Mapping the Dimensions of Prosecutorial Misconduct: A Short Reading Guide (updated)

 Charles White, The Trenton Six, 1949

“Prosecutors hold tremendous power, more than anyone other than jurors, and often much more than jurors because most cases don’t go to trial. Prosecutors and their investigators have unparalleled access to the evidence, both inculpatory and exculpatory, and while they are required to provide exculpatory evidence to the defense under Brady, Giglio, and Kyles v. Whitley, it is very difficult for the defense to find out whether the prosecution is complying with this obligation. Prosecutors also have tremendous control over witnesses: They can offer incentives—often highly compelling incentives—for suspects to testify. This includes providing sweetheart plea deals to alleged co-conspirators and engineering jail-house encounters between the defendant and known informants. Sometimes they feed snitches non-public information about the crime so that the statements they attribute to the defendant will sound authentic. And, of course, prosecutors can pile on charges so as to make it exceedingly risky for a defendant to go to trial. There are countless ways in which prosecutors can prejudice the fact-finding process and undermine a defendant’s right to a fair trial. [….] 

…[T]here are disturbing indications that a non-trivial number of prosecutors—and sometimes entire prosecutorial offices—engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.

Prosecutorial misconduct is a particularly difficult problem to deal with because so much of what prosecutors do is secret. If a prosecutor fails to disclose exculpatory evidence to the defense, who is to know? Or if a prosecutor delays disclosure of evidence helpful to the defense until the defendant has accepted an unfavorable plea bargain, no one will be the wiser. Or if prosecutors rely on the testimony of cops they know to be liars, or if they acquiesce in a police scheme to create inculpatory evidence, it will take an extraordinary degree of luck and persistence to discover it—and in most cases it will never be discovered.” — Alex Kozinski (a judge on the United States Court of Appeals for the Ninth Circuit)

This is an updated and enhanced compilation from a couple of years ago (now includes an episode of ‘The Rockford Files’!)

• Alexander, Michelle (2010) The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press. 
• Balko, Randy (August 5, 2013) “The Untouchables: America’s Misbehaving Prosecutors and the System that Protects Them,” Huffington Post: http://www.huffingtonpost.com/2013/08/01/prosecutorial-misconduct-new-orleans-louisiana_n_3529891.html 
• Burns, Sarah (2011) The Central Park Five. New York: Alfred A. Knopf. 
• Butler, Paul (2009) Let’s Get Free: A Hip-Hop Theory of Justice. New York: The New Press. 
• Christianson, Scott (2006) Innocent: Inside Wrongful Conviction Cases. New York: New York University Press. 
• Cole, David (1999) No Equal Justice: Race and Class in the American Criminal Justice System. New York: The Free Press.
• “Criminal Law 2.0 – Preface” [to the 44th Annual Review of Criminal Procedure], by Hon. Alex Kozinski, Georgetown Law Journal, Vol. 103 – 5: iii-xliv. PDF article available for download here: http://georgetownlawjournal.org/articles/criminal-law-2-0-preface-to-the-44th-annual-review-of-criminal-procedure/ 
• Davis, Angela J. (2007) Arbitrary Justice: The Power of the American Prosecutor. New York: Oxford University Press.
• Freedman, Monroe H. “The Use of Unethical and Unconstitutional Practices and Policies by Prosecutors’ Offices” (February 26, 2012). Washburn Law Journal, 2012; Hofstra University Legal Studies Research Paper No. 12-06. Available: http://ssrn.com/abstract=2017178
• Freedman, Monroe and Abbe Smith (2010) Lawyers’ Ethics. Matthew Bender & Co./LexisNexis.  
• Garrett, Brandon L. (2011) Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Cambridge, MA: Harvard University Press.  
• Gershman, Bennett L. (2d, 2013-14 ed.) Prosecutorial Misconduct. New York: Clark Boardman Callaghan/West Group.
• Green, Bruce A. “Prosecutors and Professional Regulation” (November 15, 2012). Georgetown Journal of Legal Ethics, Vol. 25, p. 873, 2012; Fordham Law Legal Studies Research Paper No. 2176252. Available: http://ssrn.com/abstract=2176252 
• Green, Bruce A. and Yaroshefsky, Ellen. “Prosecutorial Discretion and Post-Conviction Evidence of Innocence,” Ohio State Journal of Criminal Law, Vol. 6, No. 467 (2009); Fordham Law Legal Studies Research Paper No. 1393796; Cardozo Legal Studies Research Paper No. 264. Available: http://ssrn.com/abstract=1393796  
• Henning, Peter J. “Prosecutorial Misconduct and Constitutional Remedies,” 77 Wash. U. L. Q. 713 (1999). Available at: http://openscholarship.wustl.edu/law_lawreview/vol77/iss3/2 
• The Justice Project. “Improving Prosecutorial Accountability: A Policy Review.” (2009) Available online as a PDF doc. via a Google search. This paper has an indispensable list of books and (especially) articles under “suggested reading.” 
• Kennedy, Randall (1997) Race, Crime, and the Law. New York: Pantheon Books. 
• Lawless, Joseph F. (3rd ed., 2003) Prosecutorial Misconduct. Charlottesville, VA: LexisNexis.
• Lippke, Richard L. (2011) The Ethics of Plea Bargaining. Oxford, UK: Oxford University Press. 
• Lithwick, Dahlia. “You’re All Out”: A defense attorney uncovers a brazen scheme to manipulate evidence, and prosecutors and police finally get caught. Slate, May 28, 2015. 
• Medwed, Daniel S. (2012) Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent. New York: New York University Press. 
• The Open File: A website about prosecutorial misconduct and accountability 
• Perlin, Michael L., “‘Power and Greed and the Corruptible Seed’: Mental Disability, Prosecutorial Misconduct, and the Death Penalty” (November 10, 2014). NYLS Legal Studies Research Paper. Available: http://ssrn.com/abstract=2522444
• Prosecutorial Misconduct: Wikipedia article. 
• Rakoff, Jed S. “Why Innocent People Plead Guilty,” The New York Review of Books, November 20, 2014 (Vol. 61, No. 18).
• Ridolfi, Kathleen M. and Possley, Maurice Possley; Northern California Innocence Project, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009” (2010). Northern California Innocence Project Publications. Book 2, http://digitalcommons.law.scu.edu/ncippubs/2 
• “The Rockford Files”: Season 3, Episode 7: So Help Me God (19 Nov. 1976) “Jim gets called before a grand jury where he promptly gets thrown into jail for contempt.” 
• Scheck, Barry, Peter Neufeld, and Jim Dwyer (2001) Actual Innocence: When Justice Goes Wrong and How to Fix It. New York: Signet. 
• Schehr, Robert, “The Emperor’s New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining” (June 1, 2015). Available: http://ssrn.com/abstract=2636501 
• Stuntz, William J. (2011) The Collapse of American Criminal Justice. Cambridge, MA: Harvard University Press.  
• “When Innocent Clients Plead Guilty,” a blog post by yours truly from several years ago here at Ratio Juris.
• Yaroshefsky, Ellen. “New Orleans Prosecutorial Disclosure in Practice after Connick v. Thompson” (November 16, 2012). Georgetown Journal of Legal Ethics, Vol. 25, No. 913 (2012). Available: http://ssrn.com/abstract=2176986