It seems no profession is immune from overstepping their bounds. It seems to be about ego and how much they can get away with. Of course, the dollars they earn could be a factor for them to feel immunity.
3
I've spent my life working as a prosecutor, for low pay, with zero "executive" perks, long hours, crummy facilities and equipment, dealing with victims and defendants of all sorts, because I believe in the oath we take " not to convict, but to see that justice is done." I've lived with death threats, murders of co-workers and friends, and the resulting stress it's caused to myself and my family. This editorial piece is so insulting to the vast majority of prosecutors who dedicate themselves to making the justice system work. What will you write next, an article about how all religion is evil because a few priests have been caught engaging in sexual misconduct? How about one about disbanding schools because some teachers engage in misconduct with students or are unqualified? Or maybe one about how journalists are dabblers who couldn't be bothered to attain competence in any profession or trade, but who would rather influence public opinion with uninformed diatribes that flatter their own egos, so perhaps we should eliminate the "editorial page?"
9
Amazingly, North Carolina is a way ahead of most of the country on this issue. After the Duke Lacrosse scandal they passed and later strengthened an Open Discovery Law. Any evidence files that prosecutors possess must be turned over to the defendant. Even if there were no instances of pre-meditated misconduct, giving prosecutors the power to decide what evidence is irrelevant and what is exculpatory is ludicrous. Who other than the defense attorney should be in a position to decide what evidence is is relevant to the defense?
Furthermore, the idea that the DOJ would be put in charge of rooting out prosecutorial misconduct across the country is laughable, considering the egregious behavior their own people have engaged in. The false prosecution of the late Sen. Ted Stevens (for which the prosecutor responsible got a mere slap on the wrist), was not in isolated incident, as Judge Kozinski, who wrote the “epidemic” quote, will tell you. In a preface to he wrote to “Criminal Law 2.0”, were he discusses among other issues Brady violations, he suggests that a major part of the solution is for all states and the federal government to pass a North Carolina –style Open Discovery statute.
Furthermore, the idea that the DOJ would be put in charge of rooting out prosecutorial misconduct across the country is laughable, considering the egregious behavior their own people have engaged in. The false prosecution of the late Sen. Ted Stevens (for which the prosecutor responsible got a mere slap on the wrist), was not in isolated incident, as Judge Kozinski, who wrote the “epidemic” quote, will tell you. In a preface to he wrote to “Criminal Law 2.0”, were he discusses among other issues Brady violations, he suggests that a major part of the solution is for all states and the federal government to pass a North Carolina –style Open Discovery statute.
10
Is there any issue the NYT editorial board doesn't think requires federal involvement or intervention? Have its members ever read the Constitution or the Federalist Papers?
3
Orange County, California, might also be a good place to start, what with its history of convictions based on testimony of jailhouse snitches of dubious reliability and motivations.
7
Due to a clerical error in a car rental company when the secretary quit on the spot one day I was accused of stealing the car I rented.
Even with a letter from the owner of the rental company explaining the error our local up-for-re-election DA decided to prosecute me for two felonies "to the fullest extent of the law".
I paid $7,000 in legal fees to have to judge castigate the DA and throw the case out. But I had no recourse to get reimbursed because it was a DA that did it and they are not liable for anything they do.
If a DA's office fails to provide exculpatory evidence in a capital trial the complete office should be prosecuted for attempted murder with charges of obstruction of justice and charges of being accessories extending to every fiel clerk and secretary as well. Once cities and counties begin to face the costs of defending their DA's and the DA's staff perhaps they will hold DA's accountable. I would really like to see those Louisiana DA's slapped into prison, and their supreme court that threw out the exoneration should join them.
Even with a letter from the owner of the rental company explaining the error our local up-for-re-election DA decided to prosecute me for two felonies "to the fullest extent of the law".
I paid $7,000 in legal fees to have to judge castigate the DA and throw the case out. But I had no recourse to get reimbursed because it was a DA that did it and they are not liable for anything they do.
If a DA's office fails to provide exculpatory evidence in a capital trial the complete office should be prosecuted for attempted murder with charges of obstruction of justice and charges of being accessories extending to every fiel clerk and secretary as well. Once cities and counties begin to face the costs of defending their DA's and the DA's staff perhaps they will hold DA's accountable. I would really like to see those Louisiana DA's slapped into prison, and their supreme court that threw out the exoneration should join them.
27
So what do you do if this is happening to someone you know right now? To secure an indictment with the grand jury an agent lied and the prosecutor misrepresented the law. (when the agent lied the prosecutor, knowing full well it wasn't the truth, continued on to lead people to believe the lie). The trial is less than a week away and despite being told numerous times to turn over evidence the prosecutor has always had an excuse. How is someone supposed to properly defend themselves without seeing the evidence first? The prosecutor has had it 3 years now. The judge and the prosecutor are friendly. Who can you report this to? Nobody?
17
This article was very informative and extremely disturbing at the same time. I had no idea how out of control prosecutors have become in our judicial system. I'm sure all professions have their bad eggs, but I've never read anything previously to suggest that our judicial system has become so out of wack. The rewarding of judgeship or in the case of NJ the governorship to aggressive prosecutors must have better oversight. This type of conduct only feeds into police misconduct. We need more articles such as this to raise public awareness as anyone of us could someday face a prosecutor and I would like to think that at that time it will be a fair and unbiased system.
7
The root reason for these problems is simple : the judicial world is a small world and, like the police, it dislikes punishing its own.
What is even more galling is that there are laws crafted especially for the purpose of preventing such problems and, if they occur, to punish the culprits. Alas "equal before the laws these days" is nothing more than a fairytale these days, and politicians, law enforcement officers, prosecutor and judges demonstrate it case after case by failing to take appropriate action when one of their own is involved in breaking the law.
What is even more galling is that there are laws crafted especially for the purpose of preventing such problems and, if they occur, to punish the culprits. Alas "equal before the laws these days" is nothing more than a fairytale these days, and politicians, law enforcement officers, prosecutor and judges demonstrate it case after case by failing to take appropriate action when one of their own is involved in breaking the law.
6
Read Sydney Powell's book, Licensed to Lie, and you will have a lot less confidence in the DOJ to provide fair prosecution much less oversight. Prosecutors advance due to convictions - not fairness.
3
Bad prosecutors? Why not criminal prosecutors? For me, intentionally withholding evidence that causes chaining, transporting and incarceration is a capital crime. It is kidnapping in my book and illegal imprisonment. Dressing up the perpetrators' identity with letters like fbi or doj does not elevate those individuals involved higher than thugs. Several U.S. states might impose the death penalty for conspiracy to kidnap, kidnapping and illegal imprisonment if these men and women prosecutors were to be treated like other criminals that plan and design and cause the punishments imposed on defendants who have had relevant evidence withheld for the purpose of obtaining a conviction by a jury or judges. The political/legal processing involved does not modify the consequences to the victim -- he or she will have been kidnapped, chained and caged. These are among the most serious crimes in the world when a single piece of exculpatory evidence is purposely involved. It happened to me in U.S. vs Mark Krangle for emails I wrote to ABC.online with carbon copies to the New York TImes and Time Magazine. I sent 8 emails in a countdown fashion on successive days that would end up in grief for the primary recipient. The prosecution withheld 7 of the emails from the discovery process, thus denying the purpose of the emails as a publicity stunt. I was put in chains on 54 occasions over three years and incarcerated in solitary confinement for scores of days.
9
The best hedge against being railroaded by a Persecutor who hides exculpatory evidence or tries to blackmail a defendant with a plea bargain is to vigorously pursue a trial by a jury of their peers, a fading reality.
6
The feds don't really care about this. They have bigger fish to fry unless the prosecutor who aggrieved you is the DA.
Prosecutors are lawyers. In New York, if you have a beef with a lawyer you complain to the Departmental Disciplinary Committee. Going after lawyers is their job, not a sideline. They love this stuff.
Prosecutors are lawyers. In New York, if you have a beef with a lawyer you complain to the Departmental Disciplinary Committee. Going after lawyers is their job, not a sideline. They love this stuff.
7
"To stop bad prosecutors, call the feds"?
You don't don't think there are bad Federal Prosecutors?
You don't don't think there are bad Federal Prosecutors?
7
Thomas Thompson and Thomas Goldstein were convicted of murder as a result of prosecutors' use of a habitual jailhouse informant by the name of Edward Floyd Fink, who testified at both murder trials the defendant had confessed the murder to him while in jail awaiting trial. In both cases, the prosecutor argued to the jury that Fink had nothing to gain by his testimony. However, in both cases, Goldstein’s in 1980 and Thompson’s in 1983, Fink was released from jail by the courts at the request of these same prosecutors. Ironically, both cases came before the U. S. Supreme Court a decade apart.
