procedures that lead to errors and
contribute to wrongful convictions. TJP advocates for 1) improvements in
eyewitness identification procedures; 2) electronic recording of custodial
interrogations; 3) higher standards for admitting in-custody informant
testimony at trial; 4) expanded discovery in criminal cases; 5) improvements
in forensic testing procedures; 6) greater access to post-conviction DNA
testing; 7) proper standards for the appointment and performance of counsel
in capital cases; and 8) improving prosecutorial accountability.
As part of its efforts to increase fairness and accuracy in the criminal justice
system, TJP is developing comprehensive policy reviews on each of the
eight reform initiatives outlined above. The policy reviews are designed to
provide necessary information to policymakers, legal and law enforcement
practitioners, advocates, and other stakeholders about the best practices
within these reform areas, the reasoning behind these necessary changes in
procedure, their practical effect, and the costs and benefits of implementation.
For more information, please visit www.thejusticeproject.org.


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EXECUTIVE SUMMARY

P

rosecutors are arguably the most powerful figures in the American criminal justice system.
Prosecutors are heavily involved in the investigation of crimes; they are solely responsible for what
charges, plea bargains, and sentences a criminal
defendant will face; and they have complete control
over what evidence will be disclosed to the defense
during discovery.1 The decisions of prosecutors have
far-reaching consequences on defendants, victims,
their respective families, and the general public.
These broad powers reflect the prosecution’s unique
role in the criminal justice system as defined by the
Supreme Court: “not that it shall win a case, but that
justice shall be done.”2 The role of the prosecutor is
not just one of an advocate, but rather an “administrator of justice” whose ultimate goal is to protect
the innocent, convict the guilty, and guard the rights
of the accused.3 Prosecutors—unlike defense attorneys—do not advocate for a single individual; they
advocate for a just outcome.
Given the special duties of prosecutors and the
broad power they exercise in the criminal justice
system, it is critically important that prosecutors conduct themselves responsibly and ethically.

1) States should require that prosecutors’ offices adopt and enforce clearly defined policies
and procedures.
2) States should require open-file discovery in
criminal cases.
3) States should require that prosecutors document all agreements with witnesses and
jailhouse informants, especially concerning
conferment of benefits of any kind.
4) States should require trial and appellate
judges to report all cases of prosecutorial
misconduct—including cases where the misconduct is ruled to be harmless error.
5) States should establish a prosecutorial review
board with the power to investigate allegations of misconduct and impose sanctions.
6) States should require that prosecutors participate in training and continuing education
programs.

Prosecutorial Misconduct
Failure to comply with legal, ethical, and constitutional obligations constitutes prosecutorial misconduct.4 In 2003, a study conducted by the Center
for Public Integrity found that prosecutorial misconduct was a factor in dismissed charges, reversed
convictions, or reduced sentences in at least 2,012
cases since 1970.5 The study found that prosecutorial misconduct led to the wrongful conviction of
thirty-two individuals.6 In these cases, prosecutors
suppressed exculpatory evidence, knowingly presented false testimony, coerced witnesses, fabricated
evidence, and/or made false statements to the jury.
The most common form of prosecutorial misconduct is a failure to provide the defense team with
evidence that is favorable to the defendant.7 For
example, in April of 2009, Attorney General Eric
Holder dismissed the indictment against former
Alaska Senator Ted Stevens because prosecutors in
the case repeatedly withheld important evidence from
the defense. Another common form of misconduct is

the use of unreliable in-custody informant testimony.
Other forms include courtroom misconduct, mishandling of physical evidence, threatening or badgering
witnesses, using false or misleading evidence, and
improper behavior during grand jury proceedings.8
While deliberate misconduct tends to be the
exception, unintentional misconduct and inadvertent
error occur with troubling regularity. The current
safeguards designed to prevent misuse of prosecutorial power—such as appellate review of claims of
misconduct, judicial reporting of acts of misconduct, state bar disciplinary action, statewide codes of
professional conduct, as well as internal systems of
accountability within prosecutors’ offices—fall short
in preventing prosecutorial misconduct and abuses
of power. In all aspects of the criminal justice system,
there is a dangerous and pervasive lack of prosecutorial accountability.
The prevalence of prosecutorial misconduct
within the criminal justice system undermines the

PROSECUTORIAL ACCOUNTABILITY
RECOMMENDATIONS


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THE JUSTICE PROJECT

accuracy of criminal trials and plays a direct hand in
wrongful convictions. Prosecutors’ offices, the courts,
state bar disciplinary authorities, and the state itself
must create mechanisms whereby prosecutors are
held more accountable for their actions in the criminal justice system. Otherwise, abuse of prosecutorial
power and acts of misconduct will continue.
In this policy review, The Justice Project recommends states take the following actions to improve
prosecutorial accountability:

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in jurisdictions with open-file discovery rules find the
practice more efficient, with fewer reversals and retrials, and more cases resolved earlier in the process.
3) States should require that prosecutors document all agreements with witnesses and jailhouse informants, especially concerning conferment of benefits of any kind.
Prosecutorial decision making, by its very nature,
occurs with little or no transparency. The majority
of prosecutorial decisions take place outside the view
of the public, the courts, and defense attorneys.11
One such example is the use of in-custody informant testimony. Prosecutors often rely on in-custody
informants to build their case against a defendant.
Prosecutors oftentimes offer plea deals or reduced
sentences to informant witnesses, giving them a
powerful incentive to lie on the stand. Testimony
by informant witnesses is widely regarded as the
least reliable testimony encountered in the criminal
justice system. However, juries, judges, and defense
teams are not provided with crucial information such
as the agreement reached with the witness, the witness’ background, or how many times the witness
has testified previously. As such, juries can be misled
by these inherently unreliable witnesses. States could
take steps to prevent false testimony by informant
witnesses through increased transparency—requiring
mandatory, automatic pretrial disclosures of information related to in-custody informant or cooperating
witness testimony.

1) States should require that prosecutors’ offices adopt and enforce clearly defined policies
and procedures.
One of the more troubling systemic problems
that leads to prosecutorial misconduct is a lack of
transparency. Very few prosecutors’ offices have
explicit office manuals or written policies and procedures that guide the use of prosecutorial discretion.9 Prosecutorial misconduct can in large part be
prevented by implementing sound policies on how
to avoid abuses of power, and how to make ethical
decisions. Considering all the factors a prosecutor
must take into account when charging an individual
with a crime, it is imperative that prosecutors’ offices
provide guidelines and tools to help prosecutors make
decisions fairly, ethically, equitably, and effectively.
Prosecutors’ offices must create an environment that
values the fair and efficient administration of justice.
 ) States should require open-file discovery in
2
criminal cases.

4) States should require trial and appellate
judges to report all cases of prosecutorial misconduct—including cases where the misconduct
is ruled to be harmless error.

State statutes governing discovery obligations in
criminal cases often fall short in protecting against
misconduct and abuses of prosecutorial power. Unlike
in civil cases where each side must turn over all evidence, in criminal cases prosecutors must only disclose evidence that is exculpatory and tends to negate
guilt. Prosecutors have sole discretion in determining
whether evidence is exculpatory and thus, whether to
disclose it. Studies reveal that prosecutors regularly
withhold, often times intentionally, crucial exculpatory evidence.10 Better discovery laws, such as openfile discovery, would prevent such abuses, whether
intentional or not, by requiring prosecutors to disclose any and all evidence to the defense. Prosecutors

The courts are typically the first outside entity
to be made aware of a possible act of prosecutorial
misconduct. Prosecutorial misconduct is typically
brought before a judge when a convicted individual
files an appeal on those grounds. For a case to be
overturned on such an appeal, the courts must find
the acts of the prosecutor to be harmful. In other
words, the court must determine that the outcome
of the trial would have been different but for the
actions of the prosecutor.12 Having a case reversed


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on appeal can be perceived as a form of punishtioned by a state disciplinary authority or criminally
ment for prosecutors because they must re-try the
prosecuted for withholding evidence or presenting
case or lose the conviction all together, but it does
false evidence.15 States could greatly reduce the
little to effectively curtail misconduct. In the vast
amount of prosecutorial misconduct that occurs by
majority of appellate cases, the conviction is upheld
effectively sanctioning prosecutors who violate their
despite the misconduct. As such, this process cateprofessional duties. Because state bar disciplinary
gorically excludes the majority of cases
authorities have failed to hold prosecuwhere misconduct has occurred, but
tors accountable in the way they hold
Prosecutorial
the case did not get reversed on appeal.
private practitioners accountable,16
misconduct can
As a result, prosecutors are not held
states should establish separate prosaccountable for their acts of misconecutorial review boards responsible for
in large part be
duct in cases where the appellate court
investigating allegations of misconprevented by
finds misconduct but does not reverse
duct and sanctioning prosecutors when
implementing
the case.
necessary. States should recognize the
Compounding the problem of
unique responsibilities and powers of
sound policies
appellate review is a pervasive and
prosecutors through the establishment
on how to avoid
widespread pattern of judges failing
of separate disciplinary structures.
abuses of power
to report acts of prosecutorial misconand how to make 6) States should require that prosduct. In 2007, a study conducted on
behalf of the California Commission
ecutors participate in training and
ethical decisions.
on the Fair Administration of Justice
continuing education programs.
found that judges generally do not
report cases of prosecutorial misconduct to the State
Often times prosecutors’ offices do not provide
Bar, despite a statutory requirement to do so.13 This
crucial training programs on the proper use of prosfailure to report allows even the most egregious acts
ecutorial discretion, and states offer limited continuof misconduct to slip through the cracks, and preing legal edcation programs on the causes and costs
vents prosecutors who repeatedly abuse their power,
of wrongful convictions. Another way to ensure
known as “repeat offenders” from being identified
prosecutorial accountability is to improve the training
and sanctioned. One key reform aimed at improvand education of prosecutors. Educating prosecutors
ing the court’s role in prosecutorial accountability is
on how their decisions can lead to wrongful convicstronger judicial reporting requirements.
tions and impede the fairness and accuracy of criminal
trials can prevent abuses of power, and ensure that
5) States should establish a prosecutorial review
prosecutors perform their duties with a high degree
board with the power to investigate allegations
of professionalism.
of misconduct and impose sanctions.
The Justice Project has developed this policy
Regardless of whether judges report cases of
review to facilitate communication among prosmisconduct, which would typically be reported to
ecutors, defense attorneys, judges, state bar associathe state bar disciplinary authorities, the majority
tions, and others about the general lack of prosecuof these disciplinary authorities have largely failed
torial accountability in the criminal justice system.
to investigate, discipline, or sanction prosecutors
By identifying the systemic causes that lead to proswho abuse their power and/or engage in misconecutorial misconduct and abuses of power, we hope
duct. In 1999, a national study conducted by the
to encourage active efforts to reform the system and
prevent such injustices. By adopting and implementChicago Tribune found that between 1963 and 1999,
the courts dismissed homicide convictions in 381
ing the reforms recommended in this policy review,
cases because prosecutors suppressed exculpatory
states can ensure the level of prosecutorial account14
evidence or presented false testimony. In those
ability necessary for the fair and accurate adminis381 cases, not one prosecutor was publically sanctration of justice.

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RECOMMENDATIONS & SOLUTIONS
dence, bringing unfounded charges to help their position in plea bargaining, or by withholding important
evidence from the defense.22
One of the most troubling consequences of prosProsecutors have broad discretion in criminal
ecutorial abuse of power is arbitrariness, in which
cases. They decide how to investigate a case, what
similarly situated defendants are treated in vastly difcharges to bring, what plea bargains to offer, what
ferent ways by prosecutors. Broad prosecutorial dispenalties to seek, and what evidence to turn over to
cretion allows a prosecutor to dismiss charges against
the defense through pretrial discovery. At these critical
one defendant, while taking another defendant to
stages of a prosecution, the decisions
trial, even if the circumstances in both
made by a prosecutor invariably have
cases are exactly the same.23
The power to bring
an enormous impact on defendants,
Prosecutorial discretion can also
victims, and their respective families.
lead to racial disparity in the admincharges against an
The power to bring charges against an
of justice. For instance, prosindividual is perhaps istration
individual is perhaps the most influecutors seek the death penalty more
the most influential
ential responsibility of a prosecutor.
often in cases where the defendant is
As one commentator notes: “When
black and the victim is white.24 Racial
responsibility of a
a prosecutor makes the decision to
disparity in the administration of
prosecutor.
charge an individual, she pulls that
justice occurs systemically and over
person into the criminal justice system,
long periods of time. There is little
firmly entrenches him there, and maintains control
to no ability to provide relief after this kind of abuse
over crucial decisions that will determine his fate.”17
occurs—it cannot be sanctioned on a case-by-case
Prosecutorial discretion is a critical part of the crimbasis. The only way to prevent arbitrariness and racial
inal justice system. Not every crime can be prosecuted,
disparity in the administration of justice is for prosecuand each criminal offense and defendant is entirely
tors’ offices themselves to take steps to ensure they are
different. Prosecutors dismiss cases, bring charges, and
making decisions fairly and equitably.
request sentences based on the individual circumstances
Due to the essential need for guidance in the
of each case and each defendant. Their decisions should
exercise of discretion, prosecutor’s offices should
appropriately address the severity of the crime and the
produce and maintain a manual that details an office’s
history of the offender.18 However, prosecutors are only
general policies and procedures. An office’s policonstrained by vaguely worded ethical guidelines.19
cies should include, at a minimum, a list of specific
Few jurisdictions have adopted or enforced standards
factors prosecutors must consider when exercising
on how prosecutors should appropriately utilize their
their discretion at each stage of a prosecution—from
broad discretionary powers.20 Absent any standards
investigation, to trial, to sentencing—as well as comon when it is constitutional and appropriate to bring
prehensive guidelines for discovery compliance.
charges, what charges to bring, when and how to offer a
The American Bar Association (ABA) and the
plea bargain, determine a sentence, or when to dismiss
National District Attorneys Association (NDAA)
a case, prosecutorial discretion becomes a very dangerrecommend that prosecutors’ offices develop and
ous power that is entirely open to abuse.
implement official policies and procedures that guide
Prosecutors make significant decisions in every
the exercise of prosecutorial discretion.25 The goal of
criminal case before the trial even begins. The majorthese policies would be achieving “fair, efficient, and
ity of these decisions are made with no guidance,
effective enforcement of criminal law.”26 In develop21
oversight, or accountability. As a result, prosecutors
ing standards, jurisdictions should first look to the
can easily abuse their discretion during investigaABA Prosecution Function Standards, for areas of
tions by utilizing evidence they know to be illegally
prosecutorial discretion “about which there is wideobtained, bringing charges without sufficient evispread agreement.”27 The NDAA also recommends
1) States should require that prosecutors’
offices adopt and enforce clearly defined
policies and procedures.


