Failing to Punish Prosecutorial Misconduct Only Invites More

The prosecutorial misconduct in the Blackwater case goes to the heart of a nationwide problem. In the face of enormous pressure to obtain convictions, prosecutors at the state and federal level all too often abuse their power.
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On the last day of 2009, federal district court judge Ricardo Urbina dismissed homicide charges against five former Blackwater security guards involved in a shooting that killed fourteen Iraqi civilians in 2007. Judge Urbina's decision cites egregious prosecutorial misconduct by the federal prosecutors handling the case as the reason for the dismissal. The dismissal comes at the end of a year that saw at least a dozen cases of federal prosecutorial misconduct, including the well known Ted Stevens fiasco. These cases and others reinforce an emerging consensus that we must do more to ensure that our prosecutors live up to the standards of professionalism and fairness on which our system depends.

Like the Ted Stevens case, the Blackwater case has received considerable media attention. A recent Washington Post article examined in detail the actions of the experienced and well-respected lead prosecutor Kenneth Kohl. The Post reported that despite documented warnings of a consulting prosecutor about the inadmissibility of statements made by the defendants, Kohl utilized the statements to obtain search warrants of the defendant's homes and referred to them during grand jury proceedings. Because the case was mishandled from the start, Judge Urbina was forced to dismiss the charges before a trial could take place to determine the guilt or innocence of the Blackwater guards and bring finality and justice to a sensitive and tragic case.

The prosecutorial misconduct in the Blackwater case goes to the heart of a nationwide problem described in The Justice Project's policy review, Improving Prosecutorial Accountability. In the face of enormous pressure to obtain convictions, prosecutors at the state and federal level all too often abuse their power and deliberately violate their obligations with impunity. Prosecutors' offices regularly fail to provide prosecutors with clear guidelines on the appropriate use of their broad discretionary powers, judges seldom report acts of misconduct, and when reports are made, sanctions are rarely, if ever, imposed. As a result, prosecutors face almost no incentive to uphold their legal and ethical duties when seeking convictions. Nowhere is this "convict at all costs" culture more apparent than in the actions of the federal prosecutors responsible for the Blackwater case.

It is critical for the Department of Justice to respond with a prompt investigation by the department's Office of Professional Responsibility (OPR) and appropriate sanctions for the offending prosecutors. Only through enacting an effective system of accountability can the Department of Justice--or any prosecutor's office in the nation--hope to ensure prosecutors uphold their legal and ethical obligations. In spite of promises OPR made nearly one year ago to investigate the misconduct in the Ted Stevens case and possibly impose sanctions against the prosecutors at fault, none of the prosecutors involved in that case have faced any sanctions, nor have the results of any investigation been released.

To their credit, DOJ has recently taken some measures to prevent prosecutorial misconduct through increased training and oversight of prosecutors. For example, DOJ released several memos earlier this year providing more direction to prosecutors on their obligations to disclose evidence during the discovery process. Inadvertent misconduct can be significantly curtailed through this kind of increased guidance and training at the front end of criminal cases. However, holding prosecutors accountable for the kind of intentional violations of legal and ethical obligations apparent in the Stevens and Blackwater cases can only be achieved through meaningful sanctions and effective disciplinary mechanisms.

Prosecutors are the most powerful actors in the criminal justice system; they have enormous control and discretion over the course and outcome of criminal cases. The Blackwater case reveals the far-reaching consequences that the actions of just one prosecutor can have on the fair and accurate administration of justice. In order to prevent cases like this from occurring in the future, the Department of Justice must take more steps to improve prosecutorial accountability by investigating and imposing meaningful sanctions on the prosecutors responsible for the breakdown of this important case. Failing to do so only invites more misconduct by overzealous prosecutors.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.

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