Not in Vain: Our Failure to Curb Misconduct Undermines John Thompson’s Legacy

For criminal justice reformers, a surprisingly positive year was stained by the loss of a legend. Early in October, John Thompson, a prominent advocate for holding prosecutors accountable for misconduct, passed away at the age of 55. Mr. Thompson spent 14 years on Louisiana’s death row for a murder he did not commit. Prosecutors had intentionally hid blood evidence that would have exonerated him in an unrelated trial for carjacking. He was convicted of that crime, then did not testify in his own defense at the murder trial for fear the earlier conviction would have been used against him. Years later, when a dogged investigator discovered this suppressed evidence — just 30 days before Mr. Thompson’s scheduled execution — both convictions began to unravel. Mr. Thompson eventually won a new trial and was acquitted in 2003, 18 years after he was first convicted.

Remarkably, the only lawyer who ever suffered any consequences for this injustice was Michael Riehlmann, who revealed that one of the prosecutors who tried Mr. Thompson had confessed on his deathbed that he intentionally suppressed evidence. (Riehlmann received a public reprimand). No one involved in Mr. Thompson’s actual prosecution was ever held accountable for this ethical and legal lapse.

Mr. Thompson later sued the Orleans Parish District Attorney’s Office for damages. His civil suit resulted in a $14 million jury verdict in his favor — $1 million for each year he spent on death row. In 2011, the Supreme Court overturned that verdict in a bitterly divided and controversial 5–4 decisionthat reached the puzzling conclusion that Mr. Thompson had not sufficiently proved a pattern of constitutional malfeasance.

In part due to John Thompson’s tireless work on behalf of victims of prosecutorial misconduct, Americans have started paying attention to the enormously powerful role that prosecutors play in our criminal justice system. That heightening awareness includes a growing recognition that prosecutorial misconduct is a serious problem. Misconduct is generally defined as breaches of constitutional and professional ethics rules, encompassing a range of behavior, including suppressing exculpatory evidence, making improper arguments during closing statements, and failing to correct a witness’s false testimony. It is distinct from bad judgment or troubling charging practicesthat are also serious concerns about prosecutorial behavior. While prosecutorial misconduct often contributes to wrongful convictions like John Thompson’s, these actions implicate more than conviction integrity; they strike at the constitutional legitimacy of the system. A recent report by the Innocence Project identified 660 judicial findings of misconduct in cases from five states between 2004 to 2008. The report is part of a growing body of research that points to the importance of making prosecutorial misconduct a significant priority for criminal justice administration.

However, once identified, the question of what to do to address prosecutorial misconduct remains a challenging one. While it seems obvious that prosecutors who engage in misconduct should face some consequences, the nature of those consequences remains elusive. This is surprising in some ways; after all, we know where the prosecutors are, we have proof of their misconduct (at least in some subset of cases), and one might even assume that enforcers of rules would be motivated to abide by them and see others in the profession reprimanded for disrespecting them. Unfortunately, prosecutorial accountability is a myth.

State bar organizations themselves have done very little to shame misbehaving prosecutors. The disciplinary bodies almost never pursue prosecutors, let alone punish them. Courts, too, have historically gone easy on prosecutors. The Supreme Court has made it effectively impossible to seek civil damages against individual prosecutors who commit misconduct and the offices that supervise them, cloaking prosecutors with absolute immunity. In criminal cases in which a defendant establishes that the prosecutor has violated his rights, courts employ doctrines that make it unusual to grant new trials or impose any other remedy. This is often because they do not want to give criminals a “windfall” or disturb convictions they think are otherwise solid.

If judges and state bar organizations have failed, it is no surprise that prosecutors themselves have done even less in terms of self-policing. While the Supreme Court once observed that truly terrible prosecutors could be criminally charged — by other prosecutors — for wrongdoing, such charges have led to imprisonment only once. Prosecutors often insist they can discipline themselves within their offices. However, there is no evidence that such internal discipline actually happens in any regular or meaningful way. If an ethics-focused prosecutor were elected to lead an office, there may be some hope for internal accountability. But, in the vast majority of offices, District Attorneys have other priorities, like securing high conviction rates and harsh sentences for violent offenders.

