I've posted a few things on the problem the innocence of a convicted felon poses for the Texas criminal justice system. Here's another - though it is targeted to the problem nation-wide. It turns out that it is very difficult for prosecutors to be held responsible for misconduct.
- Click here for the article.
If you’ve been wrongly convicted through prosecutorial misconduct, there are a few ways you can try to hold the government accountable. The most obvious way would be to sue the prosecutor himself. This is just short of impossible. Anything a prosecutor does in his official capacity is protected by absolute immunity — a mighty, nearly impenetrable shield created by the Supreme Court in the 1970s. Your best hope is if your prosecutor committed the misconduct while acting as an investigator — that is, while performing tasks more associated with policing than with prosecuting. If so, your prosecutor would then be protected “only” by the qualified immunity the courts have given to police. But even that is still a pretty high bar to clear.
You could also try to sue the municipality that employs your prosecutor. It’s called a Monell claim. But this, too, is difficult. You’ll have to show that not only did your prosecutor commit misconduct that violated your constitutional rights but there’s also a system-wide pattern or practice of misconduct in that particular jurisdiction. It isn’t enough merely to show that your prosecutor did this to you. You’ll likely to need to show that other prosecutors in the same office did similar things to other people.
Since judges and prosecutors probably aren’t going to open the files of other cases for you, winning a claim like this is likely to happen only once other people have already shown misconduct from the same office and, presumably, hadn’t yet found enough examples to establish a pattern. If the misconduct is bad and persistent enough, presumably at some point — a point that isn’t really clear but appears to be wholly up to the subjective interpretation of whatever federal judge happen to hear your case — enough people will have shown enough misconduct to establish a pattern. Provided you include them all in your claim. But no matter how many cases come after, those people who filed first, and lost, probably won’t get to have their cases heard again.
