One of the big problems that we have identified in the criminal justice system is the lack of accountability that prosecutors have when they commit acts of misconduct. As we have noted in the past, the research done by the Innocence Project in California shows only a small number of prosecutors are sanctioned, even when acts of misconduct lead to cases being overturned.
California is not alone. Researchers have found a similar pattern in Texas.
The problem of lack of accountability was exacerbated when the Supreme Court last year overturned liability for New Orleans prosecutors who had not only withheld evidence, but destroyed it, in gaining the conviction of John Thompson in the 1980s.
The Times argues this ruling protects prosecutors, giving them “nearly absolute immunity over civil suits.”
Justice Clarence Thomas justified the ruling, noting that an “attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.”
But, notes the Times, “Bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.”
This week, Barry Scheck, co-founder of the Innocence Project, referenced the case of Michael Morton, a case we have covered a multitude of times and most recently in February, when “Texas Supreme Court Chief Justice Wallace Jefferson affirmed the finding of state District Judge Sid Harle that there was probable cause to believe former Williamson County prosecutor Ken Anderson had violated the criminal laws of Texas by disobeying a court order to disclose evidence pointing to the innocence of Michael Morton, who in 1987 was wrongly convicted of murdering his wife.”
A court of inquiry will now try the prosecutor on these charges.
Writes Mr. Scheck on Sunday, “Our system rarely disciplines, much less brings criminal charges against, prosecutors who have engaged in acts of intentional misconduct. Far too often, prosecutors, who wield enormous power over our lives, aren’t investigated at all, even for intentional misconduct that has led to a wrongful conviction, much less ‘harmless’ intentional misconduct in cases in which the defendant was guilty.”
When The Innocence Project, the Northern California Innocence Project, the Innocence Project of New Orleans and Voices of Innocence joined forces to investigate the problem of prosecutorial misconduct in Texas, they found in a sample of “all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004 and 2008,” a small fraction of all criminal cases.
The researchers discovered 91 cases in which prosecutors had been found by the courts to have committed misconduct. Remember these are only less than ten percent of cases because they do not involve guilty pleas or dismissals and it only includes those for which there are published opinions.
Of those 91 cases, the conviction was upheld in 72 of them, where the courts found the errors harmless. We see a similar pattern in California, though in analyzing those cases, we found a number where “harmless” was at best a subjective view.
Moreover, as Barry Scheck notes, “The distinction between harmless and harmful does not differentiate between the seriousness of the misconduct. Rather, it is the court’s determination that the misconduct wouldn’t have changed the outcome.”
In 19 of the cases, the court ruled that the error was harmful and reversed the conviction.
However, from 2004 to November of 2011, only one prosecutor was publicly disciplined by the Texas Bar Association, and that matter involved a pre-2004 case.
Writes Mr. Scheck, “This data surely undermine public confidence that the system designed to sanction prosecutors who ignore their legal and ethical obligations is not working as it should.”
Mr. Scheck asked the question of what can be done to reform the system. “One remedy, civil litigation, is increasingly unavailable,” he argues, noting the U.S. Supreme Court decision in Connick v. Thompson in which the court “severely limited the ability of wrongfully convicted plaintiffs to hold a district attorney’s office accountable for intentional acts of misconduct by line prosecutors.”
He writes, “John Thompson was a 22-year-old father of two when he was wrongly convicted of murder and sent to death row at Angola State Penitentiary in Louisiana. While Thompson was facing his seventh execution date, a private investigator hired by his attorneys discovered exculpatory analysis of bloodstain evidence that had been concealed for 15 years by the New Orleans Parish district attorney’s office.”
While Mr. Thompson ultimately was exonerated in 2003, he would sue the DA’s office and get awarded $14 million “or the intentional misconduct that caused him to spend 14 years on death row, a finding that was approved by the 5th U.S. Circuit Court of Appeals.”
Writes Mr. Scheck, “In a controversial 5-4 decision, the U.S. Supreme Court ruled that Thompson wasn’t entitled to the award because the court found that even a complete failure to train prosecutors to disclose exculpatory evidence was not a sufficient basis to find the office civilly liable.”
He thus argues, “When combined with the long-standing rule that individual prosecutors have absolute immunity from civil liability for any actions, even criminal conduct, that takes place during adversarial proceedings, it is clear that civil lawsuits do not provide a serious deterrent against prosecutorial misconduct.”
Many believe that criminal prosecutions are adequate remedies, so civil suits are unnecessary and unduly burdensome.
But Mr. Scheck argues otherwise.
He writes, “While we all agree that prosecutors juggle enormous responsibilities and should not be gratuitously second-guessed, it’s worth noting that no other profession with so much power over life and death enjoys anywhere near this level of immunity from civil liability for intentional misconduct – not doctors, not other lawyers, not police officers, not teachers, not construction workers, not farmers.”
Moreover, he notes, “With a handful of exceptions – primarily offices that have ‘conviction integrity units’ designed to address miscarriages of justice and misconduct – most prosecutors do not have written internal guidelines for differentiating between error and misconduct, audits of old cases handled by line prosecutors and supervisors who commit acts of misconduct, or processes for doing root-cause analysis when there is significant finding of error or misconduct by courts – quality assurance and control protections we routinely require in hospitals, financial institutions and factories.”
“Similarly, relying on judicial monitoring and reporting of misconduct has been a failure,” he adds. “In California, where judges are required by law to report prosecutorial misconduct to the State Bar when it results in reversal of a conviction, a study by the Veritas Initiative shows that over a 10-year period involving 159 reversals, not one case was referred by judges to the State Bar.”
Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association, responded to Mr. Scheck’s piece, arguing there is undo focus on this issue, and the public has been misled “to believe that ‘prosecutorial misconduct’ is a frequent and major cause of wrongful convictions that must be addressed with drastic changes in state law.”