Why do so many of these potential avenues for holding prosecutors accountable fall short? For starters, their immense power within the criminal justice system can be intimidating. Individuals are afraid to make complaints because they don’t want to draw a district attorney’s ire. Defense attorneys often worry that raising hell will hurt their ability to negotiate favorable plea deals for their current and future clients. Even judges generally shy away from calling out prosecutors (with a few important exceptions). In fact, a great number of criminal court judges are former prosecutors, so there may be personal ties at play in addition to a strong sense of shared professional identity. And, substantial obstacles make it difficult for District Attorneys to transform office cultures that widely presume the guilt of defendants and seek to win convictions regardless of the constitutional costs: cognitive biases; the drive for professional advancement; and a reluctance to give up power.

Moreover, the sheer number of different institutions with the theoretical capacity to discipline prosecutors represents a classic diffusion of responsibility problem. Nobody takes ownership. Fingers point in every direction. Prosecutors capitalize on this diffusion, inevitably defending themselves in one forum by arguing that another forum will take care of whatever problem may exist. (Consider this summary in the National District Attorney Association’s amicus brief in a civil liability case).

In a recent law review article I wrote, published by the Lewis & Clark Law Review, I make a few practical suggestions for change. While none is a panacea, these ideas could help push forward the discussion. (Several have been raised before, and I cite to the originators in my piece). I based my suggestions on insights provided by deterrence theory — a theory that has not worked wonders in the crime control context in part because of our current justice system’s fixation on severe punishments rather than certain ones. Nonetheless, I believe these could contribute more to prosecutorial accountability.

To start, the diffusion of responsibility needs to be addressed. Of the existing modes of accountability, the only ones that have a meaningful chance of succeeding are criminal courts reviewing claims of misconduct made by defendants and professional disciplinary bodies. It would of course be wonderful if the Supreme Court overruled the lawless doctrine of absolute immunity for prosecutors, or if the new wave of progressive district attorneysembraced a transparent and rigorous system of internal discipline. But we should not construct a system around these slippery hopes.

One of the most profound insights from deterrence theory is that the shame of being punished is often more potent than the punishment itself. A page can be pulled from the current struggle against workplace harassment and everyday misogyny; that movement has revealed the transformative power of transparency and public information-sharing. Because shame matters, state disciplinary bodies should publicize prosecutorial disciplinary outcomes to lawyers and judges. Right now, they tend to bury decisions in online repositories and the back pages of monthly bar publications that sit on law office coffee tables.

Criminal courts also need to take seriously their own roles in policing misconduct. They are the first and sometimes only authorities who see the evidence. They should name names, and identify prosecutors who have broken the rules in opinions, rather than gift them the privilege of anonymity. Judges should also exercise their ethical duties to refer prosecutors who commit misconduct to the disciplinary body, something the Eleventh Circuit just recently did. And, of course, better information-sharing between the criminal courts and state disciplinary bodies could make both modes more effective.

These proposals are modest, to be sure. If someone harbors skepticism about the very institutions that have permitted or facilitated the status quo’s accountability deficit, I do not blame them (and, in fact, join them). But, as the winds of change seem to be blowing, I am confident that more people will look for solutions. It very well may be that the best solution is a new concept altogether — perhaps an independent commission — or an even more dramatic intervention that we have not yet seen. For the moment, incremental change, such as pressing courts and attorney disciplinary bodies to publicly disclose information, is more plausible, at least on a large scale. While hardly a comprehensive approach, taking such a step would move us toward honoring John Thompson’s legacy in a lasting way.

Bidish Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans. The views and opinions expressed in this commentary are Mr. Sarma’s and do not necessarily represent those of In Justice Today.