Prosecutorial Misconduct – What’s to be Done? A Call to Action

pros-scale

                                                        (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:

Exoneration Table

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.

1) Data.

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.

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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.

20 responses to “Prosecutorial Misconduct – What’s to be Done? A Call to Action

  1. I’m disappointed that you mentioned background checks for guns. I’m not sure of the correlation. I believe the 2/3 is a figure made up by those that want to take guns away from the people. The right to own guns should not be infringed; everyone has the right to protect themselves.

    The article however is very good. One thing that it fails to mention however is how political pressure is also placed on the prosecutors. I believe many start off wanting to do a good job, but get pressured by the expectations of the media, state agencies and the legislator. People should be able to sue the governmental agencies that prosecutors work for, to help stop what is going on.

  2. Pingback: Prosecutorial Misconduct – What’s to be Done? A Call to Action | Friends of Justice

  3. I agree with DemRep on all its comments. Especially on background checks that shows a conviction but, does not show it as being wrongful. Constitution guarantees right to bear arms to all citizens and it is not to be infringed. Those infringinging on any Constitution guarantee are the real criminals and traitors of America, and they should be charged with treason, and perjury to the Oath sworn to defend and support the Constitution. Great article. It helps explain what is going on behind our backs by the entrusted members of our society who may not be so trustworthy either negligently, or deliberatley. https://sites.google.com/site/nodakwc

  4. Phil, excellent post. I firmly believe that expanding public awareness of wrongful conviction and the major contributors to miscarriages of justice is key. Conventional wisdom drives public policy. When myths are replaced with reality, the American voter will demand better from our system, and that will accelerate reforms, best practices, and more accountability.

  5. Another issue is selective prosecution. If a prosecutor has reservations about winning a case- he/she will not bring the case to court in fear of a loss on their record.

  6. Reblogged this on JUSTICE FOR RAYMOND and commented:
    Selective prosecution – when a prosecutor selects the cases that are brought to court by the win ability. If the case will be difficult to prove and the accused refuses a plea deal – often they drop the case rather than do the homework necessary to win an obvious homicide case.
    Prosecutorial misconduct is another gray area of prosecution – when false information is used, witnesses are persuaded to see the prosecutors point of view.
    Another issue is when coroner/medical examiners do not do the research they should do. Often elected to office by popular vote rather than qualifications, yet they testify in court as ‘experts’.

  7. Pingback: Wrongful Conviction Blog’s Call to Action on Prosecutorial Misconduct | The Open File

  8. Pingback: Quote of the Day–Phil Locke(6/3/2013) - The Minuteman

  9. We need help. Maybe you can point is in the right direction. I have a relative who was recently convicted of a sex crime in tn. Although we haven’t received court transcripts yet. The entire trial was and was based on a lie. No evidence of any kind. Only the testimony of a 16 year old about alleged events over four years ago. And nothing cane about until the boy himself was in trouble over a similar situation. Any way an innocent person is in jail and possibly going to prison. The d a ,during closing arguments, directly accused my relatives legal parents ( actually his grandparents) of knowing about this and letting it happen. He said this as a fact even though it never happened and definetly couldn’t have been backed by proof. There were several other things said at the closing arguments go against the ethical standards. Could this be prosecutorial misconduct? We will know more when transcripts are available. We are waiting on retrial hearing. Help if you can.

