CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, April 14, 2010

Kirchmeier et al on Vigilante Justice

Kirchmeier jeffrey Greenwald stephen Jeffrey L. Kirchmeier (CUNY School of Law), Stephen R. Greenwald (Fordham University - School of Law)Harold Reynolds (Private Practice), and Jonathan Sussman (New York County Defender Services) have posted Vigilante Justice: Prosecutor Misconduct in Capital Cases (Wayne Law Review, Vol. 55, pp. 1327-1385, 2009) on SSRN. Here is the abstract:

This Article examines categories of prosecutor misconduct that may occur in capital cases, and it discusses suggestions to help prevent and remedy such misconduct. The prosecutor’s role is especially important in death penalty cases because the prosecutor is a determining force in the decision of whether a defendant will live or die. Thus, even though prosecutor misconduct is an important concern for all types of cases, it has a special impact in capital cases.

Instances of prosecutor misconduct may occur prior to trial during discovery, during jury selection, and during trial and post-trial. In Part One of the Article, we discuss situations where prosecutors withhold exculpatory evidence from defendants in capital cases. In Part Two, we discuss the problem where prosecutors improperly use pretrial publicity to achieve convictions and death sentences in capital cases. Misconduct may occur during jury selection, and in Part Three, we examine situations where some prosecutors have improperly used peremptory challenges to exclude prospective jurors based upon race. Under Batson v. Kentucky, 476 U.S. 79 (1986), this type of prosecutor misconduct may rise to constitutional significance. Next, in Part Four, we consider the trial itself and discuss situations where prosecutors improperly used false evidence or statements in capital cases. 

In Part Five, we consider methods for addressing misconduct in capital cases. The Article considers three different categories of ways to deter instances of prosecutor misconduct in capital cases: (1) institutional and systemic methods of preventing prosecutor misconduct; (2) punishment of individual prosecutors responsible for egregious misconduct; and (3) remedies for defendants who are victims of misconduct. After giving an overview of various suggestions, the Article concludes with five specific proposals that should be the first steps toward deterring and remedying prosecutor misconduct in capital cases.

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If you look closely enough, you'll probably find prosecutor misconduct in just about every case. At some point.

Posted by: Joseph Marchelewski | Apr 14, 2010 9:35:00 PM

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