One of the most troubling trends that foster prosecutorial misconduct is the failure of state bar and disciplinary agencies to take action against prosecutors who violate their ethical obligations.
Earlier this year, Attorney General Eric Holder and the Department of Justice (DOJ) took swift and almost unprecedented action after uncovering egregious prosecutorial misconduct in the case against Alaska Senator Ted Stevens. Holder promptly dismissed all charges against the Senator, and federal judge Emmet Sullivan ordered an independent, criminal investigation of the prosecutors responsible for intentionally failing to turn over important, exculpatory evidence to the defense. The DOJ has also promised an investigation through the Office of Professional Responsibility. The question now is whether these particular prosecutors will ever be held accountable.
To prevent prosecutorial misconduct and these egregious abuses of power, it is critically important to appropriately investigate and discipline prosecutors who violate their legal and ethical obligations. Far too often, even in egregious and high profile cases, like Stevens’ case, prosecutors are not held accountable for their misconduct. Without the threat of meaningful professional discipline, prosecutors cannot be held accountable for their actions and are likely to continue to abuse their power to secure convictions. We have yet to see whether the two separate investigations launched against the federal prosecutors in Stevens’ case will be followed by appropriate disciplinary action.
The prosecutorial misconduct involved in Senator Stevens’ case is especially egregious. The case was marred by prosecutorial misconduct from the outset. Judge Sullivan repeatedly criticized prosecutors for failing to follow orders to provide evidence to the defense. In addition, prosecutorial misconduct at trial led Judge Sullivan to hold three of the prosecutors in contempt, and at one point also instructed the jury to disregard some evidence provided by the prosecution. After replacing the original trial team, new prosecutors discovered even more evidence that should have been turned over to the defense. Even more troubling, lead prosecutor Brenda Morris has a history of prosecutorial misconduct. In 2005, Morris’ unlawful prosecution of an Austin, Texas area defense attorney resulted in a civil suit and a $1.34 million dollar settlement from the federal government. The investigation of Morris’ conduct in that case yielded no apparent sanctions and she remained employed by the DOJ and was eventually given a lead role in the Stevens prosecution. The DOJ’s failure to appropriately respond to Morris’ previous misconduct as well as her actions and those of the other prosecutors in the Steven’s case, demonstrates that a culture has developed within the DOJ’s Public Integrity Unit in which prosecutorial abuses of power occur.
Three months after Eric Holder dismissed the case against Senator Stevens, the country continues to wait and see whether the most well-funded, highly respected, and highly trained prosecutorial agency in the country, the DOJ, will hold its own accountable. There is an opportunity here to begin to show that even DOJ prosecutors are not above the law.
Prosecutors are the most powerful actors in our criminal justice system. Failure to respond to abuses of power is an enormous threat to public safety and to the integrity of our criminal justice system. Effective and meaningful prosecutorial accountability in this country can start, and should start, with discipline of the prosecutors who violated their duties and betrayed public trust in the prosecution of Senator Stevens.
John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.