Prosecutorial Misconduct in the Digital Age

I. INTRODUCTION Prosecutorial misconduct, which this article defines as what occurs when a prosecutor deliberately engages in dishonest or fraudulent behavior calculated to produce an unjust result, is--according to many legal scholars--seriously underreported. One study utilizing a computer-assisted review revealed that there have only been just over one hundred reported cases of professional discipline of federal and state prosecutors in the past century--an average of approximately one disciplinary case per year. (1) Another leading scholar in the area has concluded that prosecutorial discipline is so rare as to make its use virtually a nullity. (2) Why is this? Many reasons emerge, not the least of which is a practical, empirical obstacle to accurately assessing the problem: prosecutors who engage in such misconduct presumably don't want to be caught, and will take steps to conceal their actions. Another reason is the autonomy enjoyed by prosecutors' offices insofar as their internal policies are concerned. The considerable discretion afforded to prosecutors over whom to prosecute and which offenses to charge, coupled with a lack of external oversight of prosecutors' offices, fosters an environment in which misconduct can remain undetected and unchecked. Yet another reason is sheer volume: most criminal cases in the United States result in plea bargains, which are rarely subjected to judicial review or extensive investigation. (3) Consequently, the vast majority of known examples of prosecutorial misconduct only came to light during long, drawnout trials or over the course of an appeal, and often were discovered with the aid of resources beyond the means of the typical criminal defendant. In Connick v. Thompson, (4) for example, plaintiff John Thompson spent fourteen years on death row (and a total of eighteen years in prison) because prosecutors never disclosed an exculpatory blood evidence report from his defense attorneys. (5) The chance discovery--one month before Thompson's scheduled execution--by Thompson's investigator saved his life and led to the vacating of his convictions for both murder and armed robbery. (6) At least four, and possibly five prosecutors were aware of the evidence--a swatch of fabric from the bloody pants leg of one of the victims--which conclusively established that the perpetrator's blood was Type B (Thompson's blood was Type O). (7) Yet, it was never turned over to the defense. (8) Another reason for the underreporting of prosecutorial misconduct is the extreme reluctance and even disincentive on the part of those who are in the best position to report such conduct: other prosecutors, defense counsel and their clients, and judges. Prosecutors are reluctant to turn in colleagues; defense attorneys may feel instituting a bar complaint that they have precious little time for anyway can jeopardize ongoing dealings with prosecutors on other matters; and defendants themselves may believe that a complaint could adversely affect their case or their later prospects for parole. As for the hesitation of judges, one federal judge has summed it up nicely: When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors' actions were flagrant, willful or in bad faith. (9) In addition, one cannot discount other factors that help account for the underreporting of prosecutorial misconduct. The rejection of tort liability (including common law personal tort liability under 42 U.S.C. [section] 1983 and municipal liability under [section] 1983) by the U.S. Supreme Court, most recently in Thompson, has proven to be a bar to punishing prosecutors' official misbehavior. (10) Professional discipline by state bar authorities, repeatedly endorsed by the Supreme Court as the appropriate vehicle for addressing claims of prosecutorial misconduct, (11) has also proven toothless. Along with the vast underreporting of prosecutorial misconduct and the lack of satisfactory, professionally viable means of ensuring accountability even where misconduct is reported, a potentially greater concern looms: technology. …