A federal Court of Appeals had vacated California's order of execution of Thompson on the basis of Sixth and Fourteenth Amendment violations of Thompson’s right to a fair trial -- ineffective assistance of legal counsel and multiple instances of prosecutor misconduct. In 1998, the Supreme Court reinstated the state’s death penalty order on a five-to-four decision. Thompson was executed on July 14, 1998.
Then, Thomas Goldstein was able to file his first habeas corpus appeal in federal court with the government witness impeaching "Brady" evidence against Fink uncovered by Thompson's appellate attorneys. Thomas Goldstein was released from prison after serving 24 years in prison for a crime which he did not commit. However, a unanimous U.S. Supreme Court ruled in 2009 that prosecutors are immune from civil liability for such Fourteenth Amendment violations in all cases.
A federal Court of Appeals had vacated California's order of execution of Thompson on the basis of Sixth and Fourteenth Amendment violations of Thompson’s right to a fair trial -- ineffective assistance of legal counsel and multiple instances of prosecutor misconduct. In 1998, the Supreme Court reinstated the state’s death penalty order on a five-to-four decision. Thompson was executed on July 14, 1998.
Then, Thomas Goldstein was able to file his first habeas corpus appeal in federal court with the government witness impeaching "Brady" evidence against Fink uncovered by Thompson's appellate attorneys. Thomas Goldstein was released from prison after serving 24 years in prison for a crime which he did not commit. However, a unanimous U.S. Supreme Court ruled in 2009 that prosecutors are immune from civil liability for such Fourteenth Amendment violations in all cases.
4
Why am I not a bit surprised that Louisiana is at their usual bottom of another list where human rights and basic fairness is ranked?
9
Of course the Louisiana Supreme Court turned down a lower court's decision to include the new information in a re-sentencing hearing in the Brown case. Brown is black, Louisiana is the deep South, and this was simply a post-Jim Crow lynching.
7
In the Theses on Feuerbach, Marx famously mused, "Who will educate the educators?" What the Times elides in its humorous Ghostbusters call for federal intervention into the problem of prosecutorial misconduct is the fact that some of the most egregious examples of such misconduct have resided right in the core of what is called, "Main Justice." The latest example involves DOJ prosecutors lying to a federal judge on the dreamers immigration case. http://www.libertylawsite.org/2016/05/24/odd-legal-ethics/
But who could forget the lamentable case of Senator Ted Stevens where obstruction of justice and subornation of perjury by federal prosecutors resulting in absolutely no one being charged, let alone even sanctioned. For a more thorough compilation of this phenomenon read Sydney Powel's License to Lie.
In light of this abysmal record, why would we put the federal foxes in charge of the state and local criminal justice chicken coop?
But who could forget the lamentable case of Senator Ted Stevens where obstruction of justice and subornation of perjury by federal prosecutors resulting in absolutely no one being charged, let alone even sanctioned. For a more thorough compilation of this phenomenon read Sydney Powel's License to Lie.
In light of this abysmal record, why would we put the federal foxes in charge of the state and local criminal justice chicken coop?
1
Wouldn't it be nice if when prosecutors are found guilty of committing a Brady Violation and a conviction is overturned that those same prosecutors would now be required to serve out the sentence they so egregiously suggested.
5
What we need is a system in which every effort is made to ensure transparency and accountability for anything involving agencies that serve the public trust and are funded by taxpayers. I'm not convinced that "oversight" is the panacea for any problem involving lawbreaking and abuse of power by public servants, since those agencies doing the overseeing are themselves susceptible to corruption, underfunding and and a tangle of bureaucracy that can render them dysfunctional and powerless. Perhaps there's some way in which technology can solve the problem; require that every transaction in the criminal justice system, from the arrest to the interrogation to the gathering of evidence to the analysis of that evidence to all those back-room negotiations etc etc be videotaped and uploaded in real time. There is no reason why any part of the criminal justice process should be a secret from anyone. We pay for it; we should have complete accountability. This is something both conservatives and liberals should be able to get behind - let's live stream every aspect of the entire government, 24/7, and install programming that would identify and flag every violation of the Constitution.
I understand this sounds Orwellian and unworkable. But we have allowed far too much wiggle room when it comes to prosecutorial misconduct.
I understand this sounds Orwellian and unworkable. But we have allowed far too much wiggle room when it comes to prosecutorial misconduct.
2
I DID take what happened to me at the hands of the Arizona Criminal InJustice System to the F.B.I. at 21711 N. 7th Street in Phoenix, Arizona on July 18th, 2015.
I had learned in writing the horror up what it was called and used this term to gain access in by the guards:
FBI-Color of Law.
(https://www.fbi.gov/about-us/...color_of_law Federal Bureau of Investigation:It's a federal crime for anyone acting under "color of law" to willfully deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law).
I was accepted in by the guards after they used the term when calling the higher-ups to see if they could; I was shakingly-grateful to be quasi-listened to, my documents were taken but I haven't heard back yet.
I had learned in writing the horror up what it was called and used this term to gain access in by the guards:
FBI-Color of Law.
(https://www.fbi.gov/about-us/...color_of_law Federal Bureau of Investigation:It's a federal crime for anyone acting under "color of law" to willfully deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law).
I was accepted in by the guards after they used the term when calling the higher-ups to see if they could; I was shakingly-grateful to be quasi-listened to, my documents were taken but I haven't heard back yet.
4
If the prosecutors that do things that are unethical, immoral, and just plain wrong are not held accountable, and they're not--then that shows to the world how hypocritical the United States is when our politicians and State Department people are always criticizing other countries for their legal misdeeds.
And, to say how many people, especially the young and minority in these here United States simply don't have faith in the Justice System, known derisively by many as the "Just Us" system.
And, to say how many people, especially the young and minority in these here United States simply don't have faith in the Justice System, known derisively by many as the "Just Us" system.
6
And if you need an even more blatant example of prosecutorial misconduct, look at this article:
https://www.techdirt.com/articles/20160603/13483234618/fbi-prosecutors-g...
"So much for attorney-client privilege. According to a report by Dan Christensen of Florida Bulldog, the feds' insistence that defendants utilize its contracted document duplication system has led to FBI access of privileged work product.
Court papers filed last week by attorneys for Dr. Salo Schapiro contend the secret practice was not the action of “just one rogue agent or prosecutor.” Rather, it was apparently an “office-wide policy” of both the U.S. Attorney’s Office and the FBI that’s gone on for “at least 10 years.”
The unwritten policy involves “surreptitiously copying defense counsel’s work product through the government-contracted copy service that the government requires defense counsel to use to obtain the discovery documents’’ needed to properly prepare for trial, according to court papers that seek either the dismissal of Schapiro’s indictment or the disqualification of the entire prosecution team.
[...]
Specifically, the court papers allege that Fort Lauderdale-based copying service Imaging Universe and president Ignacio E. Montero provided the government with CDs containing duplicates of documents Schapiro’s defense team culled from 220 boxes of evidentiary records in preparation for trial."
Nice touch!!!
https://www.techdirt.com/articles/20160603/13483234618/fbi-prosecutors-g...
"So much for attorney-client privilege. According to a report by Dan Christensen of Florida Bulldog, the feds' insistence that defendants utilize its contracted document duplication system has led to FBI access of privileged work product.
Court papers filed last week by attorneys for Dr. Salo Schapiro contend the secret practice was not the action of “just one rogue agent or prosecutor.” Rather, it was apparently an “office-wide policy” of both the U.S. Attorney’s Office and the FBI that’s gone on for “at least 10 years.”
The unwritten policy involves “surreptitiously copying defense counsel’s work product through the government-contracted copy service that the government requires defense counsel to use to obtain the discovery documents’’ needed to properly prepare for trial, according to court papers that seek either the dismissal of Schapiro’s indictment or the disqualification of the entire prosecution team.
[...]
Specifically, the court papers allege that Fort Lauderdale-based copying service Imaging Universe and president Ignacio E. Montero provided the government with CDs containing duplicates of documents Schapiro’s defense team culled from 220 boxes of evidentiary records in preparation for trial."
Nice touch!!!
7
Let's address the practice of "Plea Bargaining".
It's outright blackmail.
It's outright blackmail.
6
So, the idea is to have the justice department police prosecutors. So, the idea is to have foxes police the foxes. Ayuh,..
3
All the same, I'd rather have someone looking over your shoulder. If the oversight body finds that you withheld evidence "by mistake," you can always plead your case to the judge. Let's just hope the overworked prosecutor in your case doesn't withhold exculpatory evidence!
1
One young prosecutor insists that it doesn't matter, ...these people will continue to commit crimes so if not guilty of this crime...
Not sure why many prosecutors feel this way, is it in their education, on the job training or both.
Not sure why many prosecutors feel this way, is it in their education, on the job training or both.
1
The Trump solution - fire them or jail as he recommended for Hillary Clinton? Ryan needs to give Trump the copy of the Constitution he keeps in his pocket . The Party opened Pandora's box !!!!
