You have a D.A., he doesn’t talk about when they convict you or how they convict you, he’s talking about how he’s going to kill you. He don’t give a damn if you’re innocent. He don’t give a damn if you’re guilty. He’s talking about killing you. . . . [I]t’s like a bad dream. You want to wake up, but you can’t do it.
—Exoneree Randall Dale Adams1
Introduction
For many years, a large segment of the Law and Order–watching American public has assumed that the criminal justice system plays out in practice the same way it does on TV—fair, honest, and impartial prosecutors pursuing justice and endeavoring to put the correct wrongdoers behind bars.2 At the same time, a growing group of academics and practitioners have pushed back against this prevailing narrative, pointing to worrying deviations.3 Yet, these critiques have struggled to gain traction in the face of prosecutorial responses that any such deviations are merely “episodic,” and the lack of systematic data collection that would lend definitive support to either side.4 However, the advent of DNA analysis in the late 1980s—which for the first time provided a scientifically proven way of determining someone’s involvement in a crime5—ushered in an era of dramatically increasing numbers of wrongful convictions being uncovered, along with new data about the factors that cause them.6 While estimates about the true extent of wrongful convictions vary, recent analyses have approximated that two to fifteen percent of people convicted of certain crimes are not the true perpetrators of those crimes.7 Whatever the actual percentage, there is no longer any doubt that thousands, if not tens of thousands, of innocent Americans have been wrongfully branded as criminals and convicted of crimes they did not commit.8
As the pace of exonerations in the DNA era has steadily increased,9 so too has the data accumulated about the role of prosecutorial misconduct in contributing to these wrongful convictions.10 According to the National Registry of Exonerations, official misconduct has been a contributing factor in fifty-four percent of all DNA and non-DNA exonerations to date.11 Despite this, prosecutors are rarely, if ever, disciplined when their misconduct is uncovered.12 As a result of the growing recognition of prosecutorial misconduct’s contribution to wrongful convictions, and the apparent failure of existing disciplinary systems to curb this misconduct, a number of states have recently adopted significant reforms aimed at deterring and preventing prosecutorial wrongdoing.13 Two states in particular have led the way with trailblazing reforms: North Carolina, which adopted open-file discovery in 2004 and established an Innocence Inquiry Commission in 2006;14 and New York, which in 2017 adopted a rule requiring standing Brady orders to be issued at the outset of all criminal proceedings and in 2018 established the country’s first commission on prosecutorial conduct.15 Although each of the reforms adopted by North Carolina and New York are crucial steps toward preventing wrongful convictions, New York’s reforms went one step further and implemented specific mechanisms to ameliorate the conditions that allowed prosecutorial misconduct to occur in the first place.16 For instance, New York’s Brady order serves an important educational function for all stakeholders involved in a criminal proceeding by listing each category of Brady information required to be disclosed under the relevant case law, thereby helping to ensure that even prosecutors at offices lacking robust training procedures will, by force of habit, be educated on exactly what their legal duties are.17 Similarly, New York’s establishment of a commission on prosecutorial conduct sends the message loud and clear: should prosecutors deliberately disregard the legal and ethical duties that Brady orders make them aware of, they can and will be investigated and potentially removed from office.18 As a result, New York’s reforms appear poised to provide the kind of accountability and deterrence necessary to alter the status quo and ensure that prosecutors abide by their legal and ethical duties in every case they prosecute.19
Part I of this Note will provide a brief overview of the history of the national dialogue regarding prosecutorial misconduct in this country and a summary of the clamor for greater accountability that has emerged in the last two decades. It will also look at some of the factors that led to the current state of affairs. Part II will analyze the reforms adopted by North Carolina and New York by examining the comparative benefits and drawbacks of each, focusing on which measures appear most promising in light of their prospective impact and efficacy thus far. Finally, Part III will propose that the two reforms recently adopted by New York—the implementation of standing Brady orders at the outset of all criminal proceedings and the establishment of a prosecutorial conduct commission—provide the blueprint for ushering in a new era of accountability, as each of New York’s reforms creates specific mechanisms to check prosecutorial overreach. In this way, New York’s reforms offer a framework for other states to follow in order to bring transparency and accountability to an area where they have historically been sorely lacking.
