Resisting Immunity: How New York is making unprecedented changes and amping up accountability of prosecutors and what Maryland must do to follow suit

In 2017, the National Registry of Exonerations reported that eighty-four (84) out of 139 exonerations that year involved some sort of official misconduct.[1] That is an alarmingly high statistic in light of the grave consequences suffered by those at the hands of misconduct. While official misconduct encompasses officer misconduct, falsified information, false reports, and other…

ublawforum

September 30, 2018

3–5 minutes

On August 20, 2018, New York Governor Andrew Cuomo signed into law unprecedented legislation that establishes the country’s first, and only, statewide commission to address prosecutorial misconduct.[3] Although the commission cannot impose punishment, the commission will oversee, investigate, and make findings and recommendations about allegations of prosecutorial misconduct.[4] In light of the growing number of innocence claims arising from prosecutorial misconduct, many states across the country are seeing an increased urge for legislation related to similar commissions.

Maryland has yet to follow suit and change doesn’t seem to be on the horizon. Prosecutors in Maryland enjoy absolute immunity as defined in the Maryland Code of Courts and Judicial Proceedings § 5-522(b).[5] As recently as May 2018, the United States Court of Appeals for the Fourth Circuit stated, “[w]e resoundingly reject the invitation to cast aside decades of Supreme Court and circuit precedent to narrow the immunity prosecutors enjoy.”[6] The Court of Appeals rejected Baltimore Police Department officer’s argument that Marilyn Mosby’s actions related to the Freddie Gray prosecution stripped her of Maryland’s statutory immunity.[7] The court offered a purview of decades of precedent in order to justify their decision. Most significantly, the court began it’s analysis by stating “[a]bsolute immunity protects ‘the vigorous and fearless performance of the prosecutor’s duty’ that is so essential to a fair, impartial criminal justice system.”[8] Ultimately, the court determined Mosby’s actions fell “squarely under the umbrella of absolute immunity”[9]and dismissed the civil suit filed against Mosby by Baltimore Police Department officers.[10]

While prosecutors in Maryland continue to be insulated by absolute immunity, the Baltimore City State’s Attorney’s Office has taken steps in order to ensure convictions are sound. The Baltimore City State’s Attorney’s Office is the only prosecution office in the state that runs a Conviction Integrity Unit.[11] The Conviction Integrity Unit is charged, amongst other things, with handling the City’s innocence claims, and even works to amicably resolve claims where factual innocence is proven.[12] Although the efforts are to be commended, the Conviction Integrity Unit is operated internally by the Baltimore City State’s Attorney’s Office, thus calling into question the ability for the unit to be impartial and vigorous in revealing and revisiting cases that may involve prosecutorial misconduct.

Ultimately, while New York works through the implementation of the commission, many states, including Maryland, should and need to adopt a similar policy. Limiting immunity means holding prosecutors accountable through all stages of investigation, discovery, and litigation. Until then, prosecutors remain unfairly insulated, and thus less accountable, by precedent and outdated statutory accommodations. Maryland should take similar steps as New York and remove the accountability power from the State’s Attorney’s Office, and instead create a commission to improve the overall credibility of our judicial system’s key actors across the entire state.

Amy L. Valdivia will receive a Juris Doctorate from the University of Baltimore School of Law in May 2019, with a concentration in criminal law. Ms. Valdivia grew up in Essex, Maryland and currently resides in Harford County. For the past two years, Ms. Valdivia has served as a Student Attorney for the Innocence Project, where she investigates innocence claims and represents wrongfully convicted individuals. Prior to law school, she received a B.S. in Justice Studies from James Madison University. Ms. Valdivia is excited to announce that following the Bar exam she will begin her career as an Assistant Public Defender for the Maryland Office of the Public Defender. Ms. Valdivia may be reached at amy.valdivia@ubalt.edu with questions or comments.

All thoughts and opinions expressed in this article are my own.