Kareem Bellamy’s conviction, release, and post-release litigation are a thicket of prosecutorial misconduct, witness flip-flopping, and allegations of defense team misconduct. The National Registry of Exonerations has a helpful, detailed explanation here. Over at Simple Justice, Scott Greenfield’s most recent post about the case contains links to earlier coverage—on that blog and in the New York Times—that reveal its dark underbelly. Rather than dive into the factual morass, we instead want to identify a particularly troubling reality that the current litigation brings to light. Often we observe or comment offhand that meaningful prosecutorial accountability is almost impossible to secure. In the whack-a-mole world of accountability-seeking, courts seem to pour concrete over every fissure that victims of misconduct try to expand into a hole. Bellamy’s lawyers are now appealing the dismissal of a civil suit in which the federal district court judge appears to have cemented the last cranny.

Before examining the implications of the district court’s ruling in Bellamy’s case, it is worth reviewing the many, many other avenues of prosecutorial accountability that have been foreclosed or have atrophied from lack of use.

The seemingly most straightforward way to hold a prosecutor accountable would be to sue him for his unconstitutional actions. But, individual civil liability is unavailable. Years ago, the Supreme Court decided that prosecutors enjoy absolute immunity for acts they perform as part of the prosecutorial function. Greenfield provides useful commentary on this point:

Prosecutors have absolute immunity . . . because the Supreme Court fears the floodgate will open and they will flee the courtroom, and the DA’s office, in tears if they were ever held accountable, even for the most intentional and egregious wrongdoing. If that were to happen, they might be hesitant in their zeal to shoot fish in barrels and society would devolve to anarchy. So prosecutors must be protected at all costs.

Problematic as this powerful immunity is, it has been on the books for over 40 years now. While several commentators have called on the Court to revisit the doctrine, such a move seems unlikely.

Another way to hold prosecutors accountable is through professional discipline. Regular readers of The Open File know, however, that historically the role of state bars in disciplining prosecutors is symbolic at best. Or, as one scholar famously put it, disciplinary sanctions are a “paper tiger.” A terrific piece published in the Yale Law Journal’s Forum documents how bar discipline rules and procedures provide only a weak check (at best) against prosecutorial delinquency. Ultimately, state bars have done little (or less) to hold prosecutors accountable.

The Supreme Court—in its decision granting prosecutors absolute immunity—suggested another way to hold prosecutors accountable: punish them criminally for depriving individuals of their constitutional rights. While that may sound like an exciting and potent option, it should come as no surprise that criminal liability is extraordinarily rare. Indeed, we are aware of only one prosecutor who has ever been imprisoned for criminal prosecutorial misconduct, and he spent 10 days in jail for depriving a man of 25 years of freedom. One! It seems laughable that the Court invoked the possibility of jailing prosecutors as a justification for curtailing individual civil liability.

Other alternatives have flopped, too. Prosecutors often argue that misconduct can be handled within DA offices—that supervisors will ensure that errant prosecutors will be disciplined internally. But, there is no evidence to support the claim self-policing is effective. Most of the evidence that exists remains shrouded in secrecy, with DAs notoriously unwilling to be transparent about internal procedures and policies. The few available case studies demonstrate that the prospect of prosecutors providing meaningful discipline within the office is farcical.

An increasingly popular idea is that the public can hold prosecutors accountable at the ballot box. But, elections are a democratic check on the DA’s overall policymaking and management paradigm. They do not typically or well serve the goal of holding particular prosecutors responsible for misconduct in individual cases. It is also extraordinarily challenging for one new DA to shift a culture of misconduct where it exists in an office, sometimes for decades, simply by replacing the top executive. (Of course, one can imagine a scandal-ridden office operating as a “rudderless ship,” thus requiring replacement of the elected DA to initiate a systemic cultural change, but accountability must go deeper than personnel changes.)

One other option would be to provide relief to the victims of prosecutorial misconduct in their criminal cases. In short, courts could reverse convictions when prosecutors break the rules. This is, of course, not how courts understand their roles in criminal prosecutions. They decide whether to provide relief on a defendant’s claim of misconduct by determining whether the misconduct contributed to the outcome. As judges see it, they do not want to give certain defendants who are obviously guilty a windfall if it turns out the prosecutor cheated; thus the question of guilt/innocence becomes the central issue in many misconduct inquiries. (Perhaps this helps explain why prosecutors often cheat in cases that seem open-and-shut.) From a legal perspective, the criminal cases infected by State misconduct are not the forum for punishing prosecutors who violate the Constitution.

So, criminal liability, discipline, and individual civil liability are out the window. Pretty much all that is left is municipal liability. Which leads us to the lawsuit filed on behalf of Kareem Bellamy. In it, his lawyers sued the City of New York as a municipality responsible for empowering the Queens District Attorney for making policies that led to Mr. Bellamy’s wrongful conviction and the violation of his constitutional rights. (He was effectively forced to seek municipal liability because of the Supreme Court’s bizarre and troubling decision in Connick v. Thompson, which is a whole other story altogether.) In her opinion summarily dismissing the suit earlier this year, Eastern District of New York Judge Ann Donnelly (a former long-time prosecutor) held that the city could not be held liable for decisions the DA made regarding prosecutions.

Mr. Bellamy’s lawyers have appealed the judge’s ruling to the U.S. Court of Appeals for the 2nd Circuit. An excellent amicus brief for the National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, Innocence Network, and Innocence Project points out the legal shortcomings and policy ramifications of the lower court’s opinion. Scott Greenfield summarizes the state of affairs well:

But is Judge Donnelly’s decision that bad that it eliminates even this last vestige of potential liability for prosecutors? Well yes. Yes it is. Should the Second Circuit affirm her dismissal, a district attorney’s office could establish an actual, written policy that they will never turn over Brady material to the defense, and the worst that could happen is that a conviction is reversed should the defense learn of it later and be capable of acting on it. As for municipal liability for such a policy, there would be none available since such a policy decision would now fall under the prosecutorial function, even though it’s clearly administrative as an office policy unrelated to any specific advocacy role.

Non-lawyers or even lawyers who are not steeped in the niceties of civil liability and municipal liability can be forgiven if this all sounds a bit convoluted. What matters is the bottom line: when it comes to prosecutorial accountability, there are no options. Perhaps advocates of accountability will locate another crevice to explore. We anticipate judges will be there, cement in hand.