Friday, May 1, 2009
"The [DOJ] recently got a black eye when its corruption case against Sen. Ted Stevens of Alaska collapsed amid allegations of misconduct by federal prosecutors. ... The Stevens case marks a rare example where prosecutors have been targeted for a type of misconduct that some legal experts say is widespread. The problem, they say, is that the rules governing evidence disclosure are subject to interpretation, and that even when questionable practices are discovered, the revelation can come too late to change the outome of a case. ... While the Supreme Court ruled decades ago, in Brady v. Maryland, that prosecutors generally must give defendants evidence that might raise doubts about their guilt at the start of the trial, prosecutors have few incentives to do so. They often don't get caught if they fail to turn over what is known as material exculpatory evidence. What's more, if the omission is discovered, prosecutors don't have much to fear. Prosecutorial misconduct often goes unpunished, and prosecutors have immunity from lawsuits by wrongly convicted defendants. Defense attorneys routinely claim that prosecutors violate the rules, but judges dismiss the vast majority of complaints as baseless. ... The Brady decision asks prosecutors to bring all relevant evidence to light, even if that means sabotaging their own case. But prosecutors are often judged by one standard: winning cases. 'Prosecutors can't police themselves,' says Stephan Bibas, a law professor at the University of Pennsylvania and a former federal prosecutor. ... Lawyers say punishment is most likely to come in high-profile cases, where public scrutiny is brought to bear. ... Research indicates that many prosecutors evade punishment for serious mistakes", my emphasis, Amir Efrati at the WSJ, 16 April 2009.
In about 1959 I was watching Perry Mason on television with my father, an attorney. He saw one of Hamilton Burger's assistant DAs, before Brady, voluntarily disclose exculpatory evidence. My father said, see that? That's what's supposed to happen, but rarely does. Omission is discovered? Are these guys rating agencies claiming First Amendment protection or Big 87654 firms trying to avoid lawsuits? "Can't police themselves"? My answer: peer review for prosecutors! It's cleaned up the CPA business, the DOJ should adopt it.