In 2010, the Veritas Institute, a project funded by the Northern California Innocence Project, documented more than 800 instances of prosecutorial misconduct, including 107 where the 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.
Of all of these cases, only six prosecutors were disciplined.
From Louisiana came the case of John Thompson, who was convicted of murder and spent 14 years on death row before private investigators learned that prosecutors had failed to turn over evidence that would have cleared him at his robbery trial. They also destroyed clothing that would have shown that his blood type did not match the blood on the scene.
His conviction overturned, Mr. Thompson was awarded $14 million by a jury for the wrongful imprisonment, but the US Supreme Court overturned it in what some called “one of the most cruel Supreme Court decisions ever,” with Justice Clarence Thomas ruling that the district attorney can’t be responsible for the single act of a lone prosecutor.
The New York Times argued his ruling protects prosecutors, giving them “nearly absolute immunity over civil suits.”
Now, from New York comes a study from ProPublica that analyzed state and federal court rulings from 2001 to 2011, in particular “scrutinizing instances in which state or federal courts identified misconduct serious enough to throw out a conviction.”
While 30 cases met those specific criteria, only one prosecutor was disciplined in a meaningful way for misconduct.
“Calculating the full extent and impact of prosecutorial misconduct can be difficult'” ProPublica reports. “More than 90 percent of criminal cases never go to trial, so the public has no way of knowing how prosecutors conduct themselves in the tens of thousands of cases every year that, for instance, end in plea deals.”
In addition, “State appellate courts – in theory the first check on misconduct allegations – often criticize prosecutorial tactics but let convictions stand if they conclude the conduct did not decide the outcome of the case.”
Their study identified another 50-plus instances “in which appeals courts essentially gave prosecutors such no-harm, no-foul free passes.”
The one instance in which a prosecutor was disciplined involved a Queens assistant district attorney, Claude Stuart.
Mr. Stuart was disciplined for his actions in a murder case, eventually losing his job.
It was 1994, in which a man was shot and found by police near death. However, he managed to speak the name of the man who had shot him, Tony Bennett, a twice-convicted felon who would be captured, convicted and sentenced to a 25 year to life sentence.
14 years later, a state appellate court would finally overturn Mr. Bennett’s conviction, ruling that Mr. Stuart withheld exculpatory evidence that would have exonerated Bennett.
Writes ProPublica, “Stuart’s wrongdoing in the Bennett case wasn’t his only act of misconduct. He manipulated evidence in another case, and that conviction wound up being reversed by the courts, too. But his bosses took no action after that misconduct became known.”
“A state disciplinary committee reprimanded Stuart, but that fact remained secret from the public. Indeed, Stuart’s superiors did not act until another conviction was overturned, and Stuart was found to have lied to a trial judge about the whereabouts of a key defense witness.”
ProPublica argues, “New York’s system of attorney oversight is ill-equipped or unwilling to identify, punish and deter prosecutors who abuse their authority.”
The appellate court argued that Mr. Stuart had “ambushed the defense by his deception.”
The court overturned Mr. Bennett’s conviction. Mr. Bennett, after pleading guilty to a lesser charge, was soon free.
“Under New York state court ruling People v. Rosario, New York prosecutors must turn over statements by witnesses who will give testimony,” they write. “But ProPublica’s analysis showed that violations of these obligations were the most common form of serious misconduct by city prosecutors, who failed to meet these standards in more than half of the 30 cases reversed by state or federal courts based on misconduct.”
“The decision as to what constitutes material that must be disclosed under Brady is not always simple to make and often subject to debate,” John Ryan, the chief assistant district attorney in Queens, said in a letter to ProPublica.
“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.”
The Innocence Project writes, “The obligation to disclose potentially important evidence to defense lawyers has long been a vital part of the criminal justice system, yet the new analysis showed that violations involving withholding evidence were the most common form of serious misconduct by city prosecutors.”
The New York State Bar Association has taken on this issue of “how to define prosecutorial misconduct and what should be done about it as part of a larger initiative to address wrongful convictions. And while state legislators have introduced several bills incorporating the bar association’s ideas, none have gained much traction. The state’s District Attorneys Association has outright opposed them, and other city district attorneys have said they could adversely affect public safety and are unnecessary in light of their own efforts to improve training and oversight.”
But, as we have seen recently in California, the bar association is far more likely to take on an attorney practicing dirty politics in a judicial race than they are to reprimand one for failing to provide Brady material.
