Commentary: Prosecutors need to be held accountable for wrongdoing

The following commentary by Molly Davis was published by the Salt Lake Tribune on January 13, 2018.

Michael Morton sat in prison for 25 years before he was exonerated. Convicted for murdering his wife, he was freed when DNA evidence later implicated the actual murderer. The prosecutor in the case, Ken Anderson, used his power to intentionally withhold important evidence from the courtroom that led to the wrongful conviction.

Anderson watched as the judge sent Morton to prison without having considered all the evidence. He spent the next 25 years living happily as a free man, advancing his career and becoming a successful judge — all while Morton lived out the prime years of his life confined to a prison cell. Once the evidence was later discovered, the only punishment Anderson received was 10 days in jail, 500 hours of community service, and a loss of his law license. He was released after only five days for “good behavior.”

Although Anderson’s punishment is small compared to ruining someone’s life, the fact that a prosecutor received any sort of punishment for misconduct is actually quite shocking. Usually, prosecutors get off scot free.

Here in Utah, there is no law that holds prosecutors accountable for withholding exculpatory evidence — material that may be favorable to the defendant. There are ethical standards from the American Bar Association, but no criminal consequences, meaning that prosecutors can potentially engage in significant misconduct and only other attorneys will hold them accountable, if at all.

California changed their approach with a recently enacted law that holds prosecutors accountable for withholding evidence from the court. Now it is a felony crime for which prosecutors can spend up to three years in prison.

The lack of prosecutorial accountability is especially concerning when considering how many wrongful convictions involve prosecutorial misconduct. Out of all the exonerations in the United States in 2016, for example, 42 percent of them involved misconduct.

A prosecutor’s power goes largely unchecked on multiple levels. Prosecutors have the power to review all evidence before charging a person, decide which charges they will pursue, tarnish reputations (wrongful charges often ruin a person’s reputations), write and negotiate plea deals, and choose punishments for defendants. Their only real oversight, if it can be called such, comes from the courts and the state bar.

One recent analysis found that “Utah’s prosecutors are rarely disciplined, even as complaints of misconduct are brought to light during court proceedings.” There were 18 different acts of prosecutorial misconduct which Utah courts weighed in on since 2015, yet no legal action was taken against any of the prosecutors involved. However, some of these defendants were granted new trials—showing merit to the findings of misconduct in these cases.

Why would a prosecutor intentionally withhold exculpatory evidence if their job is to supposedly seek justice? If the evidence pointed to someone other than the charged individual, one would think they would want to present that evidence so they can convict the correct person.

The truth is, prosecutors have perverse incentives to win cases. The more convictions they secure, the more of a distinguished name they make for themselves—making it easier to attain a higher position (such as a judge) or get a distinguished job at a private law firm. These incentives may tempt some prosecutors to use unethical tactics that may help them win their case.

Another reason for increasing accountability is that innocent people who have been wrongfully convicted due to prosecutorial misconduct almost never have a decent civil remedy due to immunity laws that shield prosecutors from punishment for their wrongful actions, including intentional misconduct, in almost any case brought against them.

Prosecutors should be held to a high level of accountability—not just from their peers at the Bar Association, but under the law as well. As one can see in the case of Michael Morton, withholding exculpatory evidence from the courtroom can be extremely damaging for the defendant. Justice cannot prevail when this unethical behavior is allowed to occur.

To help ensure that Morton’s experience is not shared by any Utahn, withholding exculpatory evidence should be made a felony in Utah. A prosecutor’s job is to serve the public and do everything in their power to ensure justice in every criminal prosecution. When they fail to do so, they need to be held responsible for their actions — just like the defendants they prosecute each day.