More Accountability for Prosecutors

http://www.nytimes.com/2016/06/20/opinion/more-accountability-for-prosecutors.html

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To the Editor:

Re “To Stop Bad Prosecutors, Call the Feds” (editorial, June 6): As a former judge who presided over countless criminal cases in New York for almost 19 years, I can attest that more injustice is done by prosecutors hiding material evidence than by any of the other numerous flaws in our criminal justice system.

This is especially true in New York, where trial judges are prohibited from ordering disclosure of necessary evidence to defense counsel. The result is ill-informed bail decisions, lopsided plea bargaining, frustrated defendants denied a fair shot at preparing for trial, a seemingly endless stream of wrongful convictions and one-sided sentencing hearings.

New York is almost unique among the states in allowing prosecutors to bury evidence and, amazingly enough, in barring judges from ordering disclosure or even allowing a defendant to gather disclosure by subpoena.

The New York Assembly has repeatedly passed legislation, elegant in its simplicity, that provides that a court may, in its discretion, order disclosure by a prosecutor of material evidence, necessary for preparation for trial, if the defense request is reasonable and if there is no reason to protect the evidence from disclosure. Inexplicably, it has failed in the Senate.

JAMES A. YATES

New York

The writer is a retired justice of State Supreme Court in New York and former counsel to the New York Assembly speaker.

To the Editor:

Your editorial appropriately calls for the Justice Department to step in and monitor district attorneys’ offices that have shown a pattern or practice of violating constitutional rights.

It also mentions, in passing, that “individual prosecutors are protected from civil lawsuits.” If this problem were remedied, that would provide an even greater tool for addressing prosecutorial misconduct.

There is, in American jurisprudence, an exceedingly pernicious (and completely judge-made) doctrine known as absolute immunity, which makes judges and prosecutors absolutely immune from civil liability under this nation’s civil rights laws for anything they do in their judicial or prosecutorial capacities.

The doctrine is manifestly immoral, and it is contrary to the effective implementation of both the civil rights laws and the criminal justice system. Pressure must be brought to bear on both Congress and the Supreme Court to remedy this.

JEFFREY A. ROTHMAN

New York

The writer is a civil rights lawyer.

To the Editor:

To address the recurrent problem of prosecutors withholding evidence that would show innocence or mitigate punishment, we need to develop — as aviation and medicine have — a way to understand why things went wrong. Why did a prosecutor zig when he or she should have zagged? What incentives in the environment made withholding evidence seem like the best (or least bad) idea at the time?

Efforts such as the National Institute of Justice’s Sentinel Event Initiative and the Task Force on 21st Century Policing’s call for all-stakeholder, forward-looking reviews of the “sentinel events” that signal system weaknesses — evaluations of mishaps aimed at cutting risk, not laying blame — offer a promising model.

JAMES M. DOYLE

Siasconset, Mass.

The writer, a defense lawyer in Boston, is a consultant to the National Institute of Justice’s Sentinel Events Initiative.