Cash For Convictions – Contra Costa Style
From Antioch comes the story of a 20-year-old Antioch man facing statutory rape charges for having consensual sex with his 16-year-old girlfriend when he was 18.
Despite the two year difference, the DA’s office charged this as a misdemeanor.
“The misdemeanor case, taken on by the county’s top public defender, represents a disturbing trend in Contra Costa County of statutory rape prosecutions involving consensual sex by teenagers with a small age difference, defense attorneys say,” according to the March 27 article in the Contra Costa Times. “But a head sex crimes prosecutor said there’s no uptick in such prosecutions; the District Attorney’s Office is just doing business as usual.”
This was not a small deal. The man spent 12 days in jail, lost his job at FedEx, took a semester off from school and said “he was treated as if he were already a convicted sex offender.”
Just as jury selection was set to begin, the Contra Costa County judge dismissed the case.
“I have never made this ruling before,” Judge Nancy Stark said. “It’s not in the best interests of society to pursue this case.”
The interesting part was, “The age of consent in California is 18. Still, a statutory rape prosecution involving a two-year age difference seemed so odd that it sparked rumors among defense attorneys that the District Attorney’s Office had received grant money to pursue statutory rape convictions.”
Of course, the DA’s office disagrees.
“There’s no special initiative, no funding. Nothing’s changed over here,” said Senior Deputy District Attorney Nancy Georgiou, who heads Contra Costa County’s sexual assault unit. “The Legislature defines what conduct is criminal and the penalties. Police bring in the cases, and if we can prove a crime that is something the Legislature says needs to be regulated, we’ll pursue it.
“The laws are there to protect young teenagers from the consequences of making immature or uninformed decisions about sex and to protect teenagers from manipulative adults.”
The Deputy DA argued, “A prosecution would deter the defendant and society at large from engaging in inappropriate sexual relationships with minors. The defendant filmed the girl without her consent and later threatened to distribute the video if she didn’t cough up money for a pair of new shoes.”
That sounds like a similar case that was prosecuted in Yolo County, that the state appellate court recently struck from a felony down to a misdemeanor.
“The conduct here is not as innocent as the defense or court makes it seem,” Deputy District Attorney Adam Wilks said in court.
Judge Stark said “she couldn’t see the value to society in going forward. She didn’t want the man to be stigmatized for the rest of his life as a sex offender.”
—David M. Greenwald reporting
This story details a prosecution of a particular statutory rape case in Contra Costa County. This case was thrown out by the judge using the catch-all phrase, “interests of justice,” which is used in a myriad of judicial circumstances, and which the judge details later on.
From this one dismissed case the assertion is made that the Contra Costa DA receives cash incentives to prosecute statutory rape cases. The clear inference is that this case is reflective of overzealous prosecution of stat rapes for economic purposes.
The grounds for this story? — rumors from unnamed and unnumbered defense attorneys, a grouping never known to be publicly supportive of anything done by any district attorney. No similar cases in Contra Costa were noted in any form or reference. The DA made a categorical public denial, with no rebuttal noted.
Supposing the story were true. The cash source for the incentive would be found in the published budged for the Contra Costa DA. No mention was made as from whom, how much, and the number of times this incentive was realized.
The magistrate who threw out the case said that she had never done this before. She made no mention of any cash incentive issue. Instead she didn’t feel the defendant should be saddled with a conviction for a sex-related crime. If this were a prosecutor pattern, it seems that this judge would have dismissed preceding cases as well.
In short, the cash incentive argument in this story is based on a single case and contains no evidence, documentation, or credible source to support the allegation.
David thank you for writing about such an important topic. Prosecutorial misconduct is one of the worst crimes out there. I personally believe that if a person has their conviction thrown out due to prosecutorial misconduct the prosecutor should be thrown in prison for the same sentence as the accused. While obviously not all prosecutors use misconduct as a way of doing business, there is nothing to stop prosecutors that lie, cheat and do whatever it takes to win. This crime is one of the biggest miscarriages of justice because almost everyone thinks prosecutors are so ethical. After reading about some of the cases you have written about, I wouldn’t be surprised to see someone charged with prosecutorial misconduct here. I hope some day the book gets thrown at these people for ruining lives. Remember when you put the wrong person behind bars the criminal is still at large.
