Are Prosecutors Untouchable, Free From Accountability?

By Sharon Toomer (Black and Brown News)
October 27, 2013

Click here to see a Prosecutor Accountability Resource List

In April 1989, five Black and Latino New York City teenagers, who ranged in ages 14 to 16, were arrested, charged, and later prosecuted and sentenced to long prison terms for the gang rape, and beating of a 28-year-old White woman jogging in Central Park. The high-profile crime, known as the Central Park Jogger case and the defendants as the Central Park Five, was so vicious in its execution that the victim was comatose for 12 days.

In the weeks that followed, the city’s political establishment and law enforcement community were entrenched in solving the case, made more chaotic by issues of race and racism; a discriminating news and tabloid press; and pressure from the public for swift justice.

Thirteen years later, in 2002, a convicted murderer and rapist confessed to having acted alone when he attacked the Central Park jogger. The five defendants were exonerated through DNA testing and released from prison.

A horrifying injustice happened in 1989: The lives of five teenagers were destroyed by wrongful prosecution; their families broken apart and devastated; and, the victim’s real assailant was not held to account. As for prosecutors in the case, they are not subject to accountability for their misconduct, or serious failures, as advocates for justice.

This real-life New York City narrative of wrongful prosecution, which, in variations, plays out in jurisdictions across the nation, leads to these questions: Are prosecutors untouchable? Are they free from accountability when they wrongfully prosecute an innocent person, engage in misconduct or unethical behavior? Police officers, judges and elected officials are investigated and prosecuted when they violate the public’s trust, but not prosecutors.

Cynthia Jones, a professor at the Washington College of Law at American University, says prosecutors don’t (or won’t) typically prosecute other prosecutors; and, a 2011 U.S. Supreme Court opinion, Connick vs Thompson, shields prosecutors from liability.

“The big problem with holding prosecutors accountable is their office would be the ones to bring charges,” said Jones, who teaches criminal law and procedure. “And, the U.S. Supreme Court has been pretty clear about suing individual prosecutors. They have prosecutorial immunity.”

NYC District Attorneys: Politics, Power, Accountability

There are five New York City district attorneys; each one is elected to represent their borough as the chief law enforcement officer of the county. Their budgets come from the mayor, City Council, and federal grants, and their authority supersedes the police commissioner. The office is a bonafide public institution.

Within the city’s government structure, district attorneys function and operate as a seemingly separate island. A quick look at the city’s organizational chart illustrates the immense authority district attorney offices bring to bear on the public, the city’s elected body, and other city agencies. They rank as high as the mayor, City Council and comptroller. Without question, district attorneys are commanding forces. Who they answer to is puzzling.

“Prosecutors have too much power. The normal checks and balances in government do not hold them accountable. It is almost always the case. The few exceptions are exceptions that prove the rule,” said Bob Herbert, a former New York Times columnist, who has written extensively about the criminal justice system. “The governors, state attorney generals, the U.S. Department of Justice, none have exercised effective oversight of prosecutorial misconduct, which is rampant from coast to coast.”

Historical Tidbits: 1) In 1801, the office of district attorney was created in New York. Its function and duties evolved from the state attorney general’s office. The governor and, at one time, county courts appointed district attorneys in the state. In 1846, the office of district attorney became an elected office. 2) In 1972, the Knapp Commission, established by NYC Mayor John V. Lindsay to investigate widespread corruption within NYPD, recommended that the governor and attorney general appoint a special deputy attorney general to oversee all elements of the criminal justice system and city agencies – including prosecutors and district attorney offices. (Source: Fordham Law)
The autonomy, ambiguity and super-charged political nature of the office explains, in part, why it is challenging –near impossible– to hold prosecutors accountable. For context, prosecutors are the entity to investigate and prosecute other elected officials, or city agencies, for corruption and criminal behavior. Public officials are not inclined to agitate, or tangle with, district attorneys by attempting to hold them accountable for wrongdoing.

