September 19, 2012
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prosecutorial conduct

NEWARK — A comprehensive study of prosecutor error released today by the ACLU-NJ and Professor George C. Thomas III of Rutgers School of Law–Newark found low rates of errors but an alarming lack of accountability or regular training to prevent repeat lapses by New Jersey prosecutors. The report, titled “Trial and Error: A Comprehensive Study of Prosecutorial Conduct in New Jersey,” recommends changes at the state and county level and reveals a noteworthy range of error rates in individual New Jersey counties in the process.

“Prosecutors have a heavy responsibility as representatives of the state, and most take their obligations extremely seriously,” said ACLU-NJ Policy Counsel Alexander Shalom, one of the authors of the report. “Because prosecutors are largely immune from civil liability, and because they represent the government’s authority, it’s both more difficult and critical to hold them accountable for mistakes that interfere with a fair trial. Without a way to hold prosecutors accountable for all but the most outrageous violations, New Jersey leaves too many opportunities for justice to slip through the cracks.”

The report examined allegations of error raised on appeal in the state between 2005 and 2011, and tracked the number of case decisions reversed based on prosecutorial error and the discipline they faced if they committed multiple errors. Prosecutorial error covers a range of actions, including failure to disclose exculpatory evidence, making improper remarks to the jury, or appealing to emotion rather than facts. Most errors, according to the report, occur during summations.

The report found that of the 343 prosecutors accused of committing error, not one — including the 30 prosecutors who were found to have committed multiple errors — received discipline for in-court behavior. This is a stark contrast to the discipline that other types of attorneys receive for errors. The report also revealed that the state of New Jersey has no functional system for identifying, disciplining or eliminating prosecutor error except in the most egregious cases.

The report found surprising disparities in New Jersey’s counties. Warren County, for example, represented only 1.4 percent of the state’s convictions but had 5.7 percent of its harmful errors. Camden County, however, had 6.2 percent of the state’s convictions but only 3.1 percent of total errors, as well as no reversed convictions.

The authors recommend mandatory reporting of error, which is only optional under the current system, making it harder for disciplinary boards to collect enough information to determine when sanctions would be appropriate. This is especially problematic in cases of serious or repeated error that do not amount to an ethical lapse. The report also recommends heightened training, supervision and discipline within prosecutors’ offices.

The authors also determined that, in order to provide prosecutors with maximum guidance, courts should determine whether conduct constitutes error in every case in which the issue is raised. Defense attorneys, as well, have an important role in preventing prosecutorial error in the form of objecting during the trial.

“The American justice system at its core holds people accountable for their actions, and it only makes sense for those principles to apply to prosecutors,” said George C. Thomas III, a professor at Rutgers-Newark School of Law and one of the authors of the report. “Fortunately for all of us in society, almost all prosecutors uphold their duties to see that the laws are fairly administered. To enhance our pursuit of justice, however, we need better channels for creating consequences — or at least guarantees of future improvement — when those tasked with upholding the law fall short.”