Radley Balko, whose weekly crime column should be on your reading list, wants to know:
As DNA exonerations continue to accumulate across the country, we’re left with some tough questions about accountability for the public officials who put innocent people in prison. Certainly in some cases honest mistakes can be forgiven. But what about cases ... where a prosecutor illegally withholds evidence of a suspect’s innocence? What about prosecutors who participated in multiple wrongful convctions? Is it fair to hold them accountable years or decades later? What of those who went on to become judges, and now preside over murder cases?
Redlands says:
The rant is so ill-defined how does one respond? Is it even “legal” to withhold evidence of innocence? How would that be possible? What exactly constitutes a “wrongful” conviction? What was wrong about it? Hold them accountable for what? How egregious was the ethical violation? What were the circumstances? So now, a judge. Do we presume he or she is an unethical judge?
Pointless.
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October 27, 2009, 11:41 pmLegalCookie says:
Oh come on, Redlands. We hold attorneys in the private sector to malpractice standards all the time. Is it so hard to imagine a similar set of expectations for prosecutors with the accompanying liability?
Just because an answer isn’t immediately obvious doesn’t mean it’s not worth asking the question and having a conversation.
So maybe your conclusion is that any such system would be unworkable–that’s a valid conclusion. But you’ll need to come up with something a little more persuasive than “there are a lot of wrinkles, so we shouldn’t bother.”
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October 27, 2009, 11:46 pmCurt Fischer says:
Redlands:
1. What makes you think its a “rant”?
2. A “wrongful” conviction is one in which justice was not done.
3. See above.
4. Hold them accountable for ethical lapses and/or tunnel-vision approaches to prosecution.
5. It depends; read the article!
6. See #5.
7. Yes, we do.
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October 27, 2009, 11:49 pmMark N. says:
Holding prosecutors responsible who in the past engaged in particularly egregious wrongdoing is probably a good idea, and may help deter future such conduct. But I think a more lasting solution would need to tackle the misaligned incentives, which will continue to cause problems so long as they’re misaligned. Some prosecutors may simply be bad apples who want to throw as many people in jail as possible; or perhaps jaded people who just assume everyone who comes before them is probably guilty of something. But I think many are pushed in the convict-everyone-at-all-costs direction by the fact that that’s basically what their job performance is judged on.
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October 27, 2009, 11:53 pmDangerMouse says:
If the people want to impose accountability on prosecutors, I’m all in favor of it. But some Judge will probably declare it unconstitutional or something, lest it upset the power structure of the judiciary branch and its minions (among which include prosecutors). There’s about a snowball’s chance in hell of it happening. Then, you have many people who view prosecutors as an extension of law-and-order, and those people are unwilling to hold accountable bad cops, let alone bad prosecutors.
Government is OF the government, FOR the government, and BY the government. And if you think government is too powerful these days, you’re a racist.
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October 27, 2009, 11:58 pmEdward A. Hoffman says:
Dangermouse:
Prosecutors are part of the executive branch, not the judiciary.
And your last sentence is absurd.
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October 28, 2009, 12:02 amtraveler496 says:
Are there meaningful public scorecards for prosecutors, judges, courts, state judicial systems, etc.? Ideally these could help fix misaligned incentives, help identify and deal with problem cases, help us better learn from experience, and help us adapt to changing circumstances.
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October 28, 2009, 12:04 amShelbyC says:
Which is why he was careful to say “the judicial branch and its minions :-)
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October 28, 2009, 12:12 amDangerMouse says:
Which is why he was careful to say “the judicial branch and its minions :-)
Correct.
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October 28, 2009, 12:15 amShelbyC says:
And stringing up procecutors who convict the innocent by their nuts wouldn’t change the incentive alignment?
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October 28, 2009, 12:52 amloki13 says:
Carrots work better than sticks. Incentivize people to do the right thing– that works well. Punish them for doing the wrong thing, and you’ll still get the ones that think they can get away with it (as they already do– there’s supposed to be penalties for prosecutors who are ethically challenged).
Ideally, you’d have both. Align the incentives (justice, not convictions) and create a greater deterrence for rogue (or rouge) prosecutors.
