Man bites dog: prosecutor punished (slightly) for misconduct

It is big news that in the case of In re Anderson, not only was the innocent defendant released after serving 25 years in prison but the prosecutor whose misconduct caused the conviction was punished. Not much of a punishment: 10 days in prison. Nevertheless, it's something.

Here is a link to an interesting article reminding us that if this type of misconduct is not the rule, it's not the exception either. Punishment for the prosecutor, however, is astonishing: one source states that this is the first time ever that a prosecutor has been punished for conduct leading to a wrongful conviction, and while I am not in a position to check that, I have certainly never heard of it before. The fact is that prosecutors can do pretty much anything they want without repercussion.

Furthermore, even prosecutors who do not themselves commit misconduct benefit from the misconduct of other prosecutors. A defense attorney, in evaluating a plea deal, must take into account the possibility that the prosecutor will cheat and get away with it: for example, a subtle threat to a defense witness might be enough to cause that witness to refuse to testify, dramatically altering the outcome of the case. Even if the prosecutor personally would not make that threat, (a) defense counsel cannot be sure of that and (b) the witness may realize that he had better refuse to testify even if the threat is unspoken. Thus, without ever personally doing anything wrong, the prosecutor derives an overwhelming negotiating advantage.

Is this a tax issue? Absolutely. In fact, it's more of an issue in a tax case than in a murder case such as Anderson. In a murder case there is often hard evidence, such as physical objects and DNA evidence, that can be used to prove innocence once they are found. That is, there is a legitimate possibility of demonstrating both innocence and prosecutorial conduct based on physical and perceptual evidence. Also, when such items are hidden, it is normally fairly clear: either the prosecution has shown an item of physical evidence to the defense or it has not. In a tax case, normally involving circumstantial evidence obtained under pressure from witnesses who are at risk for being named as coconspirators and therefore must act to protect the prosecution, there is no similar possibility.