Doing Good by Doing Bad – Attorney Misconduct

In seeking a solution to a tightly guarded criminal justice issue, the Innocence Project released a report finding prosecutors across the country are rarely held accountable for conduct that lands innocent people in prison.

The nonprofit legal group examined four years of records and court rulings over five states (Arizona, California, New York, Pennsylvania, and Texas) involving findings of prosecutorial error or misconduct. All told, researchers discovered 660 published findings of prosecutorial error or misconduct. The report notes the inherent difficulties in researching prosecutorial misconduct (e.g. underreporting, unpublished findings) suggests the problem is much more widespread.

Prosecutorial Misconduct:

Prosecutorial misconduct includes any conduct by a prosecutor that violates a defendant’s rights, regardless of whether that conduct was known or should have been known to be improper by the prosecutor, or whether the prosecutor intended to violate legal requirements. The most common types of prosecutorial misconduct are:

• Improper Argument or Examination at Trial (e.g. the prosecutor in closing argument telling the jury “you should have seen the evidence we kept out.”;
• Inflammatory comments in the presence of the jury (e.g. referring to the accused as cowardly, a beast, thug);
• Mischaracterization of Evidence;
• Allowing false testimony to stand uncorrected (i.e. perjury);
• Failure to disclose evidence favorable to the accused or defense lawyer (i.e. exculpatory or impeachment evidence).

The report states, and criminal defense attorneys would likely agree,

“Most prosecutors do not act with intent to conceal exculpatory evidence. Indeed the vast majority of prosecutors perform their duties in good faith with the aim to fulfill their constitutional and legal obligations. . . Like the rest of us, prosecutors are susceptible to the stress of their very demanding jobs, cognitive biases, and a host of other human realities. Mistakes are bound to occur, no matter how experienced or thorough a prosecute may be. And in some rare cases, prosecutors’ eagerness to secure convictions has led them to commit deliberate violations of the law.”

The result, denial of justice for wrongfully convicted defendants and their families, victims and their families, and public safety.

Prosecutors indeed are powerful figures, if not the most powerful, in the American criminal justice system. They decide how to investigate a case, what charges to bring, what plea bargains to offer, what penalties to seek, and what evidence to turn over to the defense. Each decision has an “enormous impact on defendants, victims, their families, and the public at large.”

The legal profession is a stressful profession where practitioners are routinely found atop depression, substance abuse and suicide lists. Over time the pressure and demands can slowly erode a lawyer’s principle. Similar to an actor consuming himself with an upcoming role, any trial attorney will admit they obsess in the pursuit of justice. The criminal defense attorney,seeks justice for the accused and his or her family. The prosecution seeks justice for the victim and the victim’s family. Win-at-all-costs can supersede justice. Evidence is hidden, testimony is perjured, and innocent people find themselves behind prison walls. Ineffective assistance claims hold defense attorneys accountable and subject to appropriate discipline. The reports calls for similar accountability for prosecutors. Discipline for those prosecutors with the twisted belief they are doing good by doing bad.

Isn’t that what appeals are for?

Of the 660 public findings of prosecutorial misconduct, 527 convictions were upheld by appellate courts and 133 convictions were overturned. One prosecutor was disciplined. The project’s study focused on prosecutorial discipline and doesn’t mention how many of the 660 defendants were actually innocent. A 2010 innocent project study, revealed 65 of 225 persons exonerated by DNA challenged prosecutorial misconduct at the appellate level. Only 18% of those wrongful convictions were overturned by the appellate courts.

How does an innocent person lose on appeal?

Appellate courts use a harmless error standard to determine whether an error is serious enough to require reversal of a criminal conviction. To the black robes, harmless error means the error did not change the outcome of the case and absent gross misconduct, act as a rubber stamp to the lower court’s guilty verdict.

Appeals also do not take into account plea deals. Surprising as it may seem even innocent defendants plead guilty. In fact, 10% of the cases later overturned by DNA were guilty pleas.

Conclusion:

In restoring the public’s perception of the criminal justice system, the report suggests a collective effort of policies, training, documentation, and monitoring from the district attorney offices, the courts, state bars, legislatures, and even law schools.  The report highlights the need to shift the system from a place of secrecy and disregard for error to a place where errors are used to improve the system as a whole. In other words learning from previous mistakes.

The action was initiated from a letter signed by 19 people whose wrongful convictions were secured in part by prosecutorial misconduct. The letter was also sent to the Justice Department, whom never responded.