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October 28, 2009, 1:04 amStormy Dragon says:
Because the reality is that most of the public thinks there’s a broad swath of society that ‘deserves’ to be punished for things that have nothing to do with guilt for a particular crime. And as long as prosecutors are duitfully making things unpleasant for those people, the voters really don’t care how they go about doing it.
It only becomes an issue when one of the ‘right’ kind of people gets caught up in it.
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October 28, 2009, 1:16 amDan Simon says:
I dunno–could it be that after decades of being beaten over the head with the idea that in America’s adversarial justice system, any and every stratagem, no matter how outrageous, mobilized in defense of an accused criminal by a scheming attorney is fair game, the public have by now taken the idea to heart, and welcome prosecutors who are just as aggressively uninhibited as the “other side”?
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October 28, 2009, 1:33 amA. Zarkov says:
If a prosecutor perpetrates a deliberate fraud on the court to get a false conviction, then he should be made to stand in for the falsely convicted accused. With his own ass is on the line, a prosecutor would be less likely to suffer an ethical lapse.
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October 28, 2009, 2:14 amBruce_M says:
I’ve long felt that a prosecutor whose actions result in the conviction of an innocent person by withholding evidence, putting on testimony the prosecutor knows or reasonably should know is perjured, or through other such means should be forced to serve the same amount of time in prison as the wrongfully-convicted person who suffered due to the prosecutor’s improper action(s).
The problem is most people don’t give a crap. They’d rather have 100 innocent people wrongfully convicted and locked up for life than have ONE guilty person acquitted (after all, innocent people pose no danger to their cute, precious children). Despite the thousands of convictions that have been overturned by DNA or other evidence, the facts that: (a) no rules have been put in place to hold prosecutors even slightly accountable, and (b) every state and the federal government have passed rules making criminal appeals and post-conviction relief harder to get and with higher burdens to overcome, are clear proof of the depravity, cruelty, and overall irrationality of our society. When people (stupidly and wishfully) blabber about how “America is a Christian nation” I can’t help but think what that would say about Christianity and the purported “values” it advocates. Moreover, in my experience, the worst prosecutors and worst judges are all outspoken Christians with big crosses hanging around their necks. Judge Sharon “Killer” Keller of the Texas Kangaroo Court of Criminal Appeals is a prime example. The only thing she loves more than affirming convictions, denying habeas relief, signing death warrants, and refusing to stay executions is Jesus. WWJD? Apparently he’d side with the prosecution 100% of the time.
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October 28, 2009, 6:41 amDavid Nieporent says:
Yes, but state bars are more interested in regulating advertising of small-firm lawyers than they are in regulating corrupt prosecutors. (I was astonished the other day to learn that it’s deemed unethical by more than one state bar for lawyers to donate their services to a non-profit for a fund-raising auction.)
Of course, carrots and sticks are both needed, but change the rules to change the incentives. For instance, there’s no reason on earth why prosecutors should get to be the ones to decide whether evidence is exculpatory and needs to be disclosed. (One of the reasons Nifong was relatively easy to ‘catch’ was because NC has an open file law that requires prosecutors to turn over their files.) Prosecutors should be required to turn everything over. Every witness interview, every document. Then there’s a nice bright-line as to whether they’ve obeyed the rules; if they haven’t turned it over then they’re either negligent or malicious.
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October 28, 2009, 7:31 amcirby says:
I’d like to change one thing...
For prosecutorial misconduct and perjury, change the sentencing guideline in one simple way.
If you perjure yourself or hide evidence that would help the defense in a criminal trial, the sentence would be the same as for the crime the defendant is charged with.
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October 28, 2009, 8:09 amCato The Elder says:
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October 28, 2009, 8:15 amSarcastro says:
Cato The Elder s the last guy I’d peg to think of Obama, the giver of laws, as God.
