Professor Medwed and Team of Professors Prevail on Publishing Prosecutor Misconduct Cases

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06.30.22 — Professor Daniel Medwed, a criminal law expert, and a team of five other law professors have prevailed in a federal court ruling that vindicated crucial First Amendment rights and upheld the use of holding prosecutors accountable for misconduct through publishing disciplinary complaints against them.

“I’ve been working on issues related to prosecutorial accountability for years and occasionally file grievances against misbehaving prosecutors with state bars based on the idea that, as a law professor, I’m insulated from retaliation in ways that actively practicing defense attorneys are not,” said Medwed, author of Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent (New York University Press, 2012) and Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent (Cambridge University Press, 2017). “Many of these efforts have failed, lost in the Byzantine and opaque disciplinary process.”

In conjunction with the nonprofit Civil Rights Corps, Medwed and a small cadre of fellow criminal law professors began filing grievances in New York grounded on public records of misconduct by piecing together information from case opinions and transcripts. The team then published them on a website to enhance transparency. “As it is often said, sunlight is the greatest disinfectant,” said Medwed.

The professors’ federal lawsuit alleged that New York state officials retaliated by threatening legal action and rescinding their status as “complainants” in prosecutor disciplinary actions because they published the complaints. With the aid of a pro bono team at Patterson Belknap, the professors sued New York state officials for violating their First Amendment rights. Judge Victor Marrero of the Southern District of New York rejected motions to dismiss retaliation and other claims against various state officials. Marrero agreed that officials had violated the First Amendment by using confidentiality laws regarding attorney discipline to block the professors from publishing their own complaints.

“Although many of our claims are still pending, we won the big one on summary judgment—that our efforts to publish the grievances, which again are grounded in the public record, are protected by the First Amendment,” said Medwed. “This may seem technical but it potentially has huge ramifications for holding prosecutors accountable and deterring misconduct.

Medwed is a founding member of the board of directors of the Innocence Network, a consortium of innocence projects throughout the world, and a former president of the board of directors of the Rocky Mountain Innocence Center in Salt Lake City. He currently serves on the board of the New England Innocence Project. He is also the legal analyst for GBH News, Boston’s local NPR and PBS affiliate. His next book, Barred: Why the Innocent Can’t Get Out of Prison (Basic Books/Hachette Book Group), is forthcoming in 2022.

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