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Apr 08 2013

Prosecutors and the Rule of Law

ProPublica has a long report on the problem of prosecutorial misconduct — withholding evidence, sometimes even falsifying it completely, in order to get a conviction — and the total lack of accountability for those who engage in it. The report points out some high profile cases where the city or county paid up but the perpetrators got no punishment at all:

The damage from prosecutorial misconduct can be devastating, not only allowing guilty people like Bennett to go free, but also putting innocents behind bars. In 10 cases identified by ProPublica, defendants convicted at least in part because of a prosecutor’s abuse were ultimately exonerated, often after years in prison.

Shih-Wei Su was incarcerated for 12 years on attempted murder charges before a federal appeals court cleared him, finding that a prosecutor had “knowingly elicited false testimony” in winning a conviction. The city eventually paid Su $3.5 million. The prosecutor received nothing more than a private reprimand.

Jabbar Collins served 15 years in prison for a murder he didn’t commit before his conviction was thrown out in 2010; Michael Vecchione, a senior Brooklyn prosecutor, had withheld critical evidence during trial. Collins has filed a $150 million lawsuit against the city. No action has been taken against Vecchione.

Last July, two men filed lawsuits for a combined $240 million against the city for wrongful convictions that a state appeals court found were won in part because Manhattan prosecutors had withheld evidence. The men served 36 years in prison, collectively. The prosecutor, who long ago left the district attorney’s office, has not been publicly disciplined.

“It’s an insidious system,” said Marvin Schechter, a defense attorney and chairman of the criminal justice section of the New York State Bar Association. “Prosecutors engage in misconduct because they know they can get away with it.”

Under multiple Supreme Court precedents, they have absolute immunity. The prosecutor’s office can be sued for wrongful convictions that result from misconduct, but not the prosecutor himself. And they rarely face any professional or personal consequences either:

There have been a variety of reports over the years, both national and local, that documented a substantial array of serious misconduct involving front-line and senior prosecutors alike.

Across those years, there has been at least one constant: the inability or unwillingness to meaningfully punish the offending prosecutors.

ProPublica, in the latest analysis, examined the years 2001 to 2011, chiefly scrutinizing instances in which state or federal courts identified misconduct serious enough to throw out a conviction. The analysis also incorporated civil cases during those years, virtually all of which resulted in financial awards being given to the victims of such misconduct.

The analysis found a total of 30 cases that met those criteria. Four of them involved civil cases addressing harmful misconduct that took place as far back as 1985. Again, in all those cases, no prosecutor other than Stuart was seriously disciplined for misconduct.

Also bear in mind that all of these are cases that actually go to trial, which is less than 5% of all criminal cases. Over 95% of criminal cases are plea bargained, so there’s no way of knowing how many of those cases also involve prosecutorial misconduct that is never detected. But the bottom line is that while withholding or faking evidence is a criminal offense, very few people are ever charged with it, even when the case for that misconduct is strong enough to overturn a conviction. Why? Because those charges can only be brought by another prosecutor.

Here’s what needs to happen: First, there should be a conviction integrity unit in every single prosecutor’s office and it should be stocked with defense attorneys with expertise in such investigations. In the very few DA’s offices that have such units, the rate of finding wrongful convictions is much higher than in those that don’t, which shows why they are so important. Second, prosecutorial immunity should be done away with entirely. And third, there should be an independent body within the DOJ and every state AG’s office that investigates and prosecutes allegations of misconduct.

18 comments

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  1. 1
    jenny6833a

    The article is accurate, as far as it goes, but deals only with perhaps 5% of the problem.

    In the ever-so-wonderful American system of law, police, prosecutors, and judges have the power to punish people they don’t like, but who have violated no law, and they do it in large and small ways hundreds of times per day with total impunity.

    I’ve been trying for at least ten years to get the ACLU involved. Strangely, or perhaps not strangely at all, the problem just isn’t of interest to them.

  2. 2
    cgilder

    The Williamson county prosecutor in the Michael Morton case had some sort of misconduct hearing this last month. Morton was convicted of murdering his wife in an appallingly brutal fashion and spent the last 25 years in prison. He was released last year after evidence that was withheld from the defense was brought to light. (Bloody bandana found behind the house with not-Morton blood on it.) The evidence pointed to another man who has subsequently been convinced & sentenced to life in prison. DNA analysis that wasn’t available 2 decades ago provided even more damning evidence against this new suspect.

    I can’t find the links to the stories in the statesman, but the former prosecutor is now a judge. I dont know what the outcome of the hearing was.

  3. 3
    psweet

    I think you need to qualify that part about throwing out prosecutorial immunity. I agree wholeheartedly that it’s ridiculous that immunity attaches to illegal actions, but the idea that you can’t sue a prosecutor for honest mistakes seems necessary to me.

