This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Supreme Court Justice Robert Jackson said it best, "The prosecutor has more control over life, liberty, and reputation than any other person in America."
A modern prosecutor's power reaches far beyond what the constitution contemplates as fair for defendants. Prosecutors choose which charges to file, which defendants to file them against and what plea deals will be offered. Prosecutors can withhold exculpatory evidence without anyone knowing, and can ignore a defendant's right to an attorney, or even read through privileged communications in hopes of not getting caught. And prosecutors can hold extensive press conferences, thereby poisoning the well of any potential jury pool.
Prosecutors answer to no one. USA Today published an investigation in 2010 that uncovered 201 cases since 1997 where courts admonished federal prosecutors who violated laws or ethics rules. Only one was disbarred. In Utah, of 18 cases involving allegations of misconduct since 2015, courts ordered new trials in only three of those cases.
And the current remedy is no remedy at all. Violations are often deemed immaterial or, if material, the defendant receives a new trial. Courts rarely dismiss charges based on prosecutorial misconduct. Even further, the principle of absolute immunity protects prosecutors from being held civilly liable for the mistakes they make, even when they weren't mistakes at all.
We trust prosecutors to "self-police," to be honest in their motives and practices. But prosecutors in Utah have willfully ignored defendants' constitutional rights and have not been punished for it. Even former U.S. Attorney for the District of Utah Brett Tolman admits that prosecutors go "unchecked" and don't worry about the consequences of their prosecutorial decisions.
On one hand prosecutors must have the tools available to convict criminals. But those tools should be limited by constitutional principles that often go ignored.
Ethical obligations require a prosecutor to seek justice. Not just to win, but to win fairly.
Davis County Attorney Troy Rawlings has a no-nonsense "you cheat you're done" policy for prosecutors in his office. That's a start.
Updated rules, applied consistently with clear consequences, could also help, including open file discovery, which is a system that allows defendants to review a prosecutor's entire file, including investigative reports. Relaxing absolute immunity rules could also help.
If prosecutors refuse to police themselves, then judges need to step in. Courts could find malicious prosecutors guilty of criminal contempt of court, or could more readily dismiss charges with prejudice – where prosecutors could not re-file them. If judges are too timid, then legislators need to take over.
Deputy Utah County Attorney Tim Taylor worries that if the public had a clearer way of reprimanding abusive prosecutors, like an independent body responsible to investigate claims of misconduct, attorneys may second-guess their decisions.
With so much at stake, that's exactly what prosecutors should be doing.