On the last day of 2009, federal district court judge Ricardo Urbina dismissed homicide charges against five former Blackwater security guards involved in a shooting that killed fourteen Iraqi civilians in 2007. Judge Urbina's decision cites egregious prosecutorial misconduct by the federal prosecutors handling the case as the reason for the dismissal. The dismissal comes at the end of a year that saw at least a dozen cases of federal prosecutorial misconduct, including the well known Ted Stevens fiasco. These cases and others reinforce an emerging consensus that we must do more to ensure that our prosecutors live up to the standards of professionalism and fairness on which our system depends.
As advocates of justice, prosecutors play a unique and powerful role in our justice system. Yet too often, prosecutors fall prey to a pervasive "convict at all costs" culture, and neglect their ethical duty to protect the innocent and guard the rights of the accused. The recent actions of Santa Clara District Attorney Dolores Carr demonstrate this troubling culture. Carr has directed her office to boycott the courtroom of Superior Court Judge Andrea Bryan, who barred the retrial of a case overturned due to Santa Clara prosecutor Troy Benson's prosecutorial misconduct. The finding of misconduct against Troy Benson presents an opportunity for Santa Clara prosecutors to examine what may have led to Benson's misconduct, and take steps to ensure abuses of power do not take place again in the future. However, instead of addressing her colleague's misconduct, which Judge Bryan called "grossly shocking," Carr is calling for open criticism of the judge responsible for upholding her constitutional obligation to reverse convictions prejudiced by egregious prosecutorial misconduct.
All too often, prosecutors' offices fall prey to a culture of conviction-seeking at all costs. Prosecutors who become singularly focused on conviction rates often neglect their ethical duty to protect the innocent and guard the rights of the accused. The Kern County District Attorney's Office in California provides a clear example of this pitfall, boasting that under District Attorney Ed Jagels' supervision, the office "has had the highest per capita prison commitment rate of any major California County." What the office fails to highlight is the startling twenty five wrongful convictions that the office has accrued during Jagels tenure as District Attorney. Jagels recently announced his retirement, and despite his appalling record, he hopes to personally select his successor.
The troubling culture apparent in the Kern County office is not the exception. Due in large part to the public pressure to convict and the widespread failure of state bars and disciplinary agencies to hold prosecutors accountable for ethical violations, this culture of "convict at all costs" is a nationwide problem.
Charged with dual roles as advocates and ministers of justice, prosecutors are the most powerful actors in our criminal justice system. They have sole responsibility for decisions regarding what charges to bring against an individual, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. Clearly, these decisions have a lasting impact on all those under the purview of the justice system. However, despite the great power of prosecutors, few are held accountable for violations of their ethical obligations.
Today, the Supreme Court will hear oral arguments in Pottawattamie County v. McGhee, which is a wrongful conviction case about prosecutorial immunity. Specifically, the Court will decide whether the prosecutors in a 1978 murder trial may be sued as individuals for the wrongful conviction of Curtis McGhee Jr. and Terry Harrington. McGhee and Harrington allege that the prosecutors violated their rights by coercing false testimony during the investigation and using that testimony at trial. The attorneys representing the prosecutors in question argue that while prosecutors are immune from lawsuits when acting within the scope of their job, state bar and disciplinary agencies provide sufficient punitive mechanisms to punish prosecutors for misconduct. It has been our experience that state bars and disciplinary agencies fall woefully short of holding prosecutors accountable for their misconduct.
Two more innocent men have been freed from death row. Just last week, Yancy Douglas and Paris Powell became the 137th and 138th people to be exonerated from death row. The two men were convicted of a drive-by shooting in 1993 based on the testimony of an in-custody informant who had been offered leniency from the prosecution. The prosecutors at trial withheld information about this plea-deal from the defense, which resulted in a new trial. All charges against the two men have now been dropped because of the unreliability of the in-custody informant's testimony, the only evidence that linked Douglas and Powell to the crime.
These exonerations highlight the power prosecutors have in securing convictions by utilizing in-custody informant testimony, even when no physical evidence links a defendant to the crime. Testimony by in-custody informants or "jailhouse snitches" as they are often referred, is a leading cause of wrongful convictions.
Last week, the San Jose Mercury News reported that Jeffrey Rodriguez, a man from San Jose who spent five years in prison for a crime he did not commit, was awarded a $1 million settlement from Santa Clara County for his wrongful conviction. Jeffrey's wrongful conviction and his subsequent settlement is not a unique story in Santa Clara: since 2005 the county has paid more than $4.6 million in settlements for wrongful convictions by the District Attorney's office. Nor is Jeffrey's story unique to the state of California. Earlier this month a Louisiana circuit court of appeals upheld a $14 million jury settlement against the Orleans Parish DA for misconduct resulting in the wrongful conviction and death sentence of John Thompson.
Like clockwork, wrongful convictions continue to occur at the hands of a system that is prone to error. In addition to the unconscionable act of incarcerating a person for years for a crime they did not commit, wrongful convictions impose an enormous financial burden on taxpayers. Year after year, month after month, the criminal justice system must pay for its mistakes.
