In jurisprudence, prosecutorial misconduct is "an illegal act or failing to act, on the part of a prosecutor, especially an attempt to sway the jury to wrongly convict a defendant or to impose a harsher than appropriate punishment." It is similar to selective prosecution. Prosecutors are bound by a sets of rules which outline fair and dispassionate conduct.
Types of misconduct
Abuses of discretion
Prosecutors are given discretion about how they conduct their business. However, while some practices are not illegal, they may be seen as unethical and/or abusive and in need of reform, particularly by defendants and criminal defense attorneys:
- Selective prosecution by race, income, political affiliation, etc.
- Capture of the grand jury, misusing it as a tool for inquisitorial abuse, or excluding citizen complaints from being heard.
- Plea bargaining abuses, such as seeking testimony in exchange for leniency. This may solicit perjury or falsified evidence.
- “Horsetrading”, the practice of colluding with defense attorneys to agree to get some of their clients to plead guilty in exchange for letting others off.
- Threatening public officials, especially judges, with prosecution if they don't unduly support their cases.
- Tainting of jury pools with public statements by prosecutors that are either inaccurate, exaggerated, unsupported by evidence or that could be inadmissible at trial, and such statements become widely promulgated by the media.
- Prosecutors causing depositions in a related civil trial which were likely to yield exculpatory evidence, and then "staying" those statements so they cannot be used in a criminal trial.
- Prosecutors naming a host of “un-indicted co-conspirators” in conspiracy cases to intimidate potential defense witnesses with threats of retaliatory prosecution.
- Prosecutors using their Peremptory Challenges to remove from the jury anyone with relevant experience in the complex subjects of a trial. Defense attorneys often use similar tactics. Both attempt to prevent a juror's technical knowledge from interfering with the credibility of their expert witnesses.
- Prosecutors pursuing criminal penalties for selected industry practices in Corporate America when regulatory intervention would be more appropriate. For example, prosecuting a mechanic for minor violations of the Clean Water Act rather than affording the opportunity for the mechanic to correct their error and pay the appropriate fines.
- Prosecutors using multidefendant trials to get defendants to turn on one another in the courtroom, as judges may be reluctant to allow separate trials in multi-defendant cases.
Examples and remedies
In late 1993, the 6th US Circuit Court of Appeals ruled that John Demjanjuk had been a victim of prosecutorial misconduct during a 1986 trial in which federal prosecutors withheld evidence. Demjanjuk's sentence was overturned, but he lost when his case was retried.
In the 1995 murder trial of O. J. Simpson, the defense argued that Los Angeles Police DepartmentdetectiveMark Fuhrman had planted evidence at the crime scene. Although Fuhrman denied the allegations, Simpson was found not guilty, although he was later held liable for the deaths in a civil suit filed by the families of the victims. In USA Today (August 24, 1995), Francis Fukuyama stated, "[Such defenses lead to] a distrust of government and the belief that public authorities are in a vast conspiracy to violate the rights of individuals." However, such misconduct may actually be widespread in the United States. "It’s a result-oriented process today, fairness be damned," Robert Merkle, former U.S. Attorney for the Middle District of Florida, said. Prosecutors are protected from civil liability even when they knowingly and maliciously break the law in order to secure convictions, and the doctrine of harmless error can be used by appellate courts to uphold convictions despite such illegal tactics, which some argue gives prosecutors few incentives to comply with the law.
A more recent example of prosecutorial misconduct can be seen in the 2006 Duke lacrosse case. In that incident, members of the Duke University men's lacrosse team hired a female stripper for a team party. She went on to accuse three players of raping her at that party. Making the case even more volatile was the fact that the stripper was black and the three accused players were white. The actions of the prosecutor in this case, Mike Nifong, drew enormous criticism, as he proceeded with the case despite numerous inconsistencies in the accuser's story, a lack of DNA evidence conclusively linking any player to any sexual assault, and at least two of the accused having solid alibis. He also made numerous inflammatory statements to the media. The case against the players eventually collapsed; all charges were dropped, and the North Carolina Attorney General took the unusual step of declaring the players innocent. The North Carolina State Bar eventually disbarred Nifong for his actions during this case.
In 2011 a Texas man, Michael Morton was released from prison after serving nearly 25 years for the murder of his wife in 1987. He was released after DNA evidence pointed to another man as the killer. The prosecutor, Ken Anderson later plead guilty to withholding evidence that could have helped Morton fight the murder charge. He was sentenced to spend 10 days in jail and was also disbarred.
Despite such, the defense has been successful in roughly 1 out of 6 times it has been used from 1970 to 2003. During that period, judges have cited misconduct by prosecutors as a reason to dismiss charges, reverse convictions, or reduce sentences in 2,012 cases, according to a study by the Center for Public Integrity released in 2003; the researchers looked at 11,452 cases in which misconduct was alleged.
A debate persists over the meaning of the term. Prosecutors have asked judges to stop using the term to refer to an unintentional error, and to restrict its use to describe a breach of professional ethics. E. Norman Veasey, the chief justice of Delaware Supreme Court, answered one such request in 2003 by noting the term's extensive use in rulings over the past 60 years. "We believe it would be confusing to change the terminology in view of this history," he wrote in reply.
It was a long time coming, but finally America has reached a milestone in the area of criminal justice. In Texas, a former D.A. has made history by becoming the first prosecutor in U.S. to suffer criminal punishment for failing to turn over exculpatory evidence.
