Lack of Criminal and Civil Accountability Points to Need for Criminal Justice Reform Commissions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

This session of the U.S. Supreme Court should be noted for its zealous protection of official misconduct by prosecutors and law enforcement officials. In two decisions, Connick v. Thompsonand Ashcroft v. Al-Kidd, the nation’s highest court extended a constitutional license to prosecutors and police to violate the law. We have detailed the background facts of both these cases in previous posts. In the Thompson case, the Court ruled that several New Orleans assistant district attorneys, who were responsible for railroading an innocent man to Louisiana’s death row for 14 years, and the City of New Orleans were not liable for damages under the federal civil rights statute, 42 U.S.C. Sec. 1983. In the al-Kidd case, former U.S. Attorney John Ashcroft was insulated from civil damages under the same statute for permittingal-Kidd and other terrorists suspects to be held indefinitely, without any meaningful evidence of either personal wrongdoing or knowledge about wrongdoing, under the federal material witness statute, 18 U.S.C. Sec. 3144, in the wake of the 9/11 terrorist attacks.

The Thompson case turned on the issue of what liability local governments face when their actions violate the rights of individuals. To secure monetary damages, the individual must establish that an “action pursuant to an official municipal policy” caused the injury incurred. There seems to be no doubt that several Orleans Parish assistant district attorneys conspired to sendThompson to death row and have him put to death, even though they knew he was innocent. The al-Kidd case turned on the issue of whether Attorney General Ashcraft was entitled to qualified immunity for his decision in the wake of the 9/11 terrorist attacks to allow federal prosecutors to use the material witness statute to confine and isolate individuals suspected of having ties to terrorists organizations. Both decisions reversed U.S. district court and federal appellate court rulings which permitted both wronged individuals to recover monetary damages against the government officials involved in the injuries done to them.

Our previous posts in these two cases outlined the immunity from civil damages enjoyed by public officials who violate the law. It is a subject matter that has drawn considerable interests from our blog (here and here). We truly believe that prosecutors, and other law enforcement officials, should enjoy immunity from frivolous lawsuits designed to vex, harass, and impede the overriding interests of our criminal justice system; namely, to arrest, prosecute, and confine those individuals who pose very real threats to society.

But the constitutional immunity protections extended by the Supreme Court in the Thompsonand al-Kidd cases are dangerous and weaken the underpinnings of our criminal justice system. It is one thing to permit prosecutors and law officials to do their jobs but quite another when prosecutors frame an innocent man, send him to death row, and conspire to have him executed; or when the police plant evidence, solicit perjured testimony, and manufacture incriminating evidence to send an innocent person to prison.

The Innocence Project reports that there have been 271 DNA exonerations in this country; a significant number of which were the result of government misconduct. This New York-based group has a section on its website devoted to “government conduct” which outlines the nature and reasons for such misconduct. This section states:

“Some wrongful convictions are caused by honest mistakes. But in far too many cases, the very people who are responsible for ensuring truth and justice—law enforcement officials and prosecutors—lose sight of these obligations and instead focus solely on securing convictions.

“The cases of wrongful convictions uncovered by DNA testing are filled with evidence of negligence, fraud or misconduct by prosecutors or police departments.

“While many law enforcement officers and prosecutors are honest and trustworthy, criminal justice is a human endeavor and the possibility for negligence, misconduct and corruption exists. Even if one officer of every thousand is dishonest, wrongful convictions will continue to occur.

“DNA exonerations have exposed official misconduct at every level and stage of a criminal investigation.

“Common forms of misconduct by law enforcement officials include:

  • Employing suggestion when conducting identification procedures
  • Coercing false confessions
  • Lying or intentionally misleading jurors about their observations
  • Providing incentives to secure unreliable evidence from informants

Common forms of misconduct by prosecutors include:

  • Withholding exculpatory evidence from defense
  • Deliberately mishandling, mistreating or destroying evidence
  • Allowing witnesses they know or should know are not truthful to testify
  • Pressuring defense witnesses not to testify
  • Relying on fraudulent forensic experts
  • Making misleading arguments that overstate the probative value of testimony


“We need to find solutions to fix these problems. One way to put checks on the enormous power of prosecutors and law enforcement officials would be to establish criminal justice reform commissions.”

Prevention of official misconduct among prosecutors and law enforcement officials through “criminal justice reform commissions” is perhaps the only public option left. Civil and criminal accountability have been taken off the table. The U.S. Supreme Court has made it clear that it will constitutionally bless even the most egregious forms of unethical and criminal conduct by prosecutors. As for criminal liability, good prosecutors do not generally prosecute bad prosecutors, even when bad prosecutors try to kill innocent people—the prosecution world is a close-knit society not susceptible to accountability. And good prosecutors are loathe to prosecute law enforcement officials who lie and cheat to make criminal prosecutions easier. Absent either civil or criminal liability, it can only be hoped that the legislative process will establish “reform” commissions designed to prevent, not punish, unethical and criminal wrongdoing by those sworn to uphold the law.

Even when criminal charges are brought against prosecutors and law enforcement officials for framing an innocent person and sending them to death row, they will generally elect to be tried by a judge who will usually find them “not guilty,” as happened the Rolando Cruz case. The seven Illinois Dupage County deputies and three prosecutors, known as the “Dupage Seven,” indicted in connection with their role in framing Cruz and sending him to death row were found “not guilty” of all counts in a 47-count indictment. The New York Times reported in 1996 that one of the prosecutors indicted had become a Dupage County judge.

“It happens very, very infrequently,” Michigan university law professor Samuel R. Gross told theTimes. “Three former prosecutors. Wow! “This is extraordinary.”

But Professor Gross’ “wow” enthusiasm was severely dampened in 1999 when Judge William Kelly found all seven public officials not guilty. While Dupage County eventually settled a lawsuit brought by Cruz for $3.5 million and whose cases led to sweeping death penalty reforms in Illinois, no one was held criminally responsible for trying to have the innocent man executed. And with the Connick v. Thompson decision, there is no longer a compelling need for city governments to reach a civil settlement brought by innocent person framed and sent to death row.

We can only hope that as DNA exonerations continue to mount across the country and as more evidence of the prosecutorial misconduct is revealed in these cases, the public demand for “reform” will force legislators to establish the kind of “reform commissions” cited by the Innocence Project.

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization