The vast majority of prosecutors are fair and honest in their prosecution of alleged criminals. But those few who are not have the ability to wreak havoc on a person’s life, and on the system in general.
Prosecutors have more control than any other party in a criminal case. Prosecutors control witnesses by offering plea deals as incentives or manufacturing jailhouse encounters. Prosecutors have unfettered access to the evidence and, despite their obligation to reveal exculpatory evidence, can decide what evidence to share, and when to share it. Prosecutors can add charges to scare defendants against going to trial.
And even if a prosecutor does get caught in foul behavior, few courts are willing to punish him. Cases are rarely thrown out. The usual consequence of prosecutorial misconduct is a judge deeming the violation immaterial, as if a Fourth Amendment violation could ever be immaterial.
USA Today published an investigation in 2010 that uncovered 201 cases since 1997 where courts admonished federal prosecutors who violated laws or ethics rules. Only one was disbarred. In Utah, of 18 appellate cases involving allegations of misconduct since 2015, courts ordered new trials in only three of those cases.
The Supreme Court has said that while a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.”
So how do we root out prosecutorial misconduct, and what can we do about it? The Utah County Commission is attempting to answer those very questions by creating an oversight panel to review prosecutors’ actions in certain cases. The panel comes after multiple high-profile cases were dismissed or defendants acquitted.
One might think if the case was dismissed or the defendant found not guilty, no harm was done. But merely bringing charges against someone can cause irreparable reputational damage; the damage is complete before the trial even starts.
The commission has not yet decided exactly how the panel will work. Utah County Attorney Jeff Buhman is apparently working with county officials to determine how the panel will investigate claims of misconduct. It’s good that the county attorney is willing to submit his office to independent review when necessary, but the panel needs to be independent, and if his involvement jeopardizes that independence, his involvement should be questioned.
Utah’s Supreme Court has authority over attorney discipline in Utah. The panel’s actual ability to discipline prosecutorial misconduct is therefore limited. But county attorneys are elected, and if they cannot control the prosecutors who work for them their jobs should be at stake. Other than actual attorney discipline, investigative panels could still have an impact by shedding light on a usually secretive process and encouraging change through public opinion.
Because judges read newspapers, too.