Are Prosecutors Above the Law?

From the

By Susan Grigsby

There is something terribly wrong with a justice system that allows an inordinate amount of power to reside in the hands of one office that not only has no real accountability or oversight, but is insulated from the consequences of its actions by court-granted immunity. And no, I am not talking about Supreme Court justices, but about prosecuting attorneys.

The prosecuting attorney—whether local, state, or federal—has an incredible amount of authority and discretion in how to exercise that authority. The prosecuting attorney decides how many, and what kind of charges are brought in criminal prosecutions. The prosecuting attorney has the ability to directly charge a crime, or to use a grand jury for more serious crimes, to indict a defendant. The prosecuting attorney has the authority to offer plea bargains.

And while there should be some type of accountability other than election, and while the fiction exists that prosecuting attorneys could be disbarred, in reality, they face little punishment for abusing their discretion or authority.

According to the Center for Prosecutor Integrity, almost half of all wrongful convictions arise from the misconduct of prosecutors or other officials. Steve Weinburg has broken down the types of prosecutorial misconduct, as you can read below the fold:

  • Courtroom misconduct (making inappropriate or inflammatory comments in the presence of the jury; introducing or attempting to introduce inadmissible, inappropriate or inflammatory evidence; mischaracterizing the evidence or the facts of the case to the court or jury; committing violations pertaining to the selection of the jury; or making improper closing arguments);
  • Mishandling of physical evidence (hiding, destroying or tampering with evidence, case files or court records);
  • Failing to disclose exculpatory evidence;
  • Threatening, badgering or tampering with witnesses;
  • Using false or misleading evidence;
  • Harassing, displaying bias toward, or having a vendetta against the defendant or defendant’s counsel (including selective or vindictive prosecution, which includes instances of denial of a speedy trial); and
  • Improper behavior during grand jury proceedings.

Prosecutors are the most powerful officials in the criminal justice system. Their routine, everyday decisions control the direction and outcome of criminal cases and have greater impact and more serious consequences than those of any other criminal justice official. The most remarkable feature of these important, sometimes life-and-death decisions is that they are totally discretionary and virtually unreviewable.

Angela J. Davis, professor at the American University School of Law and former director of the District of Columbia Public Defender Service, wrote the above in Arbitrary Justice: The Power of the American Prosecutor. Further into her book, Davis makes clear that prosecutorial discretion is essential for the functioning of our judicial system. That does not mean that there are no problems with it.

In most jurisdictions, 95 percent of all cases are decided in the district attorney’s office, never going to trial. Since prosecuting attorney acts as judge and jury, out of the public eye, determining the true amount prosecutorial misconduct is almost impossible.

Katherine Goldwasser, a law professor at Washington University in St. Louis who served as a prosecutor in Chicago before joining academia, suggested that misconduct often occurs out of sight, especially in cases that never go to trial. Those cases by definition do not generate appellate opinions (and thus are for the most part beyond the scope of the Center study). Goldwasser told the Center. “It is not a safe assumption that cases ending with guilty pleas are absent prosecutorial misconduct.”

The most difficult form of misconduct to prove is a violation of the Brady Rule, or the failure to disclose exculpatory evidence. The Supreme Court ruled in 1963, in Brady v. Maryland, that prosecutors’ failure to provide evidence “material either to guilt or to punishment” violates the due process clause of the Fourteenth Amendment. The most common remedy for an egregious violation of the Brady Rule is an overturned conviction; however, the prosecutor who violated the rule is rarely held accountable.

The Center for Public Integrity has analyzed 11,452 cases that were reviewed by appellate courts for prosecutor misconduct. In the majority of the cases, the conduct was considered a harmless error and the convictions were allowed to stand. In 2,012 of the cases, the convictions were overturned, sentences were reduced, or indictments dismissed.  And in 513 cases the appellate judges felt the misconduct was serious enough to warrant additional discussion.

