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A heartening story out of Arizona has emerged in the midst of Michael Kiefer’s four-part series for The Arizona Republic on prosecutors who commit misconduct and suffer few, if any, consequences. Tim Stellar, opinion columnist for The Arizona Daily Star, recently tipped his hat to two county prosecutors who not only forsook a conviction in order to play by the rules, but held their colleagues to account in the process.

Concluding his excellent series on prosecutorial misconduct which profiled numerous prominent Arizona prosecutors who have not only failed to abide by their ethical duties, but have seemingly been rewarded for them with notoriety and promotions in many instances, Kiefer discussed what, if any, avenues there are to punish unethical prosecutors.

Kiefer does a terrific job of laying out the tensions which prevent criminal justice actors from deterring prosecutorial misconduct. Explaining why defense attorneys do not file bar complaints against prosecutors because of fear of “blowback,” Kiefer says judges are similarly restricted:

“Once the prosecutors gained the ability to use charging decisions to shape sentences (due to mandatory sentencing), it was a huge power shift,” said [Judge Peter] Swann, the [Arizona Court of] Appeals Court judge. “The Legislature empowers the prosecutors and defangs the judges.”

Of the approximately 40,000 felony cases filed each year in Maricopa County, most end in plea agreements. Only 2 percent go to trial, and most of those result in guilty verdicts. So by filing charges or offering plea agreements, the prosecutor is, in effect, also deciding the punishment.

These power dynamics make judges fearful that reprisals from prosecutors will further weaken their ability to control their own courtooms.

While there is ample evidence that self-regulation cannot be relied on to address prosecutorial misconduct alone, two prosecutors in Santa Cruz County have demonstrated just how powerful it can be when prosecutors point out the bright lines of ethical restraint for their own profession.

According to Stellar, Assistant Santa Cruz County Attorney Vanessa Cartwright and her supervisor, Liliana Ortega, didn’t pull any punches when they wrote to the Homeland Security Investigations office in Nogales to criticize the work of one of their agents, Eduardo Cota. Cota had provided evidence in a case that Cartwright was prosecuting, but he had disclosed the evidence extremely late. The video surveillance of the defendant supposedly committing a drug deal raised disturbing questions when Cota turned it over just weeks before trial in August 2013. The tape had been available since 2009.

Instead of overlooking the discrepancies between Cota’s version of events and the information on the tape, Cartwright took action, and her boss backed her up. After Ortega wrote the letter to Homeland Security, Ortega was moved off investigations and given a desk job. An internal investigation is reportedly underway into Cota’s conduct.

Stellar says that, had the county attorneys not raised alarm bells, the defendant would have surely been convicted in what would have looked like “just another drug case near the border” or pled to avoid a longer prison sentence, and none of us would be the wiser.

And Cartwright’s response when Stellar asked her about the incident? I was just doing my job.

In a moment where many commentators are at a loss about what realistic solutions there are available to address prosecutorial misconduct in a system so heavily stacked toward prosecutorial discretion, it is encouraging to see these women taking matters into their own hands.

 

 

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