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October 28, 2009, 8:19 amPolitical Observer says:
One must not forget that in the exercise of the prosecutor’s discretion comes the heavy weight that a citizen will be subject to forfeiture of liberty and/or property. This is an enourmous power that the government holds over it citizens. As a result a prosecutor should always be held to a higher standard of performance for any indiscretions on their parts that are inconsistent with or outright violations of the rule of law have severe consequences for both the direct parties involved and for our system of justice overall.
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October 28, 2009, 8:20 amPersonFromPorlock says:
In a bureaucratic world, the only way you are going to get prosecutors held to some standard is to establish a state or federal office right outside of any chain-of-command that prosecutors are in, whose sole job is to find and prosecute bad prosecutors, and whose budget depends on their doing so. Rotsa ruck.
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October 28, 2009, 8:35 amCato The Elder says:
Dual sovereigns, Sarcastro, a theme common on this blog. Sometimes even Caesar’s laws do not conflict with the more superior power’s.
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October 28, 2009, 9:01 amTamerlane says:
Balko touches on an aspect of this situation that posters so far have essentially ignored: Everytime a rogue prosecutor convicts an innocent person a guilty person escapes punishment. I’ve seen this happen a multitude of times in Massachusetts, e.g., using Robert DeSalvo as an excuse for not bringing the real Boston Strangler to justice
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October 28, 2009, 9:07 amED Maven says:
The problem is not limited to prosecutors (even though their misconduct can have the worst consequences) but also to civil government lawyers. Since this post is framed as a question, the answer is that prosecutors and government lawyers in general do what they do because judges let them get away with it to a greater degree than non-government lawyers. So it’s a case of incentives and disincentives in play.
Things aren’t beer and skittles in the case of non-government lawyers either. See the “Rambo litigation” business that has received considerable commentary in recent years.
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October 28, 2009, 9:53 amShelbyC says:
So that’s how procecutors see it — Sticks for thee, carrots for me?
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October 28, 2009, 10:14 amShelbyC says:
@loki, I agree with your comment, tho.
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October 28, 2009, 10:37 amRichard Aubrey says:
From time to time, you hear that the errant prosecutor is supposedly chastened by seeing somebody get out of jail.
If that’s as bad as it gets, I don’t see any reason to expect change.
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October 28, 2009, 11:11 amJust Dropping By says:
Since this post is framed as a question, the answer is that prosecutors and government lawyers in general do what they do because judges let them get away with it to a greater degree than non-government lawyers.
+1 to this. I’m constantly frustrated (but not surprised) by the extent to which most judges will cut government attorneys (whether criminal or civil) breaks on complying with orders, procedure, ethics rules, etc. It’s particularly vexing because there are already all sorts of special points explicitly included in the FRCP and USC for the benefit of the government as a litigant, so that should eliminate any rationale for special treatment under judicial discretion.
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October 28, 2009, 11:26 amJaimeInTexas says:
This may be simple for lawyers but ... prosecutors are Executive branch? Are not lawyers officers of the court, ie Judicial Branch?
I am from Houston where I learned about “Dry Labbing.” Not a single prosecution (that I am aware of)in such amazing disregard for the law and the life of the accused.
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October 28, 2009, 1:46 pmMartha says:
Also upsetting is when government officials know of probable past injustice yet refuse to set things right. For example, in Florida, numerous people were convicted based on the testimony of John Preston and his wonder dog (a dog supposedly able to track scents through water, years after the fact). Preston was eventually discredited in court, and so far three of the those he helped convict have had their convictions overturned. Centurion Ministries is now looking into a fourth case. But Florida’s atty general, and the Brevard state atty, don’t feel any need to investigate further. Maybe only three people were ever wrongly convicted, but you’d think they’d want to check.
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October 28, 2009, 2:19 pmmariner says:
You just don’t get it, David.
Government agents are better than you and I — be they police, prosecutors or judges.
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October 28, 2009, 5:47 pmVader says:
What’s wrong with inflicting on prosecutors the same penalties, for getting a man falsely convicted, as defense attorneys suffer for getting a man falsely acquitted?
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October 28, 2009, 6:13 pmLaura(southernxyl) says:
Vader, because a prosecutor who gets a false conviction is a rogue, while a defense attorney who gets a false acquittal is a fine lawyer just doing his job.
