Prosecutorial Misconduct: What's Good for the Goose Should be Good for the Gander

In the wake of the former Sen. Ted Steven's conviction, election loss, vacation of his conviction, and dismissal of his charges for good, we learn that the federal judge in the case is simply appalled at the depths to which the prosecutors went to obtain the conviction against Stevens. From the Washington Post:

During and after the trial, the judge reprimanded prosecutors several times for how they had handled evidence and witnesses. He chastised prosecutors for allowing a witness to leave town. He grew more agitated when he learned that prosecutors had introduced evidence they knew was inaccurate, and he scolded them for not turning over exculpatory material to the defense.

Introducing false evidence? Check. Withholding exculpatory evidence? Check. Mishandling witnesses? Check. So now these rogue prosecutors are being investigated, as they should be, and this investigation may lead to criminal charges and eventual prison time if convicted. Way to go justice system.

So while the talking heads and political hacks are vilifying these prosecutors and trumpeting this is as a vindication of Stevens, this situation begs some important questions that the traditional media seems unwilling to touch:

How come we don't get the same remedial reaction to prosecutorial misconduct when the criminal defendant is somethone other than a seven-term US Senator or a wealthy lacrosse player? How come people are executed every year in this country despite equally, or even more compelling meritorious claims of misconduct by prosecutors?

Answering these questions would get to the heart of the imbalance and inequality that exists in our criminal justice system. It's an uncomfortable conversation, one that will inevitably get into race and class issues, as well as cause people to view the State's role in criminal prosecutions in a more skeptical way. Despite all this, it is a conversation our criminal justice system so desperately needs.

Many would be surprised to know that discipline of Florida prosecutors for misconduct is virtually unheard of, and criminal sanctions for misconduct is not something that has been entertained in Florida in run-of-the-mill criminal cases. Some of these are almost assuredly death cases, where the stakes are highest to get a conviction, which often leads to the highest incidence of misconduct.

So while we say to Judge Sullivan that it is is about time someone holds the prosecutorial community to task for misconduct that is hurting (and possibly responsible for wrongfully convicting) defendants and tainting the otherwise ethical work of others in the prosecutorial community, such action needs a broader reach within the criminal justice system.

On this point, just today, the Justice Project, out of Washington, DC, issued a report on the prevasiveness of prosecutorial misconduct within the criminal justice system and what to do about it.