By Mansour Taleb-Ahmed and Angelina Sang
NEW YORK, NY – This summer a Northeastern University Law School professor won a major legal battle in New York’s federal court following a long effort to hold criminal prosecutors responsible for violations of prosecutorial misconduct.
Daniel Medwed, along with six other law professors, formed “Accountability New York,” a project intended to hold criminal prosecutors to a higher standard of accountability and transparency.
According to Medwed, a former public defender in New York City and author of Barred: Why the Innocent Can’t Get Out of Prison, district attorneys have been able to practice with little to no ramifications for mistakes for a myriad of reasons.
Medwed points out that due to prosecutors’ absolute immunity from civil liability, prosecutors cannot be sued for missteps, so long as the misstep was part of the process of litigating their case.
Paired with this, Medwed claims defense attorneys are hesitant to call out prosecutors for their mistakes due to retaliatory concerns from prosecutors to not work with them in the future, or work fairly.
“Many prosecutors’ decisions are opaque and done behind closed doors, people don’t pay a lot of attention to prosecutorial elections and the ethics process is somewhat of a sham,” Medwed claims.
To combat this issue, Medwed and “Accountability New York” have published more than 20 complaints of misconduct against district attorneys in Queens in May 2021. And they spread their concerns online, prompting rapid backlash from the New York City Corporation Counsel and prosecutors in the city.
The professors then pushed back, suing the officials attempting to stop “Accountability New York” from publishing the complaints.
The professors, with the aid of nonprofit Civil Rights Corps and the pro bono team at the law firm Patterson Belknap Webb & Tyler, LLP, won this case. Judge Victor Marrero of the Southern District of New York determined that, according to their First Amendment rights, the professors were fully able to publish their complaints.
“It’s a victory for transparency and prosecutorial accountability,” Medwed says. “This is about the freedom to publicize information about matters of public concern. It’s all true information. It’s all public information. We just connected the dots.”
Though the professors’ legal battles are far from over, Medwed hopes that this victory will embolden the public to hold their prosecutors responsible.
Throughout his work as a public defender, Medwed shared he has observed numerous instances of “prosecutorial misconduct,” arguing it can “run the gamut from procedural missteps over the treatment of evidence to such wrongdoings during the trial as egregious closing arguments.”
According to reports, a district attorney’s closing argument is an area of criminal law where misconduct is frequent.
According to the usual court process, during closing arguments, both sides of a case are given “great flexibility” and are able to comment on the evidence in a way that provides a “narrative.”
Reportedly “out of practice and professional courtesy,” lawyers are also reluctant to object to aspects of opposing counsels’ closing arguments.
Nevertheless, according to court procedures, there are some rules on what can be said at the conclusion of a case because closing arguments are so “powerful and serve” as one of the last impressions on the jury before a case is decided.
The court process also forbids district attorneys to question the “integrity” of the opposing counsel, appeal to “patriotism or religion, vouch for a witness nor allude to the existence of evidence that they were not permitted to present at trial.”
However, it has been shown that prosecutors often violate these rules, said Medwed, noting, “You can’t allude to the fact that there’s stuff behind the curtain that you weren’t allowed to see (…) Those are some examples of wrongdoing: basically, appeals to passion and tricks that are designed to get the jury to react emotionally to the crime.”
Important prosecutorial misconduct can also be found in the ”Brady rule,” a doctrine established by the U.S. Supreme Court in 1963 that requires prosecutors to “turn over evidence to defense attorneys that may be favorable to their client’s case and consequential to the question of guilt or innocence.”
Medwed noted, “In our criminal justice system, the prosecution has a lot of power.
“They have the power to charge people with crimes. They have the power to offer people plea bargains. They have the investigative resources of the police department, which they can utilize for free (…) They have all this power and all these resources that defendants typically don’t.”
According to Medwed, the purpose of the Brady rule is to make the “criminal justice system fairer by lessening the power imbalance between prosecutors and defense attorneys, as the former have significantly more state resources behind them.”
Distinguished Yale University Professor of Law Michael Meltnster, George J., and Kathleen Waters Matthews commonly argued that “Brady violations are commonplace.
“Therefore, the federal courts may wish to fashion some type of response to try to remedy prosecutors’ repeated violations of the U.S. Constitution.”
Meltnster said, “The Brady rule may need to be given teeth, and Medwed’s suit, although unique, maybe a step in the right direction.”
In regard to the case, Meltnster argued that Professor Medwed’s lawsuit may “fail in court, but, regardless, it has performed a public service by alerting the public to a problem few recognize (…) Protecting against wrongful convictions requires making prosecutors accountable, whether their behavior is mischievous or inadvertent.”
Additionally, Meltnster noted he is “well aware of the risks posed by prosecutorial misconduct.”
Medwed said Brady violations, bad behavior during closing arguments, overcharging by officers, and browbeating witnesses, are “all factors in wrongful convictions.” 
