Category Archives: Prosecutorial conduct (good and bad)

How Nightmare Prosecutors Pervert American Justice



Yesterday, historian Rick Perlstein wrote an important piece about the Nixon pardon, which he shows was the true beginning of the political culture that holds that business elites and government actors cannot be held accountable for corruption and malfeasance because it will “destabilize” the system. From pardons of presidents to too-big-to-fail banks to torturers getting the benefit of “not looking in the rearview mirror,” it’s hard to come up with an example of elite, institutional players having to face the music.

But one of the more confounding aspects of this unaccountable culture of ours is the one that says the legal system has no responsibility to right its own wrongs or even admit to a lack of perfection even when it’s obvious they have made a grievous error (or broke the law). Yesterday I wrote about Justice Antonin Scalia’s rather shocking opinion that the Constitution provides no avenue for an innocent person wrongfully condemned to be released if all the proper i’s were dotted and the t’s crossed.  That strikes me as a perverted definition of justice. But it goes even deeper than that.

The New York Times profiled the hard-charging prosecutor known as the United States’ “Deadliest DA” who tried the case of the two men who were exonerated in North Carolina last week after having been imprisoned for over 30 years for a murder they did not commit. He’s quite a guy, winning more than 40 death penalty cases over 20 years, an achievement that got him into the Guinness World Records book.

He’s 79 now and still punching.  When told that his successor (a distant cousin) calls him a bully, his response was this: “Well, let’s say, if I was a bully, he is a pussy. How about that?” I think Johnson Britt has been hanging around too much with the wine and cheese crowd. So much for the dispassionate dispensation of the rule of law.

And despite the clear and overwhelming evidence that the two men who were released on DNA evidence along with a never processed fingerprint that implicated a known rapist in the crime, this fine representative of the people had this to say, “I thought the D.A. just threw up his hands and capitulated, and the judge didn’t have any choice but to do what he did. No question about it, absolutely they are guilty.” No, absolutely, they are not.

This attitude is pervasive among many prosecutors who all over the country pull out every stop available to them to keep DNA evidence from being tested and are unwilling to release wrongly convicted prisoners despite proof of their innocence. They refuse to admit they were wrong.

This piece by Sue Russell from a few years back examined why that is:

“The problem we face,” says social psychologist Carol Tavris, “is not from bad people covering up their mistakes and not wanting to face the truth. It’s from good people who deny the evidence in order to preserve their belief that they’re good people.”

Anthony Greenwald, a psychology professor at the University of Washington, says it’s natural for most of us to see ourselves in the most favorable light possible; to picture ourselves as more heroic or good or honorable than we are. For some, accepting that they may have contributed to an injustice would be such a massive blow to their perception of themselves that it is simply intolerable to countenance. So they don’t.

“People perceive themselves readily as the origin of good effects and reluctantly as the origin of ill effects,” says Greenwald. “I don’t think there’s anything special in thinking that this applies to people who work in law enforcement. The only thing one needs to assume is that they, too, are human – like the subjects in all the research that demonstrates the phenomena.”

Of course, law enforcement and prosecutors are human. They make mistakes. But too often representatives of the legal system, particularly as it’s interpreted by hardcore law-and-order types like Justice Scalia, believe that the state cannot err if it follows the rules, regardless of  a single person’s “actual innocence.” Looking in the rearview mirror for truth will only destabilize the system and create a lack of confidence in the state’s ability to mete out justice. This isn’t about being human — it’s about being inhuman.

The lesson in all this is that the state cannot police itself when it comes to prosecutorial or judicial error or misconduct.  Every incentive in the system calls for them to cover up their mistakes in order to maintain the illusion of infallibility (and their individual human belief in their own righteousness).

There is some good news on this front.  The ability to test DNA is changing everything and the legal culture that has been fighting against reevaluating old evidence is breaking down. New science is questioning the use of confessions and eyewitness testimony and new procedures are being put in place after some truly horrendous crime lab errors were uncovered. Conviction integrity units and pre-trial reliability hearings are becoming more common, and outside groups like the Innocence Project and state commissions like the one that finally freed the two wrongly convicted men in North Carolina are making a difference. So there is progress.

The question is whether the wider culture of unaccountable leadership will continue to prevail.  So far, there have been virtually no repercussions for acts over the past decade that devastated the economy and created the morass we now see in the Middle East.  There is little appetite for revisiting the errors of omission and commission that were perpetrated by the government to both create and then exacerbate those crises. We seem to have settled on the idea that confronting our defects and admitting our mistakes will cause the whole house of cards to come tumbling down.  One cannot help noticing that all these people who refuse to deal with the truth seem to have very little faith in the American system — and the American people.

