Reconsidering Absolute Prosecutorial Immunity

Even when the appellate court reverses a conviction on grounds of prosecutorial misconduct, the prosecutor who engaged in the misconduct generally escapes any repercussions. The consequence of a reversal is that the defendant will be retried or have a new sentencing hearing. The offending prosecutor is rarely identified by name.109 Moreover, the loss on appeal is charged not to the original local prosecutor who committed the misconduct, but to the unfortunate lawyer in the state attorney general's office who inherited the case for purposes of the appeal.110 Thus, the trial attorney who engaged in the misconduct often escapes responsibility.111 Without meaningful trial or appellate court consequences for misconduct, prosecutors may be sorely tempted to bend the ethical and constitutional rules to obtain convictions since trial success is essential to political success for elected prosecutors, and since convictions are essential to favorable evaluations and promotions for subordinate prosecutors.112

Even when a court is willing to publicly name the prosecutor, the admonition seems to have no effect. For example, in 1999, the Florida Supreme Court expressed its exasperation with the persistent prosecutorial misconduct in death penalty cases that resulted in reversals:113

In spite of our admonishment in [a prior case reversing a death penalty conviction] and despite subsequent warnings that prosecutorial misconduct will be subject to disciplinary proceedings of The Florida Bar, we nevertheless continue to encounter this problem with unacceptable frequency. The present case follows on the heels of anodier misconduct case and is one of die worst examples we have encountered.114

In addition to finding that the conduct at issue "crossed the line of zealous advocacy by a wide margin and compromised the integrity of the proceeding,"115 the court also cited six prior death penalty cases that it had been compelled to reverse because of prosecutorial misconduct.116

Third, while it is difficult to correct prosecutorial misconduct in the direct appeal, it is even more difficult on collateral review in a federal habeas corpus proceeding. The 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) set strict time limits in habeas proceedings.117 Under AEDPA, federal courts must be deferential to state court convictions.118 Thus, federal judges have found that they are powerless to grant relief even when they find credible evidence of actual innocence.119 In one case, the defendant was convicted based on the testimony of two eyewitnesses.120 One recanted and admitted perjury, and the other's testimony was challenged by an associate who said it was physically impossible for the witness to have seen the crime.121 As the court explained its inability to grant relief:

One cannot read the record in this case without developing a nagging suspicion that the wrong man may have been convicted of capital murder and armed criminal action in a Missouri courtroom. ... A layperson would have little trouble concluding Burton should be permitted to present his evidence of innocence in some forum. Unfortunately, Burton's claims and evidence run headlong into the thicket of impediments erected by courts and by Congress. Burton's legal claims permit him no relief, even as the facts suggest he may well be innocent.122