October is "Prosecutorial Misconduct" Month

A central focus of the Business Rights Center is prosecutorial misconduct, as I suggested in my editorial last week: “ Let’s Jail Prosecutors Who ‘Obstruct Justice .’” It is also a particularly potent issue, because it is a problem for all classes of people, and so does not immediately provoke an anti-business reaction from Leftist journalists.

Yet once a person is sensitized to prosecutorial misconduct, he will likely be wary of it even in white-collar cases. Thus, a press more aware of the problem might not have accepted out-of-context leaks from Eliot Spitzer and used them to vilify his helpless targets.

It is good news, then, for the cause of business rights that “prosecutorial misconduct” bodes to be much in the news this month, and I shall try to follow the news here.

To begin with, this massive USA Today investigation  has been getting a lot of publicity on the Internet. More on it tomorrow. (Several years ago, the San Jose Mercury conducted a similar investigation , and it seems that those investigations have had major consequences. Scott Greenfield, who posts at the blog “Simple Justice,” wrote last week of a former Santa Clara County assistant prosecutor investigated by the San Jose Mercury who has finally been disciplined by being suspended from the practice of law for four years.)

On Monday, October 4, a hearing will be held to determine if investigators in the sprawling Galleon Insider-Trading case “recklessly or knowingly made a misleading statement or omission” to the judges who authorized wiretaps in the case. This would be a particularly important case of prosecutorial misconduct, because the use of wiretaps in the Galleon investigation represented a qualitative leap in the hypercriminalization of what is after all only a malum prohibitum misdeed, one that several economists think should not be prohibited at all. On the subject of this hypercriminalization, see the New York Times column (yes, an NYT column): “ Using Drug War Methods to Look for Insider Trading ”

Lastly, there is more afoot this month than tracking down individual malfeasance. On October 6, the Supreme Court will hear oral arguments in the case of Connick v. Thompson. As explained by “The BLT: The Blog of LegalTimes,” in a posting entitled “ Supreme Court to Rule on Prosecutorial Immunity ”: “In Connick v. Thompson, the U.S. Court of Appeals for the 5th Circuit affirmed a lower court verdict that awarded accused murderer John Thompson $14 million for the district attorney's failure to train its lawyers about so-called Brady violations [the failure to inform the defense of exculpatory evidence in the prosecutor’s possession], a failure that led to his wrongful conviction and death sentence in 1985.” That description does not quite capture the harm done to Thompson: He spent 18 years in prison and was very nearly executed. Unfortunately, the case does not raise the issue of prosecutorial misconduct directly, Indeed, Thompson’s lawyers explicitly argue that a victory for their client "is fully consistent with the absolute immunity accorded individual prosecutors." Still, the issue will be discussed. And Ilya Shapiro of the Cato Institute has joined in an amicus brief supporting Thompson.

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