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that in developing a manual, offices should consult
offices against charges of arbitrariness, thus strengthwith area prosecutor’s associations as well as other
ening public trust in the prosecution function.
offices that have already developed written or model
The first step towards enacting an effective system
standards. Only a small number of prosecutors’
of prosecutorial accountability must come from prosoffices actually have manuals.28
ecutors’ offices themselves. By implementing internal
The Department of Justice has published a pubpolicies and procedures, prosecutors’ offices can crelically available manual for U.S. Attorneys’ offices
ate and maintain a culture of integrity and accountthat jurisdictions could utilize as a model for state
ability. This first step could be effective in preventing
prosecutors’ offices.29 The manual outlines policies
prosecutorial abuses of power and acts of misconduct
“on a wide range of criminal issues;”30 including
that can lead to wrongful convictions.
what factors U.S. Attorneys should take into consideration when pursuing federal prosecution. Some
2) States should require open-file discovery in
of the standards include law enforcement priorities,
criminal cases.
the seriousness of the offense, the deterrent effect of
prosecution, the person’s culpability, criminal history,
Discovery is the formal process in which the
willingness to cooperate, and the probable sentence.
prosecution discloses relevant evidence to the defense
Additionally, the U.S. Attorney’s
prior to a criminal trial. Discovery
manual specifically addresses what
procedures “help inform both sides
The first step towards
factors a prosecutor should not take
of the strengths and weaknesses of
enacting an effective
into consideration when bringtheir case, reduce the risk of trial by
ing charges, including the person’s
ambush, focus the trial process on
system of prosecutorial
race, religion, or national origin,
facts genuinely in dispute, and miniaccountability must
the attorney’s personal feelings
mize the inequities among similarly
come from prosecutors’ situated defendants.”34 The proper
regarding the suspect or the victim,
offices themselves.
politics and political influences, or
functioning of the criminal justice
the possible consequences on the
system—accurate verdicts, fair senattorney’s personal or professional life.
tences, and the protection of fundamental constiAdopting and implementing such a manual
tutional rights—depends on full compliance with
“can provide useful instruction, and vigilant internal
disclosure obligations.
enforcement can influence the conduct of subordiIn 1963, the United States Supreme Court issued
nates—especially those committed to a career in the
a landmark decision regarding discovery obligations in
particular department or office.”31 All contents of the
Brady v. Maryland, finding failure to disclose relevant
office manual should be made readily available to the
exculpatory information, or information that would
public,32 except for any content deemed confidentend to negate guilt, to be a violation of the defendant’s
33
tial. Public access to the manual makes clear to the
due process rights.35 Under Brady, the prosecution must
public that the prosecutor’s office’s interest is in the
provide the defense with any evidence in its possession
fair and effective enforcement of the law, as well as
that is material to the defendant’s guilt or punishment.
the specific policies by which the chief prosecutor
This includes evidence of innocence as well as evidence
seeks to achieve this goal.
that undermines the credibility or truthfulness of a witEffective implementation of office policies and
ness, known as impeachment evidence.
procedures cannot be achieved without proper superThe constitutional duties outlined in Brady
vision within prosecutors’ offices, and prompt action
embody the prosecutor’s responsibility to seek justice
by supervisors when prosecutors violate official poliand uphold the rights of the accused. Prosecutors
cies. Internal enforcement of these guidelines can
bear the burden of ensuring that the defense has all
ensure their proper use and help maintain a constant
relevant facts before proceeding with a plea bargain
awareness within offices of how to avoid abuses of
or a criminal trial. The effectiveness of the Brady rule
power. Additionally, implementation and enforce“depends on the integrity, good faith, and professionment of office policies and procedures can protect
alism of the prosecutor.”36

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Current federal and state procedural safeguards that
seek to guarantee compliance with Brady are very weak.
The Supreme Court has been largely silent on what
specifically constitutes Brady evidence, when it must be
disclosed, and what the remedies or sanctions should
be for failure to comply with Brady.37 Additionally, the
court’s standard for overturning a conviction based on
a Brady violation is extremely lenient. For a conviction to be overturned, the defense must show that the
evidence was exculpatory and material to the case at
hand, meaning the presence of such evidence would
have altered the outcome of the trial. One scholar on
this issue describes the devastating consequences of the
Court’s lenient stance on Brady: “the lenient standard
of materiality encourages prosecutorial gamesmanship
by allowing prosecutors to play and frequently beat the
odds that their suppression of evidence, even if discovered, will be found immaterial by a court.”38

In most states, prosecutors are only required to
disclose Brady evidence upon request. Most states lack
statewide discovery statutes that detail what kind of
evidence must be disclosed, when it must be disclosed,
and what the sanctions are for noncompliance. The
resulting system of criminal discovery is one that differs greatly between jurisdictions, and operates with
little to no oversight and no threat of discipline for
noncompliance.
Suppression of exculpatory evidence is the most
common form of prosecutorial misconduct.39 A
national study by the Chicago Tribune cited suppression of evidence as one of the leading prosecutorial
violations that has led to the reversal of hundreds of
homicide convictions since 1963.40 Another study by
Columbia Law School revealed that one of the top
two serious reversible errors in capital cases is prosecutorial suppression of evidence.41
Prosecutorial suppression of evidence
is not always motivated by malfeasance.
the Culture of Prosecutors’ Offices
Prosecutors do not always know what evidence is exculpatory—oftentimes a statehe culture of prosecutors’ offices can indirectly encourment by a witness or a piece of forensic
age misconduct. The American criminal justice system
evidence is only later discovered to be exculis an adversarial one that can foster gamesmanship or a
patory after investigation by a defense attor“win at all costs” mentality. The focus on conviction rates
ney. Additionally, giving prosecutor’s broad
can undermine a prosecutor’s goal of seeking a just outdiscretion in the discovery process imposes
come. Some district attorneys’ offices reward high convicintuitively contradicting obligations—prostion rates with promotions, in part because conviction rates
ecutors are required to protect the rights of
are one of the few available quantifiable measures of “sucthe same defendants they are trying to concess.” This “batting average” mentality was taken too far in
vict by providing them with evidence favorthe Cook County District Attorney’s Office in Illinois, which
able to the defendant’s case. In an adversarial
used to put lawyers’ names on a bulletin board and place
system of justice that fosters gamesmanship,
red stickers next to their names for losses and green stickprosecutors are more likely to bolster their
ers for wins. This visual reminder of “wins” and “losses”
case than uphold the rights of a defendant
undermined the prosecutors’ duty to seek a fair outcome.
they believe to be guilty.42
The Dallas County District Attorney’s Office in Texas is
In order to prevent the alarming numanother example of an office that took the “win at all costs”
ber
of Brady violations in the criminal jusmentality too far, becoming notorious for its high conviction
tice system, states should adopt open-file
rates and prosecutorial abuse of power. Both of these officdiscovery statutes. The Justice Project’s
es, which saw an alarming number of wrongful convictions,
publication, Expanded Discovery in Criminal
have since taken steps to change that culture and avoid
Cases: A Policy Review, details comprehenthe kinds of attitudes that foster prosecutorial misconduct.
sive recommendations for adopting effecWhile not every prosecutor’s office operates under this “win
tive open-file discovery. Open-file disat all costs” mentality, every prosecutor should understand
covery grants the defense access to all
the dangers of focusing on winning at the expense of a fair
unprivileged information that is known or
trial process. Overzealousness in the pursuit of convictions
should be known to the prosecution, law
can and has led to wrongful convictions.
enforcement agencies acting on behalf of

T


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the prosecution, or other agencies working for the
that they have exercised due diligence in obtaining
prosecution, such as forensics testing laboratories.
materials from police agencies and other agents actIn 1994, the American Bar Association (ABA)
ing for or on behalf of the prosecution. Discovery
issued new standards of criminal discovery. The ABA
certificates filed with the court create a record that
standards clearly define the types of evidence the prosthe parties have fulfilled discovery responsibilities.
ecution must share with the defense. They include
To ensure compliance with open-file discovwritten and oral statements made by the defendant,
ery, states should modify their codes of professional
codefendants, witness lists, police
conduct to reflect these additional
reports, tangible objects, expert
discovery obligations. Most states
In an adversarial system
opinions, and information (such
have adopted a variation of the
of justice that fosters
as eyewitness identifications) colABA’s Model Rules of Professional
gamesmanship, prosecutors Conduct Rule 3.8, which outlected by third-party investigaare more likely to bolster
tory agencies such as law enforcelines the “Special Duties of a
ment or forensics laboratories.
Prosecutor.” Among other obligatheir case than uphold the
The standards also call for the
tions, Rule 3.8 requires prosecutors
rights of a defendant they
disclosure of materials related to
to comply with Brady by making
believe to be guilty.
sentencing (meaning aggravating
“timely disclosure to the defense of
evidence that calls for a more
all evidence or information known
severe sentence, or mitigating evidence that calls for
to the prosecutor that tends to negate the guilt of the
a lesser sentence).43
accused or mitigates the defense.”46 However, when
States should adopt rules that closely mirror
a state adopts open-file discovery, the prosecutor
the ABA standards. Discovery should be mandatory
has a duty to disclose all unprivileged information
and automatic, not based on an appeal or motion.
on a given case to the defense, not just exculpatory
This denies the prosecution any chance to withevidence. Therefore, states adopting open-file discovhold evidence simply because there was no request.
ery should modify rules of Professional Conduct to
Additionally, an open-file discovery statute must outrequire disclosure to the defense not just of evidence
line clear timelines of when the state must disclose
that tends to negate guilt, but of all evidence and infortheir files—prosecutors frequently evade discovery
mation required to be disclosed by law. States should
obligations by providing witness information the day
also modify rules of Professional Conduct to require
of the trial or exculpatory evidence after a defendant
prosecutors to disclose evidence “after a reasonably
44
has made a plea bargain.
diligent inquiry” by the prosecutor for all evidence
States must ensure that discovery laws do not allow
relating to the case.47 This clause asserts the positive
prosecutors to avoid disclosing evidence that might not
duty of prosecutors to seek out and obtain the combe in the prosecutor’s personal file concerning the case,
plete files from all law enforcement and prosecutorial
such as forensic testing results, notes from law enforceagencies and turn those files over to the defense.
ment regarding the investigation or witness interviews,
Implementing a strong open-file discovery stator other evidence held by agencies that assist in the
ute with provisions that ensure full compliance and
investigation and prosecution of a crime. Prosecutors
full disclosure to the defense would greatly increase
are still obligated to provide information from other
the accuracy of criminal proceedings. Defendants
agencies, even if such information is not in their poswho are fully informed about the facts in the case are
session. In order to ensure the prosecution is able to
better able to make the decision whether to agree to
obtain all the evidence concerning a case, open-file
a plea bargain or pursue trial, and prosecutors are
discovery statutes should include a provision requiring
far less likely to have cases overturned due to Brady
all law enforcement agencies to make their files availviolations. This reform would likely save states time
able to prosecutors upon request.45
and resources by reducing the number of convicDiscovery rules should require proper documentions overturned on appeal, as well as the number of
tation that both parties have exchanged the necessary
wrongful convictions that result from prosecutorial
materials, as well as when, and in what manner, and
suppression of evidence.

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criminal justice system. Unfortunately, prosecutors
frequently rely on the testimony of cooperating witnesses, especially when their case lacks strong eyewitness or physical evidence.48
Due to the inherently unreliable nature of informant testimony, prosecutors are required under Brady
to disclose to the defense any evidence that diminishes
the credibility of a cooperating government witness,
or any leniency agreements between the prosecution
and such witnesses.49 However, prosecutors often
evade this obligation by making a “tacit deal with a
witness without actually verbalizing the agreement.”50
These measures prevent juries from accurately understanding the dangers of an informant witness. Absent
any proof the witness has received compensation, or
any record of the interviews or preparation the witness went through before taking the stand, such witnesses can appear credible and reliable to juries.
Current safeguards have failed to prevent false testimony by cooperating witnesses. According to a study

3) States should require that prosecutors
document all agreements with witnesses and
jailhouse informants, especially concerning
conferment of benefits of any kind.
Prosecutors often provide compensation to
“cooperating” witnesses who can offer testimony
favorable to their case. Benefits given to in-custody
informants who provide incriminating testimony
against a suspect, frequently one with whom they
share a jail cell, often take the form of a favorable plea
to a lesser charge or a reduction in sentence. Other
types of cooperating witnesses, such as accomplice
witnesses and out of-custody informants, can be compensated by the state either through immunity from
prosecution or reduced charges.
This system creates a powerful incentive for such
witnesses to fabricate testimony. For this reason, testimony by cooperating witnesses is widely regarded
as the least reliable testimony encountered in the

DUKE LACROSSE CASE: Prosecutor disbarred for misconduct

I

n June of 2007, North Carolina Durham County
District Attorney Michael Nifong was disbarred
for acts of misconduct related to the prosecution
of three Duke Lacrosse players for an alleged
rape that occurred in the spring of 2006. Nearly
six months after the alleged crime occurred and
DNA testing was conducted, and after repeated
requests by the defense attorneys to obtain all
evidence related to the case, defense attorneys
discovered Nifong had withheld several important
lab reports containing exculpatory information.
North Carolina’s open-file discovery statute played
a crucial role in the discovery of the reports, as
defense attorneys used the statute to compel
Nifong to disclose additional evidence about the
case. The reports indicated that DNA evidence
found on the victim did not match any of the
three defendants in the case. North Carolina’s
Attorney General eventually dropped all charges
against the lacrosse players and determined the
men to be innocent. Nifong’s discovery violations,
in conjunction with a series of inflammatory and
improper public statements about the case, led
to his eventual disbarment and removal from his

position as Durham County District Attorney.
This case represents a unique example of a
state bar taking swift action to hold a prosecutor accountable for misconduct. While the kind
of disciplinary response in this case is rare, the
prosecutorial misconduct is not. Suppression of
exculpatory evidence is the most widespread and
common form of prosecutorial misconduct. There
are dozens of cases in which misconduct identical
to Nifong’s have resulted in wrongful convictions
and imprisonment, yet no disciplinary action was
ever imposed. What became known as the “Duke
Lacrosse” case had a high-profile in the media,
inviting well-known lawyers to come to the defense
of the lacrosse players. The media attention in the
case was enough to spur the bar association to
hold Nifong accountable for his actions.
This case demonstrates the kind of disciplinary action that is appropriate when a prosecutor
abuses his power. Although this kind of response
by a state bar is extremely rare, the case reveals
the importance of open-file discovery laws, which
prompted the disclosure of important evidence
that might never have been discovered otherwise.


