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A newly released opinion from the Connecticut Supreme Court provides yet another example of what the Connecticut Law Tribune characterizes as the failures of higher courts in Connecticut to adequately rebuke prosecutorial misconduct.

In an editorial last year, the Tribune wrote that by routinely finding harmless error in cases where prosecutors have violated their ethical obligations and renaming the misconduct as mere “impropriety”, higher courts essentially encourage prosecutors in that state to take calculated risks in crossing the line of permissible conduct.

In State of Connecticut v. Jonathan Albino out of Waterbury Judicial District, the Court once again deems improper arguments by prosecutors as harmless error: “In light of all this evidence, as well as consciousness of guilt evidence, we conclude that the sum total of any improprieties did not deprive the defendant of a fair trial.”

In the harmless error calculation, prosecutors can weigh up in advance the “guilt” of the defendant against their own potential impropriety in order to decide what risks to take when conducting themselves at trial. The more evidence there is of the defendant’s guilt, the less likely higher courts are to overturn a conviction based on prosecutorial misconduct. The incentives that this creates for prosecutors are terrible if we’re concerned that trials should be fair regardless of the guilt of the accused.

Of course, overturning a conviction is not the only remedy for prosecutorial misconduct available to higher courts. They can also name wayward prosecutors in their opinions so that repeat offenders can be subsequently identified, refer prosecutors to the state bar association for investigation and discipline, and refer to past cases in their opinions to call out structural issues precipitating misconduct in certain counties.

Unfortunately, the Connecticut Supreme Court appears to do none of these in Albino. The case comes out of the same judicial district as the Santiago case which involved improper argument by a prosecutor who was found to have committed misconduct in numerous cases. You can read about it here.

 

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