By John Grisham
The vast majority of prosecutors are honest, ethical professionals who play by the rules. During my 10-year career as a criminal-defense lawyer, I dealt with prosecutors daily and never knew one to step out of bounds.
But the great flood of exonerations have revealed the glaring truth that some prosecutors cheat and even break the law. It has been proved, repeatedly, that prosecutors across the U.S. have (1) concealed evidence that would benefit the accused; (2) fabricated evidence that would convict the accused; (3) made false statements to judges, juries and defense attorneys; (4) offered perjured testimony; (5) cut sleazy deals with jailhouse informants who will testify to anything in return for leniency; (6) employed junk-science “experts” who mislead jurors; and (7) intimidated witnesses.
What happens when a prosecutor is caught? Rarely anything. Civil lawsuits by the wrongly convicted are next to impossible because the Supreme Court ruled in Imbler v. Pachtman(1976) that prosecutors are immune from suit in virtually all cases, no matter how egregious their actions. Trial judges can impose sanctions for misconduct in some cases, but they almost never do, and state disciplinary schemes for prosecutors are generally ineffective.
A Chicago Tribune series, for instance, analyzed more than 11,000 U.S. homicide cases involving prosecutorial misconduct between 1963 and 1999 and found reversals in 381 cases because prosecutors either presented false evidence or concealed exculpatory information. Sixty-seven of those defendants had been sentenced to death—yet not even one state’s disciplinary agency penalized any of the prosecutors. A more recent survey conducted by the Innocence Project looked at five diverse states over a five-year period (2004-08) and identified 660 cases in which courts found prosecutorial error or misconduct—and only one prosecutor who was disciplined.
It is sadly ironic that those we trust to put away criminals are thoroughly unaccountable when their own unethical behavior is discovered. Only a handful of prosecutors have faced meaningful sanctions for deliberate misconduct that led to the incarceration of innocent people.
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