I. Background
In an oft-cited speech given to a gathered conference of United States Attorneys in 1940, then–United States Attorney General and future Supreme Court Justice Robert H. Jackson declared that “[t]he prosecutor has more control over life, liberty, and reputation than any other person in America.”20 Indeed, as Jackson pointed out, the discretionary powers possessed by prosecutors—such as deciding who to investigate, what charges to bring, or what pleas to offer—are incredibly broad and their exercise of these powers can have enormous and far-reaching impacts.21 Far more so than any decisions made by judges, prosecutors’ discretionary decisions shape our criminal justice system and impact the lives of those who come into contact with it on a daily basis.22 For the most part, prosecutors make these decisions behind closed doors and are accountable only to other prosecutors, rather than to the people directly affected by their choices.23
The recognition of the immense power prosecutors possess and the special role they serve in our justice system is encapsulated by the admonishment in our ethics rules that prosecutors must serve as “minister[s] of justice” rather than as “advocate[s],” a role that carries with it “specific obligations to see that the defendant is accorded procedural justice.”24 These rules reflect the understanding that prosecutors must take great care in exercising their power so as to ensure that they are advancing the public good in all respects rather than their or anyone else’s personal agenda, a sentiment that Jackson himself expressed in his speech.25
A. The DNA Era and a Shifting Status Quo
In the leadup to the DNA era, it was generally assumed that misconduct committed by prosecutors—whether intentional or unintentional—was largely aberrational.26 Judges defaulted to giving prosecutors the benefit of the doubt and operated under the presumption that prosecutors’ offices could generally be trusted.27 Academics and practitioners pushed back against this assumption, suggesting that prosecutorial misconduct was more widespread and systemic than anomalous.28 Yet, these critiques mostly fell on deaf ears, and little, if any, attention was paid to them by mainstream governmental or media institutions.29 Moreover, prosecutors countered these critiques by relying on the long-prevailing view that reports of misconduct were being blown out of proportion, and that any misconduct was due to “a few bad apples” or “a handful of rogue prosecutors.”30
The status quo began to shift in the late 1990s when the Chicago Tribune and Pittsburgh Post-Gazette ran separate exposés detailing findings of widespread impropriety on the part of prosecutors across the country, including instances in which some prosecutors had gone as far as intentionally hiding exculpatory evidence in very serious cases.31 Even more troubling was the Chicago Tribune’s conclusion that prosecutors who engaged in serious misconduct expected to go unpunished.32 Although the public concern aroused by these reports did not last long,33 the Duke Lacrosse Scandal less than a decade later thrust the issue back into the national spotlight in a frenzied manner.34 In that case, which was highly publicized from start to finish, North Carolina prosecutor Michael Nifong charged three members of the Duke University lacrosse team with sexual assault and then made a flurry of ethically dubious media statements in which he opined in no uncertain terms on the defendants’ guilt.35 Not long after, it was revealed during a hearing on a motion to compel discovery that Nifong had deliberately instructed a lab director to omit exculpatory DNA test results from reports provided to the defense—a bombshell revelation that eventually led to the indictment being dropped.36 Disciplinary charges were subsequently brought against Nifong for violating ethical, statutory, and constitutional requirements for the disclosure of exculpatory evidence.37 The media frenzy continued throughout Nifong’s disciplinary hearing, which resulted in Nifong being found guilty of ethical violations and disbarred.38
The intense media scrutiny accompanying the Duke Lacrosse case and several other high-profile cases following close on its heels thrust a discussion of prosecutorial misconduct to the forefront of the national dialogue.39 In addition, the number of DNA exonerations occurring every year had reached a steady pace by this point,40 with each exoneration shedding an increasingly bright light on the various factors that lead to wrongful convictions, including many instances of prosecutorial misconduct.41 Increasing numbers of commentators published articles examining these newly uncovered instances of prosecutorial misconduct and highlighting the lack of accountability they revealed.42 Moreover, journalists were shocked to discover that what had happened to Michael Nifong was the exception, rather than the rule, and that even when prosecutors committed misconduct sufficiently egregious to overturn a conviction, those prosecutors were almost never punished.43 Even commentators at staunchly conservative publications expressed outrage at the unchecked behavior of prosecutors and urged for national attention to be focused on the issue.44 Everyone was asking themselves the same question: why do prosecutors who break the law not get punished?45
B. Connick v. Thompson and the Myth of the Self-Policing Prosecutor
The answer to this question is aptly illustrated by the facts of Connick v. Thompson, decided by the U.S. Supreme Court in 2011.46 In one of two underlying criminal cases, John Thompson was prosecuted by the Orleans Parish District Attorney’s Office (OPDA) for an armed robbery during which the assailant cut themselves and bled on one of the victim’s pant legs.47 A swatch of the victim’s pant leg was removed, and a test conducted before trial conclusively established that the assailant’s blood type was B.48 Thompson’s blood type was O.49 However, prosecutors failed to disclose the existence of the blood swatch or the blood type test results prior to trial.50 Even worse, Gerry Deegan, the OPDA prosecutor handling the case, checked the blood swatch out of the property room on the morning of the first day of trial and the swatch was never again located.51 As a result, Thompson was convicted of armed robbery, which was then used to separately convict Thompson of an unrelated murder.52 Although the murder occurred prior to the armed robbery, prosecutors deliberately reversed the order of the trials so they could use the robbery conviction to prevent Thompson from testifying in his own defense at the murder trial, as well as to increase the likelihood that he would be sentenced to death.53 While the jury deliberated in the armed robbery trial, one of the prosecutors even told Thompson in no uncertain terms what his plan was: “I’m going to fry you. You will die in the electric chair.”54 The gambit worked, and following the murder trial in which OPDA prosecutors continued to disregard Brady’s requirements,55 Thompson was found guilty of first-degree murder and sentenced to death.56
Fourteen years later, after Thompson had exhausted all of his appeals, the State of Louisiana scheduled his execution.57 In a last-ditch effort to save his life, Thompson’s attorneys hired a private investigator, who miraculously discovered a copy of the exculpatory report on the results of the blood-typing test conducted prior to Thompson’s robbery trial.58 The prosecutor, Deegan, had since passed away, but before his death—and after learning that he was terminally ill—Deegan confessed to a friend and fellow prosecutor that he had intentionally suppressed the exculpatory blood swatch evidence in Thompson’s robbery case.59 That friend kept Deegan’s confession to himself for five years until he learned that the defense had located a copy of the report, at which time he finally acknowledged Deegan’s admission.60 After this information was presented to the trial court, it insisted on a full evidentiary hearing—despite the fact that OPDA had already moved to dismiss the robbery case—as the court found it could no longer accept the office’s representations at face value.61 Before formally dismissing the charges, the trial court admonished the various OPDA assistant district attorneys sitting in the courtroom: “I hope . . . [you] take to heart the message that this kind of conduct cannot go on in this Parish if this Criminal Justice System is going to work.”62