But that left thousands of convictions intact under the doctrine of harmless error. In order to get a verdict reversed, a defendant would have to show that the error was such that without it, the jury would not have convicted. According to Radley Balko:

The policy may seem more sensible than one of setting guilty people free because of low-level prosecutorial misconduct that had no impact on the verdict, but civil liberties advocates say it sets the bar too high. “It requires appellate court judges to sit as jurors,” says Steven Benjamin, president of the National Association of Criminal Defense Lawyers. “It puts them in a role they were never intended to be in, and asks them to retroactively put themselves at trials they didn’t attend. It takes a really extreme case to overturn a conviction.”

As for grand jury proceedings, Davis writes in Arbitrary Justice: The Power of the American Prosecutor:

Neither the defendant nor the defense attorney is allowed to be present during the process. Thus, the witnesses are not subject to cross-examination, which could potentially expose weaknesses in their testimony. The defense may not present exculpatory evidence to the jury unless the prosecutor agrees, and if she does, the defense attorney may not be present during the witnesses’ testimony. In federal prosecutions and in most states, prosecutors are not required to present exculpatory evidence to a grand jury, and they rarely do. With only one side of the story being told, it’s very easy for the prosecutor to convince the grand jurors that the relatively low standard of probable cause has been met. In essence, the grand jury is a very one-sided process entirely controlled by the prosecutor. As a result of this pro forma process, grand jurors rarely decline to return an indictment.

What we saw in Ferguson was a case in which, as Jeff Roorda stated this week during All In With Chris Hayes, Bob McCulloch did not feel that Darren Wilson had broken any laws but proceeded with a grand jury hearing in order to silence the public outcry. Which means that instead of acting as the prosecutor, McCulloch’s office acted as the defense attorney throughout the grand jury hearing. Witnesses were included that the prosecution knew were unreliable at best, and likely to be committing perjury at worst. All possible exculpatory evidence was presented and the defendant was allowed to testify with no cross examination.

Davis also points out that the prosecutor is responsible for informing the grand jurors of the laws that must be applied in order to determine if probable cause exists. One of those laws in the Ferguson case involved a law enforcement officer’s appropriate use of deadly force.

Lawrence O’Donnell has been asking questions about the actions of the prosecutor’s office during the Ferguson grand jury since November 26, 2014. He was especially interested in how, and why, the wrong law was presented to the grand jury concerning the use of force, and why the correction was held until the very last minute and not fully explained to the jury.

O’Donnell’s questions to officials in Missouri include the following:

  • How many times has assistant district attorney Kathi Alizadeh submitted the wrong law to a grand jury as its legal framework for an investigation?
  • How many times has the District Attorney’s office submitted the wrong law to a grand jury as its legal framework for its investigation?
  • Is the Michael Brown case the first time the District Attorney’s office submitted the wrong law to a grand jury as the legal framework for its investigation?

On Wednesday he got an answer. Sort of. From Missouri Attorney General Chris Koster:

Among the problems that Ferguson has brought to light is the need to update Missouri’s use of deadly force statute. This statute is inconsistent with the United States Supreme Court’s holding in Tennessee v. Garner. Consequently, it is important this statute is amended by the Missouri legislature to incorporate the Garner decision and to avoid confusion within the criminal justice system.

From the district attorney’s office that was overseeing the prosecutors working the grand jury hearing, not so much:

But even if the wrong law was explained at the beginning of the procedure and the right law was not explained but only handed to the jurors on the last day of the hearing, so what? Even if O’Donnell’s investigation had produced actual evidence of prosecutorial misconduct, would it matter?

Nine studies have looked at misconduct over 50 years, on both state and national levels, and found 3,625 instances. Of those, public sanctions were imposed in 63 cases, less than 2 percent of the time. Those sanctions rarely exceeded the costs of the disciplinary proceedings.

Indeed, when a prosecutor violates ethical precepts, judges and appellate courts seemingly bend over backwards to excuse the conduct. Even in the most reprehensible cases, judges typically do not refer the case for disciplinary action and ethics boards fail to apply sanctions.

Why is there no accountability?

The people closest to the misconduct, the defense attorneys, have good reason not to report any prosecutorial misconduct. The report could seriously damage the working relationship between the defense attorney and the prosecutor’s office. More importantly, the misconduct can be used by the defense attorney as a bargaining chip in getting concessions for his client. Since his client’s defense is his first priority and any such deal he can make would prohibit disclosure, he is unlikely to report the prosecutor for wrongdoing.