You’d think a country that fetishizes the concept of freedom and allegedly worships the Bible would take John 8:32 a little bit more seriously: And ye shall know the truth, and the truth shall make you free.

Weekend Quick Clicks…

New Scholarship Spotlight: Criminologizing Wrongful Convictions

Professor Michael Naughten has posted the above-titled article on The British Journal of Criminology.  Download here.  The abstract states:

This article considers the apparent lack of serious engagement with issues pertaining to wrongful convictions by criminology at present. It seeks to address this by criminologizing wrongful convictions in two senses: firstly, by highlighting a variety of forms of intentional law or rule breaking by police officers and prosecutors in the causation of wrongful convictions that in other circumstances would likely be treated as crime and dealt with as such; and, secondly, to reveal the extent to which such powerful criminal justice system agents can cause profound and wide-ranging forms of harm to victims of wrongful convictions, their families and society as a whole with almost total impunity. In so doing, the relevance of the study of the intentional forms of crime and deviance committed by criminal justice system agents in the manufacture of wrongful convictions to both arms of the criminological divide is emphasized: mainstream and critical criminology. The overall aim is to show that the study of wrongful convictions can further extend and enrich existing criminological epistemology in vital and important ways and can even contribute to the prevention and possible elimination of those that are caused deliberately.


Prosecutors Have All the Power

Mara Leveritt is a journalist and author who wrote the book Devil’s Knot, which was subsequently made into an award winning movie.  The book chronicles the case of the West Memphis Three, in which three young men were wrongfully convicted of the gruesome 1993 multiple murder of three eight year old boys.  See previous WCB posts on the West Memphis Three here and here and here.

In 2007, DNA and hair evidence recovered from the crime scene excluded all three of them.  A deal was struck with the prosecutor whereby the three were released from prison in 2011 (after 18+ years), but only after entering an Alford plea.  In an Alford plea, the defendant maintains his/her innocence, but concedes that the prosecution’s evidence would likely be enough to convince a judge or jury of guilt.  (Editorial Note:  In this editor’s opinion, the Alford plea is nothing more than a gimmick built into the justice system system that gives prosecutors an avenue to back out of a case while saving face.  It does nothing to change the facts of the case.  Just my opinion.)

Ms. Leveritt has recently taken on the responsibility of Director of the Center for Prosecutor Integrity‘s Wrongful Convictions Academy, which is brand new, and is just spinning up.  She is an Arkansas native, and has also authored a recent article about prosecutorial misconduct and the attendant lack of accountability and sanctions in Arkansas –  Prosecutors Have All the Power.  In the article she states, “Despite documented misconduct, especially Brady violations, no prosecutor in this state has been sanctioned in the past 25 years.”  While this article is Arkansas-specific, it can be applied to the situation nationwide in general.

Friday’s Quick Clicks…

QUALIFIED Immunity for Prosecutors?

In the US, prosecutors have absolute immunity from civil suits brought by defendants whom they have wronged.  This has resulted in yet another manifestation of “absolute power corrupts absolutely,” and has encouraged prosecutors to break the rules in pursuit of convictions.

The Center for Prosecutor Integrity has been doing fundamental work in addressing the issue of prosecutorial accountability, and they have just published a new white paper titled Qualified Immunity: Striking the Balance for Prosecutor Accountability.  You can see that white paper here: Qualified-Immunity.

These excerpts from the paper – tracing the origins of absolute prosecutorial immunity in the US Supreme Court case of Imbler v. Pachtman:

“In 1976 the High Court handed down the long-awaited decision. Wary that prosecutors would be tempted to “shade” their prosecutorial decision-making under threat of a lawsuit, the Supreme Court held in Imbler v. Pachtman that prosecutors are unconditionally protected from civil liability as long as these actions were performed within the scope of their “advocative” duties.”

“Without a single dissenting vote, America’s highest court erected the doctrine of absolute prosecutorial immunity as the law of the land for prosecutors engaged in their advocative role.”

“By removing a key accountability mechanism and inducing an over-reliance on criminal proceedings and bar disciplinary actions, the Imbler decision unwittingly contributed to a culture of professional non-accountability. Without any meaningful prospect of enforcement, the ethical codes’ ability to accomplish the goals of punishment and deterrence has become, for all practical purposes, eviscerated.”

Tuesday’s Quick Clicks…