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conducted by the Center on Wrongful Convictions at
the Northwestern School of Law, falsified testimony
by government informant witnesses receiving benefits
in exchange for their testimony is the leading cause of
wrongful convictions in capital cases.51
The Justice Project’s publication, In-custody
Informant Testimony: A Policy Review contains comprehensive recommendations for improving the
standards of admissibility of in-custody informant
testimony. In order to prevent false testimony by
informant witnesses, states should adopt rules requiring mandatory, automatic pretrial disclosures of
information related to in-custody informant or cooperating witness testimony. States should require the
prosecution to disclose the following information:
statements made by the accused to the in-custody
informant; incentives that the witness received, will
receive, or may receive in exchange for testimony
(e.g., promises for sentence reductions, offers to lesser pleas, improved incarceration conditions for incustody witnesses, or anything else of value); whether
the witness has agreed to testify at prior criminal
trials and, if so, how many times he or she has done
so (or agreed to do so) and whether the witness has
received any previous benefits for testimony; the
complete criminal history of the witness; whether at
any time prior to trial the witness has recanted his or
her testimony or made statements inconsistent with
the testimony to be presented at trial; and anything
else bearing on the witness’ credibility.52
Implementation of this recommendation can best
be achieved through the use of centralized databanks in
each jurisdiction that keep track of informant witnesses
and the relevant information associated with them—
when they testified, incentives offered, their criminal
history, and the credibility of their prior testimony.
Such a databank would increase transparency within
prosecutors’ offices, and allow all prosecutors access
to crucial information regarding informant witnesses.
Without such a system, prosecutors might not be aware
of the damaging background information of a given
informant before utilizing their testimony in trial.
This recommendation helps ensure the accumulation of detailed records of all interactions between
the government and the informant witness prior
to trial. Such disclosures should occur prior to any
criminal trial or proceeding in which the prosecution
intends to call the informant to testify. Disclosure of

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this information ensures that defendants can conduct
meaningful cross-examination and that juries can
properly weigh the testimony offered by an informant witness.
4) States should require trial and appellate
judges to report all cases of prosecutorial
misconduct, including cases where the
misconduct is ruled to be harmless error.
Perhaps the greatest barrier preventing prosecutors from being reported and/or disciplined for misconduct are the courts. Trial and appellate judges are
not required to report the vast majority of prosecutorial
misconduct and in those jurisdictions where there is a
requirement to report, judges are failing to do so.53
When a prosecutor commits misconduct during
a trial, such as withholding exculpatory evidence or
allowing a witness to lie on the stand, defendants have
a right to appeal to have their convictions overturned.
Judicial review of claims of misconduct occurs during
these appeals.
The primary purpose of a judicial review is to
ensure that a defendant was afforded procedural
justice—that his case was not unfairly prejudiced or
affected by the misconduct, mistakes, or incompetence of the prosecutor. For a case to be overturned
upon appellate review, the court must determine that
the prosecutor’s misconduct was harmful and that the
outcome of the trial would have been different but for
the actions of the prosecutor.54
A second, but equally important, purpose for judicial review is to identify cases of misconduct to be
reported to state and local disciplinary authorities.
Serious acts of incompetence and misconduct should be
properly reported, investigated, and disciplined. Judicial
review of claims of misconduct is the most likely avenue
through which misconduct will be reported.55 However,
states with a mandatory reporting requirement, such
as California, limit the requirement to cases where the
judgment is modified or reversed.56 This excludes all
harmless error cases, meaning judges are not required
to report the vast majority of misconduct.57
This reporting scheme is problematic because a
harmless error determination often depends on the
strength of the overall evidence against the defendant,
not the egregiousness of the prosecutor’s misconduct.
As such, virtually identical prosecutorial misconduct
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can result in a conviction being upheld in one case,
and overturned in another.58 Whether a judge must
refer a prosecutor to the bar for discipline should
depend on the egregiousness of the misconduct, not
on whether the case resulted in reversal.
In addition to a lack of accountability for acts of
misconduct that do not prompt appellate reversal, judicial underreporting also permits a troubling trend of
allowing “repeat offenders” to slip through the cracks.
“Repeat offenders” are prosecutors whose misconduct
has prejudiced the outcome of more than one trial
or even led to the wrongful conviction of more than
one individual. A study conducted on behalf of the
California Commission on the Fair Administration of
Justice found 443 findings of prosecutorial misconduct
in the state of California over a ten year period. The
study uncovered thirty repeat offenders, including two
prosecutors who committed misconduct in three different trials.59 This phenomenon goes unnoticed when
judges do not report acts of misconduct.
Appellate judges should be required to report
findings of misconduct regardless of whether the
misconduct is deemed harmless error. Prosecutorial
accountability and the threat of being reported and/or
disciplined must exist in all criminal cases, regardless
of the facts against the accused.

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In all appellate cases in which claims of prosecutorial misconduct are raised and a judge determines
misconduct took place, that judge should be required
to report such misconduct to 1) the prosecutor’s
supervisor; 2) the state or local bar association; and
3) any other investigative or disciplinary authority.
These outside authorities will then determine if the
misconduct merits any further action—investigation,
a disciplinary hearing, and/or disciplinary action.
Such a reporting scheme would allow a disciplinary
body to compile a list of prosecutors who have committed misconduct. By initiating a mandatory reporting requirement, repeat offenders can also be identified and properly investigated and disciplined.
Ensuring compliance with reporting requirements
can be strengthened by modifying judicial canons
to make clear when judges are ethically obligated
to report findings of misconduct. The California
Commission on the Fair Administration of Justice
found that judicial underreporting in the state may
have been due to confusion over who has a duty to
report misconduct, and when.60 The Commission recommended modifying judicial canons to specify what
kinds of misconduct judges are required to report, and
when.61 In doing so, holding prosecutors accountable
becomes a part of a judge’s ethical obligations.

PROSECUTORIAL MISCONDUCT: Three Options for Appellate Review

C

• Misconduct, Harmful Error: The court rules
that an act of misconduct was “harmful error” and
fundamentally interrupted the fairness of the proceeding, preventing the jury from reaching an accurate verdict. Harmful error determinations result in a
modification or reversal of the original conviction.
Harmful error determinations are generally
based on the strength of the evidence against the
defendant, not the seriousness of the prosecutor’s
misconduct. As a result, identical misconduct can
often lead to a harmful error finding in one case, and
a harmless error finding in another. Over seventy-five
percent of prosecutorial misconduct findings result
in a harmless error determination.* If states only
require appellate courts to report cases of harmful
error, the vast majority of prosecutorial misconduct
will slip through the cracks and go unnoticed.

laims of prosecutorial misconduct are often
brought up on appeal when convicted individuals claim their trial was compromised as a
result of the misconduct. Appellate courts can
respond to these claims in three ways:
• No Misconduct: The court rules that the
prosecutor’s actions were not misconduct, or not
address the claim at all.
• Misconduct, Harmless Error: The court rules
that an act of misconduct did take place, but that
it was “harmless error.” In these cases, the court
finds that the misconduct would not have affected
the outcome of the trial. Because harmless error
findings do not result in reversal of the original
conviction, the courts rarely address misconduct in
these cases in any meaningful way, either through
an admonition in the written opinion or an official
report to a disciplinary authority.

*Based on data provided by the Center for Public Integrity

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Modifying judicial reporting requirements would
entail a drastic break from traditional norms of prosecutorial and judicial ethics and accountability. Many
judges are former prosecutors themselves, and they
work closely with prosecutors day-to-day, forming close
professional relationships that make them extremely
disinclined to report acts of misconduct.62 Oftentimes,
this desire to “protect their own,” a belief that misconduct was unintentional, or that it won’t occur again,
prevents judges from reporting even the most egregious
acts of misconduct to bar disciplinary boards.63 In fact,
judges often go out of their way to withhold the names
of offending prosecutors in published opinions.64
Given the sheer volume of misconduct that takes
place within the criminal justice system, and the role

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that such misconduct plays in the wrongful convictions of innocent individuals, judicial indifference
and reluctance to hold prosecutors accountable can
no longer be tolerated. States must require judges to
report all cases of misconduct to the proper investigative and disciplinary authorities.
5) States should establish a prosecutor
review board with the power to investigate
allegations of misconduct and impose
sanctions.
Currently, when judges report prosecutorial misconduct or abuses of power, they typically report such
acts to the state bar disciplinary authority, which is

MIsconduct by Federal Prosecutors: The Ted Stevens Case

O

actions in the Stevens’ case. Citing a “troubling
tendency” he has observed among prosecutors to
withhold evidence and abuse their prosecutorial
powers, Judge Sullivan stated, “[i]n twenty-five
years on the bench I have never seen anything
approaching the mishandling and misconduct that
I have seen in this case.” Judge Sullivan has suggested that the Department of Justice provide better training for its prosecutors including mandatory
ethics training.
The Stevens’ case demonstrates that a culture
has developed in which prosecutorial abuse of
power occurs—even in the most powerful and
well-funded office in the nation. This policy review
reveals that this culture, and the type of misconduct in the Stevens’ case, is prominent in jurisdictions all over the country.
Sullivan’s and Holder’s responses to prosecutorial misconduct are not common occurrences-prosecutors are rarely investigated or sanctioned
for abusing their power. States should follow the
example of the Attorney General in the Stevens
case by effectively responding to acts of prosecutorial misconduct that impede the fair administration of justice. This policy review details how jurisdictions can change the culture of leniency towards
prosecutors, and prevent the kind of misconduct
that took place in the Stevens’ case from happening in the future.

n April 1st, 2009, U.S. Attorney General Eric
Holder, citing prosecutorial misconduct as the
primary reason, dismissed an indictment against
former Senator Ted Stevens of Alaska. Holder
and the Justice Department determined that the
fairness of the trial against Senator Stevens had
been too damaged by government misconduct to
proceed further. This decision by the most powerful and influential prosecutor in the country—the
Attorney General—represents a critical first step in
addressing a nationwide problem of prosecutors
abusing their power in order to secure convictions.
The Stevens’ case was marred by prosecutorial misconduct from the outset. Judge Emmett
Sullivan repeatedly criticized prosecutors for failing to follow orders to provide evidence to the
defense. In addition, prosecutorial misconduct at
trial led Judge Sullivan to hold three of the prosecutors in contempt, and at one point instruct the
jury to disregard some evidence presented by the
prosecution. After replacing the original trial team,
new prosecutors discovered even more evidence
that should have been turned over to the defense,
prompting Holder to dismiss the indictment against
Stevens. Holder then ordered an internal review of
the offending prosecutors.
Judge Sullivan has also appointed a prosecutor to investigate whether or not the prosecutors
should face criminal contempt charges for their
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responsible for investigating and disciplining all attoraccordingly, she will likely seek discipline of the prosneys, both criminal and civil, in a given jurisdiction.
ecutor only insofar as it serves her client’s best interFor a variety of reasons discussed in detail below, the
est.68 A prosecutor, on the other hand, may not report
state bar disciplinary authorities are not well-suited to
a fellow prosecutor because to do so might damage
adequately hold prosecutors accountable, investigate all
professional relationships, friendships, or her career.
acts of misconduct, and discipline prosecutors. Thus, it
Private practitioners in civil practice are disciis recommended that a separate entity be established
plined on a much greater scale than prosecutors.69 Civil
with the sole responsibility of improving the quality of
practitioners are even sanctioned more frequently for
representation on the part of prosecutors.
acts of misconduct more commonly attributed to prosThe unique role of prosecutors in the system makes
ecutors, such as discovery violations.70 This disparity
the state bar an unsuitable entity to
is in large part due to underreportaddress prosecutorial misconduct.65
ing, but there is strong evidence that
All actors within the
State bar disciplinary committees
even when misconduct is reported or
criminal justice system
are specifically designed to address
brought to the attention of the state
misconduct by private practitioners
bar, enforcement is soft and discipline
have a continuing
of law with commitments to indilax. The Center for Public Integrity’s
obligation to report
vidual clients, not publicly elected
study could only identify forty-four
acts of misconduct by
officials whose duties and obligations
cases of attorney discipline by the
are to the general public. A search of
bar out of the 2,012 cases reversed
prosecutors, defense
any state bar disciplinary or grievdue to misconduct since 1970. Of the
attorneys, or judges.
ance counsel website, for example,
forty-four cases, seven resulted in a
gives instructions on how individual
dismissal of the complaint or no puncitizens can file formal complaints against their attorishment, twenty in a reprimand or censure, twelve in a
neys—but none mention any process by which a comsuspended license, two in disbarment, twenty-four in a
plaint can be made against a prosecutor.
fine, and three in a remand for further proceedings.71
The complaint intake mechanism of state bar
There are a number of possible reasons for this
disciplinary authorities is not well-suited for receivleniency towards prosecutors on behalf of the state bar.
ing or identifying allegations of misconduct against
Bar disciplinary authorities derive their power from the
prosecutors.66 Individual citizens are able to make
judiciary, and might be reluctant to impose disciplinary
formal complaints against private practitioners that
sanctions on elected officials who operate under the
are then investigated by the state bar, and appropriate
executive branch, for fear of imposing on another
action is taken if necessary. However, prosecutors do
branch of government.72 Additionally, attorneys that
not represent individual clients who are able to make
serve on bar disciplinary committees are typically
complaints, and the actors that are in a position to
private practitioners in civil practice that might not
report a prosecutor—judges, defense attorneys, and
be well-versed in criminal law and the broad responfellow prosecutors—are failing to do so.
sibilities of prosecutors in criminal cases.73 However,
All actors within the criminal justice system have a
leniency and lack of action by the state bar presents
continuing obligation to report acts of misconduct by
an enormous risk to public safety, given the role prosprosecutors, defense attorneys, or judges. However,
ecutorial misconduct plays in delaying justice and the
reports of this nature, especially in regards to miswrongful convictions of innocent individuals.
conduct by prosecutors, are extremely rare. Appellate
A more appropriate means of investigating and
court judges by and large fail to report findings of
disciplining prosecutors is through the establishment of
misconduct to the proper authorities, and oftentimes
independent prosecutor review boards74 with the power
actively withhold the names of offending prosecutors
to investigate allegations of prosecutorial misconduct
from their written decisions.67 Defense attorneys and
and impose sanctions.75 The responsibilities of prosprosecutors also underreport prosecutorial misconecutors differ greatly from civil practitioners, requiring
duct. A defense attorney’s controlling interest is in
oversight and accountability distinct from the oversight
securing the best possible outcome for her client;
of civil practitioners. In the same way states regulate
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judges through judicial conduct orgaand report acts of prosecutorial misnizations, states should regulate the
conduct to the review board. However,
The board should
conduct of prosecutors through indeeven in the absence of formal comhave the subpoena
pendent review boards. These review
plaints or reports, the review board can
power necessary to
boards could be modeled on judicial
be alerted to claims of misconduct each
conduct organizations already estabinvestigate individual time a written opinion by an appellate
76
lished in each jurisdiction.
court contains a finding of misconduct.
prosecutors and
The review board should be comEach appellate finding of misconduct
prosecutors’ offices.
prised of individuals within the crimishould trigger a preliminary investiganal justice system who present a broad
tion by the review board.77
range of interests and an understanding of the unique
The review board should then determine which
responsibilities of prosecutors, including judges, prosallegations warrant a formal investigation. To this end,
ecutors, and criminal defense attorneys.
the review board should have the subpoena power
The review board should establish a complaintnecessary to investigate individual prosecutors and
intake mechanism aimed at identifying claims of prosprosecutors’ offices. While the review board would
ecutorial misconduct specifically. Defense attorneys,
not launch an adversarial, trial-like proceeding against
prosecutors, judges, and individual citizens should be
a prosecutor, prosecutors should have the ability to
able to make formal complaints to the prosecutor review
appeal any decisions made by the review board to
board, and judges should be required to report all findthe Supreme Court.78 Sanctions should include, but
ings of misconduct, regardless of whether it is deemed
not be limited to, admonition, compulsory education
harmful or harmless error. States should encourage all
or training, fine, or suspension for any prosecutor
actors in the system to uphold their ethical obligations
it finds to have violated any provisions of the states’

