Who Guards the Guardians? On Prosecutorial Misconduct & Prosecutorial Immunity

Courtroom One Gavel

Andrew Talevich / flickr

Today, Daniel Ford and Bernard Baran are both free men. While Ford sits on the bench of the Massachusetts Superior Court, Baran is content sitting anywhere but his prison cell, his home for almost 22 years.

In 1985, Baran, then a 19-year old high school dropout, was convicted of molesting and sexually assaulting five children at a Pittsfield Daycare. An employee at the center, Baran maintained his innocence. Ford, at the time an assistant district attorney, led the prosecution of Baran.

A review of the evidence against Baran, including unedited videotaped interviews of the children, raised serious questions about its veracity: the children were often asked leading questions, sometimes even promised prizes for responding with the “proper” answers. More troubling is that this evidence, potentially material in asserting Baran’s innocence, was withheld at trial—and appears to have been knowingly withheld from Baran’s own defense team as well. Once this, along with issues with the incompetency of Baran’s own counsel, came to light, Baran was released from prison in 2006, his convictions vacated soon thereafter.

In the intervening time, despite the strong likelihood of prosecutorial misconduct, neither Ford nor other members of the prosecutor’s office were officially sanctioned or otherwise held accountable. This is largely a result of the immunity prosecutors’ offices enjoy.

The circumstances surrounding Baran’s case represent an important juncture for examining the nature of prosecutorial immunity vis-à-vis the need for a judicial system that should itself not be above reproach.

The Tension Between Immunity & Justice

Tasked with gathering evidence and pursuing justice, we expect prosecutors will independently bring all the facts of a case to light. Proponents argue they need the assurance they will not be held liable for their actions—immunity—if they are to truly exercise said independence. It is paramount that they have freedom from external concerns and distractions that might limit the scope of their search.

However, immunity doesn’t quite give prosecutors carte blanche. Instead, the pursuit of justice is balanced with a respect for Constitutional protections for the accused, including the right to due process. For example, withholding evidence that may prove material in determining the guilt of an individual (a “Brady violation”, so-called for the Supreme Court case it derives from) is a serious violation of one’s due process rights.

It’s easy to see how Ford was driven to pursue allegations of molestation vehemently, especially in an era when allegations of daycare sex abuse were rampant across the country. Harvey Silverglate, a career criminal and civil litigator—and a member of Baran’s post-conviction defense team—acknowledges the power these sorts of “mass panics” have in appealing to prosecutors, social workers, and the general public, whipping them into almost frenzied action. But, Silverglate also notes, “the object of the justice system is to achieve justice, not to make justice look good.”

Omitting certain video evidence—including repeated refusals of children to acknowledge Baran’s guilt, leading questions, suggestive puppet shows, and promises of prizes—clearly bolstered Ford’s case. Similarly, it helped that, when evidence came to light recommending the investigation of another individual, it was not revealed to Baran’s defense until after he was convicted.

Yet the zealousness of Ford and others in seeking a conviction should not admonish their poor conduct. Failure to inform the defense of these critical evidentiary details smells of a Brady violation, to say nothing of its generally reprehensible nature.

Years later, even in the appeals process, the district attorney’s office effectively stonewalled—for almost 42 months—motions to unearth the unedited tapes. Curiously, the tapes surfaced almost immediately when a new DA took over. Silverglate noted, “The only thing we were lucky about is that he [the previous DA] didn’t burn them.” Clearly, luck should not be the balance from which justice hangs.

Who, Then, Manages Prosecutorial Misconduct?

Last year, the Supreme Court further narrowed the scope of potential Brady claims, ruling in Connick v. Thompson that municipalities and offices can’t be held liable for particular violations—instead, a pattern of similar violations must be shown.

Given the immunity from civil proceedings already afforded individual prosecutors, and the remote likelihood of showing a pattern of violations on a particular office, it often falls to state attorney discipline systems to manage prosecutorial misconduct.

How effective are these systems at reining in the kind of misconduct Ford likely engaged in? A 2011 Yale Law Review[1] article notes the codes governing these state bodies often fail to explicitly prohibit the kinds of acts construed as prosecutorial misconduct. These bodies also tend to afford complainants minimal rights, often leaving much of the process at the disciplinary body’s discretion. The fact that a number of these bodies overwhelmingly comprise members of bar associations also raises the specter of substantial conflicts of interest. On this, it is reassuring that Massachusetts is among nine states where at least a third of the boards are made up of non-lawyers.

That said, it’s none too surprising that when various studies of prosecutorial misconduct are conducted, few prosecutors—if any—actually face disciplinary action. Between 1970 and 2003, one study found that of 2,012 cases in which prosecutorial misconduct played a role, a mere 44 pursued disciplinary action[2]. In short, the bodies governing prosecutors’ conduct, presently, leave much to be desired.

Hope for the Future

Some suggest if the public learned the truth about the prevalence of prosecutorial misconduct, it could diminish confidence in the system. To that, Silverglate points out, “The very credibility on which the system depends is tied to its capacity to admit error.” In the case of Ford, even as the DA’s office is wary of further, potentially disruptive hearings, Silverglate intends at some point to take up the case against him, at least through the state’s legal ethics board. In much the same way Baran didn’t deserve his seat in prison, Silverglate believes Ford doesn’t deserve his seat on the bench.

Longer term, most agree the solution to squaring the issue of prosecutorial misconduct lies primarily in reforming the institutions governing our judicial system. Litigators continue to call for the establishment of statewide innocence commissions, intended not only to look into particular cases, but also to recommend substantive reforms encouraging ethical behavior over unbridled attempts to score convictions.

Silverglate acknowledges it’s a constant battle as “courts are naturally self-protective.” Persistence, greater awareness and a more circumspect public are all key ingredients in balancing a desire for independent prosecutors and ethical, accountable justice.


[1] David Keenan, Deborah Jane Cooper, David Lebowitz & Tamar Lerer, The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 YALE L.J. ONLINE 203 (2011), http://yalelawjournal.org/2011/10/25/keenan.html.

[2] Center for Public Integrity, Harmful Error: Investigating America’s Local Prosecutors, i, 2 (2003)

Find out more about Bernie Baran on Wikipedia, and Harvey Silverglate here. For more on wrongful convictions, I encourage you to read about the Innocence Project.