“In short, the cash incentive argument in this story is based on a single case and contains no evidence, documentation, or credible source to support the allegation. “
I think that’s true, but I don’t think the point of illustrating the story was because it had evidence. If I understand the Cash for Convictions line, it’s that grants – and previous articles have illustrated this here – can create perverse incentive structures where the incentive for prosecutors is to charge crimes where a more reasonable person might argue that the case is marginal or the crime alleged is marginal.
I think the stat rape story is interesting in that it’s played off like it’s not a big deal for. If it’s ok for 18 year olds to have sex with 16 year old why not 15 year olds. If 15 is ok why not 14? If it’s consensual why not.
Your argument is that you need to draw a line somewhere. The question is where and at what point can someone consent to sex and under what conditions. Those are all drawn somewhat arbitrarily which I think makes it problematic. It’s worth noting that the law as currently written does distinguish between what you describe as the line between felony and misdemeanor. Personally the point of the law for me is about things like power asymmetry, victimization, exploitation, whereas a two year gap, you are really talking about peers.
@PC, I concur, David [et al] via this blog, often use a broad brush in his attempts to make his point, as if certain matters are pervasive, when they are not.
“…Alleged”
“Marignal”
“Crime?”
Pretty much all the DA’s in the Central Valley of CA decide who to charge and prosecute with a eye to securing federal and state money. They change their charge and prosecution policies in order to catch more profitable cases in their net. If more concerned citizens would serve on local advisory boards and listen to these predatory DA’s speak, the scales might finally fall from their eyes. It’s not about public safety or justice it’s all about funding and perpetuating the system. If you don’t believe me, investigate for yourselves.
Phil Coleman
Actually it seems that the defense attorneys seem to think these cases happen too often. Most defense attorneys are going to remain anonymous in any story enlightening the public as to what is wrong with the court system. I have seen judges and prosecutor make life miserable for them.
Statutory rape cases involving high school couples and consensual sex should not be prosecuted period. This law is a bad one, and should be changed because it ruins young lives.
This is a HUGE issue and a HUGE PROBLEM. Thanks for highlighting it. In CA alone 107 prosecutors cited with Prosecutorial Misconduct by the Appellate Court. I want people to note that is only of cases that went to an appeal. Only 6 were disciplined and we don’t even know at what level of discipline. Was there license revoked? I doubt it. Did they have to serve time – I doubt that too.
We need real oversight of prosecutors. Any power unchecked always leads to corruption. There are definitely good prosecutors, who are working hard doing their job, but those that are corrupt have the ability to take a life. And in this country we punish people who take lives with time in prison, but if they were the coat of a prosecutor we look the other way. It needs to stop.
Sorry for the grammatical mistakes above. I guess I was typing too fast.
I agree the article doesn’t state or prove that Contra Costa has received grant money for statutory rape cases, thus leading them to prosecute marginal cases. However, in previous articles David has proven that Yolo County does receive grant money to prosecute rape and statutory rape cases and part of the criteria to receive further funding is to have higher prosecution rates.
I see a couple of issues here.
1. Does society want their DA’s arresting high school students for having consensual sex? This seems a bit over the top to arrest and then brand someone a sex offender for having consensual sex when there is only 2 years in age difference–they are after all peers
2. What would encourage a DA to go after statutory rape charges in the above situation? I think most of the public would define statutory rape when the victim is much younger than the perpetrator.
One of the points that David makes is that DA’s have grant money for statutory rape and sexual assault. They do have to report arrests, prosecutions and convictions. This could be a possible driver for choosing to arrest a high school boy for having consensual sex with someone who is two years younger.
I hope not, but then why would the DA pursue this course of action? If anyone has a good reason why a DA should prosecute high school students for having consensual sex, I would love to hear it?
I pulled up Contra Costa County DA report and budgets. On page 2 it lists the grant programs they participate in. Statutory rape is one of them.
“Special Prosecution
Description: Addresses specific areas of criminal activity. Many of these units are funded by state or federal grants and special revenue funds. The units within Special Prosecution are listed below….
Vertical Prosecution Unit:
Major Narcotics Vendor, Elder Abuse, Child Abuse, Statutory Rape, and Career Criminal prosecution.”
http://www.contracosta.ca.gov/documentcenter/view/9777
One would have to dig deeper through the budgets to see how much money is allotted.
[quote]”There’s no special initiative, no funding. Nothing’s changed over here,” said Senior Deputy District Attorney Nancy Georgiou, who heads Contra Costa County’s sexual assault unit.[/quote]
So obviously their own report and budget shows other than what the Senior Deputy DA at Contra Costa told the press. Good job getting to the heart of it FAI.