One of the most troubling trends that foster prosecutorial misconduct is the failure of state bar and disciplinary agencies to take action against prosecutors who violate their ethical obligations.
Earlier this year, Attorney General Eric Holder and the Department of Justice (DOJ) took swift and almost unprecedented action after uncovering egregious prosecutorial misconduct in the case against Alaska Senator Ted Stevens. Holder promptly dismissed all charges against the Senator, and federal judge Emmet Sullivan ordered an independent, criminal investigation of the prosecutors responsible for intentionally failing to turn over important, exculpatory evidence to the defense. The DOJ has also promised an investigation through the Office of Professional Responsibility. The question now is whether these particular prosecutors will ever be held accountable.
Prosecutors are rarely held accountable for acts of misconduct or abuses of power in our country. Yet another example of this reality comes from a case out of Florida, where prosecutors engaged in egregious, intentional courtroom misconduct throughout the trial. The Third Circuit Court of Appeals ultimately upheld the conviction in the case because they found that the misconduct did not affect the outcome of the trial.
The law provides judges with tools that guide them to weigh prosecutorial misconduct against the facts of a case to determine whether the misconduct was severe enough to affect the outcome of the trial. Regardless of what appellate courts decide (i.e., to uphold the conviction or remand it for retrial), the simple truth is that misconduct has occurred. Unfortunately, the system does not provide judges with tools to guide them on how to address acts of prosecutorial misconduct. While defense attorneys, fellow prosecutors, and judges are ethically obligated to report acts of misconduct by prosecutors to the proper disciplinary authority, this reporting rarely happens. When prosecutors do face disciplinary proceedings, meaningful sanctions are uncommon and rarely go further than a public censure.
Prosecutors have power. They have been given that power in part to effectively ensure public safety. Yet, everyday in courtrooms across the country, prosecutors are abusing their broad powers and engaging in misconduct that can and does lead to flawed verdicts and the conviction of innocent people. It is a severe problem-it is a widespread problem. Our criminal justice system can and should do better.
Arguably the most powerful figures in the criminal justice system, prosecutors are heavily involved in the investigation of crimes; they are solely responsible for what charges, plea bargains, and sentences a criminal defendant will face; and they have complete control over what evidence will be disclosed to the defense during discovery. The responsibility of a prosecutor is not to simply seek convictions, but to seek justice. This means that, in addition to convicting the guilty, the prosecutor has a duty to protect the innocent and guard the rights of the accused. Yet within our criminal justice system there is a lack of transparency and accountability which has allowed prosecutorial abuse of power and misconduct to become common place.
(This is an important perspective on the Stevens case dismissal. Because there are virtually no checks against it, prosecutorial misconduct is a de facto built-in part of criminal "justice" system. - promoted by Paul Rosenberg)
This week, U.S. Attorney General Eric Holder dismissed the case against former Senator Ted Stevens of Alaska. Citing prosecutorial misconduct as the primary reason, the Justice Department determined that the fairness of the trial had been too damaged by government misconduct to proceed further. Holder stated that, "[a]fter careful review, I have concluded that certain information should have been provided to the defense for use at trial," and that "it is in the interest of justice to dismiss the indictment and not proceed with a new trial." Holder's decision represents a critical first step in addressing a growing nationwide problem of prosecutors abusing their power in order to secure convictions.
The Stevens case had been marred by prosecutorial misconduct from the outset. Judge Emmett Sullivan repeatedly criticized prosecutors for failing to follow orders to provide evidence to the defense. In addition, prosecutorial misconduct at trial led Judge Sullivan to hold one of the prosecutors in contempt, and at one point instruct the jury to disregard some evidence presented by the prosecution. Delays in the case persisted in order to allow the court to deal with additional allegations of misconduct. In February, after replacing the original trial team, new prosecutors discovered even more evidence that should have been turned over to the defense. That prompted Holder to dismiss the charges against Stevens and order an internal review of the offending prosecutors.
Last year, Tim Masters was exonerated of a 1987 Fort Collins, Colo. murder following post-conviction DNA tests that pointed to his innocence.
Masters had already spent nearly a decade in prison when he was finally released.A lawsuit recently filed by Masters claims law enforcement and prosecutors involved in his case withheld key pieces of evidence indicating his innocence – leading to his wrongful conviction and imprisonment.
As the Associated Press reported last week, the lead detective in Masters’ case acknowledged that police knew about physical evidence that could exonerate him including evidence that fingerprints found on the victim’s purse, hair, and clothing did not belong to Masters.
Unbelievable. Politico is reporting key evidence against Stevens has been thrown out. The chances he'll get off just increased significantly.
Judge Emmet Sullivan threw out two big pieces of evidence in the Justice Department's prosecution of Sen. Ted Stevens (R-Alaska) after it was disclosed that prosecutors failed to provide defense attorneys with all the information they needed to put on their case.
Stevens' attorneys are also expected to offer a motion for acquittal on Thursday, once the government finishes putting on its case for conviction. Stevens' defense team has repeatedly sought to have the case dismissed or a mistrial declared due to alleged prosecutorial misconduct.
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