It's Called Discovery

April 14, 2009

At one point in My Cousin Vinny, Vinny Gambini  (Joe Pesci, down in Alabama from Brooklyn to defend his cousins in a capital murder case) decides to go hunting with the prosecutor, in the hopes of maybe sweet talking him into getting a peek at his files.  When Vinny returns from the trip, he proudly tells his girlfried (Marisa Tomei) that the prosecutor agreed to Xerox and send over every single file he had on the case.  Marisa Tomei is not impressed; the prosecutor has to give him the files … “It’s called discovery, #$%^&^$%!” she concludes.  (She won an Oscar for saying stuff like that … )

Actually, the fictional prosecutor in “My Cousin Vinny” was being generous, providing what is called “open-file” discovery.  According to a new report from The Justice Project called “Improving Prosecutorial Accountability”, most prosecutors in criminal cases don’t turn over all their files, but get to decide which pieces of evidence are relevant for the defense to see.  As you might expect this often leads to unintentional – or intentional – withholding of evidence that could have helped the defense, and is the most common form of prosecutorial misconduct

Prosecutorial misconduct is a big problem, affecting both capital and non-capital cases.  In addition to withholding important evidence, prosecutors have also presented false testimony, coerced witnesses, fabricated evidence, and false statements to juries. According to the report, a 2003 study revealed at least 2,012 cases where sentences were reduced, convictions reversed or charges dropped because of prosecutorial misconduct.  But the report also cites a 2007 California study which found that “judges generally do not report cases of prosecutorial misconduct to the State Bar, despite a statutory requirement to do so.”

So where’s the accountability?  The report cites cases like the disbarment of the Duke lacrosse case prosecutor, and the current high-level investigation into the prosecutors of former Alaska Senator Ted Stevens, to illustrate how perhaps prosecutors should be held accountable, but also to demonstrate how they almost never are, because it’s rare for defendants to have the power or connections these folks had. 

The report makes several recommendations, both for preventing prosecutorial misconduct and for holding misbehaving prosecutors accountable.  For the many who have been wrongly sent to death row because of prosecutorial misconduct, and for all those wrongly convicted, this is a good start.  But we have a long way to go.