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


                                                        (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.


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.

32 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.

    • DemRep, ”The right to own guns should not be infringed; everyone has the right to protect themselves.”

      If, as you say, this is the case, then why don’t we in the UK need to protect ourselves too? The answer is simple, no one has a gun, thus no one needs protection; I see ”protection” as an excuse to keep your gun.
      Ask any parent of a child who was slaughtered at all the school massacres, I bet they wouldn’t be an advocate for guns; if they were, I bet they’re not any more. Why is it so necessary to live in fear? Could it be the people in America are so used to it they fear living without fear?

  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.

  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.


  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:

  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

  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.

  20. Pingback: Truth, or No Consequences | RHDefense: The Law Office of Rick Horowitz

  21. These are leaders on the subject on prosecutorial misconduct. District Attorneys and prosecutors need to be held accountable for prosecutorial misconduct. There are many cases that have been prosecutorial misconduct in our county on many cases.

  22. What bothers me is that plea-deals detract from appropriate sentencing which should be the SOLE CONCERN of the JUDGE. The prosecutors in fact usurp the role of the judge.
    Also, in cases of plea-deals offered and declined, I think that a review should be MANDATORY once the proffered plea-deal time expires.
    There should also be a a cap on the sentence given to those who refuse plea-deals which should be related to the time offered in the plea-deal. See how these plea-deals tie the hands of the judge? The prosecutors are usurping the role of the judge! But, by capping the court sentence to a factor related to the plea-deal, the prosecutors will be reined in somewhat because the cost of a review will negate the savings of forced declarations of guilt which were caused by dire threats and injustices unrelated to the merits of the case, e.g. monetary, incarceration, loss of income and family commitment considerations.
    Also, prosecutors and related court officials should not be immune from the consequences of improper conduct while also bearing in mind that no-one has all the facts and only God can read the heart.

  23. Hello Phil and others of the “Blog”:
    I am an indirect victim of the egregious, extreme and outrageous prosecutor’s criminal behavior that has been swept under the rug in the Debra Milke case… “prosecutorial misconduct” is certainly not strong enough to describe what was done by Noel Levy (prosecutor from Hell) to cover-up the lies of the despicable liar detective, the cover-up by his superiors in Phoenix Police Department, the eight instances of the detective being identified as a liar in Superior Court documents before the Debra Milke case, the further cover-up by Police oversight ignoring the established practices of the police department for years prior to Debra Milke (50 years?)… the City of Phoenix officials who condoned the antics of the Phoenix Police Department. Plus, how about the extreme and outrageous corruption inside Superior Court (which has not abated)? Plus the continuing corruption at the Court of Appeals and the Supreme Court of Arizona, where anyone could have exposed the known wrongdoing of the Detective and Noel Levy the prosecutor – – who both should be put on death row for what they have done to Debra Milke and countless others – – all for profit and advancement, and given accolades for “best prosecutor of the year” awards for several years. Not one of the hundreds of agent provocateurs came forward to expose the lies of the Detective and the wrongdoings of Noel Levy.
    How am I an indirect victim, you ask? I along with thousands of other citizens believed that Debra Milke was guilty of killing her little boy and should die as a result, only to find out (25 years later) that the Detective fabricated her alleged confession, and Noel Levy knew of the Detective’s propensity to fabricate and lie as a witness and did not disclose that information to the defense counsel for Debra Milke, as required to do as a matter of law. As a result of their schemes of lies and false testimony, I believed she was guilty, when the real persons who should be in her shoes walk around strutting with a fancy life style earned on the wrongful conviction of others.
    The question now becomes: How many more victims are currently incarcerated, who didn’t know to timely file an appeal or have an appealable issue? And what is society going to do to investigate each and every case of each and every person incarcerated? I have changed my position. Stop the death penalty in Arizona. Not because an innocent man/ or woman may be wrongfully executed! No… Stop the death penalty because the prosecutors and cops are liars and their egregious extreme and outrageous tactics can no longer be acceptable or tolerated in a civilized community. A class action suit for $500 Billion might get some attention of the public, when their taxes increased. The money could be used to examine all of the incarcerated and set them free. Damn the Prosecutor Noel Levy and his minions all to Hell.

