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.

7 responses to “How Nightmare Prosecutors Pervert American Justice

  1. Zappo! Right on.
    Let me also add to the news on the “progress” front. The Center for Prosecutor Integrity, while still young, is already having significant impact on the issue of “errant” prosecutors.

    • Phil, ….Not in Arizona, where the top prosecutors, write to the Arizona Supreme Court, there are NO wrongful convictions, while the AG writes there are NO Brady violations. Really? Exoneree, Ray Krone, Debra Milke (conviction overturned by the 9th Circuit, March 2013); Writ of Habeas languishing in the federal courts, swept under the rug, wasting taxpayers dollars: Stephen May, Jim Coghill, Courtney Bisbee, among others — sentenced and convicted under disbarred ex-Maricopa County Attorney Andrew Thomas and his “chief charging” prosecutor, ex-DCA Lisa Aubuchon (disbarred April 2012). They created over 200,000 felony CASES in one term in office (2005-2010). 1% innocent = 2,000. No one investigating? Time for an independent outside investigation.

      *ABA Model Rule 2008; passed in Arizona, January 2014 against the protest of the state prosecutors. R-11-0033 Petition to Amend ER 3.8, Rule 42, Arizona Rules of the Supreme Court > Court Rules Forum > Arizona Judicial Branch

    • Arizona exonerations: Exoneration Detail List – 1,233 Exonerations; 12 exonerated in Arizona; one woman.

      Cruz, Robert 33 Hispanic AZ Murder Death 1981 1995
      Fish, Harold 57 Caucasian AZ NC Murder 10 years 2006 2009
      Girdler, Jr. Ray 36 Caucasian AZ Murder Life 1982 1991
      Grannis, David 21 Caucasian AZ Murder Death 1991 1996
      Krone, Ray 34 Caucasian AZ Murder Death 1992 2002
      McCrimmon, Christopher 20 Black AZ Murder Death 1993 1997
      Minnitt, Andre 21 Black AZ Murder Death 1993 2002
      Peak, Carolyn June 39 Caucasian AZ F Murder Not sentenced 2000 2003
      Prion, Lemuel 30 Caucasian AZ Murder Death 1999 2003
      Robison, James Albert 53 Caucasian AZ CDC Murder Death 1977 1993
      Watkins, John 18 Caucasian AZ PSex ual Assault 14 years 2004 2010
      Witt, Drayton 18 Caucasian AZ NC, SBS Murder 20 years 2002 2012

  2. A sad day for the innocent and wrongfully convicted languishing in the courts and prisons.

    CA: Jerry Brown vetoes bill aimed at holding prosecutors more accountable – The Washington Post 10/1/14

    “Seven years ago, then-California Gov. Arnold Schwarzenegger vetoed a bill that would have imposed some simple, inexpensive criminal justice reforms in California. The bill was the product of a statewide commission of current and former prosecutors, judges, defense attorneys, and law enforcement officials assembled to study how to prevent wrongful convictions. It would have required police interrogations to be recorded. Prosecutors would have been obligated to find corroborating evidence before calling as witnesses jailhouse informants who had been given time off their sentences in exchange for testimony. The bill also would have created a commission to study the reliability of eyewitness testimony.”

    • ….”The bill passed both houses of the California legislature. But Schwarzenegger vetoed it, after some aggressive lobbying by the California District Attorneys Association. According to the National Registry of Exonerations, since that veto in 2007, 39 people in California have been exonerated of felony charges for which they had been wrongly convicted.

      California has since elected an allegedly more progressive governor in Jerry Brown. This year, the state legislature again passed a bill aimed at reining in wrongful convictions, this time by allowing judges to inform juries when prosecutors have been caught intentionally withholding exculpatory evidence, which is already a breach of ethics and arguably illegal. It was modest reform that even some state prosecutors supported. Yet Gov. Brown vetoed it. The watchdog site The Open File, picks apart Brown’s justification.”

Leave a Reply to Camille Tilley Cancel reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s