Reconsidering Absolute Prosecutorial Immunity

Brigham Young University Law Review, 2005 by Johns, Margaret Z

Two other national studies reached similar conclusions. A study published in 2000 by Professor James S. Liebman and his Columbia Law School colleagues examined 4578 state capital cases that were directly reviewed on appeal in state appellate courts and 599 capital cases that were reviewed in federal habeas corpus proceedings from 1973-95.55 They concluded that sixty-eight percent of the cases contained serious error warranting reversal56 and catalogued numerous cases of prosecutorial misconduct.57 They too noted the lack of prosecutorial accountability.58

Similarly, a 1999 national study by the Chicago Tribune found that since 1963, 381 homicide convictions have been reversed for serious prosecutorial misconduct, including using false evidence or suppressing exculpatory evidence.59 Of the 381 defendants, sixtyseven had been sentenced to death.60 In describing the prosecutorial misconduct, the reporters wrote: "They have prosecuted black men, hiding evidence the real killers were white. They have prosecuted a wife, hiding evidence her husband committed suicide. They have prosecuted parents, hiding evidence their daughter was killed by wild dogs."61 But, again, the study found prosecutors were neither prosecuted nor disciplined for their misconduct.62

State and local studies mirror the conclusions on a smaller scale. A report on Illinois death penalty cases found that prosecutorial misconduct accounted for twenty-one percent of all reversals.63 An Ohio study found that in fourteen of the forty-eight cases in which the death penalty was imposed some ethical issue involving the prosecutor had arisen.64 In California, the Los Angeles County Grand Jury reported that from 1979-90, "The Los Angeles County District Attorney's Office failed to fulfill the ethical responsibilities required of a public prosecutor by its deliberate and informed declination to take the action necessary to curtail the misuse of jail house informant testimony."65

Unfortunately, these studies are but the latest of many reaching the same conclusion.66 For example, in 1932, Professor Edwin Borchard of Yale Law School published a book cataloguing sixty-five case studies of wrongful convictions, including eight cases in which defendants were convicted of murder but the alleged victim later turned out to be alive.67 A 1987 Stanford study found that since 1900, 350 innocent people were convicted of potentially capital offenses.68 According to their analyses, fifty of those wrongful convictions resulted at least in part from prosecutorial misconduct, including suppression of exculpatory evidence (thirty-five cases) and overzealous prosecution (fifteen cases).69

As consistent and convincing as these studies are, numbers alone cannot convey the significance of the problem in human terms. For example, in recent years in North Carolina, five death sentences were reversed after prosecutorial misconduct was uncovered through the state's open-files process, which applies to habeas corpus actions for prisoners on death row.70 In one case, the attorney general produced files that contained statements from seventeen witnesses who had seen the victim alive after the defendant was supposed to have killed him.71 In violation of the constitutional requirement established in Brady v. Maryland,72 the prosecutors had withheld the statements from the defendant's trial and appellate counsel.73