And meanwhile we have Trump complaining that the judge in his case is biased against him. Oh if only he could he know the experience of black men in the South as they looked at a white judge, prosecutor and jury...
1
It is very hard to believe that this type of prosecutorial behavior, which one would associate more with Stalinist Russia or Stasi East Germany, happens routinely today in the USA.
We should look around the world to find and adopt the most successful practices for dealing with prosecutorial misconduct and then look to improve on them here in the Exceptional USA at both the state and federal level.
As wrongful imprisonment is a crime for which individual citizens can be held criminally responsible, it should be the same for prosecutors who win wrongful convictions.
I would have more faith that a jury could distinguish between missed evidence in a complex white collar crime and intentionally withheld evidence in violent crime situations, than fall back on the excuse of the possibly over-worked prosecutor as the reason for doing nothing. The prosecutor's work load could be borne in mind in fairly sentencing overworked prosecutors.
We most likely need more prosecutors to do complex white collar work right in the first place, but that will require higher taxes to support the standard of equal justice for all.
Since law and order Republicans are uniformly against higher taxes, the only way to start to get to a solution beyond the exchange of newspaper ideas, is to Vote Against Republicans, whatever that might entail.
We should look around the world to find and adopt the most successful practices for dealing with prosecutorial misconduct and then look to improve on them here in the Exceptional USA at both the state and federal level.
As wrongful imprisonment is a crime for which individual citizens can be held criminally responsible, it should be the same for prosecutors who win wrongful convictions.
I would have more faith that a jury could distinguish between missed evidence in a complex white collar crime and intentionally withheld evidence in violent crime situations, than fall back on the excuse of the possibly over-worked prosecutor as the reason for doing nothing. The prosecutor's work load could be borne in mind in fairly sentencing overworked prosecutors.
We most likely need more prosecutors to do complex white collar work right in the first place, but that will require higher taxes to support the standard of equal justice for all.
Since law and order Republicans are uniformly against higher taxes, the only way to start to get to a solution beyond the exchange of newspaper ideas, is to Vote Against Republicans, whatever that might entail.
A reckless disregard for the truth seems to be a qualification to be a prosecutor. I was charged with a cannabis crime (as a medical user when there was actually a unenforced law permitting that on the books.) Facing the typically ridiculous potential for years behind bars for a condition that is known to be aided by cannabis, the only really safe and effective option, I decided to plead guilty in order to get access to a program that would give me a clean record to match my otherwise officially spotless record. I sat before a judge with my attorney.
We'd informed the prosecutor that some stuff she'd dug up on someone with the same name in a large West Coast state having multiple run-ins with the law wasn't me. I'd not been there since the 1960s, when I was far too young for a crime spree. Nothing really matched up between me and this phantom person, so thought not an issue.
Knowing she was barking up the wrong tree, the sentencing proceeded with the prosecutor bringing up this clearly bogus fact to urge the judge to come down hard on me instead of granting me access to a way to clear my record if I behaved on probation. My attorney pointed out the facts, to which the judge simply rolled her eyes, then just ignored the gross prevarications from the opposite side of the bench. The judge heard this sort of nonsense before (the prosecutor was later mildly sanctioned for other egregious conduct), but nothing more was done, so this liar still has her job. That's just-us in IL.
We'd informed the prosecutor that some stuff she'd dug up on someone with the same name in a large West Coast state having multiple run-ins with the law wasn't me. I'd not been there since the 1960s, when I was far too young for a crime spree. Nothing really matched up between me and this phantom person, so thought not an issue.
Knowing she was barking up the wrong tree, the sentencing proceeded with the prosecutor bringing up this clearly bogus fact to urge the judge to come down hard on me instead of granting me access to a way to clear my record if I behaved on probation. My attorney pointed out the facts, to which the judge simply rolled her eyes, then just ignored the gross prevarications from the opposite side of the bench. The judge heard this sort of nonsense before (the prosecutor was later mildly sanctioned for other egregious conduct), but nothing more was done, so this liar still has her job. That's just-us in IL.
5
I wonder why this isn't happening now. Is the Justice Department unaware of this problem and tactic? More likely both the culture and structure of Justice mitigate against holding prosecutors accountable, and that can only change if we have a President and Attorney General who take this issue more seriously.
2
If the prosecutor prosecuted Mr. David Brown knowing he is innocent, then the prosecutor should be prosecuted for attempted murder and 1st degree murder if the sentence is carried out against Mr. Brown.
The equivalent punishment received by the innocent should be imposed on prosecutors who knowingly violate an innocent person's rights.
The equivalent punishment received by the innocent should be imposed on prosecutors who knowingly violate an innocent person's rights.
3
The long-time county prosecutor in my hometown was found to have wrongfully convicted five men in a murder case, despite having ample evidence implicating three other perpetrators. The evidence included DNA, jailhouse confessions recorded on phone calls, and a security camera's capture of a suspect's vehicle at a convenience store near the scene and near the time of the crime--videotape that, like Rosemary Wood's 18-minute gap, was mysteriously erased.
When the state Innocence Commission determined the convicted men were actually innocent (having served as much as 11 years), we taxpayers were on the hook for more than $5 million in damages beyond what the County's insurance covered. The prosecutor, who finally lost his reelection bid in 2014, escaped scot-free, and is now the hired county attorney for a neighboring county.
Many local residents would like to see him held personally liable for his possibly criminal actions in hiding and lying about exculpatory evidence, and to see him disbarred. Alas, there's no mechanism to do so.
When the state Innocence Commission determined the convicted men were actually innocent (having served as much as 11 years), we taxpayers were on the hook for more than $5 million in damages beyond what the County's insurance covered. The prosecutor, who finally lost his reelection bid in 2014, escaped scot-free, and is now the hired county attorney for a neighboring county.
Many local residents would like to see him held personally liable for his possibly criminal actions in hiding and lying about exculpatory evidence, and to see him disbarred. Alas, there's no mechanism to do so.
7
Federal prosecutors are held to the highest standards of conduct every day. In that most acts in the course of official duties are not amenable to suit, allegations of misconduct ensue. Allegations trigger internal review. It has not been unheard of for suicide to follow.
Publishing statements such as "they are almost never held accountable" is, at best, foolish.
Do prosecutors err and do they break the law? This does happen, and the consequences are severe. There already exists federal oversight and there is no need for gratuitous oversight.
Another attempt to undermine the legal system. Oops. My bad. It is the presumptive Republican candidate that is said to be carrying that water.
Publishing statements such as "they are almost never held accountable" is, at best, foolish.
Do prosecutors err and do they break the law? This does happen, and the consequences are severe. There already exists federal oversight and there is no need for gratuitous oversight.
Another attempt to undermine the legal system. Oops. My bad. It is the presumptive Republican candidate that is said to be carrying that water.
2
There's plenty of justice in the "exceptional" US of A if you're rich enough to pay for it.
The rest of us, not so much.
The rest of us, not so much.
6
Many prosecutors treat prosecutions as if they were engaged in a sport. It's my experience that certain prosecutors are out to get convictions even when presented with the clearest evidence of innocence.
Once when I was leaving a courtroom where the judge had just dismissed a charge because the defense had unearthed some exculpatory information, as I held the door for the prosecutor to leave the courtroom the prosecutor muttered under his breath to me, " you got lucky". The implication which I took out of this in that context was that he knew of the exculpatory material but kept it to himself so that he could satisfy his competitive need to garner a guilty verdict.
Prosecutors are public servants. Their mission is to see to it that justice is administered, not to obtain convictions at all costs.
Once when I was leaving a courtroom where the judge had just dismissed a charge because the defense had unearthed some exculpatory information, as I held the door for the prosecutor to leave the courtroom the prosecutor muttered under his breath to me, " you got lucky". The implication which I took out of this in that context was that he knew of the exculpatory material but kept it to himself so that he could satisfy his competitive need to garner a guilty verdict.
Prosecutors are public servants. Their mission is to see to it that justice is administered, not to obtain convictions at all costs.
10
"...ruling that the new evidence would not have made a difference in the jury's decision."
So the SC of Louisiana can read minds? That is the only conclusion you can come to if you buy that explanation. Powerful evidence to the contrary is that the prosecutor(s) didn't think so, or else WHY WOULD THEY HAVE WITHHELD THIS INFORMATION!
We're finally starting to hold abusive policemen accountable. It's time we do the same with prosecutors.
So the SC of Louisiana can read minds? That is the only conclusion you can come to if you buy that explanation. Powerful evidence to the contrary is that the prosecutor(s) didn't think so, or else WHY WOULD THEY HAVE WITHHELD THIS INFORMATION!
We're finally starting to hold abusive policemen accountable. It's time we do the same with prosecutors.
1
"States' Rights" in the USA mean federal oversight is not going to happen in any meaningful substantive way within the states' prosecutors.