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October 28, 2009, 6:51 pmChrisTS says:
There’s a surprise.
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October 28, 2009, 7:20 pmDavid Nieporent says:
What on earth is a “false acquittal”? If the government can’t prove its case beyond a reasonable doubt, the defendant is supposed to win.
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October 28, 2009, 7:27 pmChrisTS says:
There is a profound difference between prosecutorial misconduct that leads to the imprisonment or execution of an innocent citizen and aggressive defense of a client – factually guilty or not. In the latter case, the State takes a life – literally or figuratively – away from one of its citizens wrongfully, while also allowing a factually guilty person to go free.
It may be undesirable for any community to have criminals freed through aggressive defense. It is far, far worse for a decent community to have criminals left on the loose while innocent persons suffer.
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October 28, 2009, 7:32 pmLaura(southernxyl) says:
David, I think ideally if the defendant is guilty, he is convicted. IANAL, so my definition of “guilty” does not equal “the government didn’t prove its case”.
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October 28, 2009, 7:35 pmloki13 says:
So what is your definition of guilty? Do you want to get rid of double jeopardy? Guilty not so much beyond a reasonable doubt, but with a fair likelihood that the person is a bad ‘un? Perhaps put the onus on the accused to prove their innocence? I *miss* the Star Chamber.
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October 28, 2009, 7:48 pmLaura(southernxyl) says:
Loki, this is probably a mistake, but I’ll respond to your question.
My definition of “guilt” is doing what one should not, or neglecting to do what one should. This may range from trivial things such as not flossing one’s teeth and lying to the dentist about it, to serial murder. If you don’t do what you should, or do what you should not, then you have guilt.
If your guilt is something that the law addresses, such as serial killing, and you are tried for it, then you should be convicted, regardless of the relative levels of experience and sophistication and charisma of the defense attorney and the prosecutor, or any other side issue.
People on here have told me various things about what a defense attorney can and should do in order to try to get an acquittal for a guilty defendant. David has said that the attorney can’t lie, can’t advise the defendant to lie, and can’t introduce anything that he can’t back up. I’m not sure everyone else totally agrees with David. To give an example, fairly close to one we’ve discussed before: suppose that the defense attorney tries to show that the cops have a history of racism and probably had it in for his client because of his race. He can’t really show that the cops had it in for his client because of race, and he knows his client is guilty as sin, but he plays on the jury’s indignation and sense of social justice and gets an acquittal ... and the client goes out and resumes his criminal behavior. I am not OK with this, I would call this a false acquittal, especially if I or a loved one were the next victim of this guy. But I don’t think I think like most people who comment here.
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October 28, 2009, 8:01 pmloki13 says:
Laura,
We have a justice “system”, not a grabbag of preferences. It is set up the way it is in order for the entirety to work. In our system, there are a few things to keep in mind:
1. It is balanced in favor of the accused. I think this makes sense, as the American philosophy is that it is better to let a guilty man go free than an innocent man suffer.
2. It is designed to safeguard the system. That is why there are remedies (such as the exclusionary rule) that act as deterrents on the police and prosecutors to protect the freedoms of Americans, even if it occasionally loads the deck in favor of the accused.
3. The worries people have over the great number of “guilty people going free” are completely overblown’ not only does the press overcover these stories, but there is no coverage of the dearth of public defenders in our system.
4. Given our gigantic prison population, clearly some people are being convicted. I think your perception of “clever defense lawyers getting people off the hook” doesn’t match the reality of overworked PDs managing gigantic caseloads with few resources.
Our system is imperfect. There are certainly flaws. You are welcome to present an alternative one that works better than the one we are currently using (perhaps you’d prefer a more European approach?). But the deck is very much stacked in the favor of the prosecution– they have the resources of the state behind them, and more often than not, they have sympathetic juries who prefer to “convict the man, not the crime”. And there’s not much even a private defense lawyer with a sharp suit and a gold watch can do about that.
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October 28, 2009, 8:16 pmLaura(southernxyl) says:
Loki, I am answering the question about what a false acquittal might be, not attacking the American judicial system.