    Thanks

  10. What could become the definitive case on prosecutorial misconduct has reached the ears if not the eyes of AG Eric Holder: Google “Did AG Eric Holder Shutdown the Investigation of Senator Ayotte?” Also:” Will the Truth Come Out About Ayotte?” I could use your help in exposing clear cut injustices that have taken place. Contact: davecoltin@netscape.net

  11. Court papers just filed in El Dorado County Superior Court accuse DA Vern Pierson of Improperly Instructing the Grand Jury in a manner that deprived Political Target Supervisor Ray Nutting of his Constitutional Right of Due Process.
    El Dorado County DA Vern Pierson Accused of Grand Jury Abuse | In El Dorado County
    http://www.inedc.com/1-5734

  12. When my “enlightening” came I was so disappointed in the people I trusted to be honest and trustworthy. I must have been so naive and now I see so many railroaded for personal gain. Do they have no conscience? People and their children are dispensable for their gain? We need accountability or we will never see change. I see how hard and judgmental we as society have become. No one can change we think, no one can ever be a productive citizen again after making a dreadfully wrong spur of the moment decision or mental illness. Everyone is christian but no one has christian compassion. Make Prosecutors and Law Enforcement accountable for their dishonesty and then we may have a fair system.

  13. Pingback: Center for Prosecutor Integrity to Establish ‘Registry of Prosecutorial Misconduct’ | Wrongful Convictions Blog

  14. William Fuhs Sr

    This is a problem which needs a more immediate solution. After abundant thought I feel there is a solution, “public embarrassment”.

    It seems the motivation for the misconduct is almost always political advancement. If the facts are clear, while potentially late in disclosure, they should be disclosed. In this new electronic age that can be accomplished, if not nationally, with friends, colleagues, potential employers of the perpetrator of the misconduct and voters should the perp consider running.

    The facts can speak. All that’s needed is a determined group willing to make the cost of misconduct “public disclosure” a deterrent.

    I am willing to be part of such a group. How about you?

  15. I was arrested by Berkeley county WV in 2010 for checks that my husband wrote to a person to pay his debt and my checks bounced. Public defender told me that he had not seen evidence and If I fought this and lost would serve 15 yrs. in prison. I did not owe anybody money. Prosecutor gave me plea deal of 2 misdemeanors of worthless checks on a pre-existing debt. I have a criminal record that starts out showing that I was originally arrested for 7 felonies so I look like a THIEF! I wish somebody would listen to my story and look at my evidence and see that I am innocent. This as ruined my life.

  16. While I agree that prosecutorial misconduct is a huge problem and needs to be prevented to whatever degree possible by whatever means possible, I believe there is a similar and equally serious problem with investigators (detectives). Investigators have caused wrongful convictions and/or overly harsh sentences via focusing on only the first viable suspect, not collecting exculpatory evidence, coercing confessing, twisting words/facts, etc. While designing a campaign to prevent prosecutorial misconduct, I think it would be a huge mistake to not include investigator misconduct in that same campaign.

  17. I don’t think public embarrassment is even remotely strong enough punishment for someone intentionally putting an innocent person in prison or even death row. I think a more appropriate punishment is for prosecutors being given the same sentence they inappropriately ‘won’ for the innocent person. That would not only be appropriate, but quite simple to administer, and should be very compelling motivation for prosecutors to behave like our constitution intended them to behave.

  18. Dennis Kerrigan

    I was convicted of fourth degree stalking of my property manager while she was on my property a jury found me guilty on Jan 2010. I had a lawyer at the begining of the trial, but after the first two years of the trial I ran out of money. I wanted to proceed Pro-Se which I did then the judge ordered the Public Defenders Office to have a Legal Aide Attorney represent me. My previous Lawyer ordered supeonas which the Prosecutor told the property manager to disregard the supeona. All of my evidence was never introduced at my trial, showing the property manager lied to police in the past. A police report, stating I was at a meeting causing a disturbance when the police arrived they learned that I was not at the meeting and in fact the meeting was canceled.

    The prosecutor never questioned me about the charges. Had they more then one. Had either of them did they would have learned she was a proven liar. In my appeal my Appellant Attorney (court ordered)
    bought up the prosecutorial misconduct but the judges ignored.. The Case of State of New Jersey vs Dennis Kerrigan

  19. Phil, Thank you for your excellent and very timely article.
    I believe it should be a felony if a prosecutor withholds evidence favorable to a defendant.

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