In spite of the court’s reprimand, the job of punishing the errant prosecutors fell to the very same district attorney’s office to which they belonged.63 Grand jury proceedings were initiated against the responsible prosecutors, but they were quickly terminated after a single day, as long-time District Attorney Harry Connick maintained that the lab report was not Brady material and told the investigating prosecutor that the grand jury would make his job more difficult.64 The investigating prosecutor resigned in protest, and no further disciplinary action was taken.65
Thompson subsequently filed a civil action against Connick and OPDA under 42 U.S.C. § 1983, alleging they had violated his constitutional rights by withholding the blood swatch Brady evidence.66 In their depositions and at trial, Connick and his former top lieutenants repeatedly misstated Brady’s requirements, demonstrating that—as pointed out by Thompson’s expert witness—they had no understanding of their obligations under Brady whatsoever.67 Indeed, Connick admitted he had stopped paying attention to developments in the law after he was first elected in 1974.68 OPDA’s culture of flagrant disregard toward defendants’ constitutional rights under Brady and its progeny has proven to be so deeply ingrained and pervasive that publicly available information reveals OPDA failed to comply with Brady in no less than forty-five different cases—at least fourteen of which have resulted in reversals of convictions by the U.S. Supreme Court, the U.S. Court of Appeals for the Fifth Circuit, and the Louisiana Supreme Court.69 Six of these reversals occurred prior to Thompson’s two trials in 1985.70 In fact, OPDA has become so infamous for its track record of violating defendants’ Brady rights that the Louisiana State Court of Appeal, Fourth Circuit, wrote in a recent decision that it was “not unmindful of the storied, shameful history of the local prosecuting authorities’ noncompliance with Brady.”71 Despite this, only a single Louisiana prosecutor—a former OPDA prosecutor—has ever been formally sanctioned by Louisiana State disciplinary authorities for failing to comply with Brady.72
1. Ineffective Existing Systems of Oversight
The facts of Connick illustrate several leading reasons identified by recent literature that explain why prosecutors who commit misconduct tend to evade punishment entirely, or, at most, receive sanctions amounting to a proverbial slap on the wrist.73 First and foremost among these is the long-standing and recently reaffirmed assumption by courts that existing oversight systems within the legal profession and district attorneys’ offices sufficiently ensure that prosecutors act lawfully.74 Indeed, this erroneous assumption was the precise reason why the Connick Court reversed Thompson’s jury verdict and held that a district attorney’s office could not be held constitutionally liable for a single act of misconduct by an employee, no matter how egregious the misconduct in question.75
Yet, studies conducted in the years since Connick was decided have demonstrated that this reasoning is fundamentally flawed.76 For instance, an investigation into the professional conduct rules and attorney disciplinary procedures of all fifty states in the wake of Connick found that state bar authorities rarely subject prosecutors to disciplinary action.77 The investigation concluded that the states’ procedures, as currently constituted, did a “poor job of policing prosecutors.”78 A review of public attorney disciplinary records in California from 1997 to 2009 reached the same conclusion.79 Although there had been at least 707 findings of prosecutorial misconduct during this period,80 including sixty-seven instances of the same prosecutors committing misconduct more than once,81 the review discovered that only ten of the 4741 disciplinary actions reported in the California State Bar Journal from 1997 to 2009 involved prosecutors, and only six of those were related to their conduct in the handling of a criminal case.82 Additionally, several members of the Innocence Network formed a prosecutorial oversight commission after Connick to investigate the Supreme Court’s conclusion that existing oversight systems were sufficient to respond to and prevent prosecutorial misconduct.83 The commission reviewed the existing literature and research on prosecutorial misconduct, quantified the prevalence of misconduct through independent research, and held forums with stakeholders in six states.84 After summarizing the results of its findings, the commission concluded that our current systems of prosecutorial oversight are either “failing or nonexistent.”85
Given the failure of professional conduct rules and attorney disciplinary procedures to provide a check against prosecutorial misconduct, the responsibility for punishing a law-breaking prosecutor often falls solely to the very same district attorney’s office in which the misconduct occurred, as in Connick.86 Yet, this means that the investigation and potential indictment of an errant prosecutor must be carried out by her current or former coworkers and possible friends, thus creating an inherent conflict of interest.87 Furthermore, the negative publicity and scrutiny that such an investigation generates for a district attorney’s office means that any employees tasked with carrying it out are instinctively disincentivized from fully investigating and punishing those involved, no matter how noble their motives.88 As a result, it is likely that many district attorneys conclude, as Connick did, that thoroughly investigating allegations of prosecutorial misconduct will make their jobs too difficult to be worth the hassle.89
2. Culture of Underreporting
Another reason why prosecutors tend to evade punishment for their misconduct is the culture of underreporting that is pervasive throughout the nation’s criminal justice system, despite most jurisdictions’ ethical requirements that instances of attorney misconduct must be reported.90 Indeed, this problem is reflected in the Connick trial court’s willingness to leave any decisions about disciplinary action to the district attorney’s office rather than to also report the misconduct to the state disciplinary authorities that regulate attorney conduct.91 The primary reason for this culture of underreporting offered by panelists at forums hosted by the Innocence Network’s prosecutorial oversight commission was fear of hurting relationships with individuals the panelists worked with on a daily basis.92 In particular, defense attorneys reported being strongly disincentivized to report any prosecutorial misconduct for fear of alienating the same people who exercised unfettered discretion over the outcomes of their clients’ cases.93 Indeed, defense attorneys find themselves in a precarious ethical dilemma where reporting misconduct has the potential to adversely affect every future client they have, but not reporting it may negatively impact their current client’s case. Faced with these two distressing outcomes, defense attorneys understandably choose not to report, in hopes of minimizing the overall harm to all of their clients.94 Yet, defense attorneys are not alone, as the disincentive to report misconduct appears to be so strong that even judges in jurisdictions with statutorily required reporting requirements by and large continue to fail to do so.95
