This Slate article suggests that prosecutor Mike Nifong’s unethical actions in the Duke Lacrosse case might not be that unusual among prosecutors. The article argues that the only reason Nifong’s unethical behavior was uncovered was because the Duke case generated an extraordinary amount of scrutiny.
I propose that we randomly select a few criminal cases for intensive review. The review would give us an indication of how honest prosecutors are and would provide some deterrence against unethical prosecutorial conduct.
Over 90% of criminal cases settle through plea bargaining. These cases never reach trial. So, as the Slate article points out, any prosecutorial misconduct that might have occurred in these cases would almost certainly go undetected. For my proposal to succeed plea bargained cases would have to be eligible for random intensive review.
Ideally, at least one person participating in the review would have subpoena power. But if the government was unwilling to go along with my random review idea, private organizations could conduct it by themselves. Each year, for example, law schools could randomly select, say, 30 criminal cases that were concluded in the past year. These schools could then have their students investigate every aspect of the case to determine if justice was done.