A media-centric case might force a state prosecutor to tow the line on rare occasion, but that is stating the obvious.
Unfortunate but true.
2
It's not just murder and death penalty cases: Prosecutors routinely engage in misconduct on minor offenses, leading to convictions of innocent people, knowing nobody will ever really go after them for errors with a misdemeanor assault or pot possession or disorderly conduct case.
Who's supposed to stop them? In theory, the judge. But the judge is often elected, and lower conviction rates lead to them being branded "soft on crime" in the next election. Judges, keen on keeping their jobs, err on the side of convicting the innocent than on the side of letting the guilty go free.
And this isn't just theoretical: A good friend of mine was recently framed for an assault that she was actually the victim of, and the prosecution succeeding in hiding a great deal of exculpatory evidence from the jury.
Who's supposed to stop them? In theory, the judge. But the judge is often elected, and lower conviction rates lead to them being branded "soft on crime" in the next election. Judges, keen on keeping their jobs, err on the side of convicting the innocent than on the side of letting the guilty go free.
And this isn't just theoretical: A good friend of mine was recently framed for an assault that she was actually the victim of, and the prosecution succeeding in hiding a great deal of exculpatory evidence from the jury.
11
Voters need to pay special attention to elections for judges at all levels this year more than ever because BILLIONS of dollars are being spent by BIG democracy-destroying money like the Koch brothers to try to take over the justice system. It appears that they have done a good job in some of the appeals and state supreme courts like Louisiana. It's a very sinister situation for democracy in America.
8
Bad prosecutors create/enable bad cops and feed bad government....The rot settles in as doing business 'as usual'. Cam all cops and prosecute the bad prosecutors
10
Nothing hurts a prosecutor more than brining him/her up on ethics violations, potentially leading to disbarment.
There is a role for ethics charges.
Would someone act differently if they thought they would be disbarred.
You Betcha
There is a role for ethics charges.
Would someone act differently if they thought they would be disbarred.
You Betcha
8
No mention in this editorial of misconduct by federal prosecutors? There have been several cases this past year, with admonishments from federal judges.
5
"It is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights."
Why "repeatedly"?
Why "repeatedly"?
4
A better solution would be to bring Federal criminal civil rights violation charges against those responsible and put them in prison.
3
Under the new Democratic administration, I'd like to see a broad JD net cast over all prosecutorial and law enforcement agencies, to insure that the GUILTY face serious punishment for their misdeeds, not the innocent and victims, as is so often the case. Sometimes, it feels as if we are still living in a wild west world of bigots and vigilantes, in this country, where tiny fiefdoms make their own rules as they go along. Use some of the funds, we now dedicate to war, to protect the public from these dangerous loose canons.
6
Regarding Mr. Brown's sentence, it is hard to understand how testimony that he did not commit the murder, others did, would not have influenced a jury's sentence, unless, of course, there were other impermissible factors, such as racial bias, at work. Either way, this does not pass the smell test.
5
The Times editors are wrong. You can't call the Fed to stop prosecutorial misconduct because the U.S. Justice Department is itself guilty of misconduct and obstruction of justice in the Clinton case. It won't hold Hillary to account when the evidence against her is overwhelming. This explains why: http://investmentwatchblog.com/a-fantasy-fbi-director-james-comey-finall...
6
Maybe I'm old fashioned but what about the moral aspect of a prosecutor knowingly sending a human being to prison on a false pretenses? How do they sleep at night?
Is their job so precious that they can make a rational argument to themselves that it's somehow worth it? Aren't they all lawyers, and couldn't they make a living outside of the courts?
What I hear so often, is that they say that if the defendant was not guilty of a charged crime they are certainly guilty of, "something." That gives them, at least in a sense, a God like, omnipotent power, where they can hand out punishment, or "justice," without fear of any repercussions. All power corrupts, and there must be a fundamental flaw in their personalities that allow these "bad" prosecutors to behave the way they do. The public, needs a system imbedded within the justice system that prevents this all too common abuse.
Is their job so precious that they can make a rational argument to themselves that it's somehow worth it? Aren't they all lawyers, and couldn't they make a living outside of the courts?
What I hear so often, is that they say that if the defendant was not guilty of a charged crime they are certainly guilty of, "something." That gives them, at least in a sense, a God like, omnipotent power, where they can hand out punishment, or "justice," without fear of any repercussions. All power corrupts, and there must be a fundamental flaw in their personalities that allow these "bad" prosecutors to behave the way they do. The public, needs a system imbedded within the justice system that prevents this all too common abuse.
8
I know many Assistant US Attorneys in the Southern and Eastern districts of New York, people I used to call friends until they proved themselves to be genuine psychopaths. They sleep very well at night and love their jobs. Really. Job satisfaction is very high among AUSAs.
3
Prosecutors at the local level are particularly immune because they cause harm under the radar. No one cares very much that a poor person spends six months in the county jail for a wrongful conviction. Yet this individual loses their home, their job, and often their family falls apart. Who helps them get back on their feet?
15
Yes, politics enters into far too many prosecutorial decisions. But in the enduring love fest with anything coming from Washington, DC, it is amazing that so many believe that the generic "federal authorities" are utterly pure and immune from any improper influence, political considerations, personal biases and the like.
Be careful what you ask for. We as citizens have far more control over our courts not the state and local level than occurs once the feds come into the picture. The sheer size of the federal machinery can trample over our rights and interests quite easily should it so choose and they are much harder to correct. There was a good reason why our founding structures didn't hand the keys of the kingdom to those in DC, something which many people today don't seem to recognize or care about.
Be careful what you ask for. We as citizens have far more control over our courts not the state and local level than occurs once the feds come into the picture. The sheer size of the federal machinery can trample over our rights and interests quite easily should it so choose and they are much harder to correct. There was a good reason why our founding structures didn't hand the keys of the kingdom to those in DC, something which many people today don't seem to recognize or care about.
3
The slime that are too many prosecutor's today are costing America greatly.
These prancing peacocks go on to public office at the expense of America, with blood on their hands.
Prosecutor's should have to wait five years before they are allowed to run for higher office.
These prancing peacocks go on to public office at the expense of America, with blood on their hands.
Prosecutor's should have to wait five years before they are allowed to run for higher office.
6
Your article ignores another problem which receives almost no attention. That is Federal prosecutorial misconduct. I know of several egregious examples of such over the past several years. Their actions are virtually immune from outside review.
8
I'm going to wade in up to my eyeballs by writing this.... but justice should have nothing to do with retaliation, retribution or any other form of vindictizness. All of these should remain with the will of the victims and should be dealt with only with monetary worth.
The role with our justice system should be about incarceration when a convict can be shown to continue be prone to continue together with rehabilitation, or rehabilitation by itself. Why should we spend huge sums of money to warehouse people (who could be rehabilitated) who when released go back to what they were doing. Isn't it better to make them productive members of society?
The role with our justice system should be about incarceration when a convict can be shown to continue be prone to continue together with rehabilitation, or rehabilitation by itself. Why should we spend huge sums of money to warehouse people (who could be rehabilitated) who when released go back to what they were doing. Isn't it better to make them productive members of society?
3
Call the feds? Federal prosecutors are among the worst offenders in this regard. One almost never sees a reversal of a false conviction in federal court.
In the mind of a "skilled" federal prosecutor, everyone is guilty of something.
In the mind of a "skilled" federal prosecutor, everyone is guilty of something.
7
Prosecutorial charging decisions involving overcharging should be subject to peer review and/or judicial review. I have seen some atrocities over the the years. It's legal extortion. It sure is not seeing that justice is done. Like they say , give someone a hammer, everything around is a nail. Except some prosecutors use a sledgehammer to drive a brad.
6
One of the main arguments for abolition of the death penalty in my country was the potential for wrongful conviction. Our lawmakers (for now) understand that to "err is human", a renegade cop's "bee in the bonnet" and "public outcry" can all too easily negatively affect the outcome.
3
While I've known about these problems (see www.innocenceproject.org) reading about this again makes me so angry. I feel that those who, under the guise of justice, knowing get wrongful convictions in order to get a "feather in their cap" for being tough on crime is a crime should have to pay a price. Those responsible for such misconduct should have to serve the sentence they wrongly imposed on another, that would be justice and make violators think twice before engaging in such practices.
6
Great editorial. I have seen serious prosecutorial misconduct first hand. I would add that, given states' laws disenfranchising those who are convicted of felonies, a single county prosecutor can effectively decide who may and who may not vote.
4
"There is a successful model for this in the Justice Department’s monitoring of police departments with histories of misconduct."
There's that pesky phrase "successful model." It's easy to build models and have them work flawlessly. Just ask the good citizens of Chicago how well the real thing is working out.
There's that pesky phrase "successful model." It's easy to build models and have them work flawlessly. Just ask the good citizens of Chicago how well the real thing is working out.