3. Fundamental Flaw in the Brady Rule
The final reason illustrated by Connick about why law-breaking prosecutors are rarely punished springs from an innate fault of the Supreme Court’s holding in Brady v. Maryland.96 Namely, the Brady rule makes prosecutors the sole arbiters of what evidence is favorable to an accused, which in turn creates a fundamental conflict of interest for prosecutors, no matter how benevolent and well-intentioned they might be.97 Although the Court routinely reminds district attorneys that “the prudent prosecutor will resolve doubtful questions in favor of disclosure,”98 even the most righteous prosecutors will at some point find they must choose between their dual, competing roles as advocates and ministers of justice.99 Will they, for instance, see that justice is done and disclose the favorable evidence that might allow a confessed and DNA-linked rapist to walk free, or will they suppress the evidence to ensure that the rapist is convicted and that they win their case?100 It is an impossible decision for anyone to make and is one that has far too many important ramifications to be left in the hands of just one of the stakeholders in our adversarial criminal justice system.101
Moreover, prosecutors have nothing to lose and everything to gain by doing precisely the opposite of what the Supreme Court instructs and erring in favor of suppression rather than disclosure.102 This is partly because it is simply “not in their hearts to look for ways to help the other side,”103 but it is also because a prosecutor’s decision to withhold evidence normally means that the evidence will forever be hidden from defense lawyers and the courts.104 Indeed, prosecutors are under no obligation to provide a privilege log to the defense or to inform them about what evidence they have withheld, nor must they consult with the court about what they should or should not produce.105 This, combined with the dearth of repercussions even when misconduct is found to have occurred, means the Brady rule as currently formulated seems to actually create “perverse incentives” for prosecutors to engage in, rather than refrain from, committing misconduct.106
The problematic nature of this current state of affairs is fittingly encapsulated in the views expressed by former Orleans Parish District Attorney Harry Connick when questioned about his office’s history of Brady violations during the trial in John Thompson’s civil suit.107 For instance, Connick was asked about the Supreme Court decision Kyles v. Whitley, in which the Court reversed another capital murder conviction and death sentence obtained by his office due to its suppression of exculpatory Brady evidence.108 In so doing, the Court roundly rejected OPDA’s proposals to loosen the Brady rule to give prosecutors “a certain amount of leeway in making a judgment call” about the disclosure of any given piece of evidence,109 as well as to not hold prosecutors accountable for favorable evidence withheld from them by the police.110 As for Kyles’s trial, the Court concluded that “‘fairness’ cannot be stretched to the point of calling this a fair trial.”111 In spite of the Court’s emphatic rejection in Kyles of OPDA’s proposed changes to the Brady rule,112 and the office’s long and continuing track record of Brady violations and related reversed convictions,113 Connick nonetheless told Thompson’s civil jury that he was satisfied with his office’s practices in the wake of Kyles, and that the decision had not occasioned any need to change his office’s practices.114 Indeed, Connick admitted that he had never once fired or even so much as disciplined a single prosecutor for violating Brady,115 in spite of their long and “storied” track record of doing so.116 Given Connick’s answer to this question about Kyles, one can only imagine that he would have provided the same response if asked about changing his office’s practices in the wake of any of the other numerous decisions in which prosecutors from his office were found to have violated defendants’ Brady rights.117 Such casual indifference to the Supreme Court’s constitutional strictures—as also reflected in Connick’s resistance to holding accountable the prosecutors responsible for Thompson’s conviction because doing so would make his job more difficult118—can be explained only by the fact that Connick faced no consequences for not abiding by the Court’s directives.119
Connick is hardly an aberration in this regard. For example, one article written in the wake of the Court’s decision in Connick used evidence gleaned from civil rights lawsuits to examine the disciplinary practices of three “progressive” New York City district attorney’s’ offices—in the Bronx, Queens, and Brooklyn—each of which had a history of violating defendants’ Brady rights and convictions subsequently being overturned.120 Discovery exchanged in the civil cases and depositions taken of prosecutors from these offices revealed, however, that the overturned convictions had provided no impetus for the offices to change their practices.121 Rather, each office continued to lack any codes of conduct or formal disciplinary rules to deter prosecutors from violating Brady and other related due process rules that help guarantee defendants their constitutional right to a fair trial.122 Moreover, the three district attorney’s’ offices were unable to offer any evidence that they had a practice of imposing sanctions or other negative consequences on prosecutors who violated Brady.123 This perhaps helps explain why there continue to be findings that prosecutors from these offices have committed misconduct.124 The article thus concluded by urging the Supreme Court to abandon its “false assumption” that prosecutors are actually disciplined by, or have reason to fear being disciplined by, their offices or state disciplinary authorities.125
The takeaway from the current landscape surrounding the Brady rule is therefore inescapable—if defendants’ constitutional rights are to be vindicated in this country, something more is needed.126 As long as sole discretion and oversight over the exercise of Brady obligations remains with prosecutors, Brady violations will continue unchecked.127 As observed by Thomas Sullivan, the former U.S. Attorney for the Northern District of Illinois, the proof is in the pudding: “the myriad cases of undisclosed exculpatory evidence in the Registry of Exonerations” are a clear demonstration that the system is not working.128
II. Analysis: State-Level Reforms
Although there is greater awareness than ever before about the role of prosecutorial misconduct in causing wrongful convictions, the literature examining the issue in the years since Connick makes clear that existing mechanisms meant to police prosecutors have largely been toothless and ineffective.129 As a result, several states have adopted reforms that take dramatic steps toward introducing greater accountability into this area.130 Two states in particular have led the way with trailblazing reforms: North Carolina, which adopted open-file discovery in 2004131 and established an Innocence Inquiry Commission in 2006;132 and New York, which in 2017 adopted a rule requiring standing Brady orders to be issued at the outset of all criminal proceedings133 and in 2018 established the country’s first commission on prosecutorial conduct.134 This Section will begin with a brief discussion of each of these reforms before analyzing which reforms seem to have the greatest potential for ushering in a new era of accountability and reform for prosecutors.