  24. Pingback: Sharing Views on Prosecutorial Reform | Wrongful Convictions Blog

  25. Pingback: Just Who Dies in Jail? | The Pink Flamingo

  26. Linda Priestly

    I live in Klamath County Oregon. And this is going on daily here. I just seen a simple minded man sentenced to 68 months in prison .He was bullied by a retired police officer who swore to get revenge on a family friend before he retired He retired became a lawyers PI and threatened this poor man into saying he did something he was innocent of I know I was there.Then this sloppy obeast DA stood up and was loudly stating false statements to the judge. The man took a plea bargain for 68 months he was told he would do 9 years if he diddnt .he was charged with ATTEMPTED assault which he did not even attempt .and the DA STOOD UP YELLING HE STABBED MAN. I would not feel safe in the community with this man free. Later he and the mans Lawyer ” the former DA of the same city nudged elbows smiled really proud of their victory .what is this its sad this poor man is nor very educated or wise to this world . He did not understand a thing that happened

  27. Pamela Barrett

    Beautiful! Keep fighting for the wrongly accused!

  28. Gregory Tripp Sr

    My son was accused by a GFs nice and daughter of molestation. That was in 2013. He was arrested and jailed on two counts of CM with no investigation and my wife and I, school teacher and retired US Army were sitting next to our son when thus supposedly occurred yrmet were never interview. After $5 months of kicking it down the road and discovery evidence that proved his innocence the prosecutor still took to trial, jury in hallway waiting to be selected. Plea two yrs probation to be exonerated, reg. As sex criminal for that period also to be exonerated, Alfred Plea, First Offender. Family w no experience took def lawyers advice due to not knowing what these juries do in these cases. After plea agreement both prosecutor and judge said there was not enough evidence to prove case, and that “state had to get something.” All said we got a deal of a century as he still gets to see his kids, those of his gf and nieces and nephews. Something is wrong when a truly innocent man is forced into a plea and loses everything he has. Help

  29. Pingback: Truth, or No Consequences

  30. Hussain Alzubaidy

    Hey guys, i don’t know how I got an email from you guys but it must of been sent from heaven. Guys can anyone please help me prove my innocence by getting the evidence the prosecutor has on a case they involved me with. I was gonna take it to trial but then the prosecutor set up a fake court so I can see someone in my case that tells me they followed my family to their home. He would send his people if I don’t sign a deal. He said he will tell the prosecutor to give me time served. My public attorney promised me that I would receive the evidence once I came out. But now they are saying it under a protective hold. Guys I can’t work due to my immigration status now. I lost my business and now I can’t provide for my kids so I lost them. I wake up to a nightmare for 8 months now since I lost my kids. Two days ago I was in the er for alcohol poison. Didn’t really mean to hurt myself, just can’t deal with the pain of been without my kids when I’m alive and not locked up, but I still can’t see my kids. I beg of you guys as desperate father trying to at least have his kids in his life. On everything that I stand for and may God punish me more in this living hell that I’m in if I’m lying to you guy. My prove is their own evidence, why? Feds was tracking this Mexican cartel. I mean wiretaps, videos, informants, pictures and surveillance videos. There are 43 including me in that case and each one of them has their name on a folder with everything that has to do with them in the law library. But, I didn’t have a folder or a phone that is tapped or anything at all. One call with a guy talking to his boss about me asking too much questions about where he is at. His boss was so called a friend that hooked me up with a job at a mechanic shop, but no one talked to me about anything when we got to the shop. Due to his girlfriend fight with him so he left me with 4 guys at the shop. He replies to the guy I’m with in Spanish “don’t worry just tell him to drive u around to see me but don’t tell him anything he doesn’t know anything. I don’t have anyone that can drive u guys so I’m using him” With that call my public attorney said that Im gonna win the case. But that was before she was threatened and she came yelling at me with her privet investigator that she is gonna quit. If I don’t take this deal. She said if I wanna risk my family’s life’s, then she wants me to ask the judge to get another attorney. Said I would do more time due to all the evidence that the other attorney needs to look at. But then she said get time served go handle immigration then come out and come to my office and bring a huge hard drive because it’s a lot of evidence. I wrote the judge asking for the evidence. He had my public attorney email me saying it’s under protective hold and I can’t use it. Once again guys I beg of you guys if anyone knows anything that can help please Email me at May God bless you all and thank you for your time.

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