3
Don't forget the plea bargaining system as a major source of injustice. Prosecutors will "overcharge" a crime (charge the defendant with a crime more serious than what is supported by the evidence) in order to coerce a guilty plea to a lesser crime. This is how prosecutors get to a conviction rate of over 90%.
Overcharging is blatant extortion and the judges should stamp this out. But they don't.
So how should the Justice Dept handle this?
Overcharging is blatant extortion and the judges should stamp this out. But they don't.
So how should the Justice Dept handle this?
7
Americans also need to challenge their underlying assumption that people who become prosecutors are primarily driven by a passion for justice.
In New York, even though the starting salary for an assistant DA is quite low, those jobs are very competitive. The DA's office has no shortage of Ivy League grads to choose from.
Why? For those interested in courtroom experience, the DA's office is a far better bet than joining a large firm where one will toil in obscurity for years without getting near a courtroom.
Whether pursuing a career in politics, business, government or law, a five year stint in the NY DA's office is an excellent launching pad, making the low salary a tolerable, temporary sacrifice.
Developing a network of government contacts is just one of the perks,
but what no one is willing to acknowledge is that there are at least 500 super ambitious assistant DA's in New York who all need to find some way to distinguish themselves.
Best way to do that? Ideally, a 100% conviction rate demonstrates prowess as well as judgment in choosing cases that are winnable.
Everything is about winning and losing, notions of justice rarely enter the equation, despite what they tell you on Law & Order.
At the next job interview, an ADA needs to point to a "winning" record, not someone who "did the right thing".
The most ambitious ADA's are desperate to get their hands on a big case that could bring lots of publicity, and the best know how to "create" their own luck.
In New York, even though the starting salary for an assistant DA is quite low, those jobs are very competitive. The DA's office has no shortage of Ivy League grads to choose from.
Why? For those interested in courtroom experience, the DA's office is a far better bet than joining a large firm where one will toil in obscurity for years without getting near a courtroom.
Whether pursuing a career in politics, business, government or law, a five year stint in the NY DA's office is an excellent launching pad, making the low salary a tolerable, temporary sacrifice.
Developing a network of government contacts is just one of the perks,
but what no one is willing to acknowledge is that there are at least 500 super ambitious assistant DA's in New York who all need to find some way to distinguish themselves.
Best way to do that? Ideally, a 100% conviction rate demonstrates prowess as well as judgment in choosing cases that are winnable.
Everything is about winning and losing, notions of justice rarely enter the equation, despite what they tell you on Law & Order.
At the next job interview, an ADA needs to point to a "winning" record, not someone who "did the right thing".
The most ambitious ADA's are desperate to get their hands on a big case that could bring lots of publicity, and the best know how to "create" their own luck.
10
In the wake of "Serial" and "Making a Murderer" — regardless of whether their subjects are guilty or innocent, the presence of law-enforcement/judicial misconduct or, at least, sloppiness, is manifest — and the many disturbing incidents in recent years that have ripped the veil from troubling injustice in the justice system, it's hard not to conclude that the remarkable American experiment in "democracy" is coming to an end.
The fact that voters will choose between two widely reviled presidential candidates come November is just more startling, distressing evidence.
The fact that voters will choose between two widely reviled presidential candidates come November is just more startling, distressing evidence.
3
Chief Judge Alex Kozinski, the judge cited in the 4th paragraph for saying there is an "epidemic" of Brady violation--a Reagan appointee, BTW--said only judges can stop this. He's right.
If judges were to hold Brady violations made under oat as civil contempt and perjury, and then incarcerate the offending prosecutors accordingly, the problem would be greatly reduced. But local judges are usually elected, and the last thing they want is for police unions and prosecutors to claim that judge is soft on crime.
Jurors and help. Jurors should recognize that police and prosecutors deserve no special deference, and the the nation-wide epidemic of Brady violations destroys their credibility, and act accordingly.
If judges were to hold Brady violations made under oat as civil contempt and perjury, and then incarcerate the offending prosecutors accordingly, the problem would be greatly reduced. But local judges are usually elected, and the last thing they want is for police unions and prosecutors to claim that judge is soft on crime.
Jurors and help. Jurors should recognize that police and prosecutors deserve no special deference, and the the nation-wide epidemic of Brady violations destroys their credibility, and act accordingly.
4
Exactly! A misleading statement to public officials is a crime, and of course the same holds for misleading the jury and the judge. The "stopping" of the bad practice by a lengthy and uncertain process of "training" is not a remedy but a pretense of addressing the problem. Why lawyers who passed a bar exam should be trained in the basic rules?
1
There are always bad actors and the federal judiciary is no exception.
The power they wield is staggering---hence the overwhelming number of pleas bargains. I pity anyone who goes to trial because if they lose, they can expect a disproportionate sentence.
Some form of oversight would be welcomed as well as less emphasis on prosecutors batting averages. They are already in the big leagues and that is honor enough than getting the best conviction rate in order to get the best job in the best firm for the best salary.
The power they wield is staggering---hence the overwhelming number of pleas bargains. I pity anyone who goes to trial because if they lose, they can expect a disproportionate sentence.
Some form of oversight would be welcomed as well as less emphasis on prosecutors batting averages. They are already in the big leagues and that is honor enough than getting the best conviction rate in order to get the best job in the best firm for the best salary.
2
I understand ‘pro-law’ people wanting to believe that all police and prosecutors are honest, but they are not all honest. Testi-lying (police) and Brady violations (prosecutors) need to be investigated and punished. Failure to do so weakens the entire judicial system.
What a silly statement at the end, “of course, many district attorneys will balk at being put under a federal microscope.” They all will object. Nobody wants oversight. They may grudgingly admit to a few problems, and will claim those can be fixed within the system by those who know it best. It is going to take a series of scandals to break that argument, and how often are state and local cases given national news coverage?
What a silly statement at the end, “of course, many district attorneys will balk at being put under a federal microscope.” They all will object. Nobody wants oversight. They may grudgingly admit to a few problems, and will claim those can be fixed within the system by those who know it best. It is going to take a series of scandals to break that argument, and how often are state and local cases given national news coverage?
2
This is only part of the problem. District attorneys have overwhelming control of the justice system not only by deciding who and how to prosecute but making plea bargaining deals, which decide cases far more frequently than juries. This leads innocent people to plead guilty rather than risk much longer sentences from a trial where the prosecution has control over the evidence.
http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-gui...
http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-gui...
4
Who do you call when it is the Feds who are guilty of prosecutorial misconduct?
Remember the federal judge who ordered Justice Department lawyers to take ethics classes after he learned they’d deliberately lied about President Obama’s executive order on immigration?
In another incident this year a federal jury acquitted Vascular Solutions and its CEO on all criminal charges related to the promotion of one of its varicose-vein kits. The company’s attorneys found evidence that federal prosecutors had shared grand jury testimony from some witnesses with other witnesses, interviewed witnesses outside the grand jury without their counsel present, and threatened perjury charges against witnesses whose testimony didn’t fit the DOJ narrative.
So it's not just local prosecutors who are guilty of misconduct in order to get a conviction.
Remember the federal judge who ordered Justice Department lawyers to take ethics classes after he learned they’d deliberately lied about President Obama’s executive order on immigration?
In another incident this year a federal jury acquitted Vascular Solutions and its CEO on all criminal charges related to the promotion of one of its varicose-vein kits. The company’s attorneys found evidence that federal prosecutors had shared grand jury testimony from some witnesses with other witnesses, interviewed witnesses outside the grand jury without their counsel present, and threatened perjury charges against witnesses whose testimony didn’t fit the DOJ narrative.
So it's not just local prosecutors who are guilty of misconduct in order to get a conviction.
4
Serious prosecutorial misconduct is business as usual all over this country, not just in Louisiana.
This fact more than any other I can think of defines us, the people of the United States who pay so much lip service to freedom, justice, and fair play. What an awful joke for those on the margins of society and the few who are sincere in their faith in justice.
And the news media has been very much a part of the equation for centuries. Only recently pointing out wrong doing by law enforcement and the courts and prisons.
This fact more than any other I can think of defines us, the people of the United States who pay so much lip service to freedom, justice, and fair play. What an awful joke for those on the margins of society and the few who are sincere in their faith in justice.
And the news media has been very much a part of the equation for centuries. Only recently pointing out wrong doing by law enforcement and the courts and prisons.
3
You pre-suppose that the federal system is better. My experience is that it is fraught with misconduct and conflicts. The use of criminal threats by federal regulatory authorities is a standard practice to blackmail fines that feed regulatory agencies. It is virtually impossible to fight the unlimited resources of the federal government and routinely companies and individuals rollover. This is not unique to this administration by any means but they have used a very heavy hand in using this approach. You are correct to call out the unfair use of prosecutors and their threats. The problem runs much deeper.
