(Graphic: The Veritas Initiative, link)
Let me begin this post with an apology to all the prosecutors out there who are personally committed to upholding the highest standards of ethics and the law. That being said, you know what they say about “a few bad apples.”
Prosecutorial misconduct. Well folks, this one is a hot button of mine. Ask the average citizen, and they are totally unaware that such a thing ever happens. After all, prosecutors are honorable people who are committed to ethics, justice, upholding the law, and to helping protect the public by ensuring that the “bad guys” are sternly dealt with, and if necessary, isolated from society, or even put to death. At least this is what they tell us in their campaign speeches when they’re running for election or re-election. But prosecutorial misconduct and misdeeds happen, and they happen more frequently than any normal citizen would imagine. Let’s look at some data. The National Registry of Exonerations has compiled detailed data for 873 exonerations (wrongful convictions) for the period 1989-2012. You can see the full report here – exonerations_us_1989_2012_full_report. Here is Table 13 from that report showing frequency of causes contributing to wrongful convictions:
The red box highlights the cause of “official misconduct.” (Note that the percentages for each type of case total to more than 100%. This is because any wrongful conviction can have more than one contributing cause.) The average for all 873 cases in which “official misconduct” was a contributing factor is 42%. This figure includes both police misconduct and prosecutorial misconduct, and the table does not separate the data for the two. However, if we assume a 50/50 split, this yields an occurrence of prosecutorial misconduct in 21% of wrongful convictions. And keep in mind, this data set includes only data for known wrongful convictions. Who knows how many more times this happens, and it doesn’t “get caught?” I think we can safely say that prosecutorial misconduct is not an “ignoreably rare” phenomenon.
Face it – prosecutors are POLITICIANS. What’s more, they’re ambitious politicians. Did you ever know a prosecutor who didn’t want to become a judge or move on to higher elective office? Sometimes, their ambitions can trump their objectivity and ethics. It’s human nature.
The position of “prosecutor” is invested with an incredible level of power. It’s hard to think of another elective office that has the discretionary latitude of a prosecutor. And as Lord Acton wrote 126 years ago, “Power tends to corrupt, and absolute power corrupts absolutely.” And not only do prosecutors have substantial power; but also combine this with the fact that they have essentially no accountability for their actions when they do abuse ethics and/or the law. Sanctions or discipline by Bar Associations or the courts are rare indeed, and the US Supreme Court has confirmed that they have absolute immunity from civil suit for their actions in the prosecuting role. I think the situation is well summarized by this quote from Margaret Z. Johns of the UC Davis School of Law, writing in the Fordham Law Review: “Prosecutors are rarely disciplined or criminally prosecuted for their misconduct, and the victims of this misconduct are generally denied any civil remedy because of prosecutorial immunities.” And again from Margaret Z. Johns: ”In short, prosecutorial misconduct is alarmingly common, and there is no corrective mechanism, no accountability, no effective deterrent, and—because of prosecutorial immunities—often no civil remedy. As one commentator observed, the arguments supporting absolute prosecutorial immunity “offer a wry blend of fairy tale and horror story.””
The Innocence Project has identified the most common forms of prosecutorial misconduct as:• Withholding exculpatory evidence from defense (“Brady” violation) • Deliberately mishandling, mistreating or destroying evidence • Allowing witnesses they know, or should know, are not truthful to testify (eg: “snitches”) • Pressuring defense witnesses not to testify • Relying on fraudulent forensic experts • Making misleading arguments that overstate the probative value of testimony
In March, 2011, a group of 19 exonerees who had been the victims of prosecutorial misconduct sent a letter to the Department of Justice, the National District Attorneys Association, and the National Association of Attorneys General pleading for some kind of action in sanctioning and holding accountable prosecutors who compromise ethics and break the law. This is definitely worth a read, and you can read it here > exoneree_letter_prosecutors.
Certainly, any substantive solution to this problem, like having ‘prosecutor’ NOT be an elected political position, or ensuring appropriate sanctions and discipline, will require legislative (political) action. However, politically taking on the prosecutorial community is analogous to politically taking on the NRA. They just have too many connections to, and too much influence over, the legislators. Even though 2/3 of Americans favor expanded background checks for gun purchases, Congress would not allow it to happen. And this is the kind of influence that prosecutors, as a group, have with legislators at both state and federal levels. So, what IS to be done?
Before any reasonable progress can be made on the legislative front, where it must ultimately happen, the groundwork must be laid to bring legislators along to the position that they believe the situation requires remedy. This will also require overcoming the undue influence prosecutors have with the legislative bodies.
I can think of two things to start.
Purely “anecdotal” data just isn’t going to cut it here. Having a few, or several, exonerees testify before state legislatures would certainly help the cause, but to achieve legislative victory on this particular political battlefield, which I fear is tilted in favor of the prosecutors, will require data – incontrovertible, hard data that presents a compelling case. The National Registry of Exonerations is an excellent first step. However, we’re talking about the need for enacting legislation at the state level, so state-specific data will be needed. The Veritas Initiative at the Santa Clara University Law School and the Northern California Innocence Project has undertaken to collect such data, focused on prosecutorial misconduct, for the state of California. You can download their report from their website here. I would encourage Innocence Projects in every state to start (or continue) building a state specific case-by-case database that clearly shows when prosecutorial misconduct has occurred and what its impact has been. It should also include instances of when prosecutorial misconduct is recognized and identified, but no sanctions or discipline ensues. This is one of those areas where “the hardest part is getting started.” ANY data is better than no data, and the database can’t grow until you start.
2) Public awareness.
There is no greater motivator for a legislator than a vote. If the voting electorate can be educated with the facts to the point where they are incensed at the injustice that occurs so frequently within the justice system, the legislators will take notice … and take action.
The media certainly has a role to play here. Look at the example of investigative reporter, Spencer S. Hsu whose many reports for The Washington Post highlighted the weaknesses of forensic science and the failure of the FBI to take adequate steps to inform defendants that the hair analysis used in their trial may have been flawed. His work helped prompt the FBI to commit to a review, with the assistance of the Innocence Project and the National Association of Criminal Defense Attorneys, of thousands of state and federal cases that relied on FBI hair analysis. For his work, Spencer was awarded the Innocence Network 2013 Journalism Award just last month.
As recently reported here on this Blog, the Michael Morton Act will become law in Texas on September 1. Morton’s wrongful conviction and 25 years of imprisonment were the result of classical prosecutorial misconduct. The wide publicity surrounding this case has been the primary driver in achieving a legislative remedy. However, as also reported here on this Blog, a rule without the attendant sanctions to “give it some teeth” may very well not achieve the intended result.
It’s my observation that the media has been doing a pretty good job over the last few years in covering exonerations when they happen. We need to keep that ball rolling, and encourage the media to also focus in on the underlying causes of these wrongful convictions, particularly prosecutorial misconduct, so the public gains some understanding of what’s really going on.
As previously reported on this Blog, a conviction integrity advocacy organization called Blind Justice is sponsoring a TV ad campaign focused on accountability for errant prosecutors. See stories here and here. Unfortunately, this effort will be limited to just a few states.
Anything we in the “innocence movement” can do to publicly highlight prosecutorial misconduct when it occurs will help – even if it’s just talking to friends and neighbors. People just have no idea this is going on.
Let’s take politics OUT of the prosecutor’s office, and let’s provide some “hot stove rule” legislation to achieve prosecutorial accountability, including appropriate sanctions and discipline. Prosecutors are always politically campaigning on a platform of “tough on crime.” Well, OK, but that applies to you too Mr./Ms. Prosecutor.