EDITORIAL: Judges must hold prosecutors accountable for nondisclosure

When evidence is concealed, there is no justice.

Despite all the protocols built into the criminal justice system to protect the rights of defendants, those accused of wrongdoing sometimes are wronged by the very people charged with determining their guilt or innocence.

On Nov. 8, the Review-Journal’s Bethany Barnes explored the alarmingly common practice of prosecutors withholding information from defense counsel. In many cases, that evidence could have been presented to a judge or jury to sway the outcome of a prosecution.

Worse than the fact that such nondisclosure happens, however, is the fact that judges made aware of such failures during appeal rarely do anything about it. The justice system exists to hold people accountable for their actions, but the system consistently fails to hold itself accountable for failing the public trust.

A 2013 report by the Center for Prosecutor Integrity found prosecutors were punished in less than 2 percent of the cases where misconduct was found. And Alex Kozinski, the chief judge of the 9th U.S. Circuit Court of Appeals, which hears Nevada appeals, says there is “an epidemic” of prosecutors hiding information.

“Until judges intervene, it won’t stop,” said Franny Forsman, who led Nevada’s federal public defender’s office for 22 years. “There’s just too much of an incentive to just keep going the way you’ve been going because there is no downside.”

The Clark County district attorney’s office has withheld information in several cases over the years and faced little consequence. And its lack of full disclosure goes beyond the office’s controversial witness payment program, which provided witnesses with money for rent and other expenses, often without the defense’s knowledge.

“I don’t know if we’ll ever find the full breadth of what they were doing,” said Clark County public defender Phil Kohn.

The public already is cynical and distrustful of the legislative and executive branches. If Americans lose confidence in the fairness of the judicial branch — if they start believing it’s as rigged as the rest of government — then the integrity of every judgment and verdict will be questioned. That would be terrible for society and democracy.

Nevada’s judges must do more to protect their institution. Prosecutors won’t stop withholding information and evidence until they’re punished for doing so.

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