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.
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.
