Discovering The Obvious: Prosecutors Engage In Misconduct

A significant investigation by USA Today was revealed yesterday, concluding that misconduct happens at the Department of Justice.  As my knees wobbled, I grabbed the arm of my chair to prevent my falling on the ground in shock, trying desperately to catch my breath.  Misconduct?  Department of Justice?  Really?

Why do they call it the Department of Justice?  Because the Department of Convictions doesn’t sound as good.  It’s not as if any federal prosecutor has ever celebrated an acquittal as “justice being done,” so that it comes as a surprise that prosecutors push the envelope is, well, a surprise. 

The gist of the article is that there is a pattern of misconduct at the Department of Justice.  Nathan Burney, a former prosecutor, deals with the excuses.

  • We’re sorry, a caseload of 14 went up to 28?  Boo freaking hoo.
  • The whole “they’re not used to losing” thing is just cockiness.
  • And the lack of supervision and training isn’t much of an explanation, either.  An honest person isn’t going to cheat, regardless of whether someone else is watching or not.
  • The most insightful explanation here is the observation that the end justifies the means.  Breaking the rules is fine if, at the end of the day, it ensures that the criminal gets convicted.

Then again, maybe that cockiness really is a factor after all.  We said as much just last week, so it must be true.  Only we called it “hubris” instead.

Federal cases usually are rock-crushers.  The sentences are beyond belief, even for the stupidest stuff.  The rules are stacked against defendants.  In many cases, even the best lawyers advise clients to take whatever the feds deign to offer, which is usually not much.  So it shouldn’t come as much surprise that the feds can sometimes get sloppy.  They just don’t get a lot of pushback, and it’s easy to slide into a “good enough for government work” mentality.

But the USA Today article, while taking on certain aspects of this long-known, flagrantly obvious problem, falls into the same apologist trap that permeates mainstream discussion of flaws within the criminal justice system.

Judges have warned for decades that misconduct by prosecutors threatens the Constitution’s promise of a fair trial.

And yet judges, the putative neutrals in an adversary system, turn a blind eye to allegations, even proof, of misconduct in all but the most flagrant and undeniable of cases, or those involving the most politically or economically powerful.

Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation’s most elite and powerful law enforcement officials — themselves violated laws or ethics rules.

Out of tens of thousands of cases, a mere 201?  Bizarrely, USA Today takes credit for “documenting” cases in which judges have already determined that prosecutors did wrong.  We call this a Lexis search.

The Constitution, Congress and courts have set elaborate rules to ensure jurors get the facts and aren’t swayed by emotion or fear. Rules are particularly exacting for prosecutors, as they act with government authority and their mistakes can put people in prison.

One of those rules, established by the Supreme Court nearly 50 years ago in a case called Brady v. Maryland, is that prosecutors must tell defendants about evidence that could help prove their innocence. Withholding that evidence is “reprehensible,” the court later said.

Nonetheless, USA TODAY identified 86 cases in which judges found that prosecutors had failed to turn over evidence to defendants.

While “elaborate rules” seems a bit excessive, given that Brady turnover is notable for its near-absence of specific requirements aside from the long-time joke of prosecutors deciding what constitutes Brady and turning it over at the last possible second, if at all, the real culprit in this passage is that USA Today identified 86 cases,  EIGHTY-SIX!, where judges found prosecutors failed to turn over Brady material. Damning with faint condemnation. 

Aw, come on, guys.   This is the basis for your conclusion that there is a pattern of misconduct?

USA TODAY found a pattern of “serious, glaring misconduct,” said Pace University law professor Bennett Gershman, an expert on misconduct by prosecutors. “It’s systemic now, and … the system is not able to control this type of behavior. There is no accountability.”

Notice that Gershman speaks to systemic failure, while USA Today comes up with a grand total of 86 Brady violations?  It sure sounds to me as if this falls under the rubric, not perfect but the best there is.  They’ve trivialized the problem, minimized its scope and diminished its impact to a handful of cases. 

Didn’t anyone tell USA Today that there might be a few cases where bad things happened and judges failed to rush to the rescue by finding prosecutorial misconduct?  Or maybe that never happens, since judges are so deeply concerned about the defendant receiving a fair trial, and bend over backwards to make sure that the prosecution complies with the rules. 

Among the consequences of misconduct, wrongful convictions are the most serious, said former U.S. attorney general Dick Thornburgh. He said, “No civilized society should countenance such conduct or systems that failed to prevent it.”

Dick Thornburgh?  Would that be the same former Attorney General who in 1989 issued the infamous Thornburgh Memo that concluded that federal prosecutors were exempt from ethical and disciplinary proscriptions that apply to all other lawyers?