A. North Carolina
1. Open-File Discovery
Two years prior to the Duke Lacrosse Scandal and Michael Nifong’s disbarment, North Carolina passed a trailblazing open-file discovery law that requires district attorneys to open their files to defense attorneys who request access before trial and fully disclose things like police investigator notes, witness statements, scientific test results, and lists of probable trial witnesses.135 Open-file discovery laws like this have grown increasingly popular as of late, and they generally require complete disclosure of prosecution files to the defense, without regard to the materiality of the documents.136 In 2011, North Carolina updated its law to impose new obligations on investigative agencies to promptly provide material to prosecutors even before they are explicitly requested to do so.137 The amendment also expanded the types of materials these agencies must provide to help ensure that prosecutors are promptly provided with all relevant information, which they can then pass on to the defense.138
The efficacy of North Carolina’s open-file discovery law is appositely illustrated by the Duke Lacrosse Scandal itself. Commentators have pointed out that the scandal played a crucial role in revealing Nifong’s misconduct and bringing about his disbarment.139 Indeed, the Disciplinary Hearing Committee that presided over Nifong’s disbarment proceedings primarily rested its decision upon his failure to comply with various obligations imposed by the law.140 The most important aspect of the law—and part of why it played such an outsized role in the case—is that instead of giving prosecutors sole discretion to assess what evidence is exculpatory and therefore necessary to turn over to the defense, it creates a baseline of standard disclosure requiring all material to be shared so that the parties can determine as much for themselves.141 The significance of this cannot be overstated. For instance, prosecutors—not used to thinking like defense attorneys—may innocently judge something to not be exculpatory and necessary to disclose, whereas a veteran defense attorney might conclude precisely the opposite.142 Moreover, open-file discovery theoretically helps to spare prosecutors from situations in which implicit bias might affect their evaluation of potential Brady evidence, and to temper “the tension between the prosecutor’s dual role of zealous advocate and minister of justice,” which “peaks in the context of Brady decisions.”143 As such, by removing from prosecutors sole discretion over determining whether a piece of evidence is favorable and therefore necessary to disclose,144 open-file discovery laws like North Carolina’s help to assuage some of Brady’s flaws that have become apparent in the years since it was decided145 and to remove the possibility that prosecutors ever have the chance to commit Brady violations.146
2. The Innocence Inquiry Commission
In the wake of several other high-profile wrongful convictions, and as the Duke Lacrosse Scandal was still unfolding, North Carolina became the first state in the country to pass legislation creating a so-called Innocence Inquiry Commission, which is empowered with the legal authority to investigate claims of innocence and refer cases to a panel of judges able to grant immediate freedom.147 North Carolina’s Commission is headed by an Executive Director tasked with implementing the Commission’s “extraordinary procedure to investigate and determine credible claims of factual innocence,” and is composed of eight voting members—representative of each of the stakeholders in the criminal justice system—who are responsible for deciding which of the commission’s cases to refer for judicial review by a three-judge panel.148 A petitioner claiming innocence is entitled to appointed counsel throughout the inquiry into their case, and the Commission is vested with subpoena and other broad powers which it may utilize in conducting its reviews.149 Since the Commission began its work in 2007, it has received 2314 claims of actual innocence, held eleven hearings, and presided over the exoneration of ten individuals.150
While the Innocence Inquiry Commission is a crucial step forward for recognizing, investigating, and remedying the epidemic of wrongful convictions—which helps relieve some of the burden from the nonprofits that shoulder the entirety of the work absent such a commission—it does not present significant potential for introducing greater accountability into prosecutions.151 Although the Commission may uncover instances of prosecutorial misconduct during its case-review process,152 this will not help prevent the misconduct before it occurs. Additionally, while it is possible that prosecutors at the trial level will tread more carefully now that all convicted defendants in North Carolina who claim actual innocence have a statutory right to at least some review of their claim, this is hardly a foregone conclusion.153 Ultimately, although the Commission is a trailblazing and crucial step toward remedying wrongful convictions, a different type of reform that provides more tangible deterrence for prosecutors is better suited to curb the misconduct that sometimes leads to these wrongful convictions.
