The U.S. Justice Department (DOJ) monitors lawless local police departments and state prisons across the country – and there are plenty of them in need of oversight.


In a June 6, 2016 opinion piece, To Stop Bad Prosecutors Call the Feds, the editorial board of The New York Times cited a federal judge who called prosecutorial misconduct—the withholding of exculpatory Brady evidence—an “epidemic” in this country. The Times is now calling upon the Justice Department to monitor state district attorneys’ offices with histories of misconduct under the same 1994 law that allows it to monitor police departments.


Rogue Prosecutors Not Held Accountable, Rarely Disciplined


The Times pointed out that state courts “often fail to hold [unethical] prosecutors accountable, even when their wrongdoing is clear” and “ethics boards rarely discipline them”—a concern we have repeatedly addressed—and that the U.S. Supreme court “had made it extremely difficult for wrongfully citizens to win [civil damages] claims”—another problem we have discussed in many prior articles.  We have also advocated for criminalizing intentional prosecutorial misconduct, an idea that has been viciously resisted by DA’s offices statewide.  The result of a complete failure on the part of those who have the position and power to act, leads to a compelling need for federal oversight and prosecution when necessary.


Louisiana and Texas Rank as Among Worst


Louisiana and Texas have ranked among the two worst states in the handling of prosecutorial misconduct. Fortunately, the Texas State Bar late last year moved to settle the issue of just what responsibilities prosecutors have under the Brady rule.


The Louisiana Supreme Court, and its State Bar, has failed to take any similar bold action to deal with the rampant prosecutorial misconduct in that state. In fact, that state’s Supreme Court has a sordid history of giving constitutional blessing to prosecutorial misconduct.


Death Penalty Case Tainted with Prosecutorial Misconduct Before US Supreme Court


This was evidenced in a capital murder case currently pending before the U.S. Supreme Court.


Dale Brown was convicted in 1999 for the murder of a prison guard at Louisiana’s notorious Angola prison. As the Times noted, Brown maintained his innocence but was convicted and sentenced to death nonetheless.


“Only later did his lawyers discover that prosecutors had withheld the transcript of an interview with another prisoner directly implicating two other men—and only those men—in the murder,” the newspaper reported.


Prosecutors Have No Problem Cheating Justice


Rogue prosecutors have no problem sending innocent people to prison, even sending them to death row with the intent of having the state execute them. The Times in 2012 called attention to the fact that the New Orleans District Attorney’s Office had dozens of convictions set aside because of Brady violations.


Earlier this year the U.S. Supreme Court reversed yet another Louisiana capital murder conviction because state prosecutors withheld Brady evidence. It joins a long list of cases in which Louisiana prosecutors have tried to send innocent people to their death in the state’s death chamber.


The tragedy in all these cases is that the Louisiana Supreme Court has consistently, over a long period of time, refused to address the issue of prosecutorial misconduct so patently obvious in their state criminal justice system.


State Supreme Courts Reinstate Death Penalty Despite Prosecutorial Misconduct


For example, as the Times reported, the state district court, upon learning about the withheld exculpatory evidence in the Brown case, vacated the condemned inmate’s death sentence and ordered a new sentencing hearing. The Supreme Court reversed that lower court decision and reinstated the death penalty, saying the withheld evidence didn’t matter.


Fed Investigation, Oversight Long Overdue


The Times editorial board is right. It’s long past time for the Justice Department to intervene and deal with what the newspaper labeled a “maddening situation.” We wholeheartedly endorse the Times’ call for DOJ oversight:


“This maddening situation has long resisted a solution. What would make good sense is to have the federal government step in to monitor some of the worst actors, increasing the chance of catching misconduct before it ruins peoples’ lives. The Justice Department is already authorized to do this by a 1994 federal law prohibiting any pattern or practice of conduct by law enforcement officers’ that deprives a person of legal or constitutional rights.


“The department has used this power to monitor police departments in Los Angeles, New Orleans, Detroit and Seattle, among other municipalities with a history of brutality, wrongful arrests, shootings of unarmed civilians and other illegal or unconstitutional practices. For the most part, the results have been positive. Since prosecutors are also ‘law enforcement officers,’ there is no reason they and their offices should be immune from federal oversight.


“Of course, many district attorneys’ offices will balk at being put under a federal microscope. But nothing else has worked to prevent misconduct by prosecutors, and the Justice Department is uniquely equipped to ferret out the worst actors and expose their repeated disregard for the law and the Constitution.”


State Attempts to Remedy Have Fallen Short, DOJ Should Act


We understand state prosecutors, and even many state supreme courts, will not embrace the monitoring of district attorneys’ offices, like New Orleans, with sordid histories of engaging in misconduct. Some prosecutors love to behave badly. Some courts are equally fond of allowing them to do so.


Monitoring by the Justice Department appears to be the only deterrent tool available to combat the nation’s “epidemic” of prosecutorial misconduct. We hope the DOJ will act.