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Last week, Radley Balko suggested that courts’ unwillingness to name prosecutors that commit ethical violations in their opinions perpetuates the problem of prosecutorial misconduct, drawing on the story of Justices Sotomayor and Breyer’s statement in Calhoun v. United States.

Balko points to Sotomayor’s statement, which omits the name of the assistant U.S. attorney responsible for the remark, as an example of the ways the courts fail to hold prosecutors accountable:

It’s bad enough that state bars the Justice Department, and state attorneys general are so reticent about hitting misbehaving prosecutors with professional sanctions. But by not naming prosecutors who commit misconduct, even in opinions in which they find it to be egregious, the courts make it more difficult for the public to know when these public servants are out of line.


Balko continues that there are cases involving far more damning prosecutorial misconduct, such as the manufacturing of evidence, in which the courts refuse to name the offending prosecutors and thus allow them to escape both professional sanctions and public accountability.

These are public officials. They work for us. And they have incredible power — the power to ruin lives. There’s really no good reason why their misconduct should be obscured.

Another way in which prosecutorial misconduct is obscured in criminal court proceedings is through the “harmless error rule”. In many cases where prosecutors use improper argument or commit other misconduct, appellate courts find that the convictions should not be overturned despite that misconduct because the jury would have likely found the defendant guilty anyway. Even where the misconduct is truly egregious, an overwhelming showing of guilt is enough to deem it “harmless” under courts’ analyses.

For instance, in United States v. Runyon, decided last week, the federal Fourth Circuit Court of Appeals reminded us that  improper comments made by prosecutors violate due process if and only if they “so infected the trial with unfairness as to make the resulting [verdict] a denial of due process.” (Donnelly, 416 U.S. at 643)

In Runyon the Court agreed that the prosecutor made improper comments during closing arguments, including couching the defendant’s decision to go to trial as a failure to take responsibility for his actions, and exhorting jurors to “do their duty” and “send a message to the community” in sentencing Runyon to death (where their “duty” is actually to weigh aggravating and mitigating circumstances to decide on an appropriate punishment). However, the Court ultimately decided that the evidence of guilt against Runyon deemed these comments harmless, and his conviction was upheld.

The effect of having misconduct dismissed as “harmless error” – even where it is egregious – is that there are no disincentives for prosecutors to continue engaging in it. The natural inclination becomes to push the envelope rather than strive for ethical integrity. To ensure the integrity of the justice system, courts could decide to set aside the harmless error rule in cases involving prosecutorial misconduct. However, since they have shown an unwillingness to do that, the issue underscores the need for alternative mechanisms to keep prosecutors accountable. Since Connick v. Thompson, the only potentially viable way to do this is through bar complaints systems.

See our web page on accountability and bar complaints.



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