B. New York
1. Brady Orders
In 2009, New York State convened a Justice Task Force composed of prosecutors, defense attorneys, judges, legislators, police officials, and scientists for the stated mission of “eradicat[ing] the systemic and individual harms caused by wrongful convictions, . . . promot[ing] public safety by examining the causes of wrongful convictions, and . . . recommend[ing] reforms to safeguard against any such convictions in the future.”154 In February 2017, the Task Force issued a report with several recommendations for addressing attorney conduct issues in criminal cases, including one aimed at confronting the link between Brady violations and wrongful convictions.155 Specifically, the Task Force recommended that all New York trial judges issue an order at the outset of criminal cases notifying and reminding prosecutors of their obligations under Brady and its progeny.156 Shortly thereafter, Chief Judge Janet DiFiore adopted the Task Force’s recommendation and promulgated new rules requiring all judges presiding over criminal cases in New York to issue these so-called Brady orders.157 Chief Judge DiFiore’s action was immediately applauded by many as a groundbreaking step in the right direction toward greater prosecutorial accountability.158
Although New York’s new rule is so recent that there has been little time to see how it plays out in practice, it is a reform many commentators have long called for.159 This is because even though Brady and its progeny impose important constitutional obligations on prosecutors, Brady is not self-enforcing. Accordingly, unless a judge has specifically ordered certain evidence to be disclosed or for Brady to be complied with, a prosecutor who violates Brady is at no personal risk.160 Federal District Judge Emmet Sullivan learned this the hard way after presiding over the botched prosecution of former Senator Ted Stevens in 2008.161 After Senator Stevens was found guilty of lying on Senate disclosure forms, it was revealed that federal prosecutors had concealed numerous pieces of favorable evidence that likely could have helped win his acquittal.162 Judge Sullivan appointed a special prosecutor to investigate this misconduct, who later concluded that Justice Department lawyers had “committed deliberate and ‘systematic’ ethical violations by withholding critical evidence pointing to Stevens’s innocence.”163 Yet, the special prosecutor also found that Judge Sullivan was powerless to punish the wrongdoers because he had not directly ordered the prosecution to abide by their constitutional obligations.164 As a result, Judge Sullivan adopted a personal practice of issuing Brady orders in each criminal case he presides over so he can personally hold accountable any prosecutor appearing before him who willfully flaunts Brady’s requirements.165 As other commentators have noted, the ability to hold prosecutors personally responsible like this “will doubtless result in far greater compliance [with Brady].”166
Much like open-file discovery, the issuance of Brady orders as a matter of course in criminal cases thus appears to help resolve another major flaw exposed in Brady in the years since it was handed down. That is, it finally gives the Brady rule some much-needed teeth for its enforcement and facilitates prosecutors being held accountable for any intentional misconduct.167 Even more importantly, the requirement that the issued Brady orders make specific reference to the types of material that must be disclosed—such as information that impeaches the credibility of witnesses168—helps to ensure that all stakeholders involved in a criminal case are aware of their legal obligations, encourages them to work together to discharge these duties, and helps to ameliorate the lack of training at some district attorney’s offices like Connick’s OPDA.169 Moreover, by reserving sanctions only for willful and deliberate violators of Brady, the order aims to engage judges in routinely inquiring about problems that arise in the Brady disclosure process and recording their findings, which should help to both discern broader systemic issues and identify bad-apple prosecutors who deliberately flaunt the rules.170 Indeed, although the Brady order reform is an important step forward, it will ultimately fall to judges to do the lion’s share of the work in terms of ensuring that compliance with Brady orders is routinely enforced.171
2. Prosecutorial Conduct Commission
Following close on the heels of New York’s implementation of the Brady order rule, Governor Andrew Cuomo on August 20, 2018, signed a bill into law that created the nation’s first state-wide commission aimed at addressing prosecutorial misconduct.172 The Commission is modeled after New York’s successful Commission on Judicial Conduct, and will be comprised of eleven experienced criminal law practitioners empowered with investigating complaints about prosecutorial conduct—or initiating investigations on their own—to determine whether prosecutors have engaged in unprofessional, unethical, or unlawful conduct.173 The Commission will have broad investigative powers, including the power to conduct hearings;174 issue subpoenas;175 compel witnesses to testify;176 demand any documents, records, or materials deemed necessary for its investigation;177 receive assistance from any state agency whose cooperation will enable it to carry out its duties;178 and compel prosecutors to testify and turn over documents.179 Additionally, the Commission’s findings, conclusions, and records of its proceedings must be made publicly available upon the completion of each of its inquiries.180 Although the Commission will not be able to directly punish prosecutors it finds to have violated their legal and ethical obligations, it will have the power to censure them, suggest sanctions against them, and recommend that the governor remove them if they are found to have committed intentional misconduct.181
Unsurprisingly, the prospect of the new commission has generated vehement pushback from New York’s district attorneys, who portray it as a “flawed” and “unconstitutional” plan that will ultimately do more harm than good by interfering with the duties of prosecutors and not bringing any meaningful oversight.182 Specifically, district attorneys claim that the law (1) violates the separation of powers between the three branches of New York’s state government; (2) creates due process concerns by failing to set standards for initiating investigations; (3) improperly grants broad investigative powers that are not circumscribed to safeguard against exposing sensitive information related to ongoing criminal investigations; and (4) unconstitutionally vests appellate jurisdiction for the Commission’s decisions with New York’s highest court, the Court of Appeals.183 Governor Cuomo acknowledged these and other concerns when he signed the bill, making his support contingent upon the legislature amending the law to address these concerns before it was set to take effect.184 Nonetheless, the District Attorneys Association of the State of New York (DAASNY) filed suit to halt the Commission’s implementation,185 to which Governor Cuomo temporarily agreed on December 7, 2018.186
