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Prosecutorial Misconduct Running Rampant

A study done by the Chicago Tribune found that between 1963 and 1999 the courts dismissed the conviction in 381 homicide cases, because prosecutors held back evidence that would prove the defendant’s innocence, or because of false testimonies. In all of these cases, not a single prosecutor was castigated for these courtroom deceits. 


One of the worst forms of prosecutorial misconduct is when prosecutors have knowingly admitted false evidence to convict an innocent person. Lloyd Eden Miller Jr. was put on death row for rape and murder of an 8 year old girl. The conviction rested on two pieces of evidence, a confession signed by Mr. Miller, and bloodstained shorts alleged to be his. It was discovered that Miller was threatened with the death penalty if he didn’t sign a confession, which was written by a police officer and contained details that were inconsistent with the known facts of the crime. It was also discovered that the shorts were too small for Miller and even more shocking, that the stains on them were merely red paint. The prosecutor of this case was investigated by the Illinois State Bar Association which found no grounds for disciplinary action.


If prosecutors can add false evidence to cases without punishment, then what's to stop them from subtracting key evidence? John Thompson served 14 years on death row in Louisiana and was exonerated in April, 2011 just weeks before his death sentence. His case was rife with prosecutorial misconduct, but the most appalling involved a blood sample from the crime scene. The sample did not match Thompson’s blood type, and the prosecutor knew it. In fact, it was proven that the prosecutor took the jeans with the blood sample out of police evidence and threw them away so that the defense wouldn’t find this evidence. Thompson said in the NY Times, “I just want to know why the prosecutors, who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.”

The current forms of prosecutorial review are: the appellate review of claims of misconduct, judicial reporting of acts of misconduct, state bar disciplinary action, statewide codes of professional conduct, as well as internal systems of accountability within prosecutors’ offices. All of these forms of review are too feeble to limit prosecutorial abuses of power. 

Joseph diGenova agrees with this lack of prosecutorial governance stating, “I’m a former United States Attorney. I locked up a lot of people. I believe in the Department, I believe in its mission. But the Department is in real trouble. This is serious business. These career prosecutors believe that nobody can touch them. Nobody! That’s a very dangerous thing in a free society...”


In 2003, another study, this time conducted by the Center for Public Integrity, found that prosecutorial misconduct was a factor in dismissed charges, reversed convictions, or reduced sentences in at least 2,012 cases since 1970.


But 2003 was years ago, so plenty could have changed since then, right? Back track just four years (2010), the Northern California Innocence Project at Santa Clara University School of Law, released Preventable Error: Prosecutorial Misconduct, in 2010. This study looked at prosecutorial misconduct for a ten year period in California.  They found that appellate judges cited prosecutorial misconduct in 700 cases, and that in 202 cases the misconduct caused a reversal or new trial. 107 prosecutors were found to have committed misconduct more than once, two were cited for misconduct four times, two were cited five times and one prosecutor was cited for misconduct six times. Prosecutors who committed misconduct in multiple cases accounted for nearly one-third of all cases of misconduct. Yet only six disciplinary actions in the ten year period were for prosecutorial misconduct, and the courts found misconduct in less than 1% of the cases.

In criminal cases, unlike civil cases, prosecutors do not need to turn over all evidence. Instead it is entirely up to the prosecutor to decide which evidence would help clear a defendant from guilt (obviously they would share condemning evidence so that isn’t an issue). There are, of course, plenty of cases where prosecutors purposefully conceal evidence, but there are also unintentional instances too. As it is supposed to be up to the courts to interpret and test any pertinent evidence, not an individual, it is shocking how much incidental power a prosecutor wields in the producing of evidence.

On May 3rd of this year the, the Washington Post reported that Jerry Goren, a prosecutor, withheld evidence in the trial of six young men convicted of sexually abusing and beating to death a woman in 1985. After interviewing more than 400 witnesses, Goren decided to withhold from the court the account of witnesses who identified two different people from the defendants on trial as being in the alley with the woman. Some of these withheld witnesses identified the other assailants by name. What’s worse, one of the men identified by name had a record of assaulting women in that very neighborhood.

Goren dismissed the witnesses’ accounts believing them to be incorrect, and he was not legally incorrect by doing so. He also did not disclose evidence about one of his key witnesses who had lied to authorities about a suspect’s whereabouts at the time of the killing before taking the stand. In instances like this Goren, and other prosecutors, remain within legal bounds if they can justify that this evidence was not exculpatory (freeing the defendant from guilt) in anyway.

“Since they have better investigative tools than defense lawyers, prosecutors must turn over exculpatory evidence. Of course, there’s often a big difference between what prosecutors think they need to disclose and what defense attorneys say should be disclosed,” wrote a lawyer from the Crowell and Moring firm addressing this same case in a Washington Post opinion piece.

This 1985 case was reopened, because two important witnesses recanted their testimony. The witnesses claimed they were pressured by detectives and the prosecutor to admit their guilt and then were given plea bargains to testify against the others convicted. Although it is not uncommon for witnesses to recant their testimony because of guilt they feel for participating in someone else’s conviction, the practice is still troubling. Detailing the biases and abuses of power of prosecutors and detectives when forcing favorable testimonies hardly seems necessary.

Still prosecutors often rely on these crooked testimonies and in-custody informants to build their cases. Prosecutors can propose plea bargains that grant incentives like reduced jail time to these informants. Clearly this establishes motivation for these witnesses to lie on the stand. Juries, judges, and defense teams are also not afforded vital information about the agreement reached with an in-custody witness, the witness’ background, or how many times the witness has testified previously. Using pressure and plea bargains is another way judicial power is brought outside the bounds of the courts and into the hands of prosecutors.

Berger v United States is an early landmark case in prosecutorial evidence misleading. The prosecutor’s conduct in this case was described by the Court as being an, “evil influence,” and, “calculated to mislead the jury.” The false or misleading evidence that the prosecutor presented included: misstating facts during cross-examination; falsely insinuating that witnesses said things they had not said; representing that witnesses made statements to the prosecutor personally out of court when no proof of this was offered; pretending that a witness had said something that he had not, persistently cross-examining him on that basis, and assuming prejudicial facts not in evidence. Typically these early influential cases become precedent. Precedent generally holds some power over the courts, and indeed this case is often referred to during cases of prosecutorial misconduct. But this precedent has still done very little in the way of healing our country from this malady.

Other common forms of prosecutorial misconduct include courtroom misconduct, mishandling of physical evidence, and improper behavior during grand jury proceedings.

Courtrooms were designed to host an assembly of unbiased members who could make unbiased decisions. This is only possible if the opposing forces in the courtroom are balanced against each other. Our current system bestows nearly limitless power to the prosecutor. If prosecutors are able to retain their extensive powers, and if they are allowed to overstep the impotent checks and balances set against them, then America's predilection for an unbiased courtroom cannot be realized. Transparency of all evidence and witness information along with a board equipped with a real power of prosecutorial review and a real power to reprimand, disbar, and pursue criminal charges against prosecutors committing misconduct would greatly benefit the judiciousness of court cases, and by extension, this country.