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“Prosecutors Gone Wrong”

May 4, 2011

On March 31, 2011 the Criminal Law Society had a panel on prosecutorial misconduct.  The speaker was Mr. Dan Medwed, Professor at the University of Utah.  Professor Medwed now teaches Criminal Law and Evidence at the law school.  In the past, Professor Medwed was a Public Defender in New York City, has done criminal appeals, was involved in the Innocence Project at Brooklyn Law School, and is currently working on publishing a book.
As a future criminal defense attorney, I always find it compelling to involve myself in any area of criminal law, including the “other side” of criminal law.  So, it really peaks my interest when I can sit in on something focusing on prosecutorial misconduct, those perceived as the Gods of criminal law and the most perfect and upmost attorneys in the criminal law system.  Professor Medwed’s presentation fittingly was entitled “Prosecutors Gone Bad.” 
All through law school everyone is constantly reminding us of ethics and professional responsibility, and I remember Dean Kransberger on the first day of orientation saying that we had peoples’ lives in our hands.  Prosecutors are ministers of justice.  They have two obligations: 1) to enforce justice; and 2) to be the zealous advocate.  They represent all of us, they represent us when someone kills, rapes, steals, and kidnaps.  They represent us when someone hits you with a lead pipe in the face with intent to kill, beats up a gay person or a black person motivated by hate, sexually assaults a child, kills your Grandmother, robs a bank with a gun, and steals your car.  It is the criminal defense attorneys that get the bad rap (“How could you defend someone you know is guilty?”).  Prosecutors make society a better place by enforcing justice and being the zealous advocate.
The panel gave us a stark reality and a different look at Prosecutors.  In the end, justice was not enforced and the only zealous advocates were the innocent convicted criminals rotting in prison.  There were stories about three Prosecutors; one where a Prosecutor did not disclose evidence that could exonerate the suspect in custody, one where the Prosecutor refused to run a post-conviction DNA test (that exonerated the inmate) in a rape case, and another rape case that DNA proved innocence in an inmate but the Prosecutor opted to keep fighting the appeal.  In all of these cases, there were innocent people that were sent to prison for crimes they did not commit.  In all of these cases, the Prosecutor played a very large role.  Although Prosecutors represent us, they also represent an amount of pressure that is imposed upon them that leads them to conduct themselves in a manner that does not further justice.  From these cases, it appears that many DA’s offices are focused on winning and lose sight of what they are there to do.  Everyone, including Prosecutors, should be held to the same ethical standards of the criminal justice system.  Regardless of pressure, anyone practicing law should be focused on the client.  In the case of criminal law, that client may go to prison for a very long time if the Prosecutor succumbs to the pressure of securing a conviction, no matter how it is done.
In conclusion, Professor Medwed proposed possible penalties on attorneys who knowingly prosecute people that are innocent or interfere with the appeals process for unknown reasons outside of justice.  I agree with Professor Medwed in that in the cases such as these, where there was clear prosecutorial misconduct, there should be no immunity.  Perhaps when I graduate in 2013, this reform will have materialized.    

By Kevin Kampschror