Legal Commentary

Will Holder's First Step Be the Last Step?

By TChris

As Jeralyn reported earlier this week, the Justice Department dismissed the indictment against Ted Stevens in response to its admitted violation of the prosecution's duty to disclose exculpatory evidence. John Terzano persuasively argues that Eric Holder's decision to dismiss "represents a critical first step in addressing a growing nationwide problem of prosecutors abusing their power in order to secure convictions."

The proper role of a prosecutor is not to simply seek convictions, but to see that justice is done. In pursuing a conviction against Stevens, prosecutors ignored their constitutional and ethical obligations to ensure a fair trial process. Holder rightly recognizes that there can be no justice when the fairness of a criminal proceeding is interrupted by government misconduct.

Whether Holder's "critical first step" will be an effective first step is a different question. [more ...]

Teranzo recognizes the scope of this institutional problem:

[T]he kind of prosecutorial misconduct that occurred in Steven's case is pervasive in our criminal justice system, at both the state and federal level. Withholding evidence is the most common type of prosecutorial misconduct. Making matters worse, prosecutors who engage in even the most egregious misconduct are rarely investigated or held accountable for abusing their power.

Changing a culture of entitlement (the ends are thought to justify the means by those who believe they are "the good guys") isn't something Holder can do by himself. Calling upon states to "follow the example Holder set in the Stevens case by quickly taking actions to effectively respond to prosecutorial misconduct when it occurs" is something we should all do, but what are the odds that states -- or even the federal prosecutors under Holder's command -- will listen?

Teranzo, on behalf of The Justice Project, offers two concrete answers. Open file discovery rules -- or even better, the liberal discovery rules available in civil cases -- would help keep prosecutors honest. Probably less helpful are the proposed prosecutorial review boards that would investigate and sanction power-abusing prosecutors. If prosecutors aren't deterred from cheating by existing ethics and disciplinary authorities, another layer of review (as we've seen with some civilian review boards that decline meaningful "review" of police misconduct) doesn't guarantee behavior-changing oversight.

Full post as published by TalkLeft on April 05, 2009 (boomark / email).