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Reconsidering Absolute Prosecutorial Immunity
Brigham Young University Law Review, 2005 by Johns, Margaret Z
First, the trial process fails to protect the defendant against prosecutorial misconduct. Indeed, the same studies that catalogue prosecutorial misconduct also document the ineffectiveness of defense counsel in protecting the defendant's rights.91 For example, a study of Illinois death penalty cases concluded that prosecutorial misconduct was responsible for twenty-one percent of reversals, while defense counsel error accounted for nineteen percent of reversals.92 The ineffectiveness of defense lawyers has been well documented, especially in death penalty cases.93 Defense lawyers in capital cases are not adequately paid94 and are not provided sufficient funds for investigations and experts.95 Moreover, they have a disproportionately high record of discipline and disbarment.96 The few attorneys willing to take on capital cases are often "thoroughly incapable of mounting an effective defense during either the guilt or punishment phases of the capital trial."97
Trial judges also provide an insufficient check on prosecutorial misconduct. As the thousands of appellate findings of prosecutorial misconduct show, trial judges fail to protect the defendant from misconduct.98 Even when the trial court catches the misconduct and has the power to remedy the situation, the offending prosecutor is rarely identified publicly.99 This problem is exacerbated in states where judges stand for election.100 As Professor Liebman explains, state judges and the governors who appoint them run for office on high numbers of death sentences and may lose reelection if capital trials result in acquittals or life sentences.101
Second, appellate review is an inadequate check on prosecutorial misconduct for several reasons. To begin with, prosecutorial misconduct is rarely grounds for reversal of a conviction. Indeed, reversal is the exception, not the rule.102 Under the harmless error standard, a defendant must show not only that the prosecutor engaged in misconduct, but also that the misconduct had a substantial, prejudicial effect.103 For example, when a defendant proves that a prosecutor failed to disclose exculpatory evidence, the defendant is not entitled to a reversal of the conviction unless he also shows "that there is a reasonable probability that the outcome of the trial would have been different had the evidence been disclosed."104 In other words, even when the defendant establishes prosecutorial misconduct that may have influenced the conviction or sentence, the conviction is affirmed under the harmless error standard.105 Thus, even when courts find prosecutorial misconduct, they generally affirm the conviction or sentence. Recent empirical studies illustrate this point. Specifically, the Center for Public Integrity studied 11,452 cases in which prosecutorial misconduct was alleged.106 The appellate courts granted relief in 2012 cases but found that the prosecutorial misconduct amounted to harmless error in 8709 cases.107 Similarly, between 1993 and 1997, the Illinois Supreme Court and Illinois Appellate Courts found 167 instances of prosecutorial misconduct but affirmed 122 of the convictions on the grounds that the misconduct was harmless.108
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