4
I absolutely agree. My husband once defended a client in a federal case. He says never again will he be involved in a criminal case. The two AUSAs made blatantly racist remarks in the presence of my husband and his client (never mind their boss is Indian). My husband could do nothing out of fear of retaliation to his client. We both have many current AUSAs we used to call friends in law school. In casual conversation they revealed themselves to be psychopaths. We are disgusted.
3
It is clear that these prosecutors should be civilly liable and their victims ought to be able to sue for damages from misconduct - class action if necessary for egregious serial misconduct. Failing that, however, why not use the FTC model where customers can write about complaints and if a pattern emerges, the FTC can investigate or bring a suit on behalf of consumers? The idea here is that the victims can initiate the oversight rather than relying on the DoJ to monitor every case in the entire country - especially now that there are so many unfilled judicial vacancies from failure to confirm judicial nominations
19
America has a great love for seeking justice by our own hands, whether it's a wronged individual, a police officer, a corrections officer, prosecutor, or judge. No one trusts the justice system to mete out enough justice it seems.
Then there is the problem of political power associated with our justice system. Whether it's hoping to be reelected, or wanting to rise to the top of the heap by proving yourself at the expense of defendants.
Strengthen our public defender system, require civilian overview of police, and if necessary assign human rights monitors to police departments, and prisons. Demand increased transparency at the federal level especially our FBI with it's horrendous record of civil rights violations.
While this might mitigate some of the abuses, those in power will always have the power to abuse those with less.
Then there is the problem of political power associated with our justice system. Whether it's hoping to be reelected, or wanting to rise to the top of the heap by proving yourself at the expense of defendants.
Strengthen our public defender system, require civilian overview of police, and if necessary assign human rights monitors to police departments, and prisons. Demand increased transparency at the federal level especially our FBI with it's horrendous record of civil rights violations.
While this might mitigate some of the abuses, those in power will always have the power to abuse those with less.
1
The situation is far worse than that which this editorial describes. Misconduct by prosecutors permeates every level within the legal system, and trickles down into local government, often taking the form of passive-aggressive behavior; refusing to acknowledge or conform to even the most basic legal principles in order to cover-up government corruption and malfeasance. Here in Portland, for example, municipal bonds aren't considered securities, engineering documents concealed from the public don't contain material facts, and the health department doesn't have the jurisdiction or authority to enforce public health laws.
1
So far, the Court has ruled mostly in favor of the prosecution. They gave New Orleans a total pass when they decided that multiple instances of bad faith were individual actions, rather than the result of policy and practice.
Two things drive the prosecution to bad faith. The first is that they are rewarded - keep their job, get re-elected - if they have a high conviction rate. The second is that they are certain they are right, that they know the right outcome and need to make sure it happens. Few prosecutors accept that they jailed an innocent person.
The Feds and the Courts can offer oversight, but real change only comes when justice, and not conviction, is what is rewarded. People are geared for that kind of fluid uncertainty. Penalizing prosecutors - publicly, loudly, in bright daylight - who have clearly overstepped would at least put the concept that justice is key back on the table.
Two things drive the prosecution to bad faith. The first is that they are rewarded - keep their job, get re-elected - if they have a high conviction rate. The second is that they are certain they are right, that they know the right outcome and need to make sure it happens. Few prosecutors accept that they jailed an innocent person.
The Feds and the Courts can offer oversight, but real change only comes when justice, and not conviction, is what is rewarded. People are geared for that kind of fluid uncertainty. Penalizing prosecutors - publicly, loudly, in bright daylight - who have clearly overstepped would at least put the concept that justice is key back on the table.
22
The real issue is not the type of Brady violation described here. Turning over exculpatory material is a judgement call and sometimes prosecutors get it wrong. The bigger problem is the collusion between prosecutors, police and judges. Prosecutors know when a officer lies on the stand and instead of stopping it, they go along with it. It starts with a small helpful lie and then when the whopper comes, the prosecutor is so compromised by the many small helpful lies that they cannot act. Case in point is the Sandra Bland matter. The arrest affidavit is full of inconsistencies and a good prosecutor should have dismissed what clearly was a petty grudge by the officer. Until this type of collusion stops the justice system will continue to fail America's unwanted.
50
As awful as failing to turn over exculpatory information is, I think the misuse of prosecutorial discretion has an even more corrosive effect on the justice system. We've all seen how reluctant prosecutors are to file charges against police officers, even when there is video and other evidence supporting a charge. Often prosecutors will allow a grand jury to take the blame for failing to charge, thereby avoiding the political consequences for their own careers. While its axiomatic that a grand jury will indict a ham sandwich, it should also be noted that a prosecutor who wants the grand jury to NOT indict can manipulate the proceeding to that end. The Trayvon Martin case is an example of this.
3
The failure to correct many of the inequities and injustices in society can be traced to politics, and the prevailing temper of politics can be traced to campaign rhetoric. Sounding tough on criminals and scofflaws burnishes the appeal of every aspiring politician . During election campaigns, little if any attention is given to the disturbing practices detailed in this excellent editorial, or to the abusive treatment of prisoners, or to the curtailment of rights of former prisoners, or to the career-incentives for prosecutors based on the number of convictions built into our "justice" system. The voices of advocates for the rights of suspects, defendants and prisoners can hardly be heard above the din of political speeches pandering to fear and prejudice.
1
I've been a prosecutor for 15 years. If someone is making deliberate decisions to withhold evidence or mislead the Court, they should be punished. I cringe every time I hear a story of hidden evidence or lies told to a Court. But, the author is offering an unworkable and unnecessary solution to a problem that doesn't exist. I haven't witnessed the rampant misconduct this piece alleges. The general attitude towards discovery is "when in doubt, give it out." We are well aware that the decisions we make have profound impacts on many people's lives and most of us don't take that lightly.
The same people who accuse prosecutors of wanting to win at all costs then complain when someone has a long rap sheet but few convictions or have received only light punishment. To them prosectuors are lazy and incompetent when it comes to prosecuting the guilty while at the same time being devious schemers concocting plots to manufacture evidence against the guilty.
The author doesn't explain how federal oversight of state prosecutors would actually work. Would you now have federal agents thumbing through files and influencing the charging decisions made in local cases? And who oversees the federal prosecutors?
The same people who accuse prosecutors of wanting to win at all costs then complain when someone has a long rap sheet but few convictions or have received only light punishment. To them prosectuors are lazy and incompetent when it comes to prosecuting the guilty while at the same time being devious schemers concocting plots to manufacture evidence against the guilty.
The author doesn't explain how federal oversight of state prosecutors would actually work. Would you now have federal agents thumbing through files and influencing the charging decisions made in local cases? And who oversees the federal prosecutors?
17
"...a problem that doesn't exist." Talk about denial.
Prosecutorial abuse and misconduct are rampant throughout our legal system at both the federal and local levels. Under the supposed banner of prosecutorial discretion, prosecutors are free to pursue personal or political agendas, more often than not designed to advance their own political careers. For the New Yorkers in the crowd, names like Elliot Spitzer, Andrew Cuomo and Eric Schneiderman should resonate, but one of the leading practitioners of politically aggrandizing prosecution, Kamela Harris, is on the verge of becoming the next Senator from California.
Two points are worth noting. First, the system will break down if prosecutorial decisions ever become broadly reviewable -- either within individual cases or a separate criminal matters. We simply do not have enough judicial resources for such an enterprise. Second, it is laughable that someone would think that the politically compromised DOJ could play that role. Did someone say something about the fox guarding the hen house?
The best way to address this issue is with transparency and an honest press. The press, after all, is what makes crusaders out of prosecutors. More honest reporting and less political cheerleading would be a good start.
Two points are worth noting. First, the system will break down if prosecutorial decisions ever become broadly reviewable -- either within individual cases or a separate criminal matters. We simply do not have enough judicial resources for such an enterprise. Second, it is laughable that someone would think that the politically compromised DOJ could play that role. Did someone say something about the fox guarding the hen house?
The best way to address this issue is with transparency and an honest press. The press, after all, is what makes crusaders out of prosecutors. More honest reporting and less political cheerleading would be a good start.
1
Despite the rhetoric, most prosecutors, judges and the like generally play by the rules. Abuses do occur at all levels in some cases - yes, even at the much lauded federal level - and should be dealt with strictly to cease such abuses. That means not just dismissing cases, for that does nothing personally to the prosecutor, for example, but more meaningful sanction like removal from office or disbarment.
It must be pointed out again, however, that one problem - often supported by the general voting public - is that we have far too many laws. One reason prosecutors are so able to bully defendants into taking plea agreements is that they can bring numerous charges for one crime against a person. It used to be if you were accused of assault you were charged under state law for assault. Now the prosecution can add separate charges about the type of weapon, where that was obtained, perhaps the location of the offense or race of the alleged victim. Then bring in the threat of the feds doubling down on more charges that were originally none of their business but for which we now have many duplicate laws. The result? An accused is offered, "plead guilty to charges 1 and 2 and we'll drop 3 - 9", something their attorney often encourages. Granted, many are often guilty as charged but they don't even get their day in court for fear that doing so will just make it far worse. Not what the Founders intended.