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October 28, 2009, 8:27 pmLaura(southernxyl) says:
Chris, if criminals are left on the loose, then innocent persons doubly suffer: those who are wrongly convicted, if any (and there may not be any of those; it may simply be that the criminal wasn’t convicted) and the rest of the more-or-less law-abiding populace that that criminal can now continue to prey upon.
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October 28, 2009, 8:30 pmChrisTS says:
Loki:
I understand your responses to Laura. However, you should know that she typically does not have a hidden agenda, and she certainly is not being snide. She is simply telling us how she sees things and asking for an honest response.
You and I might disagree with her initial take on something, but she is genuinely open to honest dialogue. (I know this is often not the case with some folks on any blog, so I do not fault you for reacting as you do.)
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October 28, 2009, 8:37 pmChrisTS says:
Exactly, with this emphasis: we are discussing cases in which someone was convicted and punished. In those cases, we truly have a double wrong: an innocent person is punished and the public is still vulnerable to a criminal.
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October 28, 2009, 8:43 pmloki13 says:
ChrisTS,
I actually wasn’t being snide (well, in my second response). I am just continually amazed that people have this perception that fancy defense lawyers are getting guilty people off left and right, when that is far from the truth. There has to be a “system”, and it seems that most people don’t want to think about the system. So there’s several issues:
1. People’s perceptions don’t match reality. I blame the teevee for that.
2. People want “more guilty people convicted”. Well, yes. I don’t want guilty people unpunished. But I rarely see a good proposal for changing what we have. Our system is far from perfect, but I haven’t seen a better one yet. A few concrete proposals as to what would make our system better would be great.
3. The general demonizing of defense lawyers is pretty over-the-top, too. I could never do crimlaw, but I respect those that do. Our system requires that both sides be represented, and the vast majority of crimlaw defense lawyers are either a) PDs or b) relatively poor, and in addition to that, they get the scorn of people in their community for what is a dangerous and thankless task.
So, yeah– I agree, bad evil people should be punished. Other than that? Not so much.
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October 28, 2009, 9:06 pmtrotsky says:
Well, if the police arrest the wrong guy and get him to confess, and the prosecutor takes the case to court, and after hearing from the defense, the judge and unanimous jury send him to prison, there are a lot of actors who have a role in sending the wrong guy to prison. Not to minimize the damage that convicting the innocent does, but it’s not just the DA at fault.
That said, in cases of genuine ethics violations, what’s wrong with disbarment? Y’all remember Mike Nifong? My trusty assistant Mr. Google also informs me a Pima County, Ariz., prosecutor was disbarred in ’04 for eliciting false testimony in a capital case.
Yeah, it’s not prison, but ruining the bad prosecutor’s legal career is certainly punishment.
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October 28, 2009, 11:41 pmVisitor Again says:
A California prosecutor was disciplined for suppressing exculpatory evidence. However, the State Bar litigation chief who was responsible for bringing these charges was not reappointed, largely because of discontent from the law enforcement community about the case. Law enforcement agencies are a very powerful lobby, and that’s one of the reasons wayward prosecutors do not pay any price for their transgressions.
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October 29, 2009, 2:13 amLaura(southernxyl) says:
I trust that you are not talking about me, that I have that perception about guilty people getting off “right and left”, or that I don’t want to think about the system, when the fact is that I have asked questions to clarify how the system works. [Do you think that the innocent are convicted “right and left”?]
There’s definitely a breakdown when a person commits a truly horrible crime, and it turns out that that person has a long record of convictions for which he has gotten probation over and over. That’s not the defense attorney’s fault, but it is an indication of a problem with the system. To say that you can’t find a better system elsewhere is a far cry from saying that this one can’t and shouldn’t be improved.
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October 29, 2009, 7:41 amPintler says:
Consider an accountant who embezzles $100K from his employer, and a prosecutor or detective who deliberately conceals strongly exculpatory evidence that results in an innocent person being incarcerated for ten years.
Who has done the greater harm?
Are you comfortable with just ending the CPA’s career as an accountant, in lieu of conviction and sentencing?
