By Zachary Margulis-Ohnuma
Prosecutors in New York state who commit even egregious misconduct are virtually untouchable. In today’s New York Times, Nina Morrison of the Innocence Project chronicles a Suffolk County homicide prosecutor who not only held back exculpatory evidence, but doctored documents to try to actively hide them from the court. After a little digging, it turned out that the same prosecutor, Glenn Kurtzrock, was responsible for misconduct in four additional cases. If you or I did that, we would go to jail.
But not a prosecutor.
As Ms. Morrison writes: “So what’s happened to Mr. Kurtzrock? Nothing. Thirteen months after his public firing, and five murder cases overturned because of his illegal actions, Mr. Kurtzrock hasn’t been charged with a single crime. Not fraud, not tampering with government records, not contempt of court.” Moreover, he cannot be sued. A long line of Supreme Court cases gives prosecutors “absolute immunity” from civil rights suits, even when they directly violate someone’s constitutional right to exculpatory evidence, as Mr. Kurtzrock apparently did.
This immunity is a major cause of wrongful convictions. According to the National Registry of Exonerations, about half of all false convictions involve some sort of official misconduct, either by the police or prosecutors. Honorable prosecutors — and most are ethical and hard-working — are on the lookout for police misconduct and take pride in stopping it if they see it. But others, that dangerous few, will look the other way. Still others, like Mr. Kurtzrock, engage in misconduct themselves. With almost no exceptions (there is one in Texas, in a case brought by Ms. Morrison), the prosecutors walk off scott free.
New legislation in New York could start to end that. The state Assembly is poised to vote on the country’s first commission on prosecutorial misconduct, which would be empowered to investigate district attorneys and their assistants. The bill has already passed the Republican-controlled state Senate and Gov. Cuomo says he will consider signing it. Marvin Schechter of the New York State Association of Criminal Defense Lawyers reports that exonerees including Jeffery Deskovic, Jabbar Collins and Selwyn Days — who spent a combined total of 103 years in prison due, at least in part, to bad prosecutors — came to lobby the Assembly on Monday. Creating a watchdog with teeth has some prosecutors nervous: the District Attorneys Association of the State of New York opposes the bill, calling it “flagrantly unconstitutional.” Yet if it could pass the Senate it stands a good chance in the Assembly, which is in Democratic hands. Being a prosecutor is nice work if you can get it: used to be, it made you untouchable. Let’s hope that’s about to change.