Getting tough on crime is not always acting justly.
It must be pointed out again, however, that one problem - often supported by the general voting public - is that we have far too many laws. One reason prosecutors are so able to bully defendants into taking plea agreements is that they can bring numerous charges for one crime against a person. It used to be if you were accused of assault you were charged under state law for assault. Now the prosecution can add separate charges about the type of weapon, where that was obtained, perhaps the location of the offense or race of the alleged victim. Then bring in the threat of the feds doubling down on more charges that were originally none of their business but for which we now have many duplicate laws. The result? An accused is offered, "plead guilty to charges 1 and 2 and we'll drop 3 - 9", something their attorney often encourages. Granted, many are often guilty as charged but they don't even get their day in court for fear that doing so will just make it far worse. Not what the Founders intended.
Getting tough on crime is not always acting justly.
2
The disciplinary counsel's office in any state is ostensibly charged with attorney discipline in the state, including conduct of prosecutors.
However, if you're an attorney in Louisiana, what happens an to your law license after a complaint is filed with the bar association depends entirely on your race and political connections. The same person, Charles Plattsmier, has been in charge of the disciplinary counsel's office since 1996.
However, don't look to Plattsmier to discipline any district attorney in the state with the most unethical prosecutors in the country, no matter how egregious the conduct. To date no prosecutor has been disciplined for misconduct in Louisiana under his watch.
Perhaps most amazingly, absolutely nothing has happened to discipline the attorneys in the infamous Connick v. Thompson case referred to in the article. This despite the fact it was shown in the SCOTUS record that 3 attorneys in Connick's office deliberately withheld exculpatory evidence while seeking and obtaining the death penalty against an innocent Mr. Thompson.
The reality in Louisiana is there are no disciplinary consequences for prosecutors knowingly falsely charging a criminal defendant in a death penalty case, obtaining a conviction by illegally hiding exculpatory evidence, then saying nothing for 14 years while the defendant awaited execution.
.
However, if you're an attorney in Louisiana, what happens an to your law license after a complaint is filed with the bar association depends entirely on your race and political connections. The same person, Charles Plattsmier, has been in charge of the disciplinary counsel's office since 1996.
However, don't look to Plattsmier to discipline any district attorney in the state with the most unethical prosecutors in the country, no matter how egregious the conduct. To date no prosecutor has been disciplined for misconduct in Louisiana under his watch.
Perhaps most amazingly, absolutely nothing has happened to discipline the attorneys in the infamous Connick v. Thompson case referred to in the article. This despite the fact it was shown in the SCOTUS record that 3 attorneys in Connick's office deliberately withheld exculpatory evidence while seeking and obtaining the death penalty against an innocent Mr. Thompson.
The reality in Louisiana is there are no disciplinary consequences for prosecutors knowingly falsely charging a criminal defendant in a death penalty case, obtaining a conviction by illegally hiding exculpatory evidence, then saying nothing for 14 years while the defendant awaited execution.
.
4
Federal oversight would be a significant step in the right direction. Another vital step would be to enable victims of prosecutorial (or more accurately persecutorial) to personally sue the guilty prosecutors personally, with state agencies making up the difference between the restitution awarded by the courts and the assets plaintiff got after taking every penny prosecutor has.
Since state courts have a problem dealing with errant prosecutors who are part of the same system they are, all such cases should be heard in Federal court, as civil rights violations.
If no effective remedial actions are taken, do not be surprised if victims of a system of injustice, with assistance from enemies of America (plenty of those around) form undergrounds that target prosecutors known for their penchant for trampling their victims' constitutional rights,m especially minorities'.
Since state courts have a problem dealing with errant prosecutors who are part of the same system they are, all such cases should be heard in Federal court, as civil rights violations.
If no effective remedial actions are taken, do not be surprised if victims of a system of injustice, with assistance from enemies of America (plenty of those around) form undergrounds that target prosecutors known for their penchant for trampling their victims' constitutional rights,m especially minorities'.
1
First of all, this is not a "maddening situation," NYT - this is criminal misconduct by over-zealous, unaccountable prosecutors. The incestuous relationship between local prosecutors and police departments must be constrained: I have previously stated that all police misconduct and shooting cases should be handled outside of that local prosecutor's jurisdiction, because it has been proven that they are unwilling to prosecute criminal conduct by police. We need fully independent civilian review boards empowered to investigate accusations of police misconduct, and any grand juries seated should be directed by independent prosecutors. We need fundamental reform of law school curricula to incorporate major emphasis on ethics and integrity as being cornerstones of our system of jurisprudence, as opposed to "gaining convictions at all costs." We also need to create a system, outside of state and local bar associations, to investigate accusations of withholding of evidence, jury tampering, etc. by local prosecutors - perhaps those investigations are best handled by retired attorneys and judges with "no skin in the game." We also need to demand that the seditious GOP thugs in Congress get off their collective butts and confirm all of the federal judges being held in suspension because our President nominated them. We need far more judges than we have now - their abdication of their Constitutional responsibilities is compromising our already-fractured justice system.
6
"Call the Feds"??
And suppose it is Federal prosecutors themselves that are at fault?
To cite one well known example, consider the prosecution of former senator Ted Stevens from Alaska. In 2008 Sen. Stevens, a Republican, was convicted of corruption in Federal court, and his political career was destroyed. He lost the next election to his Democratic opponent. This was extraordinarily consequential; it is likely, for example, the ACA (Obamacare) would not have become law had this not happened.
The problem was, the Federal prosecutors had done just was this editorial describes: they had withheld evidence. Sen. Stevens conviction was subsequently overturned. But by then it was too late. Sen. Stevens was out of office, and he died soon thereafter in a plane crash.
This is far from the only example of Federal prosecutorial abuse and overreach. A whole other category is the abuse of civil forfeiture laws, wherein prosecutors seize private property without having to prove that a crime was committed. Many newspapers, including this one, have spoken out against this abuse of the law by both Federal and local prosecutors and police, but still it continues. Incidentally, a major practitioner of civil forfeiture was then US Attorney for the Eastern District of NY, Loretta Lynch, now Attorney General of the US.
Most prosecutors are on the public's side, and work diligently to achieve justice. Nonetheless we are left with:
Quis custodiet ipsos custodes?
And suppose it is Federal prosecutors themselves that are at fault?
To cite one well known example, consider the prosecution of former senator Ted Stevens from Alaska. In 2008 Sen. Stevens, a Republican, was convicted of corruption in Federal court, and his political career was destroyed. He lost the next election to his Democratic opponent. This was extraordinarily consequential; it is likely, for example, the ACA (Obamacare) would not have become law had this not happened.
The problem was, the Federal prosecutors had done just was this editorial describes: they had withheld evidence. Sen. Stevens conviction was subsequently overturned. But by then it was too late. Sen. Stevens was out of office, and he died soon thereafter in a plane crash.
This is far from the only example of Federal prosecutorial abuse and overreach. A whole other category is the abuse of civil forfeiture laws, wherein prosecutors seize private property without having to prove that a crime was committed. Many newspapers, including this one, have spoken out against this abuse of the law by both Federal and local prosecutors and police, but still it continues. Incidentally, a major practitioner of civil forfeiture was then US Attorney for the Eastern District of NY, Loretta Lynch, now Attorney General of the US.
Most prosecutors are on the public's side, and work diligently to achieve justice. Nonetheless we are left with:
Quis custodiet ipsos custodes?
1
Prosecutors are not held accountable because too many Americans presume that people are guilty particularly if they are poor, black, brown, poorly educated, involved in drugs, mentally ill and have a criminal record. Moreover, prosecutors are politicians elected to office by voters to primarily fight against crime. Justice, morality and fairness for the victims of crime is the key motivating factor for prosecutors. Not the guilt or innocence of a criminal defendant.
The notion that the federal government has the resources to investigate and prosecute prosecutorial malfeasance, corruption, criminality and incompetence is woefully naïve and inadequate. It would be more meaningfully effective to prevent prosecutor misconduct if the local public defender had the same level of human resources and finance in mounting a defense as the prosecutor does in prosecution. In a legal system based upon a presumption of innocence until convicted beyond a reasonable doubt nothing less should be acceptable.
The notion that the federal government has the resources to investigate and prosecute prosecutorial malfeasance, corruption, criminality and incompetence is woefully naïve and inadequate. It would be more meaningfully effective to prevent prosecutor misconduct if the local public defender had the same level of human resources and finance in mounting a defense as the prosecutor does in prosecution. In a legal system based upon a presumption of innocence until convicted beyond a reasonable doubt nothing less should be acceptable.