Shortly after the New York Legislature reconvened in January 2019, it addressed some of the concerns that had been raised by passing the chapter amendments Governor Cuomo conditioned his support upon.187 The amendments make a number of changes. First, they address the separation-of-powers concerns by locating oversight of the Commission squarely within the executive department, rather than making it a standalone entity as had originally been envisioned.188 The amendments also give the governor the power to appoint four members of the Commission, more appointments than any other individual possesses.189 Second, the amendments set out specific procedures for requesting the withdrawal or modification of a subpoena issued by the Commission if a prosecuting agency feels that complying with it will interfere with an ongoing criminal investigation.190 In the event this happens, a prosecuting agency must inform the Commission of the basis for its position, after which time the Commission is restricted from exercising its powers in ways that might interfere with the active investigation and prosecution.191 Finally, the amendments vest appellate jurisdiction over the Commission’s decisions in the Appellate Divisions of the State Supreme Court—rather than in the Court of Appeals—which can reject, affirm, or modify the decision at issue.192 This helps bring the Commission’s workings in line with existing procedures, as each Appellate Division already houses grievance committees that accept complaints and recommend sanctions against attorneys.193
Although Governor Cuomo approved the amended version of the law on March 27, 2019, he did so while expressing continuing concerns about the perceived separation-of-powers issues raised by the DAASNY legal challenge.194 Several days later, DAASNY renewed its challenge.195 In June 2019, after Governor Cuomo and other legislative leaders signaled their intent to assert individual immunity defenses in the litigation, DAASNY offered to drop them from the suit if they agreed to halt the Commission’s creation and defer making appointments until the litigation was resolved.196 DAASNY’s offer was accepted, leaving Assembly Speaker Carl Heastie as the law’s sole defender in the suit.197 Shortly thereafter, DAASNY moved for summary judgment, largely reiterating the same arguments they had previously advanced.198 Assembly Speaker Heastie responded with his own cross-motion for summary judgment, rebuffing DAASNY’s separation-of-powers concerns. In so doing, he highlighted both the common practice in New York of creating panels with appointees from different branches of government and the law’s severability clause, which would allow the law to stand even if parts of it were invalidated.199 Assembly Speaker Heastie also rejected DAASNY’s assertion that the Commission’s mere existence would interfere with prosecutors’ discretion and chill the exercise of their constitutional function, pointing out that the argument is purely hypothetical and premature prior to the Commission’s formation and that, in any event, the panel was merely intended to be an oversight tool to ensure prosecutors’ compliance with ethical and professional standards.200 Numerous amici curiae echoed these arguments in a brief filed in support of Assembly Speaker Heastie’s motion, in which they noted that DAASNY’s objections to the law appeared more grounded in its policy preferences than in constitutional law, and argued that the demonstrated failure of existing oversight mechanisms gave the New York Legislature ample reason to exercise its authority to regulate prosecutors.201
Even though the future of the Commission hangs in the balance as of this writing and its final composition may be subject to modification pending the outcome of DAASNY’s legal challenge, the strong bipartisan support that conceived the Commission suggests the idea has staying power in one form or another.202 The novelty of this commendable effort warrants comment on the prospective impact such a commission could have. There is no longer any doubt that the present lack of accountability for prosecutors—epitomized by Harry Connick’s blasé attitude toward heeding Brady’s instruction in the face of overturned conviction after overturned conviction from his office—has played an alarming and serious role in contributing to many wrongful convictions.203 For this reason, a prosecutorial conduct commission like the one envisioned by New York is another reform that, much like the Brady order, commentators have long called for.204 The mere existence of an independent commission like this, imbued with the sole mandate of holding prosecutors accountable as well as subpoena power to enforce that mandate, sends the message that blatant and intentional misconduct “will not be tolerated by the bar,” which should help to generally “deter the most blatant types of misconduct.”205 Especially important to this point is that the findings, conclusions, and records of the Commission’s proceedings must be made publicly available,206 unlike most state disciplinary proceedings where “secrecy is the hallmark” and whose deterrent effect is therefore almost entirely inhibited.207 The Commission’s deterrent effect will undoubtedly be amplified by the mandate that the Commission be composed of an equal mix of experienced practitioners from all sides of the criminal justice system,208 in recognition of the reality that “a system of highly regarded professionals independent of prosecutors’ offices is essential to a workable system of [prosecutorial] accountability. Only such a commission can assume the mantle of authority and engender the respect necessary to undertake such a task.”209
Another vital design feature of the Commission that must be noted is its potential for continually spurring transparent criminal justice reform, even in the absence of any prosecutors being formally censured or sanctioned.210 This is possible because the Commission’s duties include issuing annual reports on its proceedings to the governor, the legislature, and the chief judge of the Court of Appeals, which can include legislative and administrative recommendations based on problems it has identified.211 Thus, the law empowers the Commission to root out and address broader systemic issues impeding greater prosecutorial accountability, regardless of whether it finds the need to sanction any individual prosecutor that comes before it.212 In light of this, the Commission appears more poised than any of the other individual reforms touched upon in this Note to usher in a new era of prosecutorial accountability once it (hopefully) is formed.213 And even if New York’s commission should never ultimately come to fruition, its model can nonetheless serve as a prescient blueprint for other states to follow in this ongoing era of criminal justice reform.
