Holding Prosecutors Accountable for Wrongful Convictions – The Uphill Climb May be Getting Steeper

Prosecutors occupy a central role in our criminal justice system.  In every case, they choose the offenses the defendant will be charged with, present evidence to a grand jury to secure an indictment in a proceeding they control almost exclusively, and then represent the public in the actual criminal case where they make almost all of the decisions concerning many important matters such as plea bargains.  Additionally, their investigatory resources are generally far greater than those available to the defense.  Finally, since many people equate a criminal charge with actual guilt, they can be ahead of the game before the jury is selected and the trial starts.

They may not like to admit it, but prosecutors are not perfect.  They sometimes make mistakes that result in wrongful convictions.  The United States Court of Appeals for the Second Circuit will soon be hearing a case that may further close off the ability of the wrongfully convicted to seek redress for the resulting harm.

Under current law, suing police officers who commit misconduct is relatively simple.  In sharp contrast, federal law protects prosecutors who make mistakes that hurt defendants.  Thus, individual district attorneys in New York State are immune from suits for courtroom mistakes that result in wrongful convictions.  Further, suing New York State is a waste of time unless the plaintiff can demonstrate conclusively that they were innocent of the offense that sent them to prison.

In New York, defendants who were wrongfully convicted have been able to sue cities and counties which control the budgets and paychecks for DAs offices, even though the latter function in the State court system.  These lawsuits, however, can be commenced only under very specific circumstances.  The wrongfully convicted defendant, now plaintiff, must show that the underlying mistake related to an administrative matter (e.g., hiring, firing, office policy), and not just a prosecutor’s decision(s).  The plaintiff must also demonstrate that the courtroom error in their case was part of a larger pattern of misconduct which prosecutors knew of but ignored.

The case on appeal to the Second Circuit stemmed from a decision by a federal judge in Brooklyn who found that matters concerning “supervision and training” were prosecutorial as opposed to administrative, and New York City could therefore not be held liable for them.  This ruling was issued by a federal judge who was (not surprisingly) a former prosecutor.

The issue here is that the ruling either significantly limits upon, or may completely eliminate, a municipality’s liability for the misconduct of district attorneys.  Accordingly, if the Second Circuit affirms the district court’s ruling, it will be almost impossible for wrongfully convicted defendants to sue any person or entity (individual prosecutor, municipality or state), for compensation that may be due as a result of the harm caused by the conviction.  There will also be absolutely no incentive for the DAs offices to change the manner in which they manage cases or individual district attorneys.

An army of defense attorneys are working on this.  The Innocence Project and New York State Association of Criminal Defense Lawyers have filed appellate briefs in the case.  It is clearly important for the Second Circuit to reverse the district court’s decision, and preserve municipal liability as an avenue to hold prosecutors accountable for their mistakes.

James S. Friedman is a criminal defense attorney based in New Brunswick, Middlesex County, New Jersey.  Mr. Friedman handles criminal cases in all state and federal courts in New Jersey and New York City.

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