A Question

Shouldn't a prosecutor who knowingly withheld exculpatory evidence in a death penalty case be treated as an attempted murderer?


  1. Evil Red Scandi:

    But then they might not do it again.

  2. Maddog:

    A prosecutor who knowingly withheld exculpatory evidence in any case should be tried and if convicted subjected to a penalty equivalent to the penalty of the underlying crime, but not death, Life imprisonment would do nicely, however. Proportionality is necessary in criminal punishment.


  3. tehag:

    Yes. Resounding, absolute "Yes!" Governmental immunity is an idea in need of revocation.

    "Proportionality is necessary in criminal punishment."

    I agree. I just think the proportion should be 10,000 to 1.

  4. John David Galt:

    Proportionality is necessary, yes, but punishment needs to vary inversely with the chance it will happen, so that the product of the two (expected punishment) is high enough to deter. This is especially true where the crime will kill someone.

  5. Gil:

    By the same token, jury members ought also be subject to the same scrutiny if they convict an innocent person.

  6. me:

    @Gil, note that there's a difference in knowingly withholding evidence vs making an incorrect judgement based on the facts presented.

    That said, the US is sliding down the slippery slope of unbalanced laws and enforcement.

  7. Elliot:

    It will never happen because judges and other prosecutors don't want to cross the "thin black line" for fear of being a victim of retaliation, just like the good cops who actually tell the truth ("rat") are sometimes the only ones who are punished, fired, or prosecuted. (Read Radley Balko's theagitator.com for a month and you'll probably see a few links to such cases.)

    The mentality is no different than the "no snitchin'" which is advertised as a troublesome street phenomenon in which witnesses refuse to help police. Too often, law enforcement act just like gangs with uniforms (or robes) and titles.

  8. Mark Alger:

    A careful reading of 18 USC 242 would tend to make me think so. If death resulting during the commission of a civil rights violation makes the offense a capital crime, then an attempt... It would seem to follow.


  9. NormD:

    Russ Roberts says that the job of an economists is to ask "And then what?".

    It would be refreshing if you did the same.

    If you start charging prosecutors with crimes for what might be mistakes you will have a hard time hiring prosecutors and thus fewer crimes will be prosecuted and thus more criminals will be free and more people will be attracted to crime because the chance of being prosecuted is lower all of which will increase crime and thus more citizens will be murdered and raped and robbed.

    And this appeals to a Libertarian how?

    Also, the costs of government will go up, way up, since we will have to pay for lawyers (or insurance) to defend the prosecutors as well as prosecutors to prosecute the prosecutors and finally because fewer people will want to risk becoming a prosecutor we will have to pay a lot for the few we attract.

    None of this means I am not deeply appalled by prosecutorial misconduct, but it would be nice if you actually thought through your proposed solutions.

  10. caseyboy:

    NormD, the operative word above is "knowingly". That means the prosecutor had evidence that, if presented at trial, may have resulted in acquittal. That is a big, big deal.

    Probably a prosecutor looking to build his political resume via another criminal conviction. I really don't want prosecutors or prosecutors turned politicians of that type.

  11. Foxfier:

    Trying to use law enforcement to attack someone should be treated as any other weapon... be it harassment, extortion, imprisonment or murder.

  12. mahtso:

    “NormD, the operative word above is “knowingly”. That means the prosecutor had evidence that, if presented at trial, may have resulted in acquittal. That is a big, big deal.”
    The linked article did not show that this was the case – it does show that the prosecutor’s office did not submit all the information it had, but it was not clear to the judge that the prosecutor knew that the information was exculpatory. As with me’s response to Gil, it may be that someone made an error in judgment as to whether or not the information was relevant. It would be interesting to learn whether or not the information really is exculpatory.

  13. Uncle Bill:

    I think this is a lot bigger problem than most people realize. I was talking to a defense attorney the other day, and he told me about something that happened early in his career. He went to talk to the prosecutor, and by sheer dumb luck, a paper fell out of the prosecutor's files, and landed on the floor in front of him. It was, as you would say, exculpatory evidence, that should have been shared as part of discovery. In fact, it was so damning that he took a copy to the judge, and the judge immediately dismissed the charges. How many cases like this never come to light?