Reconsidering Absolute Prosecutorial Immunity

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

Unfortunately, these are not isolated examples. An innocent Texas man served thirteen years on death row as a result of what a federal judge described as "outrageous" misconduct by the prosecutor, who failed to disclose evidence that overwhelmingly pointed to another man as the killer.74 In Louisiana, after fourteen years in prison, two innocent men convicted of the same crime walked off death row after their lawyers established serious prosecutorial misconduct.75 In California, two men were wrongfully convicted of murder and sentenced to life in prison because prosecutors withheld exculpatory evidence, including a confession by another man, an eyewitness's corroboration, and an admission by a trial witness that she was lying about having seen the murder.76 In 2004 they were found factually innocent after serving more than thirteen years in prison.77 Another California man was convicted of murder and served twenty-four years before being released when a federal court determined that he had been wrongly convicted based on the testimony of a jailhouse informant, a heroin user with a lengthy criminal record.78 The prosecutors had struck a deal with the informant to obtain his testimony but failed to inform defense counsel of the deal.79 In 1999, in Tulia, Texas, thirty-nine peopleten percent of the town's black population-were arrested on drug charges.80 Thirty-five of them were convicted based on the false testimony of a former deputy sheriff and the suppression of exculpatory evidence by the prosecutor.81 Their sentences ranged from eighteen to ninety years in prison,82 a combined total of 750 years.83

The human consequences of wrongful convictions are tragic. Imagine spending even one night on death row as an innocent person. Imagine spending ten years in prison. Even after the wrongly convicted are exonerated, the damage continues. The stigma of a prosecution and conviction is lasting.84 Employment prospects are greatly diminished.85 As former Labor secretary Ray Donovan asked his prosecutor after his acquittal on criminal charges, "What office do I go to to get my reputation back?"86 Of course, the wrongly accused defendant is not the only one who suffers as a result of prosecutorial misconduct. Wrongful prosecutions, convictions, and incarcerations ruin lives and destroy families.87 The victim of the underlying crime and the victim's family are denied closure and justice.88 When the real perpetrators remain free, other victims are exposed to future crimes and even death.89 In more than one instance when an innocent defendant was wrongly convicted and incarcerated for murder, the real murderer went on to commit other murders.90

While prosecutorial misconduct occurs with alarming frequency, safeguards and corrective measures have proven ineffective. Although numerous procedural protections (including jury trials, appellate review, and habeas corpus proceedings) are designed to protect the criminal defendant's rights, they neither prevent nor correct prosecutorial misconduct. Moreover, other corrective measures including professional discipline and criminal prosecution of misbehaving prosecutors are almost never pursued. The following discussion will explain why each of these safeguards fails to adequately protect innocent defendants from prosecutorial misconduct.