In this case, Ken Anderson -- the former Williamson County D.A. who was named the 1995 Prosecutor of the Year by the State Bar of Texas -- was sentenced to 10 days in jail for a criminal contempt charge. His crime was evidence tampering, hiding evidence that was favorable to Michael Morton, who was on trial for the 1986 murder of his wife. Morton was innocent, to be sure, and Anderson violated a court order when the judge asked him whether he had any evidence that was favorable to Morton, and Anderson said no. In fact, Anderson was aware of statements made by several key witnesses, but chose not to disclose them.
As a result of then-prosecutor Anderson's blatant misconduct, Morton languished in prison for nearly 25 years -- all for a crime he did not commit. DNA testing made him a free man in 2011. And yet, a little over a week in jail seems like an insult of a punishment, given the damage done to an innocent man.
Anderson, who resigned as a judge in September -- a position bestowed upon him by Gov. Rick Perry -- also must serve 500 hours of community service and will lose his law license. But still, this is an unequivocal slap on the wrist for a man who willingly and deliberately destroyed another.
Nevertheless, no other prosecutor in this country has seen even a single day in jail for evidence tampering, and yet we know that many others certainly have committed the same offense.
The National Registry of Exonerations maintains a database of 1,200 exonerations and false convictions since 1989. These men and women spent a total of 11,600 years in prison, each for an average of a decade. Official misconduct was a contributing factor leading to wrongful convictions in 44 percent of these cases, second only to perjury or false accusations (53 percent). And official misconduct is most common in homicide cases (58 percent on the wrongful convictions) and nonviolent crimes (55 percent).
According to a report from the Innocence Project on the first 255 DNA exoneration cases in the U.S., of the 63 cases involving civil suits or appeals dealing with prosecutorial misconduct, 21 percent led to reversals, reflecting harmful error (probably an improper judgment by the court). These findings mirror a study by the Center of Public Integrity, which found that among 11,452 appeals alleging prosecutorial misconduct between 1970 and 2002, 2,012 (17.6 percent) resulted in reversals or remanded indictments.
While there are many honest prosecutors out there who are doing their job, some D.A.s game the system for the purposes of adding another notch to their belt, to enable them to climb the ladder and fulfill their political ambition. For them, winning in the adversarial system of justice, apparently, is far more important than ensuring justice is served, and that only the truly guilty are punished.
Moreover, prosecutors have an ethical duty they should not take lightly. Fort-nine states and the District of Columbia have adopted the ABA Model Rules of Professional Conduct Rule 3.8. This rule requires prosecutors to disclose, before trial, "all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal." Further, the order should clearly state that "willful and deliberate failure to comply is punishable by contempt." In addition, when a prosecutor learns of evidence pointing to the innocence of a convicted defendant, the prosecutor has a duty to disclose this information to the court.
After all, prosecutors are regarded as ministers of justice and not mere advocates. They have an obligation to see that there is sufficient evidence to determine the guilt of defendants, and to prevent and remedy the conviction of the innocent. All defendants deserve true justice and a fair trial where the deck is not stacked against them by an ethically challenged D.A., but far too many are denied this.
Ask John Thompson. Thompson spent 18 years in prison -- 14 of them on death row -- for a robbery-murder someone else committed. He was housed in Louisiana's infamous Angola State Penitentiary, the former slave plantation, in solitary confinement. As his seventh execution date approached, an investigator uncovered evidence of his innocence which the Orleans Parish District Attorney's office had hidden for 15 years -- a crime lab report.
After being acquitted in a retrial, Thompson sued the D.A.'s office, alleging constitutional violations -- including withholding of evidence under Brady v. Maryland -- and a failure to train the prosecutors in the office so as to avoid these violations. Under Brady, "suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."
A jury awarded Thompson $11 million for each year he had spent on death row. Meanwhile, the U.S. Supreme Court overturned the award. Writing the coldblooded opinion of the court, Justice Clarence Thomas concluded that the D.A.'s office was not liable for the Brady violation committed by one of its prosecutors, a lone actor, based on Thompson's failure-to-train theory.
There are many other victims of prosecutorial misconduct, and they are not rare exceptions. For example, Joe D'Ambrosio spent 20 years on death row in Ohio, although there was no evidence he was at the crime scene. A federal judge threw out his conviction after finding that prosecutors failed to turn over exculpatory evidence.
Shareef Cousin spent three years on Louisiana's death row, wrongfully convicted at the age of 16. A witness testified that the prosecutor told him to perjure himself on the stand and claim that Cousin bragged about the murder. Roger Jordan, the prosecutor in the case, was disciplined as a result.
Juan Melendez was sent to Florida's death row for nearly 18 years due to a paid informant who implicated him, and because the prosecution systematically withheld crucial evidence, including a confession from the actual murderer. And Derrick Jamison was on death row for nearly two decades for a robbery and murder he did not commit because prosecutors denied him a fair trial. The prosecution withheld information that an eyewitness identified two men, neither of whom was Jamison. Further, the D.A. promised his co-defendant a lighter sentence in exchange for pointing the finger at Jamison.
Rule 3.8 is the tool, or rather the weapon, to empower courts to deal with rogue prosecutors, those who play fast and loose with the law abuse their power by setting up innocent people. Now, there are many honest prosecutors out there doing their job, it's just that the corrupt ones are giving all the rest a bad name. After all, who can trust a criminal justice system when some of its officials are engaging in criminal behavior and are allowed to go unpunished?
And perhaps it will take more unscrupulous prosecutors behind bars before society can rein in a problem which is greater than many realized.
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