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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. 

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 9 years ago, so plenty could have changed in almost a decade, right? Back track just 2 years (2010), the Northern California Innocence Project at Santa Clara University School of Law, released Preventable Error: Prosecutorial Misconduct in California 2010. This study looked at prosecutorial misconduct for the past 10 years 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 past 10 years were for prosecutorial misconduct, less than 1% of those cases where the courts found misconduct.

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 unintentional cases too. After all, it is up for the courts to interpret and test any pertinent evidence, not an individual.

On May 3rd, 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 as being in the alley with the woman. Some of these witnesses identified the potential 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,” held a lawyer from the Crowell and Moring firm who wrote about this case in an ulterior Washington Post opinion piece.

The 1985 case has been 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. It is not uncommon for witnesses to recant their testimony because of guilt they feel for participating in someone else’s conviction.

Prosecutors often rely on in-custody informants to build their cases. Prosecutors can propose plea bargains which can grant incentives, like reduced jail time, to these informants. Clearly this is great 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 in these different ways brings judicial power 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 which he had not said, 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.

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.

Sometimes subtracting key evidence could be just as horrifying. 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.”

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

Court rooms were designed to host an assembly of unbiased members who would make unbiased decisions. This is only possible if the defense and the prosecutor are balanced against each other. Our current system bestows nearly limitless power to single biased actors. If these biased actors are caught utilizing the extensive powers that they shouldn’t have, they have very little chance of punishment. Transparency of all evidence and transparency of witness information along with a board with real power of prosecutorial review and punishment would greatly benefit the judiciousness of court cases.