How Psychological Biases can contribute to Misconduct

C

ognitive science research suggests that
unavoidable psychological biases often negatively affect decision-making. For prosecutors,
these biases can lead to serious judgment errors
during an investigation and trial of a suspect. For
example, when seeking to confirm the accuracy of
a theory or hypothesis, a phenomenon known as
“confirmation bias” often leads people to disproportionately look for and favor information that
confirms their own theory. Another psychological
phenomenon known as “belief perseverance”
results in adherence to a certain theory or hypothesis, even when confronted with overwhelming
evidence that that theory is incorrect.
When prosecutors form a theory of guilt for
a defendant, confirmation bias and belief perseverance can threaten their ability to adjust their
thinking, even when confronted with evidence
strongly challenging the accuracy of their theory.
Psychological biases can lead prosecutors to
favor evidence which confirms their theory, while
ignoring or discrediting contradictory informa-

tion. This phenomenon often leads to a “tunnel vision” mentality, where prosecutors and
law enforcement focus all of their attention and
efforts on building a case against a single suspect, often overlooking weaknesses in their case
or leads pointing to other suspects. Tunnel vision
is particularly dangerous when the prosecution’s
theory is wrong, and the defendant is in fact innocent. Confirmation bias and belief perseverance
are perhaps most visible in the alarming number
of cases in which an individual is exonerated by
DNA evidence, and the prosecutors continue with
their theory that the person must have somehow
been involved in the crime, despite overwhelming evidence of innocence.
Prosecutors can best be made aware of the dangers of tunnel vision, and how to avoid it, through
proper training and education programs within
prosecutors’ offices. Awareness of the sources of
error can help prosecutors be vigilant in avoiding
those errors and the tunnel vision mentality that
often leads to wrongful convictions.
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professional codes. If the review board determines a
and education. All prosecutors’ offices should establish
prosecutor’s misconduct was serious enough to wartraining and education programs and require new
rant disbarment, it should recommend this sanction to
prosecutors to successfully complete such training
the state bar. Prosecutor review boards can only be an
prior to playing an active role in cases. Acting prosecueffective deterrent of misconduct if they are granted
tors should also participate in continuing education
the appropriate power to investigate and sanction
programs. Continuing education is important because,
prosecutors that violate their professional obligations.
over time, the lessons learned in initial trainings are
The prosecutor review board should be unlike bar
forgotten as habit, politics, and institutional pressures
disciplinary boards in that it would conduct periodic,
exert their influence. Training and education programs
random, and unannounced reviews of closed cases.79 Its
should focus on ethics and the unique ethical obligaaudits would help deter misconduct as well as gauge its
tions prosecutors have as officers of justice.
prevalence and suggest how it might
Beyond ethics, training should
best be addressed. Additionally,
also focus on a prosecutor’s role in
The duty to maintain
the review board should serve as
minimizing the errors that lead to
an information-providing entity by
wrongful conviction. In addition to
“highly developed
making its operations transparent,
understanding how their actions can
professional skills” is
and its findings publicly available.
lead to wrongful convictions—i.e.
uniquely important for tunnel vision, suppression of eviThis information can help restore
accountability to the popular elecdence, trial misconduct, or knowprosecutors, who hold
tion of prosecutors by providing the
ingly using false testimony—prosthe lives of defendants
public with the information needed
ecutors must understand what steps
and the safety of the
to make informed judgments about
they can take to improve the qualpublic
in
their
hands.
whether prosecutors are upholding
ity and reliability of evidence, and
their duties.
avoid the use of weak or unreliable
Implementation of this recomevidence that often leads to wrongmendation would impose an additional funding comful convictions. This includes education on how to
mitment for states. While states need not compensate
recognize, prevent, or avoid using faulty eyewitness
members of the board for their service, there would be
identifications, unreliable forensic evidence and testiactual expenses the state must cover in order for the
mony, and false confessions.
board to meet and perform its duties. Additionally, the
The American Bar Association recommends
use of expert witnesses or investigators might be necthat, “training programs should be established within
essary as part of an investigation by the review board,
the prosecutor’s office for new personnel and for
which would entail additional expenses. However, the
continuing education of the staff. Continuing educabenefits of prosecutorial accountability would far outtion programs for prosecutors should be substantially
weigh the costs in the long run. States shoulder a huge
expanded and public funds should be provided to
financial burden every time prosecutorial misconduct
enable prosecutors to attend such programs.”80 This
leads to a re-trial, reversal, or wrongful conviction.
recommendation is rooted in the recognition that
Establishing an independent entity responsible for
the “function of public prosecution requires highly
maintaining high levels of professionalism among
developed professional skills.”81
prosecutors would prevent the acts of misconduct that
Just as legal practitioners in private practice paroften delay justice or lead to wrongful convictions.
ticipate in continuing legal education to maintain a
high level of skill in their craft, prosecutors should
6) States should require that prosecutors
take actions to maintain a high level of skill and
participate in training and continuing
professionalism in performing their duties. The duty
education programs.
to maintain “highly developed professional skills” is
uniquely important for prosecutors, who hold the
A key reform aimed at preventing prosecutorial
lives of defendants and the safety of the public in
misconduct and abuses of power is improved training
their hands.
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LEGAL LANDSCAPE

T

raditionally, legal remedies for prosecutorial mistrial. It places the goal of winning a case above all else,
conduct in the United States have been weak and
including upholding the Constitution. The rule fosters
ineffectual. By and large, the U.S. Supreme Court
prosecutorial gamesmanship by allowing prosecutors
(“the Court”) has failed to effecwho have a strong case to deny crimitively articulate standards to guide
nal defendants a fair trial. As long as
Overall, the courts
prosecutorial discretion.82 Absent
the judgment will not be reversed,
have taken a remarkably and the prosecutor not reported for
any standards on what is considered
an abuse of prosecutorial power, it
misconduct, prosecutors have no
laissez-faire attitude
is extremely difficult for a defenincentive to refrain from unethical or
towards prosecutorial
dant whose trial was compromised
unconstitutional behavior in order to
misconduct, leaving it
by prosecutorial misconduct to
secure a conviction.
obtain relief.
There is no doubt that the harmto the states to regulate
The Court has provided some
less error rule has contributed to
prosecutor behavior.
guidance as outlined in Brady v.
prosecutorial tendencies to bend the
rules. Justice Stevens recognized this
Maryland. In Brady, the Court ruled
that the prosecution has a constitutional obligation,
danger in his concurring opinion in Rose v. Clark:
under the due process clause, to disclose exculpatory
evidence to the defense.83 The Court ruled that the
An automatic application of harmless-error review
right to a new trial exists if the suppression is “matein case after case, and for error after error, can only
rial either to guilt or to punishment, irrespective of
encourage prosecutors to subordinate the interest in
84
the good faith or bad faith of the prosecution.”
respecting the Constitution to the ever-present and
Even if the Court were to articulate more comalways powerful interest in obtaining a conviction in
prehensive standards about what is considered an
a particular case.89
abuse of prosecutorial power, the development of the
harmless error rule makes enforcement of any stanBeyond the harmless error rule, the Court has
dards nearly impossible. In United States v. Bagley, the
granted federal prosecutors civil immunity from
Court ruled that appellate courts can ignore Brady
lawsuits.90 Most states have followed suit, and have
violations unless “there is a reasonable probability
laws protecting prosecutors from civil lawsuits.91
that, had the evidence been disclosed to the defense,
The Court’s reasoning behind granting prosecutors
the results of the proceeding would have been difimmunity was that bar associations and prosecutors’
ferent.”85 Using the materiality of the evidence, as
superiors would effectively respond to misconduct.
opposed to the egregiousness of the prosecutor’s misOverall, the courts have taken a remarkably laissezconduct, as the standard for granting appellate relief
faire attitude towards prosecutorial misconduct, leavextends beyond Brady violations. In Rose v. Clark, the
ing it to the states to regulate prosecutor behavior.
Court ruled that, “Where a reviewing court can find
The states have also failed to effectively regulate the
that the record developed at trial establishes guilt
behavior of prosecutors.
beyond a reasonable doubt, the interest in fairness has
The consequences of the Court’s lenient stance
been satisfied and the judgment should be affirmed.”86
on prosecutorial misconduct cannot be overstated.
It termed misconduct that had no perceptible change
One need only point to the frequency of prosecutoin the trial’s outcome a “harmless error.” While there
rial misconduct within the system and the role it
are some serious constitutional violations that will
plays in wrongful convictions. The lenient approach
always warrant appellate reversal,87 appellate courts
to prosecutorial misconduct by the courts, along
are required to apply the harmless error rule to the
with the Supreme Court’s failure to articulate clear
majority of constitutional errors.
standards on the prosecutor’s obligations in the
The harmless error rule “has been a jurisprudencriminal justice system heightens the need for states
tial fiasco”88 that often denies criminal defendants a fair
to enact the procedural reforms outlined above.
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BENEFITS AND COSTS
Benefits of Reform
Costs of Reform
The existence of pervasive prosecutorial misInstituting open-file discovery, requiring pre-trial
conduct in the criminal justice system places the
disclosures of informant agreements, and mandating
fairness and reliability of every criminal trial at risk.
judicial reporting of misconduct are all procedural
The reforms highlighted in this policy review would
reforms, which would result in very minimal cost
prevent and address both the intentional and uninto the state. Establishing manuals for prosecutors’
tentional prosecutorial errors that threaten a fair
offices would require the additional work of drafttrial process. First, these reforms would deter prosing the manuals and disseminating them to offices,
ecutorial misconduct. Office
but again the costs to create, distribute, and
manuals would give prosecuimplement manuals are minimal, particuThe reforms laid out
tors better guidance on maklarly in comparison to the added benefits in
in this policy review
ing decisions at critical stages
performance and accountability that enforcof a prosecution and also
ing those manuals would bring.
can increase the
serve as a guide for making
Improving training with an eye towards
quality of oversight
ethical decisions throughout
avoiding wrongful convictions would also
and accountability of
the prosecution. Mandatory
entail minimal cost in comparison to the
reporting requirements for
costs of wrongful convictions. Prosecutors
prosecutors so that
judges would help to hold
are uniquely situated to ensure only reliwhen misconduct
prosecutors more accountable and credible evidence makes it into the
does occur, it is
able for their abuses of power
courtroom, thus avoiding critical errors in
and acts of misconduct at the
handled appropriately. criminal trials. Investing in the proper traintrial level to secure a coning of prosecutors, and equipping them with
viction. Open-file discovery requirements would
the knowledge they need to avoid using unreliable
eliminate the ample opportunities for prosecutors
evidence, will save states the exorbitant costs associto withhold material evidence from a defendant.
ated with wrongful convictions.
Additionally, the reforms laid out in this policy
The creation of a prosecutorial review board is a
review can increase the quality of oversight and
reform that could be costly. While states can recruit
accountability of prosecutors so that when misconmembers to perform this role without compensation,
duct does occur, it is handled appropriately. The
it is likely to be more effective if compensation is
prosecutorial review boards could provide a venue
provided. In addition, states would have to fund the
for holding prosecutors more accountable and creatboard’s investigations, administrative costs, and other
ing an environment that ensures integrity, credibility,
procedural costs. However, the benefits of prosecutoand accuracy.
rial accountability would far outweigh the costs in
There would also be substantial financial benefits
the long run. States shoulder a huge financial burto states implementing these reforms. Increasing the
den every time prosecutorial misconduct leads to a
accuracy and reliability of criminal trials would reduce
wrongful conviction. For example, in 1999 a prosecuthe number of wrongful convictions. Additionally,
tor under former District Attorney Harry Connick in
every time a prosecutor compromises the fairness of a
New Orleans admitted to withholding evidence that
trial, that case is then launched into a lengthy appeals
led to the wrongful conviction of John Thompson
process based on claims of prosecutorial misconduct.
and his subsequent fourteen year imprisonment at
In addition to the costs of these appeals, states waste
Angola State Penitentiary in Louisiana. A court of
more resources when a conviction is overturned and
appeals later awarded Johnson a 15 million dollar
sent back for a new trial. These reforms help ensure
civil settlement.92 Cases like Johnson’s show that if
a more accurate trial process that can help states “get
states don’t invest in ensuring an accurate criminal
it right the first time” and save the costs of exhaustive
trial process, taxpayers will be forced to pay the costs
appeals and retrials.
in the future.
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PROFILES OF INJUSTICE

S

ince 1970, over two thousand convictions in the
United States have been modified or reversed due
to prosecutorial misconduct.93 In over thirty of these
reversals, prosecutorial misconduct led directly to the
wrongful convictions of innocent people.94 These profiles of injustice highlight the very real possibility that
an unintentional error or deliberate abuse of power by
a prosecutor can cost an innocent person his freedom.

of guilt and future dangerousness from Willis’s lack of
apparent feeling or emotion.”100
Prosecutors capitalized upon Willis’ appearance
and used inflammatory language to damage his character in front of the jury. For example, they referred
to him as a “pit bull,” an “animal,” and a “rat,” and
remarked upon his “dead pan, insensitive, expressionless face.”101 In 2004, the Court recognized this,
writing that, “It is clear from the state trial court’s
findings of fact that Willis was actually prejudiced,
both because of the effect of the medication on
Willis’s demeanor and because the prosecution used
Willis’s demeanor as evidence of guilt and future
dangerousness.”102
The prosecution also failed to disclose a psychiatric evaluation performed before the trial, which found
Willis not to be a future danger. In Texas, a defendant
must be considered a future danger to society in order
to be eligible for the death penalty. The prosecutor’s
suppression of this key expert opinion made it possible for a jury to inflict a sentence of death, despite
evidence that should have excluded Willis from
receiving such a punishment.
Willis was eventually pardoned in 2004 when a
regional judge ordered prosecutors to either release
Willis or re-try his case.103 A subsequent investigation
cast even more doubt on Willis’ guilt, when two arson
experts reported that the cause of the fire could not
be determined. One investigator called some of the
scientific testimony at Willis’ trial “absurd” and said
the initial suspicions of arson rested on a flawed and
unscientific understanding of the physics of fire.104
For Ernest Willis, the costs of prosecutorial misconduct were nearly fatal. In addition to spending seventeen years wrongfully imprisoned, Willis was nearly
executed for a crime he did not commit. His case
reveals the extent to which prosecutorial errors can
prevent accuracy in the criminal justice system. The
state of Texas likely could prevent such injustices by
creating strong safeguards against prosecutorial abuses
of power, such as mandatory reporting requirements
and prosecutor review boards. A lack of prosecutorial accountability cost the state of Texas $430,000 in
compensation for his wrongful conviction, not to mention the additional costs of his lengthy appeals. It cost
Ernest Willis nearly two decades of his life.

