Brady Misconduct Remedies: Prior Jeopardy and Ethical Discipline of Prosecutors

In an Arkansas capital murder prosecution that resulted in conviction and sentences of death based on the killing of a family offour, defense counsel learned after the conviction had been reversed that a key prosecution witness, the defendant's son, who testified against his father, implicating him in the murders at trial, had also given prosecutors a statement in which he claimed responsibility for the crimes and exculpated his father. Defense counsel moved to dismiss the prosecution on the ground of prosecutorial misconduct, then raised a prior jeopardy claim in an effort to bar retrial by taking an interlocutory appeal to the Arkansas Supreme Court. The court rejected the prior jeopardy claim and permitted the retrial to proceed, while referring the prosecutors involved to the Committee on Professional Conduct for consideration of possible ethical violations. On retrial, the defendant was again convicted, although his son did not testify against him at this proceeding. This article examines issues of prosecutorial misconduct in this case and remedies for misconduct