Center on the Administration of Criminal Law

Prosecutorial Practices and Ethics

The Center files briefs addressing important issues regarding prosecutors' practices, including disclosure and ethical obligations.  Such cases have included:

  • Bannister v. Illinois -- Supreme Court of the United States -- In this case, the Center filed an amicus brief in support of a petition for a writ of certiorari arguing that the use of "consistency provisions" in plea agreements -- which require cooperating witnesses to testify consistently with their pre-trial statements in order to obtain the benefit of immunity or the possibility of a reduced charge or sentence -- undermine the ultimate goal of the criminal justice system to pursue truth and justice.  This amicus brief was filed in support of the defendant, in partnership with the law firm Simpson Thacher & Bartlett LLP.  The Court denied certiorari on November 29, 2010.
  • Colon v. New York -- Court of Appeals, State of New York -- In this case, the Center filed an amicus brief proposing a new, clearer test for determining when a tacit agreement exists between a prosecutor and a cooperating witness to provide benefits to the witness in exchange for testifying against a defendant.  This amicus brief was filed in support of the defendants-appellants, in partnership with the law firm Weil, Gotshal & Manges LLP.  On November 19, 2009, the Court sided with the Center in a unanimous opinion.
  • Connick v. Thompson -- Supreme Court of the United States and United States Court of Appeals for the Fifth Circuit, en banc-- In this case, the Center filed two amicus briefs in support of Thompson, who was exonerated just weeks before his scheduled execution after 18 years of wrongful imprisonment.  Thompson won a jury verdict in a federal section 1983 action for violation of his civil rights due to the New Orleans' District Attorney's Office's deliberately indifferent failure to train, monitor, and supervise the prosecutors in that office.  The Center's briefs highlighted the importance of training prosecutors on their constitutional obligations pursuant to Brady v. Maryland.  Both briefs were filed in partnership with the Law Offices of Martin J. Siegel.  The first brief was filed in the Fifth Circuit.  On August 10, 2009, in a per curiam opinion, the Fifth Circuit agreed with the Center in an en banc opinion and affirmed the jury's judgment for Thompson.  The second brief was filed in the Supreme Court on behalf of a group of centers at leading law schools committed to the study of criminal law and procedure, the institutional administration of criminal justice, and legal ethics, including the Center, the Criminal Justice Institute at University of Houston Law Center, the Jacob Burns Center for Ethics in the Practice of Law at Benjamin N. Cardozo School of Law, the Louis Stein Center for Law and Ethics at Fordham University School of Law, and the Stanford Criminal Justice Center at Stanford Law School.  The case was argued on October 7, 2010.  On March 30, 2011, the Court reversed the Fifth Circuit's en banc decision.  In footnote 17 of her dissent, Justice Ginsberg cited the Center's brief.
  • Pottawattamie County v. McGhee -- Supreme Court of the United States -- The Center filed an amicus brief in support of the respondents, who spent nearly 20 years in prison after prosecutors fabricated evidence to frame them for a crime they did not commit.  The Center's brief argued that, like law enforcement agents, prosecutors should receive qualified rather than absolute immunity for unconstitutional actions they take in their investigative capacity.  This amicus brief was filed in partnership with the law firm Weil, Gotshal & Manges LLP.  The case was argued on November 4, 2009.  During the argument, Justice Sotomayor questioned the Deputy Solicitor General regarding studies that were cited in the Center's brief and that show that, as a matter of routine, prosecutors are not sanctioned for improper conduct.  On January 4, 2010, the media reported that the a settlement was reached between the parties pursuant to which the respondents received $12 million, and thus the Supreme Court dismissed the case as moot.
  • Cone v. Bell -- Supreme Court of the United States -- This case involves whether a prosecutor violates applicable constitutional and ethical standards by failing to disclose to the defense exculpatory evidence that was in the prosecution's possession and that bore directly on the sole defense raised by the defendant at trial and sentencing, and then failing in post-conviction proceedings to give an accurate procedural history of the defendant's claim based on that non-disclosure.  The law firm O'Melveny & Myers LLP filed this amicus brief in support of the petitioner on behalf of a group of former prosecutors, including the Center's Executive Director.  On April 28, 2009, the Supreme Court ruled for the petitioner, vacating the judgment of the Court of Appeals and remanding the case to the District Court with instructions that the court give full consideration to the merits of the petitioner's Brady claim.