This nugget contains one of the most insidious implications of the article, that only the innocent are entitled to a fair trial, free from prosecutorial misconduct.  Years ago, Daily News newspaper columnist Murray Kempton wrote, “there they go again, framing the guilty.”  These words have rung in my ears ever since. 

“Prosecutors think they’re doing the Lord’s work, and that they wear the white hat. When I was a prosecutor, I thought everything I did was right,” said Jack Wolfe, a former federal prosecutor in Texas and now a defense lawyer. “So even if you got out of line, you could tell yourself that you didn’t do it on purpose, or that it was for the greater good.”

Burney, the former prosecutor, agrees:

The most insightful explanation here is the observation that the end justifies the means.  Breaking the rules is fine if, at the end of the day, it ensures that the criminal gets convicted.

Sadly, few member of the public would disagree with this, since the guilty are bad and deserve whatever happens to them.  Prosecutors agree.  Cops and Agents agree.  Judges agree. The public agrees.  No harm, no foul, as determined by the outcome.

No one, myself included, wants to discourage a newspaper, even one as white bread as USA Today, from doing an investigation into prosecutorial misconduct.  But such efforts come along so seldom that such a pale, superficial one as this does little to clean up the mess, and covers up the culpability of other cogs in the wheels of justice. 

Judges have found prosecutorial misconduct in 201 cases.  Judges have found Brady disclosure failures in 86 cases.  There has been a grand total of one federal prosecutor disciplined.

How often prosecutors deliberately violate the rules is impossible to know. The Justice Department’s internal ethics watchdog, the Office of Professional Responsibility, insists it happens rarely.

Well then, I guess we can all sleep well tonight, as long as it’s not our butt on the line.  USA Today has it well under control.

4 thoughts on “Discovering The Obvious: Prosecutors Engage In Misconduct

  1. Nathan

    Great post, you did a lot more analysis than I did. Just for clarity, though, I don’t agree with the position that the end justifies the means — I was just pointing out that this attitude is most likely the one that explains a lot of the misconduct. I do not, and never would, countenance such an attitude.

  2. Albert Nygren

    The message in TV detective shows and Dirty Harry Movies (I like them too),is that the problem with the Criminal Justice system is that that they care more about the criminal’s rights than the victim’s rights.

    This, of course, assumes that the police only arrest guilty people and prosecutors only indict guilty people.

    I remember when the District Attorney kept the Lacrosse team in jail until after the next election, even though he knew he had no case, because he didn’t want to lose African American votes if he let them go.

    There was the District Attorney in Colorado who indicted a man living in Thailand for a sex crime in the USA and extradited him even though his family could prove he was no where near the crime when it was committed. Later the DA admitted that she knew he wasn’t guilty but as the man had a history of sex crimes and was teaching school, she thought she had to get him out of there.

    For me, the case that blew my mind because of all the corruption of the entire system; the police, the M.E., and the prosecutors, was the O.J. Simpson trial. I know, all of White America believe O.J. was guilty but “got off” because of his expensive defense attorneys.

    There was a “Legal Channel” at the time and I, literally, saw every minute of the trial. The prosecutors presented no credible evidence of O.J.’s guilt and the defense attorneys presented incontrovertible evidence that that O.J.was innocent, but all of the media presented the opposite view.

    The most egregious “evidence” presented by the prosecution was the “bloody sock”. No blood was found anywhere in O.J.’s house. A black sock was found at the entrance to a bathroom on a white carpet.

    The criminologist that found and bagged the sock said he did not notice any blood on the sock. The Medical examiner said the portion of the sock that would be between the cuff of a pair of slacks and the top of a shoe had “spots of blood” that was consistent with being hit by the arterial bleeding of Nicole S.

    Dr. Boden,an eminent M.E., O.J.’s witness, testified that there were no spots of blood on the sock but there was a round, dark, smear of blood on 1 side and a fainter, smaller, smear of blood on the other side of the sock consistant with someone smearing blood on 1 side of the sock, the blood soaking to the other side of it, and no one’s foot in the sock at the time it was smeared.He also showed a large projection of the sock so that everyone could see that he told the truth and that the L.A. M.E. lied!

    This was an obvious piece of planted evidence that was lied about, by the prosecutors and the judge had to know about the lie, yet nothing was done about prosecutor misconduct!

    The entire media had to know that the sock was planted and that the prosecutors lied, yet they said nothing to the public, or anyone for that matter.

    If the entire L.A. prosecution and the entire media is so corrupt, what hope of justice do we little people have if arrested by the police for something we didn’t do!

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