A step backward in holding prosecutors accountable
Last week I wrote about the Oklahoma Bar filing a grievance against a prosecutor for using a witness in a murder case that he should have known was lying. The following day the Supreme Court decided Connick v. Thompson, and limited the ability to sue a prosecutor for failing to turn over exculpatory. After he had been convicted of robbery Mr. Thompson learned that the prosecutor had failed to turn over a lab report. He was able to get his conviction overturned, and then filed a sued against the Orleans Parish District Attorney. He alleged that failure to train employees resulted in the violation citizen's constitutional rights.
The argument was basically over what had to be proved. The District Court had held that Thompson did not have to show a pattern of constitutional violations. The Supreme Court disagreed, holding that you have to prove that the DA's office ignored a known or obvious consequence - in other words, you have to show a pattern of violations, which was ignored.
There's a problem with that argument, which is that you generally don't know when evidence has been withheld - because you don't know it exists. It may happen far more than we know about, because there is no way to discover something you don't about it. Unless it's a death penalty case chances are no one is going to go back and review the evidence.
I don't really believe training is the answer. All prosecutors know you are supposed to turn over exculpatory evidence. The problem lies in determining what is exculpatory and what is not. If you believe someone is guilty, the tendency is to view nothing as exculpatory. For example, the failure of a witness to make an identification just means they didn't have a good view. Some of the problems could be alleviated by turning over everything. But even then, the prosecutor doesn't always have everything in their file; some things be held by the police or other investigators.
Most prosecutors are good, honest lawyers, and they try to do the best they can. They do that because of their individual values and beliefs, and not because of any fear of getting caught. We don't trust everyone to do the right thing, and prosecutors should be no different. There should be some incentive for those who need it. Instead of creating incentives though, we tend to sanction bad behavior. This decision is just one more example of that.