Ernest Willis	

Ernest Willis spent seventeen years on death row in
Texas largely as a result of prosecutorial misconduct.
In 2004, the Supreme Court found that both his conviction and sentence were obtained in violation of
his constitutional rights. More specifically, the state
inappropriately administered antipsychotic drugs
to Willis and suppressed evidence favorable to the
defense.95 Willis was eventually pardoned and exonerated and received $430,000 compensation.96

O

n June, 11, 1986 a fire destroyed a home in Iraan,
Texas. Ernest Willis was sleeping in the house at
the time of the fire. He and his brother made it safely
out of the house, but two friends, Elizabeth Belue and
Gail Allison, were unable to escape and perished in
the fire. Four months after the fire, Ernest Willis was
arrested and charged with arson resulting in murder.97
There was no clear evidence of arson in Willis’ case
and police failed to discover fingerprints or flammable
liquids in the house or on Willis’ clothes. Prosecutors
built a case against Willis using weak, circumstantial
forensic evidence.98 In 1987, a jury found Willis guilty
of capital murder and sentenced him to death.
Willis was wrongfully convicted largely as a result
of prosecutorial misconduct and an unfair trial. While
awaiting trial, Willis was administered an unnecessary
and excessive (over twice the recommended dosage)
amount of antipsychotic medications by the State
authorities.99 It is unclear why he was administered
these drugs as he had no history of psychosis or mental illness. Side effects of the drugs were flat facial
expression, drowsiness, and confusion. This severely
affected Willis’ behavior during hearings. An appellate judge scolded the prosecution for “seiz[ing] upon
Willis’ demeanor… asking the jury to draw inferences
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Milton Lantigua

ing the conduct of the prosecutors as “especially egregious.”108 The court ruled that the failure of the prosecution to reveal inconsistencies by a crucial eyewitness
fundamentally affected the fairness of the trial and
the accuracy of the conviction. Additionally, the court
cited misconduct by trial prosecutor Sophia Yozawitz
during her closing argument, finding that “the prosecutor’s summation cannot be remotely regarded as fair
comment on [Rosario’s] testimony.”109
During a subsequent civil lawsuit, Lantigua’s
attorney suggested that the misconduct committed
month after Felix Ayala’s murder, a young
by prosecutors was due to a lack of oversight and
woman told police she had witnessed the crime
training within the prosecutor’s office.110 Regardless
from her bedroom window across the street. The
of whether the errors leading to Lantigua’s wrongful
police drove the woman around
conviction were intentional, they
the neighborhood, and from the
were errors that could have been
The crucial information
car, she identified Milton Lantigua
prevented had the State of New
regarding the reliability
as the assailant. Lantigua was subYork required certain procedural
sequently charged and imprisoned.
of the witness could have safeguards to prevent abuses of
The woman, Frances Rosario,
prosecutorial power. The crucial
been revealed had New
became the chief witness against
information regarding the reliabilYork adopted open-file
him at trial. Apart from the testiity of the witness could have been
mony given by Rosario, there was
revealed had New York adopted
discovery policies.
no evidence to connect Lantigua
open-file discovery policies, and
to the victim’s death.106 Rosario’s
the prosecutor’s closing argument
testimony was described by the court as “confusmay not have deliberately misrepresented the facts
ing, inarticulate, vague, frequently inaudible, and
had she been properly trained to appropriately use
extremely hesitant.”107
her discretion.
The first trial resulted in a hung jury. After the
A lack of prosecutorial accountability in Lantigua’s
trial, prosecutors offered Lantigua a “deal”: plead
case had huge financial ramifications. After his exonguilty to a lesser charge of weapons possession and
eration, the State of New York paid Lantigua a
be sentenced only to time served. Lantigua refused
$300,000 settlement in compensation for his wrongthe offer, maintaining his innocence of any crime.
ful conviction, and in February 2005 New York City
In the retrial, despite Rosario’s unreliable testimony,
agreed to pay Lantigua one million dollars to settle
Lantigua was convicted of second degree murder and
his civil rights lawsuit against the city.111 However, the
sentenced to twenty years to life in prison.
financial burden imposed on the state does not comYears later while Lantigua sat in prison, his
pare to the ordeal of spending five years in prison as
new defense attorney Joel Cohen obtained evidence
an innocent man. After the settlement Lantigua told
that seriously questioned the credibility of Rosario’s
The New York Times, “No amount of money in the
testimony. Cohen discovered an affidavit in which
world makes up for everything I went through. I hope
Rosario recanted her testimony that Lantigua had
that with the end of this case, these things don’t keep
been involved in the shooting. Furthermore, Cohen
happening to other people, that no one goes through
discovered that Rosario had told the prosecution she
what I went through.” The State of New York did not
had been with a man at the time of the shooting, yet
take any steps to prevent prosecutorial misconduct
the prosecution allowed her to testify falsely at trial
in the aftermath of Lantigua’s case—no prosecutor
that she was alone when she witnessed the crime.
was disciplined by a superior or by state disciplinary
In 1996 the Appellate Division of the New York
authorities for misconduct that cost an innocent man
Supreme Court threw out Lantigua’s conviction, citfive years of his life.
Despite his repeated protests of innocence and a
lack of substantial evidence, Milton Lantigua was
convicted for the 1990 murder of a man named Felix
Ayala. Because the prosecution allowed a highly unreliable witness to perjure herself on the stand, Lantigua
served five years in prison wrongfully convicted before
an appeals court reversed his conviction. In 2005 the
City of New York agreed to compensate Lantigua one
million dollars to settle a civil rights lawsuit.105

A

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Roy Brown

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finally convinced a judge to allow DNA testing on the
saliva from the bite marks found at the crime scene.
The tests showed that Brown’s DNA was not on
the shirt. Further testing revealed that it was indeed
Bench’s DNA on the shirt found at the crime scene.
Brown was released from prison in January of 2007
and exonerated two months later.115
The prosecutors in Brown’s case also failed to
disclose the opinion of an expert that disagreed with
the bite-mark analysis presented during the trial. The
expert, Dr. Paul Levine, met with the prosecutor prior
to trial and expressed his belief that at least one mark
could not have come from Brown. Because prosecutors never revealed this information to the defense,
Levine’s opinion never made it into the courtroom.
Brown’s case demonstrates the extent to which
Brady violations can derail a fair trial process and
emphasizes the importance of prosecutorial compliance with discovery requirements. With stronger
safeguards to protect against prosecutorial misconduct,
such as open-file discovery policies, it is likely that
Brown would not have lost fifteen years of his life.

Roy Brown spent fifteen years in prison for a murder
he did not commit. Several preventable prosecutorial errors led directly to Brown’s wrongful conviction.
Prosecutors in the case did not adequately investigate other possible leads—including one pointing
to the real killer. In addition, the prosecution failed to
disclose to the defense a crucial expert opinion that
cast doubt on the state’s entire case. 112

I

n the spring of 1991, Roy Brown found himself
the primary suspect for the murder of Sabina
Kulakowski, a crime he did not commit. Brown
would spend fifteen years in prison despite his innocence. If New York had enacted safeguards to prevent
prosecutorial misconduct, exculpatory information
likely would have been introduced at trial and Brown
would never have been wrongfully convicted.
Brown’s trial for the murder came in January of
1996. The key piece of evidence against Brown was
the testimony of a local dentist who claimed that the
bite marks found on the victim were consistent with
Brown’s teeth and the testimony of an in-custody
informant who claimed that Brown confessed to him.
Brown was convicted of second-degree murder and
sentenced to twenty-five years in prison. Over the
next eleven years, he filed eight appeals, but was never
granted a new trial.113
Brown turned his cell into a miniature law office,
pouring over legal documents and filing appeals on his
own. In 2003, Brown filed a Freedom of Information
request with the Cayuga County Sheriff’s Office asking for a list of individuals who had given statements
to the police and prosecutors. The office sent Brown
a list with seventeen names he had never seen before.
He later discovered that all seventeen of these people
had given statements to police. A close reading of
these statements led Brown to formulate a theory
of the crime: the real killer of the victim was Barry
Bench, the brother of her ex-boyfriend. The evidence
seemed clear to Brown, but his lawyers had never been
provided with these affidavits.114
Convinced of his theory that Barry Bench was the
true perpetrator of the crime, Brown wrote a letter to
Bench from prison. In the letter, he accused Bench of
committing the crimes and promised that the truth
would eventually be revealed. Five days after Brown
sent the letter, Bench committed suicide. Attorneys

Tim Masters

Tim Masters spent nearly a decade in prison for a
murder he did not commit. Despite no physical evidence connecting Masters to the crime, tunnel vision
drove police and prosecutors to focus on Masters as a
suspect for nearly ten years after the crime was committed. Masters later discovered that the prosecution
withheld key pieces of evidence pointing to his innocence. He was exonerated by DNA testing in 2008.

T

imothy Masters was fifteen years old in February,
1987, when thirty-seven year old Peggy Hettrick
was murdered in Fort Collins, Colorado. On the day
Hettrick’s body was found near Masters’ home, police
found Masters at school and took him to the police
department for questioning. Police searched Masters’
home and discovered drawings he created depicting
scenes of violence against women. Based on these
drawings, police zeroed in on Masters as a suspect.
No physical evidence was ever found linking Masters
to the crime.
For the next ten years, throughout Masters’ life as
a teenager and into his early adulthood, police persisted
in trying to build a case against him. Finally, in 1998,
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police retained Dr. Reid Meloy, a forensic psychologist,
to review the evidence in the case and the drawings
created by Masters and prepare a report implicating
Masters in the murder. Based almost entirely on the
conclusions of Dr. Meloy, police arrested Tim Masters
for the murder of Peggy Hettrick in 1999, over ten
years after the crime had taken place. He was convicted
as an adult and sentenced to life in prison.116
Master lost his appeals in 1999 and again in 2002,
but never stopped maintaining his innocence. In
January of 2008, special prosecutors were assigned
to Masters’ case and conducted a series of hearings
that revealed serious errors by police and prosecutors.
A number of substantial, important pieces of evidence were discovered that were never disclosed to
Masters’ attorneys in 1999 as well as evidence gathered through surveillance of Masters and his father in
1988. Subsequent DNA testing on evidence recovered
from the victim excluded Masters as the perpetrator and instead implicated one of Hettrick’s previous
boyfriends. Based on the newly discovered evidence
and the DNA testing, special prosecutors concluded
he had been denied a fair trial, and recommended his
immediate release. Masters was freed on January 22,
2008, after spending nearly a decade in prison, and
over half his life trying to prove his innocence.117

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The two lead prosecutors in Masters’ case, who
went on to become judges, were investigated by
Colorado’s Office of Attorney Regulation (OAR) for
their failure to disclose material evidence in Masters’
case. OAR’s investigation concluded that the prosecutors “directly impaired the proper operation of the
criminal justice system,” and both prosecutors were
publically censured by the Colorado Supreme Court
for their actions.118 In an interview, one of the prosecutors admitted that the discovery violations were
largely due to their failure to diligently collect all
relevant evidence from police and investigators, stating, “I didn’t take the responsibility of ensuring that
we had everything that we should have. I trusted that
that was being done, and if I could go back in time
and make different decisions, I certainly would.”119
The discovery violations leading to Masters’
flawed trial could have been prevented with openfile discovery statutes and clear ethical guidelines
requiring prosecutors to actively gather all relevant
evidence in a criminal case. The costs of a lack of
accountability in Masters’ case are staggering—ten
years of incarceration for an innocent man, and
hundreds of thousands of dollars in legal fees for the
public officials who are being sued in Masters’ subsequent civil case.120

SNAPSHOTS OF SUCCESS

C

urrently, no state has a system of prosecutorial accountability that effectively prevents
and deters prosecutorial misconduct. However, a
number of states and individual jurisdictions have
recognized the problem of prosecutorial abuse of
power and have taken steps to improve prosecutorial
accountability.

“repeat offender” in the San Jose Mercury News series,
Benjamin Field, was subsequently brought before the
State Bar of California for acts of misconduct in multiple cases spanning nearly a decade. In a highly contested and controversial opinion issued in February
2009, the State Bar recommended Field be suspended
for four years from practice. 122
While Field’s misconduct and repeated failures
to disclose exculpatory evidence were not unique
occurrences, the decision of the State Bar to bring
Field before a disciplinary court and sanction him
appropriately was certainly a unique and almost
unprecedented action. The State Bar’s response to
prosecutorial misconduct in Field’s case reflects a
trend in California in which “bar prosecutors have
generally stepped up their disciplinary probes of
state prosecutors.”123 Despite vigorous opposition

California
California has taken a number of unprecedented
steps towards addressing prosecutorial misconduct.
In 2003, the San Jose Mercury News launched an
ambitious investigative series examining the nature
and extent of professional misconduct. The investigative series uncovered nearly one-hundred findings of
prosecutorial misconduct in the 6th District Court
of Appeals.121 One of the prosecutors identified as a
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by fellow prosecutors to disciplinary action in Field’s
case, the State Bar’s proceedings, as well as any other
proceedings brought against prosecutors who deliberately abuse their discretion, are welcomed developments and absolutely crucial in ensuring prosecutorial accountability.
In 2008, the California Commission on the Fair
Administration of Justice conducted a series of hearings specifically examining the issue of prosecutorial misconduct and accountability. The Commission
identified systemic weaknesses within the criminal
justice system that contribute to a lack of prosecutorial accountability, including judicial underreporting,
as well problems with the “harmless error” rule.
The Commission recommended modifying judicial reporting requirements and judicial canons to
strengthen prosecutorial accountability in the state.
Additionally, the San Francisco District Attorney’s
Office has made a policy decision to operate under
the charging standards established by the California
District Attorney’s Association in 1974 and updated
annually in its Uniform Crime Charging Manual.124
The developments in California reflect an awareness by key actors within the criminal justice system
that widespread prosecutorial misconduct and a lack
of prosecutorial accountability are problems that
must be addressed.

The changes made by Watkins to the Dallas
District Attorney’s office are a critical step in changing the culture of prosecutors’ offices around the
nation. The wrongful convictions that occurred in
Dallas County reveal the extent to which an overzealous prosecutor’s office can hinder the fair and
accurate administration of justice. It is imperative that
more offices implement the kinds of reforms enacted
by Craig Watkins. Prosecutorial accountability cannot be achieved without the efforts of prosecutors’
offices themselves. Craig Watkins represents a model
district attorney that has truly taken seriously his
responsibility as an “administer of justice.”