III. Proposal: New York’s Reforms Are the Way Forward
Although there is much to laud about North Carolina’s establishment of open-file discovery and its Innocence Inquiry Commission, neither of these reforms have the potential on their own or together to provide the kind of accountability and deterrence needed to curb the ongoing problem of prosecutorial misconduct.214 Even the more promising of the two reforms—open-file discovery—has its own issues. While it looks quite promising on paper, commentators have pointed out that open-file discovery is far messier in practice, given (1) the extra burdens it saddles on already-overwhelmed public defenders, (2) the potential that prosecutors might weaponize the process to overwhelm the defense with documents in order to purposefully frustrate their efforts, and (3) the prospect that prosecutors may still choose to provide less than their whole file but nonetheless claim it is complete.215 Thus, even though open-file discovery is an absolutely crucial step forward to assuage Brady’s flawed delegation to prosecutors of the sole authority to determine what evidence is favorable to the defense and is thus necessary to disclose, it neither inherently provides any tangible deterrence to prevent intentional misconduct nor creates concrete mechanisms to hold to task those prosecutors who transgress.
By contrast, New York’s two recent reforms appear to present the blueprint that all states should begin to follow. The key aspect of both reforms is that they each provide some of the teeth that the Brady rule has long lacked as well as the deterrence necessary to weed out wrong-doing prosecutors.216 That is, each reform implements mechanisms that will finally allow for prosecutors to be held to account for their intentional law-breaking when it occurs.217 Brady orders do this by ensuring that, from the outset of each criminal case, the prosecutors are aware of their legal obligations and thus can be sanctioned if they are found to have deliberately disregarded them.218 And New York’s Prosecutorial Conduct Commission does this by sending the message loud and clear to prosecutors that they can and will be investigated, subpoenaed, and potentially removed from office should they choose to flagrantly disregard their duties.219
Moreover, each of these reforms creates crucial mechanisms that will help all stakeholders in the criminal justice system identify error, investigate root causes, and learn from the mistakes that cause tragic failures like wrongful convictions.220 Brady orders, by their very nature, require judges, prosecutors, and defense lawyers to routinely ensure that all information constitutionally required to be disclosed in a criminal case has been so disclosed, and they induce judges to discover what went wrong when mishaps do occur so that only deliberate violators are sanctioned.221 And the Prosecutorial Conduct Commission is vitally focused not just on investigating and potentially punishing deliberate rule breakers but also on identifying broader systemic issues in the criminal justice system and using information gleaned from its investigations to make recommendations about how these problems might be best addressed.222
Had a commission such as New York’s existed in Louisiana during Harry Connick’s tenure as head of OPDA, one can only imagine how things might have turned out differently. For example, it seems certain based on the extent of the misconduct emanating from his office that numerous complaints would have been made to such a hypothetical commission throughout Connick’s incumbency.223 Upon investigating and discovering the state of affairs at OPDA that has been laid bare as of late,224 the commission undoubtedly would have censured or recommended the removal of OPDA prosecutors like Gerry Deegan, who admitted to intentionally suppressing the blood swatch evidence in John Thompson’s case.225 Seeing fellow prosecutors around them being punished or removed for violating Brady would have likely, in turn, prompted other prosecutors in the office to take their Brady obligations much more seriously.226 One would also expect that the repeated pattern of flagrant Brady violations coming out of Connick’s office would eventually have caused the commission to become as consternated about OPDA and Connick’s leadership of it as the Louisiana State Court of Appeal, Fourth Circuit, was when it wrote that it was “not unmindful of the storied, shameful history of the local prosecuting authorities’ noncompliance with Brady.”227 Sooner or later, the commission likely would have looked into Connick himself, possibly leading to his removal from office or, at the very least, his realization that properly training his prosecutors to comply with Brady would help stave off the commission’s inquiries and make his job easier. Indeed, it is hard to imagine a world where, with such a commission in Louisiana, Connick could have remained as unconcerned about complying with the law as he did in the face of mounting investigations and the public airing of his office’s malfeasance.
Conclusion
While most prosecutors are ethically scrupulous and law-abiding in their pursuit of justice,228 the present state of affairs makes clear that those prosecutors who do choose to cross the line face zero consequences.229 This is true even after their sometimes willful misconduct is exposed and the innocent people they put in prison—or on death row—have been freed.230 Although the number of prosecutors who engage in intentional misconduct may be comparatively small, the consequences are outsized, as any of the fifty-four percent of exonerees whose wrongful convictions have involved official misconduct can attest.231 Prosecutors, as “minister[s] of justice,”232 have just as much of a duty as the courts to ensure that criminal defendants receive fair trials.233 Yet, when overzealous, undertrained, or unethical prosecutors flagrantly disregard this duty and face no resulting consequences, their actions grievously harm not only John Thompson and the many other innocent people like him, but also serve to undermine public confidence in the fairness and integrity of our justice system as a whole. If doing justice is to mean anything in this country, we must fix this. New York’s reforms are a much-needed step in the right direction.