As readers of this blog know, I have long and repeatedly advocated that an effective means for reducing the incidence of prosecutorial misconduct, without having to reverse the conviction — which appellate courts are understandably reluctant to do where there is strong evidence of guilt but improper conduct by the prosecutor — is to name the prosecutor in its decision condemning the misconduct, but affirming the conviction (see and see). Yet, with exceptions, appellate courts still appear reluctant to do so. For example, this week, in a statement regarding the denial of certiorari in Calhoun v United States (568 US __ [2/25/13]), Justices Sotomayor and Breyer condemned the racial argument of the Assistant United States Attorney, but did not name the attorney:
It is deeply disappointing to see a representative of theUnited States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice. In discharging the duties of his office in this case, the Assistant United States Attorney for the Western District of Texas missed the mark.
I call your attention to two excellent posts (here and here) regarding the Court’s failure to name the offending prosecutor and which rectify this failure by naming him (Samuel L. Ponder).