TEXAS
In 2006, former defense attorney Craig Watkins was
elected to be Dallas County’s next District Attorney.
Prior to Watkins’ election, Dallas County had become
known for its damaging “convict at all costs” mentality under the supervision of District Attorney Henry
Wade. After a record twelve wrongful convictions
in Dallas County were exposed by DNA testing,
Watkins was elected to be District Attorney based
on a reform platform. Upon election, Watkins took
steps to change the culture of the district attorney’s
office, stating “[w]e aren’t here to rack up convictions.
We’re here to seek justice.” 125 Watkins established
the “Conviction Integrity Unit” to look for other
possible cases of wrongful conviction in the office,
as well as “what policies and procedures to put in
place to keep [wrongful convictions] from happening
in the future.” The Unit was also charged with “the
responsibility of training the younger lawyers…on
the ethical side of a prosecutor’s job.” 126

North Carolina
Prosecutorial misconduct that led to the wrongful
conviction, and death sentence of Alan Gell for the
murder of Allen Jenkins, prompted the state of North
Carolina to enact a number of safeguards designed
to prevent prosecutorial misconduct. Gell spent nine
years in prison, over half of which on death row, for a
murder that was committed on a day when Gell was in
jail, and could not have been present. The testimony
of two young girls who confessed to being involved in
the crime was the only evidence the state relied upon
to secure Gell’s conviction and death sentence in
1998.128 Despite repeated requests by the courts and
Gell’s defense attorneys for the prosecution to disclose all exculpatory evidence in the case, prosecutors
withheld over a dozen witness statements claiming
to have seen the victim after the alleged date of the
murder, as well as a recording of one of the girls who
testified against Gell that called her credibility into
question. At the time, North Carolina had an open-

Minnesota
Minnesota is one of the few jurisdictions that require
prosecutors’ offices to adopt written procedures to
guide the use of prosecutorial discretion. Minnesota
requires every prosecutors’ office in the state to have
“written guidelines governing the county attorney’s
charging and plea negotiation policies and practices”
which must include “the circumstances under which
plea negotiation agreements are permissible…the factors that are considered in making charging decisions
and formulating plea agreements.”127 These written
standards provide needed guidance for prosecutors as
they exercise their discretionary power.

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file discovery statute only for capital post-conviction
proceedings, and it was during these proceedings that
Gell discovered the enormous amount of exculpatory
evidence that had been withheld. He was re-tried and
acquitted of all charges in 2004. 129
Prosecutors in Gell’s case, David Hoke and
Deborah Graves, were investigated by the State Bar
of North Carolina, and received public reprimands for
their actions. Public outcry over Gell’s case prompted
the legislature and the State Bar in North Carolina to
take steps to prevent the kind of egregious misconduct
that led to his wrongful conviction.130 The legislature
enacted an open-file discovery law statute, requiring
prosecutors to “[m]ake available to the defendant the
complete files of all law enforcement and prosecutorial
agencies involved in the investigation of the crimes
committed or the prosecution of the defendant.”131
In addition to open-file discovery requirements, the
State Bar amended North Carolina’s Model Rules
of Professional Conduct Rule 3.8(d), governing the
duties of prosecutors to disclose exculpatory evidence,
to include the introductory phrase “[a]fter a reasonably
diligent inquiry.” This phrase imposes an additional
obligation on prosecutors to actively seek potentially
exculpatory evidence in the investigation and pros-

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ecution of criminal cases. Additionally, the State Bar
changed Model Rule 3.8(d) from requiring the disclosure of exculpatory evidence to requiring “timely
disclosure to the defense of all evidence or information
required to be disclosed by applicable law, rules of procedure, or court opinions,” to reflect North Carolina’s
open-file discovery laws.132
The developments in North Carolina reflect
unprecedented efforts to prevent the prosecutorial suppression of evidence that too often leads to wrongful
convictions. The Justice Project recommends all states
adopt open-file discovery as in North Carolina and
strengthen the ethical requirements of prosecutors to
actively seek all important evidence in a criminal case,
and ensure transparency and reliability through full disclosure of all law enforcement and prosecutorial files.
Additionally, jurisdictions such as Florida,
Colorado, New Jersey, Arizona, Massachusetts,
among others, have expanded their discovery laws
in criminal cases, with some adopting full open-file
discovery. States enacting expanded discovery statutes
not only reduce the risk of prosecutorial misconduct,
but ensure a more accurate and efficient criminal
trial process with fewer reversals of convictions and
re-trials.

Voices of Support
“[A prosecutor] may prosecute with earnestness and
vigor—indeed, he should do so. But, while he may
strike hard blows, he is not at liberty to strike foul
ones. It is as much his duty to refrain from improper
methods calculated to produce a wrongful conviction
as it is to use every legitimate means to bring about
a just one.”

“Certainly the expense to the public in having to retry
cases over and over again—the increase in personnel
on the state’s attorney’s office and the public defender’s
office—the financial impact should strongly weigh in
persuading prosecutors to simply follow the law.”
Chief Justice Charles Freeman
Illinois Supreme Court 134

George Sutherland
United States Supreme Court Justice
Berger v. U.S.

“Your job as assistant U.S. attorneys is not to convict
people. Your job is not to win cases. Your job is to
do justice…Anybody who asks you to do something
other than that is to be ignored.”

“We fail in our duty to the public and the bar when
we do not penalize publicly those prosecutors who
engage in egregious conduct.”

Eric Holder
United States Attorney General 135

Ruth I. Abrams
Former Justice on the Massachusetts Supreme Judicial Court133

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MODEL POLICY

T

he following model policy outlines the reforms recommended in this policy review. It establishes a prosecutor review board responsible for investigating complaints against prosecutors and imposing sanctions; as
well as ensuring prosecutors’ offices develop written manuals and implement training programs. The prosecutorial review board could serve as an effective oversight mechanism to ensure that prosecutors’ offices develop
manuals and implement training programs, but jurisdictions can still enact those reforms without a review board
in place. This model policy also articulates comprehensive open-file discovery obligations, disclosure requirements regarding cooperating witnesses, and mandatory reporting requirements for judges.

AN ACT TO IMPROVE THE PRACTICE OF CRIMINAL PROSECUTION136
Section I. Purpose
The purpose of this Act is to ensure the proper use of prosecutorial discretion and provide for appropriate
sanctions for prosecutors who abuse their discretionary powers. This Act should be interpreted consistent
with these objectives.
Section II. Scope
This Act applies to all prosecutors practicing in [state].
Section III. Definitions
As used in this Act, these words and phrases can be defined in the following way:
	
A. “In-custody informant” means a person whose testimony is based upon statements made by the
defendant while both the defendant and the informant are held by the state.
	
B. “Accomplice informant” means a person who will or may testify or provide information for the
prosecution who is alleged to have participated in the criminal offense(s) that are the subject of the
trial and investigation.
	
C. “Informant” refers to both in-custody informants and accomplice informants, as defined in subsection A and B of this section.
	
D. “Consideration” means any plea bargain, bail consideration, reduction or modification of sentence,
or any other leniency, benefit, immunity, financial assistance, reward, or amelioration of current or
future conditions of incarceration in return for, or in connection with, the informant’s testimony
in the criminal proceeding in which the prosecutor intends to call him or her as a witness.
Section IV. Prosecutorial Review Board, creation
	
A. A Prosecutorial Review Board (hereafter called “The Board”) is created.
	
B. The Board shall consist of X members, appointed by the Governor.
	
C. The Board shall consist of at least X people who have experience as a prosecutor, at least X attorneys
who have experience defending criminal defendants, and at least X people who are not attorneys.
	
D. The Board shall meet at least once a month. X members shall constitute a quorum. The Board
may pass rules governing its internal structure and practices, as appropriate.
Section V. Prosecutorial Review Board, responsibilities and duties
	
A. The Board shall conduct random, unannounced audits of cases, as appropriate and feasible. The
Board shall have full access to the prosecution’s files, and shall investigate the chosen case(s) to search
for prosecutorial misconduct. The Board shall have the power to subpoena witnesses to testify before
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the Board. The Board shall issue a report on the case to the prosecutor’s office that is being investigated upon the investigation’s completion, describing any problems with the investigation, and suggesting any changes that are needed. These reports shall be public documents. If any misconduct is
discovered, the Board may remedy the misconduct as described in subsection D of this section.
	
B. The Board shall consider complaints filed by judges, pursuant to Section IX of this Act.
	
C. The Board shall hear complaints from citizens alleging prosecutorial misconduct. Citizens may file
complaints with the Board for the following offenses:
		
1. Seeking an indictment of any person despite an absence of probable cause,
		
2. Failing to promptly reveal information that would exonerate a person under indictment,
		
3. Intentionally or knowingly misleading the court as to the guilt of any person(s),
		
4. Intentionally or knowingly misstating evidence,
		
5. Intentionally or knowingly altering evidence,
		
6. Attempting to unduly influence a witness’ testimony,
		
7. Acting to frustrate a defendant’s right to discovery,
		
8. Leaking or otherwise improperly disseminating information to any person during an investigation, or
		
9. Engaging in conduct that discredits the department.
	
E. The Board shall act as it deems appropriate to remedy any found misconduct. Their actions may
include, but are not limited to, the following sanctions:
		
1. Issuing of an admonition,
		
2. Requiring additional training or education,
		
3. A monetary fine,
		
4. A suspension from practicing as a prosecutor,
		
5. Termination, and
		
6. Disbarment
	
F. The Board shall ensure that all prosecutors’ offices within [state] develop a manual stating their
official policies and procedures on the proper use of prosecutorial discretion in criminal cases.
		
1. The Board shall take steps necessary to ensure that prosecutors’ develop a manual one year
of the effective date of this act.
		
2. Policies and procedures manuals developed by prosecution offices are public documents.
Each prosecutor’s office shall make its policies and procedures manual available at the
office for public inspection. Each prosecutorial office shall furnish each public and archival library within its jurisdiction with at least one reference copy and at least one circulation copy of its policies and procedures manual. Where possible, the Board shall make a
reasonable effort to ensure that all policies and procedures manuals of each prosecutorial
office in [state] are publicly available on the internet. Policies and procedures manuals shall
also be made available at any other location that the Board deems appropriate for the public dissemination of these manuals.
	
G. The Board shall develop standards for and ensure the implementation of initial and continuing training and education programs focusing on the unique ethical obligations of prosecutors as
discussed by the American Bar Association in ABA Standards for Criminal Justice: Prosecution and
Defense Function, 3d ed.
		
1. The Board shall ensure that prosecutorial offices demonstrate that all incoming prosecutors successfully complete training that meets the standards set forth by the Board under
this subsection.
		
2. The Board shall ensure that all prosecutorial offices demonstrate that all attorneys on staff
successfully complete continuing training at a regular interval set by the board and not
to exceed once every five years that meets the standards set forth by the Board under this
subsection.
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Section VI. Discovery Obligations
	
A. Not later than twenty (20) days after the filing of charges, and independent of motion or request,
the prosecution must disclose any material or information within the prosecutor’s possession or
control that could be, should be, or is known to negate the guilt of the defendant as to the offense
charged, or that would tend to mitigate or aggravate the punishment of the defendant.
	
B. Not later than twenty (20) days after the filing of charges, and independent of motion or request,
and regardless of whether the prosecution determines material to be material or immaterial to
either guilt or punishment, relevant, irrelevant, inculpatory, or exculpatory, the prosecution shall
disclose the complete files of all law enforcement and prosecutorial agencies involved in the
investigation of the crimes committed or the prosecution of the defendant. The term “file” shall
be understood to include, but shall not be understood as being limited to, the following:
		
1. All written and all oral statements made by the defendant or any co-defendant, and
the names and addresses of any witnesses to such statements. This shall be disclosed
regardless of when the statement was made, and any oral statement must be memorialized in writing.
		
2. The names and addresses of all persons known to the prosecution to have information concerning the offense charged, together with all written statements of any such person. The
prosecution shall also identify the persons it intends to call as witnesses at trial, even if the
prosecution intends to call the witness as a rebuttal or character witness.
			
a. The trial judge may, upon clear and convincing showing of cause by the prosecution that disclosure of a witness’ name or address would present a threat to the
physical and bodily safety of a witness, allow the prosecution to keep secret that
witness’ name or address.
		
3. All written and all oral statements made by witnesses;
		
4. The relationship, if any, between the prosecution and any witness it intends to call at
trial, including the nature and circumstances of any agreement, understanding, or representation between the prosecution and the witness that constitutes an inducement for
the cooperation or testimony of the witness. Specifically, for informants, the term “file”
encompasses:
			
a. A written statement setting out any and all consideration promised to, received by,
or to be received by the informant. This requirement applies even if the prosecution is not the source of the consideration.
			
b. The complete criminal history of the informant.
			
c. The names and addresses of any and all persons with information concerning
the defendant’s alleged statements, including but not limited to: law enforcement
and/or prison officers to whom the informant related the alleged statements, other
persons named or included in the alleged statement, and other persons who were
witness and who can be reasonably expected to have been witness to the alleged
statements.
			
d. Any prior cases in which the informant testified and any consideration promised to
or received by the informant, provided such information may be obtained by reasonable inquiry.
			
e. Any and all statements by the informant concerning the offense charged.
			
f. Any other information that tends to undermine the informant’s credibility.
			
g. This section does not alter other disclosure or discovery obligations imposed by
state or federal law.
			
h. Any materials that the prosecution must disclose under this section are admissible
to impeach the credibility of the informant if such informant testifies at trial.
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5. The notes of the investigating officer(s);
6. Results of tests and examinations, or any other matter of evidence obtained during the
investigation of the offense alleged to have been committed by the defendant, including,
but not limited to:
			
a. Any reports or written statements of experts made in connection with the case,
including results of physical or mental examinations and of scientific tests, experiments, or comparisons, and without regard to whether the prosecution intends
to call parties conducting the reports, tests, examinations, experiments, comparisons, or statements to testify. Tests, reports, and case notes prepared by state
agencies or laboratories qualify as reports or written statements of experts under
this section. With respect to each expert whom the prosecution intends to call as
a witness at trial, the prosecutor should also furnish to the defense a curriculum
vitae and a written description of the substance of the proposed testimony of the
expert, the expert’s opinion, and the underlying basis of that opinion.
			
b. Any tangible objects, including books, papers, documents, photographs, buildings,
places, or any other objects, that pertain to the case or that were obtained for or
belong to the defendant. The prosecution should also identify which of these tangible objects it intends to offer as evidence at trial.
			
c. Any materials, documents, or statements relating to any searches or seizures conducted in connection with the investigation of the offense charged or relating to
any material discoverable under this act.
			
d. Any record of prior criminal convictions, pending charges, or probationary status
of the defendant or of any codefendant, and insofar as known to the prosecution,
any record of convictions, pending charges, or probationary status that may be
used to impeachment of any witness to be called by either party at trial. While the
prosecution is under no duty to conduct background checks of all witnesses, if the
prosecution runs a general criminal records search for defense witnesses, the prosecution must make the same search with respect to prosecution witnesses and must
disclose the results to the defense.
			
e. Any materials, documents, or information relating to lineups, showups, and picture
or voice identifications in relation to the case, and the identity of any witnesses to
such lineup, showup, and picture or voice identifications.
	
C. If the prosecution intends to use character, reputation, or other act of evidence, the prosecution
should notify the defense of that intention and of the substance of the evidence to be used.
	
D. If the defendant’s conversations or premises have been subjected to electronic surveillance (including wiretapping) in connection with the investigation or prosecution of the case, the prosecution
should inform the defense of that fact.
	
E. The prosecution shall disclose any and all contents of the files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the
defendant file not specifically listed or named above.
		
1. Upon request by the State, a law enforcement or prosecutorial agency shall make available
to the State a complete copy of the complete files related to the investigation of the crimes
committed or the prosecution of the defendant for compliance with this section.
	