  4. 4
    Ben P

    Here’s what needs to happen: First, there should be a conviction integrity unit in every single prosecutor’s office and it should be stocked with defense attorneys with expertise in such investigations. In the very few DA’s offices that have such units, the rate of finding wrongful convictions is much higher than in those that don’t, which shows why they are so important. Second, prosecutorial immunity should be done away with entirely. And third, there should be an independent body within the DOJ and every state AG’s office that investigates and prosecutes allegations of misconduct.

    Good luck….

    I don’t know how many people have seen this, but there is a documentary out called Gideon’s Army – It was released to mark the 50th anniversary of Gideon v Wainright, the case that held you have a constitutional right to a public defender if you’re indigent. Gideon’s army in this case refers to public defenders.

    Even as someone who works in the area and handles a heavy caseload, some of the stories are absolutely horrifying. Many jurisdictions try to avoid having public defenders at all and even more fund the bare minimum they can get away with. There’s a story of a chief public defender in Pennslyvania (? Ohio maybe?) who, despite the fact that he serves at the pleasure of the county manager, put his job in danger by suing the county to obtain more funding for the public defender’s office.

    I think there’s an easier and more basic fix, it’s not total, but it would work. Mandate open file discovery for every prosecutor’s office. Everything the prosecutor has, the Defendant gets access to unless a court specifically orders something can be withheld (the identity of an undercover officer is an example where this occurs). Not only does it save the prosecutors work by not having to vet their cases for brady violations, it reduces the potential for abuse.

  5. 5
    Ben P

    As for prosecutorial immunity, I almost flatly disagree. Although, I openly admit I’m biased as someone that started work as a lawyer in a prosecutor’s office, and after several years as a tall-building lawyer went back to the state and now works in a prosecutor-like role.

    It’s important to remember that if the prosecutor is sued, the state will be picking up the tab most of the time. Removing prosecutorial immunity potentially opens the door for a lot of harassment litigation and wastes the state’s resources in defending it, as well as making it harder to get good lawyers for the prosecutor jobs.

    The one exception I do see is the sort of cases you identify. If there’s evidence that a prosecutor knowingly and intentionally elicited false testimony, or knowingly and intentionally suppressed evidence with a tendency to exonerate the defendant, then I’m fine with creating an exception to immunity.

  6. 6
    machintelligence

    It doesn’t always end quite so badly. In Colorado Tim Masters was exonerated after it became apparent that there had been prosecutorial misconduct and perjury by a police investigator. The two prosecutors involved (who had become judges in the interim) failed at retention in the most recent election. The charges of perjury ran into statute of limitation problems and were ultimately dropped.
    http://www.coloradoan.com/article/99999999/NEWS01/71107031/A-Look-Back-Tim-Masters-Case

  7. 7
    Didaktylos

    There’s a very simple solution – decimation.

  8. 8
    baal

    “Second, prosecutorial immunity should be done away with entirely.”
    I’m very leery of the proposition but agree that unless we start considering options that break the current system, the systemic inertia will crush modest tweaks around the edges solutions.

  9. 9
    chriswalker

    I actually agree with the idea that you can’t personally sue a prosecutor for misconduct. They’re operating as an agent of the state and even the misconduct (ostensibly) serves a state interest. Ergo, we punish the state civilly for their misconduct.

    And as other have said, blanket removal of proprietorial immunity seems to be playing with fire. Good faith mistakes can and do happen.

  10. 10
    slc1

    Re Ben P @ #4

    Also see the made for TV movie, Gideon’s Trumpet, staring Henry Fonda as Gideon and Jose Ferrer as his appellant attorney, Louis Nizer.

    Re Ben P @ #5

    I agree with Ben P’s comment here; total removal of prosecutorial immunity is a bad idea. However, egregious cases like the one cited should result in the removal of the offender from any government job he’/she might occupy and lead to disbarment from the practice of law.

  11. 11
    freemage

    I was thinking along the same lines slc1 put forward–a default element of a lost case for prosecutorial misconduct should be the removal of the bad actor from the system. In larger municipalities, I’d also like to see a civilian board of review that operates separately from the official structure, which could mark prosecutors and officers alike for misconduct, with their recommendations being used as the basis for filing actual charges.

  12. 12
    slc1

    Re freemage

    Nothing so energizes law enforcement unions to action as the suggestion of the appointment of civilian review boards. Anyone suggesting such a thing is immediately branded as soft on crime.

  13. 13
    slc1

    In this regard, we should recall the actions of the prosecutor, one Mike Nifong, in the Duke lacrosse case. Nifong withheld evidence from the defense. However, AFAIK, he did not suborn perjury or plant evidence so, in this regard, his conduct was rather less egregious then many other cases where the prosecutor got off scott free. He was disbarred, removed from his prosecutor’s office and barely stayed out of jail, a victim, of sorts, of the notoriety of the case.

