A Thought About Prosecutorial Misconduct

In several recent cases important federal government prosecutions have been halted or overturned due to judicial determinations that prosecutorial misconduct had occurred. The New York Times tells of a judgment against the prosecutors in the Blackrock case (security guards charged with killings in Iraq) and the Justice Department requesting an overturn of the conviction of Senator Ted Stevens. There is also a recent decision throwing out the case against members of the Broadcom corporation,

The judicial knowledge system uses adversarial processes to seek to establish whether a defendant is guilty of criminal conduct. Prosecutorial misconduct screws up the truth seeking process. In general the process seems to work reasonably well in establishing whether someone is guilty of a crime or (alternatively) coming to a definitive statement that the criminal act can not be proven. When a case is dismissed with prejudice due to prosecutorial misconduct it is not the same as a formal decision that guilt of the defendant has not been established beyond a reasonable doubt, but simply that the government authorities have themselves misbehaved.

I suppose there is a parallel between scientific misconduct, in which the scientific knowledge system fails to establish the reliability of a scientific observation and prosecutorial misconduct. Both represent failures of knowledge systems, both damage the confidence in the systems themselves, and both leave questions of fact unsettled. Of course, other knowledge systems also fail due to human misbehavior -- the editorial systems of news organizations when reporters falsify stories, and the mistakes made by legislative organizations when lobbyists get false information used as the basis of legislation. Human institutions are fallible!

I recall the controversy over the charges of politicization of the Justice Department by the Bush administration. I wonder whether the rash of decisions of prosecutorial misconduct represent a symptom of a malaise in Justice due to the way the Department was administered by the Bush administration.