F. At least five (5) days before trial, the State’s attorney shall certify to the Court in writing that:
		
1. The State’s attorney has provided the defense counsel with all discoverable material and
information;
		
2. The State’s attorney has exercised due diligence in locating all discoverable material and
information known to:
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a. The State’s attorney; and
b. All individuals who participated in the investigation or evaluation of the offense for
which the defendant is being tried;
		
3. To the best of the State’s attorney’s knowledge, all individuals involved in the investigation,
evaluation, or prosecution of the offense being tried have exercised due diligence in locating
all discoverable materials and information in their possession to the State’s attorney; and
		
4. All individuals involved in the investigation, evaluation, or prosecution of the offense being
tried acknowledge their continuing obligation to exercise due diligence in disclosing discoverable material and information as soon as the information is known to the individual.
		
5. The certification filed by the State’s attorney shall include a written statement from the
designated lead investigator of each law enforcement agency involved in the investigation
of the offense being tried that confirms that all discoverable materials and information in
the possession of the law enforcement agency has been provided to the State’s attorney.
	
G. If the Court finds that the certification required under subsection F of this section was given in
bad faith, in addition to any other remedy available to the Court, the Court shall impose a fine on
the offending party, and/or the lead investigator at its discretion
	
H. The prosecution has a continuing duty to disclose materials that are added to their file after the
initial disclosure of materials, up to the start of the trial.
Section VII. Failure to Comply with Discovery Obligations, sanctions
If at any time during the course of the proceedings it is brought to the attention of the court that a party has
failed to comply with their discovery obligations under this Act, the court may order such party to permit the
discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from
introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances, including, but not limited to, dismissal with prejudice.
Section VIII. Obligation of Sitting Judges in Cases Involving Prosecutorial Misconduct
	
A. An appellate judge is required to report, to the bodies referenced in subsection D of this section,
the following offenses, when committed by a prosecuting attorney in a criminal case:
		
1. A willful misrepresentation of law or fact to a court;
		
2. Attempting to unduly influence a witness’ testimony;
		
3. Acting to frustrate a defendant’s right to discovery;
		
4. Leaking or otherwise improperly disseminating information to any person during an investigation;
		
5. Appearing in a judicial proceeding while intoxicated;
		
6. Engaging in willful unlawful discrimination in a judicial proceeding;
		
7. Willfully withholding or suppressing evidence that the prosecutor knows or should know
to be exculpatory;
		
8. Willful presentation of perjured testimony;
		
9. Failure to properly identify oneself in interviewing victims or witnesses; and
		
10. Any other egregious prosecutorial misconduct.
	
B. Any question of whether misconduct is egregious shall be resolved in favor of reporting.
	
C. If the order of contempt, modification or reversal of judgment, imposition of judicial sanctions,
or imposition of a civil penalty is signed by a judge or magistrate, that judge or magistrate shall
report it to the bodies referenced in subsection D of this section.
	
D. The judge shall report the misconduct with thirty (30) days of the offense, to the following entities:
		
1. The state bar association,
		
2. The offending prosecutor’s supervisor,
		
3. Any prosecutorial review board in [state].
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Literature
SUGGESTED READINGS
The following materials are recommended reading for individuals interested in learning more about
prosecutorial accountability.

Alexandra White Dunahoe, Revisiting the Cost-Benefit
Calculus of the Misbehaving Prosecutor: Deterrence
Economic and Transitory Prosecutors, 61 N.Y.U.
Ann. Surv. Am. L. 45 (2005).

Angela Davis, Arbitrary Justice: The Power of the
American Prosecutor, Oxford: Oxford University
Press, 2007.

J.S. Edwards, Prosecutorial Misconduct, 30 Am. Crim.
L. Rev. 1221 (1993).
Catherine Ferguson-Gilbert, It is Not Whether you
Win or Lose, It Is How You Play the Game: Is the
Win-Loss Scorekeeping Mentality Doing Justice for
Prosecutors?, 38 Cal. W. L. Rev. 283 (Fall 2001).

The California Commission on the Fair
Administration of Justice, Report and
Recommendations on Professional Responsibility
and Accountability of Prosecutors and Defense
Lawyers, October 18, 2007, available at http://
www.ccfaj.org/rr-pros-official.html

Adam Gershowitz, Prosecutorial Shaming, (September
2008). Available at SSRN: http://ssrn.com/
abstract=1265738.

The Center for Public Integrity, Harmful Error:
Investigating America’s Local Prosecutors, 2003,
available at http://www.publicintegrity.org/pm/
default.aspx

Bennett L. Gershman, Litigating Brady v. Maryland:
Games Prosecutors Play, 57 Case W. Res. L. Rev.
531 (2007).
Bennett L. Gershman, The New Prosecutors, 53 U.
Pitt. L. Rev. 393 (1992).

Bennett L. Gershman, The New Prosecutors, 53 U.
Pitt. L. Rev. 393 (Winter 1992).

Bennett L. Gershman, The Prosecutor’s Duty to Truth,
14 Geo. J. of Legal Ethics 309 (2001).

SELECTED BIBLIOGRAPHY
The following listing includes some of the key
source material used in developing the content of this
policy review. While by no means an exhaustive list of
the sources consulted, it is intended as a convenience
for those wishing to engage in further study on the
topic of prosecutorial accountability.

Leslie C. Griffin, The Prudent Prosecutor, 14 Geo. J.
Legal Ethics 259 (Winter 2001).
Peter J. Henning, Prosecutorial Misconduct and
Constitutional Remedies, 77 Wash. U. L. Q. 713
(Fall 1999).
Margaret Z. Johns, Reconsidering Absolute Prosecutorial
Immunity, 2005 B.Y.U.L. Rev. 53 (2005).

1. Journals and Law Reviews

Peter A. Joy, The Relationship Between Prosecutorial
Misconduct and Wrongful Convictions: Shaping
Remedies for a Broken System, 2006 Wisc. L. Rev.
399 (2006).

Alafair S. Burke, Improving Prosecutorial Decision
Making: Some Lessons of Cognitive Science, 47 Wm
and Mary L. Rev. 1587 (2006).
Michael D. Cicchini, Prosecutorial Misconduct at Trial:
A New Perspective Rooted in Confrontation Clause
Jurisprudence, 37 Seton Hall L. Rev. 335 (2007).

Peter A. Joy, Brady and Jailhouse Informants:
Responding to Injustice, 57 Case W. Res. L. Rev.
619 (2007).

Brandon Crase, When Doing Justice Isn’t Enough:
Reinventing the Guidelines for Prosecutorial
Discretion, 20 Geo. J. Legal Ethics 475 (2007).

Rory K. Little, Proportionality as an Ethical Precept for
Prosecutors in their Investigative Role, 68 Fordham
L. Rev. 723 (December 1999).

Lynn Damiano, Taking a Closer Look at Prosecutorial
Misconduct: The Ninth Circuit’s Materiality Analysis
in Hayes v. Brown and its Implications for Wrongful
Convictions, 37 Golden Gate U. L. Rev. 191 (Fall
2006).

Casey P. McFaden, Prosecutorial Misconduct, 14 Geo.
J. Legal Ethics 1211 (2001).
Daniel S. Medwed, The Zeal Deal: Prosecutorial
Resistance to Post-Conviction Claims of Innocence, 84
B.U.L. Rev. 125 (February 2004).
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Judy Platania and Gary Moran, Due Process and the
Death Penalty: The Role of Prosecutorial Misconduct
in Closing Argument in Capital Trials, 23 L. &
Human Behavior 471 (August 1999).

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2. C
 ommission and Association Reports,
Recommendations and Policies
American Bar Association, Center for Professional
Responsibility, Model Rules of Professional Conduct
(Last Amended in 2000).

Sam Roberts, Should Prosecutors Be Required to Record
Their Pre-Trial Interviews with Accomplices and
Snitches?, 74 fordham l.rev. 257 (2005).

American Bar Association, Criminal Justice Section
Standards, “Prosecution Function” (Approved in
1992).

Richard A. Rosen, Disciplinary Sanctions against
Prosecutors for Brady Violations: A Paper Tiger, 65
N.C.L. Rev. 693 (April 1987).

American Bar Association, Model Code of Profes-sional
Responsibility (Last Amended in 1980).

Abbe Smith, Can You be a Good Person and a Good
Prosecutor?, 14 Geo. J. Legal Ethics 355 (Winter
2001).

Association of the Bar of the City of New York,
Report of the Professional Responsibility Committee:
Proposed Prosecutorial Ethics Rules (May 2005).

Walter W. Steele Jr., Unethical Prosecutors and
Inadequate Discipline, 38 Sw. L. J. 965 (1984).

The California Commission on the Fair
Administration of Justice, Report and
Recommendations on Professional Responsibility and
Accountability of Prosecutors and Defense Lawyers
(October 18, 2007).

K.W. Toryanski, No Ordinary Party: Prosecutorial
Ethics and Errors in Death Penalty Cases, 54
Federal Lawyer 45 (2007).
James S. Liebman, Jeffrey Fagan, & Valerie West,
A Broken System: Error Rates in Capital Cases,
1973 – 1995, Columbia Law School (June 12,
2000), Available at http://www2.law.columbia.edu/
instructionalservices/liebman/index.html.

Constitution Project, Mandatory Justice: The Death
Penalty Revisited (Rev. 2005).
Federal Judicial Center, Treatment of Brady v.
Maryland Material in United States District and State
Courts’ Rules, Orders, and Policies (October 2004).

Ellen Yaroshefsy, Wrongful Convictions: It Is Time To
Take Prosecution Discipline Seriously, 8 D.C. L. Rev.
275 (Fall 2004).

Illinois Commission on Capital Punishment, Report of
the Commission on Capital Punishment (April 2002).

Fred C. Zacharias, The Professional Discipline of
Prosecutors, 79 N.C. L. Rev. 721 (March 2001).

National District Attorneys Association, National
Prosecution Standards, Second Edition (1991).
United States Department of Justice. United States
Attorney’s Manual (2003).

Endnotes
See Bennett L. Gershman, Prosecutorial Misconduct (2d ed. 2007).
Berger v. U.S., 295 U.S. 78, 88 (1935).
3
American Bar Association [hereinafter A.B.A], Standards for Criminal Justice:
Prosecution and Defense Function, Standard 3-1.2 (3d ed. 1993) http://www.
abanet.org/crimjust/standards/pfunc_blk.html.
4
See Gershman, supra note 1.
5
Center for Public Integrity, Harmful Error: Investigating America’s Local
Prosecutors, 108 (2003).
6
Id. at i.
7
Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play,
57 Case W. Res. L. Rev. 531, 533 (“…violations of Brady are the most recurring and pervasive of all constitutional procedural violations…”) (2007).
8
Angela Davis, Arbitrary Justice 125 (2007).
9
See Peter A. Joy, The Relationship Between Prosecutorial Misconduct and

Wrongful Convictions: Shaping Remedies for a Broken System, 2006 Wis. L. Rev.
399, 422 (“Despite the recommendation of both the ABA and the NDAA,
it appears that a relatively small number of the more than 2300 prosecutors’
offices that try felony cases in state courts of general jurisdictions have manuals or written standards, or, if they do, those manuals or standards are not
available to the public.”) (2006).
10
See Gershman, supra note 7.
11
Davis, supra note 8, at 5.
12
See Gershman, supra note 1, at § 14.3, 572.
13
california commission on the fair administration of justice: Report and
Recommendations on Reporting Misconduct, 4 (Oct. 18, 2007) (“Pursuant
to Section 6086.7(a)(2), there should have been a report made to the State
Bar in each of the 53 cases in which prosecutorial misconduct resulted in a
reversal in the past ten years.”), http://www.ccfaj.org/documents/reports/

1
2

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prosecutorial/official/OFFICIAL%20REPORT%20ON%20REPORTING
%20MISCONDUCT.pdf.
14
Ken Armstrong & Maurice Possley, The Verdict: Dishonor, chi. trib.,
January 10, 1999, at C1 (“Since a 1963 U.S. Supreme Court ruling designed
to curb misconduct by prosecutors, at least 381 defendants nationally have
had a homicide conviction thrown out because prosecutors concealed evidence suggesting innocence or presented evidence they knew to be false.”).
15
See id. (“…a Tribune search failed to turn up a single prosecutor who was
disbarred for securing a conviction while engaging in such misconduct in any
kind of criminal case.”).
16
See Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 n.c. l.
rev. 721 (2001).
17
Davis, supra note 8, at 22.
18
See Davis, supra note 8.
19
Brandon K. Crase, When Doing Justice Isn’t Enough: Reinventing the
Guidelines for Prosecutorial Discretion, 20 Geo. J. Legal Ethics 475, 477 (“The
discretion afforded to prosecutors extends from the finest detail of the case to
the questions of whether to investigate, grant immunity, or even whether to
bring the charges at all. Today’s prosecutors are constrained only by imprecise
ethical guidelines and judicial review for flagrant violations of their duties.”).
20
Davis, supra note 8, at 23 (“Very few offices have manuals with guidelines
or policies on how to make charging decisions. Offices that do have such
guidelines or policies rarely enforce them.”).
21
See Davis, supra note 8, at 5 (“Prosecutors make the most important of
these discretionary decisions behind closed doors and answer only to other
prosecutors. Even elected prosecutors, who presumably answer to the electorate, escape accountability, in part because their most important responsibilities—particularly the charging and plea bargaining decisions—are shielded
from public view.”).
22
Zacharias, supra note 16, at 732.
23
Davis, supra note 8, at 16 (“The lack of enforceable standards and effective accountability to the public has resulted in decisions-making that often
appears arbitrary, especially during the critical charging and plea bargaining
stages of the process. These decisions result in tremendous disparities among
similarly situated people, sometimes along race and/or class lines.”).
24
Bennett L. Gershman, The New Prosecutors, 53 U. Pitt. L. Rev. 393, 409
(“Prosecutors historically have sought the death penalty disproportionately
against black defendants as opposed to white defendants.”) (1992).
25
A.B.A, supra note 3, at Standard 3-2.5; National District Attorneys
Association, National Prosecution Standards, Standard 10.1 (2d ed. 1991),
http://www.ndaa.org/pdf/ndaa_natl_prosecution_standards.pdfhttp://www.
ndaa.org/pdf/ndaa_natl_prosecution_standards.pdf
26
A.B.A, supra note 3, at Standard 3-2.5.
27
A.B.A, supra note 3, at Standard 3-2.5 (Commentary) (“Some of the aspects
of prosecutorial discretion about which there is widespread agreement are set
forth in subsequent Standards.”).
28
Joy, supra note 9. Davis, supra note 8, at 23 (“Very few offices have manuals
with guidelines or policies on how to make charging decisions. Offices that
do have such guidelines or policies rarely enforce them.”).
29
United States Department of Justice. United States Attorney’s Manual (2003).
(This manual outlines what factors U.S. Attorney’s should take into consideration when pursuing federal prosecution. Some of thee standards include
law enforcement priorities, the seriousness of the offense, the deterrent effect
of prosecution, the person’s culpability, criminal history, willingness to cooperate, and the probable sentence. Additionally, the U.S. Attorney’s manual
specifically addresses what factors a prosecutor should not take into consideration when bringing charges, including the person’s race, religion, or natural
origin, the attorney’s personal feelings regarding the suspect or the victim,
or the possible consequences on the attorney’s personal or professional life.)
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/index.html.
30
Davis, supra note 8, at 96.
31
Ellen Yaroshefsky, Wrongful Convictions: It’s Time to Take Prosecution
Discipline Seriously, 8 udc l. rev 275, 290 (2004).
32
A.B.A, supra note 3, at Standard 3-2.5(b).
33
See A.B.A, supra note 3, at Standard 3-2.5(b) (contents can be deemed confidential “when it is reasonably believed that public access to their contents
would adversely affect the prosecution function.”).
34
A.B.A, Standards For Criminal Justice: Discovery and Trial By Jury, (3d ed.
1996) 11-1.1(a) (Commentary).
35
Brady v. Maryland, 373 U.S. 83 (1963).
36
Gershman, supra note 7, at 533.
37
See Gershman, supra note 7, at 536 (“Brady is enforced by the judiciary
through widely inconsistent approaches as to what constitutes Brady evidence,
the specific types of information required to be disclosed, when it must be
disclosed, and the sanctions for noncompliance.”).