  14. 14
    chrisguy

    @ 3

    As a doctor–who can be sued for honest mistakes–I disagree rather strongly.

  15. 15
    caseloweraz

    This long article may be of interest:

    http://www.nytimes.com/2003/04/20/magazine/the-silencing-of-gideon-s-trumpet.html?pagewanted=all&src=pm
    The Silencing Of Gideon’s Trumpet
    By Anthony Lewis
    Published: April 20, 2003

    Lewis is the author of Gideon’s Trumpet (Random House, 1964; Vintage Books, 1989). The 1980 TV movie slc1 mentioned is based on it.

    The title gave me one of those “crossed-neuron” cases. I was sure I remembered a TV series with the same name, starring James Earl Jones. However, the series I was thinking of was Gabriel’s Fire (1990-91).

  16. 16
    Ben P

    @ 3

    As a doctor–who can be sued for honest mistakes–I disagree rather strongly.

    Well..there you run into a very interesting point of law.

    For the years I was in private practice, part of the work I did was defending legal malpractice cases. In some specialties it’s probably easier for a lawyer to commit malpractice than a doctor, the benefit is that the clients don’t always know the malpractice has occurred unless some specific things happen. (for example, if a lawyer screws up drafting a will, most won’t figure it out until the person dies and that may be 20 years down the road, and even then it might not be an issue unless someone contests it).

    In criminal law however, it’s almost impossible to commit malpractice. Why?

    Suppose a lawyer botches defending a criminal case. What happens? Well, he loses the trial and a jury finds the defendant guilty. Now the defendant has been found by a court of law, to have comitted a crime. He says “man I had a bad lawyer, I want to sue him,” well (a) he’s in prison now, and (b) if he does sue, the court will almost always decide that his criminal act (which he has been convicted of and can’t challenge) is a but for cause of him going to prison and he has no civil claim.

    The only time that can happen is if the convictions’ been already set aside for ineffective assistance of counsel, and then that’s usually past the civil statute of limitations.

    And as a side point. We also defended some med-mal cases. I presume you haven’t been sued, but the defense verdict rate for malpractice cases is pretty high, doctors win something like 85% of med-mal cases that go to trial. THey are expensive to defend and insurance premiums suck, but I’d blame your insurance company for that.

  17. 17
    Worldtraveller

    psweet@3:

    I agree wholeheartedly that it’s ridiculous that immunity attaches to illegal actions, but the idea that you can’t sue a prosecutor for honest mistakes seems necessary to me.

    Why? It’s no more than they expect for any others. Prosecutors and lawyers determine the difference between an ‘honest mistake’ and criminal action all the time. Let a jury decide.
    Ben P @5:

    It’s important to remember that if the prosecutor is sued, the state will be picking up the tab most of the time. Removing prosecutorial immunity potentially opens the door for a lot of harassment litigation and wastes the state’s resources in defending it, as well as making it harder to get good lawyers for the prosecutor jobs.

    It appears we aren’t getting good lawyers for prosecutor jobs. We’re all too often getting lawyers willing to lie, commit perjury (I suspect this is an every day offense) and withhold evidence to get convictions and further their career, not seek justice. I don’t actually see where your stated exception is different than what is being asked for in Ed’s post. How will the evidence come to light within a reasonable timeframe without better oversight, and the ability to sue?
    chriswalker@9:

    Good faith mistakes can and do happen.

    Why do so many of you seem to be excusing this bad behavior? If it’s an honest mistake, let a jury decide that, just like any other crime.

  18. 18
    Ben P

    Why do so many of you seem to be excusing this bad behavior? If it’s an honest mistake, let a jury decide that, just like any other crime.

    If you’re going to say things like that you owe it to yourself to get it right.

    It’s a common point of law that negligence, even gross negligence, is not a crime. You don’t get charged with a crime for a “mistake.” (Except in the sense that “I made a mistake when I intentionally consumed alcohol and then intentionally got into a car, or “I made a mistake” when I intentionalyl robbed a store).

    It’s also an almost universal point of law that the state can’t be sued except where it consents to be sued.
    Through Sec. 1983, Bivens and Long we have limited rights of action against the government were government employees or those acting under color of law violate “clearly established” constitutional rights. Within this, however, certain decisions are protected, a prosecutor’s discretion to bring a case or not, or a judge’s decision on a point of law or the facts, a legislator’s decision whether to vote for a bill or statements a legislature makes from the floor of the assembly.

    These are intrinsic functions of government. Suggesting that it all get tossed to a jury without any appropriate is silly.

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