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October 29, 2009, 8:40 amThursday Highlights | Pseudo-Polymath says:
[...] Accountability and US jurisprudence … a question. [...]
Stones Cry Out - If they keep silent… » Things Heard: e91v4 says:
[...] Accountability and US jurisprudence … a question. [...]
Fub says:
There is a good blog dedicated to the subject of prosecutorial misconduct in California. In my opinion, a good reading of that blog supports the assertions of many here: Prosecutorial and police misconduct resulting in convictions of innocent people is more widespread than many believe; actual remedies granted for convicted innocents are risibly insufficient, and actual penalties imposed upon most offending officials are not even a bad joke.
I agree, but I’d reluctantly settle for holding officials to at least the same standards to which ordinary citizens are held. Currently they are not.
I think Just Dropping By puts his finger on one (but not the only) significant cause of the problem:
I think there are two motivations for this behavior. For elected judges it is simple: they are politicians who want to be re-elected. So, they will cut any slack necessary for their fellow politicians the elected prosecutors, or for any politically popular case which their fellow politicians bring before them. Bizarre travesties such as the “satanic ritual abuse” cases of the 1980s and 1990s are a good example of that.
e.e. cummings summed it up nicely: “a politician is an arse upon which everything has sat except a man.”
For lifetime appointed judges, the causes are likely more limited. They have no re-election concerns. I think their major motivation is more psychological but equally pernicious: the perception that they are a member of an elite class by virtue of being a government official. So they bend over backward to support their perceived elite associates, other government officials, against the rabble, who just happen to be the rest of us.
PersonFromPorlock’s point is a good one:
His solution is straightforward and simple; and if such an office were a lifetime appointment, it would be less vulnerable to passing moral panics and other political vicissitudes. But his observation “Rotsa ruck” is also an accurate characterization of political reality.
Juvenal summed up the problem ages ago: Quis custodiet ipsos custodes?
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October 29, 2009, 12:29 pmloki13 says:
1. It’s general statements like this that drive me nuts. Does this happen? Yes. Very few offender’s first crime is a super serious one (if it was, they’d already be in prison). Some get the message. You don’t read about them. Some don’t (career criminals, for example). Your problem is not with the defense attornies, who you *were* criticizing above (see post 39), but with the sentences handed out for some crimes. Or with plea deals– and plea deals are a product of an underfinanced system, with far too few PDs, prosecutors, and judges to try cases, and far too many average citizens avoiding jury duty.
2. Again, this is shaped by media coverage. Is everyone outraged when they hear about a person who has a criminal record and commits a heinous crime? YES! Of course. How many stories do you read about people that were given a second chance and did turn their life around? Not to many. That gets into a secondary issue of whether our prisons are merely punitive, or rehabilitative, and the receidivism rate of criminals. These are hard questions. It’s easy to point at failures. It’s harder to propose solutions. No one wants to spend money on “criminals” (make them less likely to re-offend, aka “coddle them”).
Again, saying that you’re outraged when you read about a chronic criminal that does a bad thing is like saying that you hate that water is wet. You won’t get disagreement there. But given that the US prison population is already the highest per capita in the western world, it would seem that there is more going on than not locking away enough people.
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October 29, 2009, 3:06 pmLaura(southernxyl) says:
Me saying “there’s definitely a breakdown” leads to you saying that I am saying I’m outraged. I get outraged about stuff, and even deeply disturbed, and I’m a good bit more expressive than “there’s definitely a breakdown”. I think I need to not engage you, or let you engage me, because you want to read things into my comments to make whatever point it is that you’re making. I don’t like being made use of that way.
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October 29, 2009, 7:54 pmloki13 says:
Perhaps Laura. But might I make a recommendation to you?
Courthouses are open. Take some time to watch how a real criminal trial or three goes down. You know, the run-of-the-mill ones with PDs. And try to remember that trials (even in the criminal setting) are the exception, not the rule (think plea agreement... our system is often about managing cases because of finite resource, not trying cases). Try to get a picture of what’s really going on.
I think your views might be changed. Perhaps not for the better, but changed.
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October 29, 2009, 8:25 pm