Time for new emphasis on prosecutorial oversight

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Allegations of wrongful convictions due to police or prosecutorial misconduct seem to be on the rise.

Here in Massachusetts, between January 2020 and December 2021, at least nine men were released from prison due to, among other things, alleged police or prosecutorial misconduct.

And last March, a Superior Court judge released Stephen Pina pending his bid for a new trial based on allegations that he was wrongfully convicted when prosecutors and Boston police withheld compromising information about a key witness in a 1993 shooting.

Two other cases currently working their way through the courts also raise concerns about prosecutorial integrity.

In the first case, allegations that a former Plymouth assistant district attorney who is now a District Court judge withheld a document that would have corroborated a defendant’s claim that he was denied his right to a phone call while in custody are pending in Superior Court. In the second matter, the Supreme Judicial Court is pondering the discipline of three prosecutors alleged to have withheld exculpatory information in the Sonja Farak drug lab matter.

These cases, along with others across the country, are leading to a growing perception of prosecutorial impropriety when it comes to the disclosure of evidence.

Both the Massachusetts Rules of Professional Responsibility (Rule 3.8(d)) and Rules of Criminal Procedure (Rule 14(a)(1)(A)) mandate that prosecutors turn over various types of evidence, including any facts of an exculpatory nature.

Further, withholding exculpatory evidence is a violation of the so-called Brady Rule, named for the 1963 U.S. Supreme Court case Brady v. Maryland, which requires prosecutors to disclose evidence favorable to the accused. Yet allegations of prosecutors withholding evidence and information continue to surface.

It’s no secret that prosecutors wield tremendous power. They have the authority to decide what charges, if any, will be brought against an accused, to request bail, to seek civil asset forfeiture, and to recommend sentences. And they have extraordinary power over the course of a prosecution as the party with sole possession, custody and control of the facts and evidence marshaled by the government against an accused.

Given that, the failure to disclose information favorable to an accused is devastating not only to the accused, but to the public’s trust in the justice system. Further, whenever a wrongful conviction is overturned because the defendant is exonerated, it means that the person who committed the crime in question has not been brought to justice.

For these reasons, prosecutorial oversight must be robust and effective. But instances of prosecutorial error or misconduct are infrequently subject to outside review and discipline. Prosecutors don’t face the kind of oversight that non-governmental attorneys are subject to in day-to-day practice, and alleged impropriety can be viewed as a one-off.

In fact, in a 2011 Supreme Court decision, the justices overturned a $14 million award to a man who had been incarcerated for 14 years after being wrongfully convicted when a district attorney withheld exculpatory evidence. The court concluded that more than one instance of misconduct was necessary to establish liability.

That decision prompted a study of prosecutorial oversight by a coalition of parties, including the Innocence Project, the Veritas Initiative at Santa Clara University School of Law, and Resurrection After Exoneration. They found that the number of prosecutors reprimanded for misconduct paled in comparison to the number of cases overturned as a result of such misconduct. Further, judges, prosecutors and defense attorneys who discovered such misconduct often failed to report it.

To address this, the study called for the establishment of comprehensive systems for prosecutorial oversight. Such systems would provide for training of prosecutors throughout their careers; internal systems for identifying, reporting, reviewing and addressing misconduct; and civil and criminal remedies for the most serious instances of prosecutorial abuse.

Recent events in Massachusetts demonstrate the benefits of such an approach. We urge the Trial Court, local bar leadership, and representatives for the defense bar and state prosecutors to come together to develop a plan for an effective system of prosecutorial oversight that can help ensure public confidence in the justice system.

Massachusetts Lawyers Weekly’s Editorial Advisory Board provides knowledge and guidance for the editorials that appear on this page. The board is an advisory panel only, with no official voting or participation record. The input from the board is a tremendous resource to Lawyers Weekly; however, the editorials represent the position of the newspaper and its editorial staff, not the members, nor any given member, of the board.

BOARD OF EDITORS: Robert J. Cordy, Boston; Martin W. Healy, Boston; Margaret R. Hinkle, Boston; Thomas M. Hoopes, Boston; Regina M. Hurley, Boston; Shiva Karimi, Boston; Marsha V. Kazarosian, Haverhill; Andrea C. Kramer, Boston; Renee M. Landers, Boston; Richard L. Levine, Boston; Elizabeth N. Mulvey, Boston; Eric J. Parker, Boston; C. Max Perlman, Boston; Martin R. Rosenthal, Boston; Carol A. Starkey, Boston