"Power and Greed and the Corruptible Seed": Mental Disability, Prosecutorial Misconduct, and the Death Penalty.

TheSupremeCourt’sdeathpenalty jurisprudence isbased in large part on the assumption that jurors can be counted on to apply the law in this area conscientiously and fairly. All our criminal procedure jurisprudence is also based in large part on the assumption that prosecutors and judges will act fairly. These assumptions are based on nothing more than wishful thinking, and the record of death penalty litigation in the 39 years since the modern death penaltywasapproved inGreggv.Georgia gives the lie to them. I focus solely on the role of prosecutors in this process and theextent towhichprosecutorialmisconducthas contaminated the entire death penalty process, especially in cases involving defendants with mental disabilities. This reality is known well to all those who represent such defendants in death penalty cases, but there is startlingly little literature on the topic. It is misconduct that is largely hidden and ignored. I begin with some brief background on questions that relate to the treatment of persons with mental disabilities in the criminal justice system in general. I then discuss prosecutorial misconduct and its outcomes, with special attention to a cohort of appellate decisions in unheralded and rarely (if ever) discussed published cases that, in almost every instance, sanction such misconduct. I demonstrate how some prosecutors purposefully flaunt the canon of ethics in the prosecution of defendants with mental disabilities in death penalty cases. I discuss some solutions raised by scholars to (at least, partially) cure these problems, and conclude with some modest suggestions of my own. The title comes, in part, from what in my view is perhaps Bob Dylan’s greatest song, Blind Willie McTell, an homage to the blues and to one of the greatest blues singers in history. Another verse of the song includes these lines, which set out Dylan’s thoughts on the tragedy that is so much of American history, a tragedy not unrelated on at least one basic level: the significance of race to any justice system inquiry, such as the one that is the topic of this article: See them big plantations burning Hear the cracking of the whips Smell that sweet magnolia blooming See the ghosts of slavery ships. I can hear them tribes a-moaning Hear that undertaker’s bell Nobody can sing the blues Like Blind Willie McTell.