After Misconduct

An interesting New York Times article notes that prosecutorial misconduct of the sort seen in the Duke lacrosse case is, if not exactly common, then hardly unheard of either. Nevertheless, prosecutors rarely face serious discipline since the typical prosecutor who withholds evidence isn't up against well-paid private attorneys representing clients from prosperous families:

“A prosecutor’s violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by the courts, and almost never by disciplinary bodies,” Bennett L. Gershman wrote in his treatise, “Prosecutorial Misconduct.” . . .

The Chicago Tribune, for instance, analyzed 381 murder cases in which the defendant received a new trial because of prosecutorial misconduct. None of the prosecutors were convicted of a crime or disbarred.

In one, Alan Gell was sentenced to death after prosecutors withheld witness statements from the defense. The witnesses said they had seen the victim alive after Mr. Gell had been jailed on other charges and was physically unable to have committed the murder. Mr. Gell was acquitted at a retrial.

In this last case, the prosecutors got a reprimand, but they're still out there prosecuting and, I guess, getting more innocent people convicted on death penalty charges.