During the NYC primary cycle, at a debate, between now-Democratic nominee Kenneth Thompson, and sitting-Brooklyn District Attorney Charles Hynes, a few testy moments underscored the power and reach of prosecutors. Thompson challenged (cue 30:22), and chided, Hynes on decisions throughout his tenure to either abstain from, or forge ahead with investigating and prosecuting political foes and allies.

“It is a powerful and frightening office in a way that much of the political establishment won’t get involved in,” said Errol Louis, a political analyst and host of NY1's Road to City Hall. ”The political establishment doesn’t want to go against a sitting district attorney. They don’t want to be on the wrong side of the district attorney.”

What is left for the public to do?

For the public, the first line of prosecutorial accountability is the electoral process. The public can vote district attorneys out of office. That is what happened to six-term Brooklyn district attorney Charles Hynes in the September Democratic primary. After 23 years in office, and a record marked by scandal, prosecutorial misconduct, cronyism, and wrongful prosecutions, he lost to political newcomer Kenneth Thompson. Hynes, a lifelong Democrat, is still on the ballot; he is running on the Republican and Conservative Party line, for the November 5 general elections.

Jones points to existing systems in place that the public seldom turns to, as a course toward accountability.

“People, including colleagues of prosecutors, who are aware of misconduct, or improper behavior, can refer prosecutors to the jurisdiction Bar counsel,” said Jones. “In some instances law licenses are revoked. This does not happen often; and, unless the state bar is aggressive about policing, it is not a viable option.”

In 2007, the North Carolina State Bar Association disbarred Durham County District Attorney Michael Nifong for prosecutorial misconduct in his handling of the controversial Duke Lacrosse rape case. In that case, it took a mobilized effort by the public, who applied pressure to the Bar. Nifong lost his law license and eventually filed personal bankruptcy.

All state Bar counsels are not weighted the same. The New York State Bar Association (NYSBA), for example, does not register attorneys, or handle complaints, according to a NYSBA spokesperson. Those duties fall under the purview of the New York State Office of Court Administration. However, before embarking on the path of the Court Administration, caution is necessary. Prosecutors, judges, county bar associations, and elected officials, work and horse trade with one another. It is an incestuous and exclusive arena. For outsiders -the public- that landscape may not be ideal when seeking accountability.

If not the Court Administration, or Bar counsel in other states, there is the U.S. Department of Justice.

“The DOJ’s Department of Civil Rights Division has, at its disposal, a section that allows them to criminally prosecute people who are violating the civil rights of individuals under the state law,” said Jones. “The prosecution of Senator Ted Stevens (Alaska) is one example that had all kinds of prosecutorial misconduct.”

As the current mechanisms of accountability stand, prosecutors are untouchable public officials, even when they severely undermine the public’s trust, or prosecute innocent people.

Jones said the role of prosecutor is due justice for people who have committed crimes, and for victims of crime. “That includes dismissing cases when they learn that the crime they thought was committed by an individual did not occur,” said Jones. “The just thing is to hold people only accountable for what they did, and only what they did. Sometimes prosecutors try to win and not get justice.”

In the Central Park Jogger case, the lead prosecutor’s career and professional life continued. Elizabeth Lederer still oversees cases in the Manhattan district attorney’s office, and teaches law at Columbia University.

Herbert believes oversight agencies with real teeth are needed, and that public protests and demonstrations are effective approaches toward reaching prosecutorial accountability.

“Shine a spotlight on all of those abuses that go on. There can be a campaign to establish new systems of accountability,” said Herbert. “Those changes would have to happen in the legislature. The public can push for that.”

Click here to see a Prosecutor Accountability Resource List

Sharon Toomer is publisher of BlackandBrownNews.com (BBN) and the publication’s “BBN Brooklyn Town Crier: service."  She is a 2013 Political Reporting Fellow at CUNY’s Graduate School of Journalism. Follow her @sdtoomer