Mr. Edmonds argues that prosecutors wield a huge amount of power in order to see “that justice is done” but that they “must have at [their] disposal the tools necessary to carry out that duty. Those tools include the power to charge someone with the commission of a crime and to clear someone of criminal responsibility.”
He adds, “To ensure prosecutors are free to make those hard decisions and pursue justice wherever it may lead them, the courts have given prosecutors legal immunity from being sued for most things that occur in the context of a criminal prosecution.”
He acknowledges, “The results of prosecutors’ decisions can lead to serious consequences, both for those charged and those doing the charging, and prosecutors should be held accountable for improperly and intentionally tipping the scales of justice in their favor.”
But he adds, “Some solutions now being proposed for that situation could tear down important fences like prosecutorial immunity while ignoring why those fences were originally built, a formula likely to cause more problems than it cures.”
He argues, “There is no epidemic of it in Texas. Yes, it happens, but it is newsworthy precisely because it is so rare.”
He adds, “It should also surprise no one that most criminal defendants have selfish incentives to claim misconduct by the prosecutor in their individual cases.”
But, of course, he fails to acknowledge that the studies have all focused on cases where the courts have ruled that there is prosecutorial misconduct. That avoids precisely this problem.
He notes, “This helps to explain both why so many allegations of misconduct are raised and why almost all of them are routinely denied by the courts.”
To substantiate the rare clause, he notes that “from 2004 to 2008, Texas appellate courts reviewed about 69,000 criminal cases. After a cursory review of those cases, a California group claims to have found 91 instances of prosecutorial misconduct in Texas’ appellate records.”
He argues, “Even if every one of this group’s claims are true (which is questionable), those cases would constitute a minuscule 0.1 percent of criminal appeals handled during that same period. Additionally, of those 91 alleged cases of misconduct, the courts found 72 of those errors to be harmless, meaning that the prosecutor’s mistake had no effect on the outcome of the case.”
He adds, “Not only are verified acts of prosecutorial misconduct rare, but even those that are confirmed by the courts are often misleading because the term is frequently used to describe situations that involve neither. In other words, the legal concept of prosecutorial misconduct may not involve a prosecutor, and it may not involve purposeful misconduct – at least not in the common understanding of that word.”
“With all of this in mind, then, it should come as no surprise that even Barry Scheck of the Innocence Project correctly observed on ’60 Minutes,’ ‘I don’t believe that there’s an epidemic of prosecutorial misconduct in this country’ “
All of which is fine, but the point Mr. Scheck was making is not that prosecutorial misconduct is frequent, though he argues that it is probably underreported, but the real question is what the consequence should be both when it is proven and severe.
Not surprisingly, Mr. Edmonds argues for the current remedies, which he lists: A mistrial, acquittal or appellate reversal of a case; Reprimand, suspension or disbarment from practicing law; Employment transfer or termination; A fine/jail term for contempt of court; Election defeat; Removal from office by court order; A fine, a jail or prison term, or probation pursuant to a criminal conviction; and Payment of damages in a federal lawsuit.
He argues, “Over the past 20 or so years, every one of these sanctions has been levied against Texas prosecutors who violated the maxim set forth by the U.S. Supreme Court that ‘while (a prosecutor) may strike hard blows, he is not at liberty to strike foul ones.’ “
He adds, “Yet despite these available sanctions, some activists seek to further expose prosecutors to additional lawsuits for their on-the-job decisions and force prosecutors to fend off lawsuits brought by defendants – even those who may be factually guilty of their crimes – for the most minor of alleged errors. The mischief defendants could (and would) commit if given such a tool would be disastrous.”
“Removing or reducing prosecutorial immunity would be a trial lawyer’s dream, especially for those hired by the rich and the powerful to sue their way out of being held accountable for their crimes,” he said.
But of course this is a strawman’s argument. Obviously, this is not Mr. Scheck’s desire. Mr. Scheck’s desire is for those prosecutors, whom the appellate courts have deemed to have engaged in prosecutorial misconduct, to be able to face civil penalities.
This is not something that is likely to “expose prosecutors to the threat of frivolous lawsuits.”
Mr. Edmonds makes a sound point about the rareness of the problem, but it is there and it does need better remedies than currently exist.
—David M. Greenwald reporting
Punishing wrong-doing prosecutors might have plenty of routes, but how to pay those who personally suffer from their misconduct? Given the concern about unfettered lawsuits, we should have wrongful prosecution funds that repay victims via applications rather than having them go through some civil lawsuit process.
[quote]Punishing wrong-doing prosecutors might have plenty of routes, but how to pay those who personally suffer from their misconduct? Given the concern about unfettered lawsuits, we should have wrongful prosecution funds that repay victims via applications rather than having them go through some civil lawsuit process.[/quote]
Actually some states do have mechanisms to pay the wrongly convicted. What is interesting is that when such a case arises, these same states often use every trick in the book not to pay. For a nice discussion in this subject, check out the following article: [url]http://prospect.org/article/compensating-wrongly-convicted[/url]
Thanks, Elaine, good article. Though focusing on the broader problem of good-faith mistaken prosecution, this as well as prosecutorial misconduct suggest that we’re probably killing innocent people with our death penalty obsession. Apparently, the federal system has developed a system for payments in case of wrongful conviction:
“In 2004, Sen. Patrick Leahy (D-Vermont) secured a statute granting $50,000 for each year in prison, and $100,000 for each year on death row, for people wrongfully convicted of federal crimes. He points to an additional benefit of the law, hailed by advocates as a model statute. ‘It also encourages law enforcement to do their job properly in the first place’,he said.”