Judges may be wary of violating the separation of powers since prosecutors work for the executive branch of the government, tasked with enforcing the laws enacted by the legislative branch.

Another barrier to accountability is what Radley Balko calls the Christmas Party problem:

“You have to remember that nearly all judges are former prosecutors,” Dalton says. “There’s an undercurrent of alliance between judges and prosecutors, so there’s a certain collegiality there. They run in the same social circles. They attend the same Christmas parties.”

An individual wishing to sue a prosecutor for damages caused by prosecutorial misconduct will find multiple barriers in the way.

The U.S. Supreme Court ruled out torts law as an option for plaintiffs nearly a century ago. And in the 1976 case Imbler v. Pachtman, the court ruled that under federal civil rights law, prosecutors also enjoy absolute immunity from any lawsuit over any action undertaken as a prosecutor. The court later extended this personal immunity to cover supervisory prosecutors who fail to properly train their subordinates.

Now even a prosecutor who knowingly submits false evidence in a case that results in the wrongful conviction—or even the execution—of an innocent person can’t be personally sued for damages. The only way a prosecutor can be sued under present law is if she was acting as an investigator in a police role—duties above and beyond those of a prosecutor—at the time she violated the defendant’s civil rights. But even here, prosecutors enjoy the qualified immunity afforded to police officers: A plaintiff must still show a willful violation of well-established constitutional rights to even get in front of a jury.

Prosecutors do need some level of immunity in order to properly perform their duties. And they require prosecutorial discretion in order to keep the wheels of justice turning. We have seen how efforts to restrict judicial discretion resulted in mandatory minimum sentences, removing a judge’s discretion in sentencing entirely. (Now it is the prosecutor who determines the sentence by exercising his discretion in deciding what charges an offender will face.) But there does need to be some limit, some oversight to a prosecutor’s office.

If grand juries only exist to give the result the prosecutor desires, what is the point of using them? Initially, they were to allow citizens some input into the system, but as that system has become more complicated and more laws have been enacted to criminalize behavior, most citizens do not have the knowledge necessary to fulfill that role. Since all of their actions are taken in secret, and since they are never allowed to reveal what happened within the jury room, it is impossible to determine if they are working the way they were intended.

The most powerful office in the justice system, whose decisions carry the greatest impact and consequence, is still occupied by human beings, subject to all of the normal human failings. In order to ensure that the power is used properly, sunshine, oversight, and accountability must become part of the system.

8 responses to “Are Prosecutors Above the Law?

  1. Mr. Godsey, Excellent article.

  2. Reblogged this on Wrongly Convicted Group Website and commented:
    Great article on probably the underlying reason for most wrongful convictions : prosecutors being above the law. My view is direct elections are bad : justice and politics need to be well separated.

  3. Pingback: Are Prosecutors Above the Law? | The National Center for Reason and Justice

  4. Pingback: Are Prosecutors Above the Law? | Friends of Justice

  5. They are only above the law when there is no one willing to help in getting the bad ones investigated for unlawful and unethical behavior. I have been posting for the past 7 years+ about my prosecutor altering the taped sworn testimony of his forensic expert. I listed it as one of 13 averments in my PCR Petition. The Special Prosecutor in his response, to the Petition, could not deny this fact, therefore admitted to it. I claim the Judge in the 2005 trial lied and conspired w/ the prosecutor to suppress the not guilty verdict from the 2005 trial so they could try me in violation of double jeopardy. Again, the Special prosecutor admitted to these facts. Yet I can not get any assistance to obtain a federal investigation into my case. For the entire PCR Petition go to Justice for Steve Gilmore on Face Book.

  6. Docile Jim Brady – Columbus OH 43209

    “Now even a prosecutor who knowingly submits false evidence in a case that results in the wrongful conviction—or even the execution—of an innocent person can’t be personally sued for damages. ”

    I have a solution for the above and would run it by Stephen King , except I fear it would cause him to gasp and faint •

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