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Last month we wrote about a California robbery conviction that was thrown out by the 9th Circuit Court of Appeals because a prosecutor in the case knowingly elicited testimony from a state witness that she knew to be false, and then used it against the defendant, La Carl Martez Dow, in argument to the jury.

In the 9th Circuit’s opinion, the Court failed to actually name that prosecutor in the Dow case, lest her misdeeds be exposed to the public. While one blogger listed the name of the prosecutor soon after the opinion was handed down, we did not repeat it in our post since his information was not sourced and we were unfamiliar with his body of work.

However, in his most recent article, “Appeals Courts Give Misbehaving Prosecutors The Privilege Of Anonymity,” Radley Balko confirms the name of this prosecutor: Jennifer Ow.

His point in writing about the case is not Ms. Ow’s misconduct so much as the 9th Circuit’s reluctance to name her in an opinion that throws out a serious conviction because of her behavior. Balko considers the recurring theme: in cases where misconduct has been found, why are prosecutors afforded the kind of privacy and protection from public scrutiny that defendants aren’t?

The consequences of a tradition of secrecy around prosecutorial misconduct presents all kinds of problems for accountability, Balko argues:

“The complexity of piecing together a particular prosecutor’s record not only makes it more difficult for journalists and watchdog groups to identify misconduct, it also makes it nearly impossible for voters to learn about a prosecutor’s performance when he or she runs for re-election, or moves on to run for judge or political office.”

Balko concludes by pointing to one important, though clearly inadequate, way in which repeat offender prosecutors are being exposed to the public: blogs. The Open File certainly aims to name prosecutors who commit misconduct in the stories we write about, as do numerous other blogs that cover this issue. But, as Balko notes, it is often extremely difficult to track down those names even when you want to. Former federal prosecutor Ken White, who now blogs for Popehat.com, went the extra mile to expose Sam L. Ponder, the assistant U.S. attorney who was lambasted by Justice Sotomayor in a dissent earlier this year for making racially offensive remarks during a trial, by searching through the legal document service PACER to view court filings and records that would produce a name.

Still, public exposure means more coming from the courts. Appellate courts ought to name prosecutors in their opinions to send a clear and unequivocal message that unethical behavior will not be tolerated and will seriously impact your professional career.

Read Balko’s article in full on Huffington Post here.


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