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Gershman, supra note 7, at 549.
Gershman, supra note 7.
40
Armstrong & Possley, supra note 14.
41
James S. Liebman, Jeffrey Fagan & Valerie West, A Broken System: Error
Rates in Capital Cases, 1973 – 1995, Columbia Law School (June 12, 2000),
http://www2.law.columbia.edu/instructionalservices/liebman/index.html.
(Last visited July 31, 2008).
42
See Gershman, supra note 7.
43
A.B.A, supra note 34.
44
See Gershman, supra note 7, at 560 (“Prosecutors know that the judiciary’s
treatment of “suppression” does not require a prosecutor to make pretrial
disclosure, and thus allows a prosecutor considerable latitude to withhold the
evidence prior to trial.”).
45
North Carolina’s open-file discovery law includes such a provision: See
N.C Gen. Stat. § 15A-903(c) (“Upon request by the State, a law enforcement or prosecutorial agency shall make available to the State a complete
copy of the complete files related to the investigation of the crimes committed or the prosecution of the defendant…”).
46
model rules of prof’l conduct R. 3.8 (2008).
47
See, e.g, n.c model rules of prof’l conduct, R. 3.8(d) (2008). (North
Carolina’s Model Code of Professional Conduct is phrased in this way in
order to ensure compliance with North Carolina’s open-file discovery law.)
48
See Sam Roberts, Should Prosecutors Be Required to Record Their PreTrial Interviews with Accomplices and Snitches?, 74 fordham l.rev. 257, 259
(“Prosecutors tend to rely heavily on the testimony of cooperating witnesses,
especially in cases where the prosecution has little independent evidence to
martial against the defendant.”) (2005).
49
Id at 260.
50
Gershman, supra note 7, at 540.
51
Center on Wrongful Convictions, The Snitch System (2005). http://www.
law.northwestern.edu/wrongfulconvictions/issues/causesandremedies/snitches/SnitchSystemBooklet.pdf (Last visited January 26, 2009).
52
These factors were largely derived from a statute enacted in Illinois requiring pretrial disclosures and reliability hearings for jailhouse informants in
capital cases; See 725 ILL. COMP. STAT. 5/115-21(c) (2003).
53
See california commission on the fair administration of justice, supra
note 13 (“The State Bar is limited by its reliance upon the receipt of reports
of misconduct or incompetence by judges or self-reporting by the offending
attorneys. The Commission has discovered that much is not reported which
should be…”).
54
See Gershman, supra note 1, at 572-573.
55
See Walter W. Steele, Jr., Unethical Prosecutors and Inadequate Discipline, 38
sw.l.j 965, 980 (“If the defendant and the defendant’s lawyer cannot realistically be expected to report unethical trial conduct by a prosecutor, attention
must be focused on the judges. As the Code of Professional Responsibility
directs the conduct of practicing lawyers, so does the Code of Judicial
Conduct command judges to report instances of unethical conduct to the
grievance committee.”) (1984).
56
See West’s Ann. Cal. Bus & Prof. Code § 6086.7
57
See Center for Public Integrity, supra note 5 (The Center for Public
Integrity reviewed 11,452 opinions in which defendants alleged prosecutorial
misconduct. In 8,709 of those opinions, judges found there to be misconduct
but ruled it “harmless error,” as opposed to the 2,012 resulting in reversal).
See also Professor Kathleen Ridolfi, california commission on the fair
administration of justice, prosecutorial misconduct: a systemic review,
at 14 (July 11, 2007), http://www.cpda.org/publicarea/CCFAJ/ProfessionalResponsibility-DAs-and-Defenders/Professional-Responsibility-DAs-andDefenders/Ridolfi—Prosecutorial%20Misconduct%20A%20systemic%20re
view.pdf. (“By limiting a judge’s duty to report only cases in which the judgment has been ‘modified or reversed,’ the rule prevents reporting of the vast
majority of misconduct cases.”).
58
See Ridolfi, supra note 57, at 14 (“There is no meaningful difference
between the conduct of the prosecutors in the cases ‘modified or reversed’
from the actions of prosecutors in the harmless error cases. There are multiple examples of the striking similarities in the cases we reviewed.”)
59
Ridolfi, supra note 57, at 12 (“Thirty were repeat offenders – two committed misconduct in three different cases. Two-thirds of the repeat offenders
committed the exact same misconduct in multiple trials.)
60
California commission on the fair administration of justice, supra note
13, at 5 (“It is also possible that the current lack of reporting is attributable
to confusion as to who has the actual duty to report when a judgment is
reversed…”)
61
California commission on the fair administration of justice, supra note
13, at 9 (“…the problem should be addressed directly in Canon 3D by defining the circumstances where a report to the State Bar should be made.”)
38
39

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THE JUSTICE PROJECT

See Adam Gershowitz, Prosecutorial Shaming, (September 2008). Available at
SSRN: http://ssrn.com/abstract=1265738.
63
Id.
64
Gershowitz, supra note 62, at 2 (“Yet, when these serious cases of misconduct are reversed, the appellate courts do not often call out the offending
prosecutors by name in judicial opinions.”)
65
See Steele, supra note 55, at 982 (“conventional grievance mechanisms
appear inappropriate for prosecutors, and it may be that the great reluctance
to discipline prosecutors derives from that sense of inappropriateness.”)
66
See Zacharias, supra note 16, at 758 (“the absence of clients makes it far
more difficult for the authorities to learn of and prosecute violations.”)
67
Gershowitz, supra note 62, at 2 (“Yet, when these serious cases of misconduct are reversed, the appellate courts do not often call out the offending
prosecutors by name in judicial opinions.”)
68
See Steele, supra note 55, at 980.
69
Zacharias, supra note 16, at 754. (“Discipline for lawyering in criminal
cases—whether for violations by prosecutors or defense attorneys—is quite
rare.”)
70
Zacharias, supra note 16, at 753.
71
Center for Public Integrity, supra note 5, at 79.
72
See Steele, supra note 55, at 981 (“These committees derive their power
from the judiciary and hence share in the reluctance to exert coercive influence on the office of the prosecutor.”).
73
Steele, supra note 55, at 981-982 (“Furthermore, most lawyers who serve
on grievance bodies practice primarily in the civil branch of the justice system, a fact that may make them reluctant to pass judgment on prosecutors,
at least in those instances calling for some insight into the criminal justice
system.”).
74
See Davis, supra note 8, at 184-185.
75
See Gershman, supra note 24, at 454 (“However, given the prosecutor’s
unique role, it may be appropriate to consider creating a disciplinary mechanism aimed solely at prosecutors. The model for such an institutional body
would be the state judicial conduct organizations, which exist in every state,
and are charged with the responsibility of regulating judicial conduct.”)
76
See, e.g. http://www.ajs.org/ethics/eth_conduct-orgs.asp (List of state judicial conduct organizations).
77
Steele, supra note 55, at 985 (proposing a model for a prosecutor grievance
counsel based on a Texas statute requiring the counsel to investigate every
appellate finding of misconduct, in addition to formal complaints of misconduct).
78
See Steele, supra note 55, at 986.
79
Davis, supra note 8, at 185 (“The primary distinction of the prosecution
review board would be the addition of a random review process. The board
would not only review specific complaints brought to its attention by the
public but also conduct random reviews of routine prosecution decisions.”).
80
A.B.A, supra note 3, at Standard 3-2.6.
81
Id at Standard 3-2.3.
82
See Gershman, supra note 24, at 435-436 (“One of the most disturbing
developments in criminal justice over the last two decades has been the judiciary’s failure to provide clear standards that would place some rational limits
on the prosecutor’s discretion.”).
83
Brady v. Maryland, supra note 35, at 87.
84
Id.
85
United States v. Bagley, 473 U.S. 667 (1998).
86
Rose v. Clark, 478 U.S. 570, at 588-89 (1986).
87
See, e.g., Chapman v. California, 386 U.S. 23 (1967).
88
Gershman, supra note 24, at 426.
89
Rose v. Clark, supra note 86.
90
See Imbler v. Pachtman, 424 U.S. 409, 424 (1976); Buckley v. Fitzsimmons,
509 U.S. 259, 273, 278 (1993); and Burns v. Reed, 500 U.S. 478, 495 (1991),
(Prosecutors have full immunity in their judicial capacity, and qualified immunity during their investigative work.).
91
See Joy, supra note 9, at 426.
92
David Winkler-Schmit, Blood Money, Gambit Weekly, Jan. 12, 2009, at 9.
93
Center for Public Integrity, supra note 5.
94
Id.
95
See Willis v. Cockrell, 2004 WL 1812698, at 1 (2004).
96
Ralph Blumenthal, Faulty Testimony Sent 2 to Death Row, Panel Finds,
N.Y.Times, May 3 2006, at A16.
97
Willis v. Cokcrell, supra note 95.
98
See id.
99
Willis v. Cockrell, supra note 95, at 4.
100
Id.
101
Willis v. Cockrell, supra note 94, at 5, 26.
102
Willis v. Cockrell, supra note 94, at 17.

EDUCATION
FUND

See Maro Robbins, DA Wants Death Row Inmate Freed; West Texas Prosecutor
Says Condemned Man Probably Didn’t Set Fatal Fire in ’86, San Ant. Exp.
News, Oct. 5, 2004, at A1.
104
Id.
105
Benjamin Weiser & Andrea Elliot, Wrongfully Convicted Man Wins $1
Million Settlement, N.Y Times, Feb. 5, 2005, at B3.
106
People v. Lantigua, 228 A.D.2d 213, 213.
107
Id.
108
Id at 213.
109
Id at 218.
110
Andrea Elliot & Benjamin Weiser, When Prosecutors Err, Others Pay the
Price; Disciplinary Action Is Rare After Misconduct or Mistakes, N.y. times, Mar.
21, 2004, at 25.
111
Benjamin Weiser & Andrea Elliot, Wrongfully Convicted Man Wins $1
Million Settlement, N.Y Times, Feb. 5, 2005, at B3.
112
John Stith, Roy Brown’s Case for Freedom, The Post-Standard Jan. 1 2007,
at A1.
113
Id.
114
Stith, supra note 110.
115
The Innocence Project, Know the Cases: Roy Brown, http://www.innocenceproject.org/Content/425.php.
116
See Masters v. People, 58 P.3d 979 (2002).
117
Trevor Hues, Masters to Go Free, coloradoan, Jan. 19, 2008.
118
Trevor Hues, Tim Masters Sues City of Fort Collins, coloradoan, Oct. 22,
2008.
119
Trevor Hues, Gilmore, Blair Detail, Defend Actions in ‘99 Masters Case,
coloradoan, Feb. 8, 2009.
120
See Trevor Hues, Tim Masters’ Legal Fees Cost City, County, coloradoan,
Jan. 18, 2009.
121
Fredric N. Tulsky, Review of more than 700 appeals finds problems throughout
the justice system, San Jose Merc. news Jan. 22, 2006.
122
Howard Mint, State Bar Judge Wants Santa Clara County Prosecutor
Suspended 4 Years for Abusing Power, san jose merc. news, Feb. 11, 2009.
State Bar of California, In the Matter of Benjamin T. Field, Case Nos. 05-O0015-PEM; 06-O-12344. http://www.mercurynewsphoto.com/2009/01/benfield.pdf
123
Id.
124
See California District Attorney’s Association, Uniform Crime Charging
Manual, available at http://www.cdaa.org/pubs/pubsindex.htm and http://
sfgov.org/site/budanalyst_page.asp?id=5206
125
Radley Balko, Is This America’s Best Prosecutor? Meet Dallas County District
Attorney Craig Watkins, Reason, Apr. 7, 2008, available at http://www.reason.
com/news/show/125596.html.
126
Id.
127
M.S.A. §388.051-3(a) (1997).
128
Robert P. Mosteller, Exculpatory Evidence, Ethics, and the Road to Disbarment
of Michael Nifong: The Critical Importance of Full Open File Discovery, 15 geo.
mason l. rev. 257, 264 (2008).
129
Id at 264.
130
Mosteller supra note 125 at 271.
131
Mosteller supra note 125 at 273.
132
Mosteller supra note 125 at 272.
133
Ken Armstrong & Maurice Possley, Illinois Courts May End Secrecy: State’s
Chief Justice Wants Prosecutorial Abuses Made Public, Chicago Trib. Feb. 3,
1999.
134
Ken Armstrong & Maurice Possley, What Should be Done to Remedy
Prosecutor Misconduct, chicago trib., Jan. 14, 1999.
135
Nedra Pickler, Holder Tells Prosecutors that Justice Top Priority, a.p., Apr. 8,
2009.
136
Certain sections of this model policy were influenced by, or taken directly
from: The California Commission on the Fair Administration of Justice,
Report and Recommendations on Professional Responsibility and Accountability of
Prosecutors and Defense Lawyers, October 18, 2007; American Bar
Association, Standards for Criminal Justice: Discovery and Trial by Jury,
“Standard 11” (3d ed. 1996); Walter W. Steele, Jr., Unethical Lawyers and
Inadequate Discipline, 38 sw.l.j 965, 982-986; N.C GEN. STAT.§15-A 905
(2004) and §15-A 911-915 (2004); and Maryland House Bill 985 (2004).

62

103

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“Law’s evolution is never done, 
and for every improvement made 
there is another reform that is overdue.”
— J ustice W illiam J. B rennan , J r .

THE
JUSTICE
PROJECT

Prosecutorial misconduct was a factor in dismissed
charges, reversed convictions, or reduced sentences
in at least 2,012 cases since 1970, 32 of which
involved the wrongful convictions of innocent
individuals. This policy review outlines the systemic
problems that facilitate prosecutorial misconduct
and the reforms needed to improve prosecutorial
accountability. By improving systems of prosecutorial
accountability, we can increase the fairness, reliability,
and accuracy of our criminal justice system.

Working to Increase Fairness and Accuracy in the Criminal Justice System
1025 Vermont Avenue, NW • Third Floor • Washington, DC 20005
(202) 638-5855 • Fax (202) 638-6056 • www.thejusticeproject.org

 

 

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