3
Three is an even more egregious corruption practiced by district attorneys all over the nation: over charging defendants to get a plea-bargained deal at a lesser charge,
It's the prosecutor determining the guilt of the defendant and using the system and the uncertainty of the jury process to coerce the defendants into taking the deal.
And after having served on more than just a few juries where the prosecutors were trying to prove-up cases, I can easily see why they engage in that practice...
The prosecutors were flat-out incompetent at presenting the state's case.
There is no excuse for the overcharging, and there is no excuse for the prosecutors' inability to make even the most basic of arguments.
It's the prosecutor determining the guilt of the defendant and using the system and the uncertainty of the jury process to coerce the defendants into taking the deal.
And after having served on more than just a few juries where the prosecutors were trying to prove-up cases, I can easily see why they engage in that practice...
The prosecutors were flat-out incompetent at presenting the state's case.
There is no excuse for the overcharging, and there is no excuse for the prosecutors' inability to make even the most basic of arguments.
5
What you write is true - overcharging - and what I pointed out in another post. Yet you can't blame prosecutors for using everything they can to "make it stick" under the current system where they are judged on the number of convictions and plea agreements they can generate. Again, too many laws making it too easy for abuse.
Secondly, Hollywood has given many the idea that all lawyers are just great at their job, dedicated advocates, highly ethical, unbiased, and well skilled and schooled. Sorry but there are a lot of lousy lawyers out there for both the prosecution and the defense - and that is the pool from which the judges emerge.
Secondly, Hollywood has given many the idea that all lawyers are just great at their job, dedicated advocates, highly ethical, unbiased, and well skilled and schooled. Sorry but there are a lot of lousy lawyers out there for both the prosecution and the defense - and that is the pool from which the judges emerge.
Recently elected S.C. Supreme Court Chief Justice Don Beatty faced Republican wrath during his confirmation hearings over remarks warning prosecutors they would be held accountable for misconduct.
"(Republican State Senator Larry) Martin asked Beatty questions about a 2013 speech that Beatty gave at a solicitors’ conference in Myrtle Beach. Beatty had warned solicitors that if prosecutors commit misconduct, they will be held accountable by the court.
The speech ignited a firestorm among state prosecutors, many of whom – including Attorney General Alan Wilson – issued public statements that Beatty had done something improper by making the speech."
http://www.thestate.com/news/local/crime/article78920767.html#storylink=cpy
Apparently the S.C. Attorney General believes his prosecutors are above reproach. Thankfully our new Supreme Court Chief Justice does not.
As ever, our state motto applies. "While I breathe, I hope."
"(Republican State Senator Larry) Martin asked Beatty questions about a 2013 speech that Beatty gave at a solicitors’ conference in Myrtle Beach. Beatty had warned solicitors that if prosecutors commit misconduct, they will be held accountable by the court.
The speech ignited a firestorm among state prosecutors, many of whom – including Attorney General Alan Wilson – issued public statements that Beatty had done something improper by making the speech."
http://www.thestate.com/news/local/crime/article78920767.html#storylink=cpy
Apparently the S.C. Attorney General believes his prosecutors are above reproach. Thankfully our new Supreme Court Chief Justice does not.
As ever, our state motto applies. "While I breathe, I hope."
3
The problem of bad prosecutors is swamped by the power of prosecution and America's exorbitant punishments. A prosecutor is basically able to force many defendants to plead guilty to a lessor charge by threatening them with a more serious charge, which would have a life-threatening long prison sentence or large fine. In this way people without the resources to fight are made criminals when they are not guilty of anything.
13
Note that prosecutors have a vested interest in securing punishment. Their constitutional mandate is to protect the public but the metric of their success is not protection but convictions. is it then surprising that they seek advantage any which way they can. Athletes who engage in doping to win have to contend with the threat of the urine test . Prosecutors have no such deterrent.
94
Right. And when they convict the wrong man, the criminal is still out on the street preying on the public.
Worse still, the actual criminal has sort of an immunity. Case closed; the police stop looking. And worse still, if evidence against the right man comes to light, it's hard for prosecutors to admit they were wrong: too many people will start asking too many questions. The incentive to suppress evidence against the right man is, sometimes, overwhelming.
Worse still, the actual criminal has sort of an immunity. Case closed; the police stop looking. And worse still, if evidence against the right man comes to light, it's hard for prosecutors to admit they were wrong: too many people will start asking too many questions. The incentive to suppress evidence against the right man is, sometimes, overwhelming.
1
Prosecutors are not supposed to prosecute when the evidence is insufficient prove the case beyond reasonable doubt. That's what gives them a high batting average.
1
This just isn't true. Where are you getting this from, that prosecutors mark their success by their convictions? That does NOT tie to promotions, bonuses, etc. You're promoted and moved forward if you're a great investigator and great trial attorney; but does not mean you win every case. Prosecutors deal with dismissals and not guilties all the time, without batting an eye.
Also, shame on you NY Times. The use of the word "rampant" is not backed up by your article. I'm floored that you used that word, it is so irresponsible and really makes me lose some respect for the paper that I consider the world's best. Every profession has issues and bad eggs (see the stream of plagiarizing print and TV journlists out there, for example); but having worked in liberal jurisdictions in the NE of the U.S. I can tell you that between the judges, the defense bar, and my offices own discovery policies (which go WELL beyond what is required of the law in terms of disclosure) there was absolutely no "rampant" series of Brady violations going on. As another reader noted, the vast majority of discovery violations by prosecutors do not involve purposefuly witholding exculpatory or mitigating material. "Rampant." I guess you just wanted a sexy headline? We all do, but to stray that far from the facts to get one is so unprofessional. Shame on you NT TImes.
Also, shame on you NY Times. The use of the word "rampant" is not backed up by your article. I'm floored that you used that word, it is so irresponsible and really makes me lose some respect for the paper that I consider the world's best. Every profession has issues and bad eggs (see the stream of plagiarizing print and TV journlists out there, for example); but having worked in liberal jurisdictions in the NE of the U.S. I can tell you that between the judges, the defense bar, and my offices own discovery policies (which go WELL beyond what is required of the law in terms of disclosure) there was absolutely no "rampant" series of Brady violations going on. As another reader noted, the vast majority of discovery violations by prosecutors do not involve purposefuly witholding exculpatory or mitigating material. "Rampant." I guess you just wanted a sexy headline? We all do, but to stray that far from the facts to get one is so unprofessional. Shame on you NT TImes.
Mike Nifong! You may remember him as the prosecutor for the Duke Lacross Team trial. He was in fact removed, disbarred, and jailed (briefly) for such misconduct, but, of course, he made the mistake of violating the rights of the high profile, white, and wealthy.
82
He was also sued personally in civil court and lost almost all his assets. Has that ever happened to any other DA anywhere? It is what SHOULD happen, but immunity protects prosecutors from personal liability for almost all their bad behavior.
How is this even POSSIBLE in America???
4
How can this be possible in America? It's simple. District attorneys get elected by bragging that they will be tougher on crime than the other candidates. Once elected, they have to prove it by sending the most people to prison that they can. Conviction rates are all that matters. It makes the voters feel righteous in the fight against evil. Prosecutors convince themselves that the accused are guilty, so it's OK to cheat.
If they are successful, they become pillars of the community, and can even rise to their state's Supreme Court.
If they are successful, they become pillars of the community, and can even rise to their state's Supreme Court.
2
What's so special about America?
A few years ago, I was on a state jury in Fairfax County, Va. This particular case could have presented much physical evidence from a doctor, or witnesses who had conversations with the accuser, or witnesses who observed the accuser in pain. But instead, all the prosecutor had was the word of the 14-year old accuser.
Of course, the defendant was acquitted, but will have to live with doubts people will have about his guilt or innocence and certainly, he had had to spend money to defend himself.
The case struck fear in all the members of the jury because any of them could have been the defendant in this case, where the only certain crime was that committed by the prosecutors for having pursued such a case.
Of course, the defendant was acquitted, but will have to live with doubts people will have about his guilt or innocence and certainly, he had had to spend money to defend himself.
The case struck fear in all the members of the jury because any of them could have been the defendant in this case, where the only certain crime was that committed by the prosecutors for having pursued such a case.
15
It may be time to end the fiefdoms of prosecutors. Oversight and disbarment is necessary. A reform similar to the Voter's Rights laws is necessary too. This is a fact that has as much chance of passing as does a job stimulation bill in the current Congress.
31
Based upon recent reveals about Justice Dept attorneys in the IRS and INS investigations, it is hard to put much faith in the federal government. The Justice Dept. attorneys in the Ted Stevens trial withheld exonerating information. Every attorney that is accused of withholding exonerating information should have their name published, just as the name of the accused is published. Enough with the nameless, faceless bureaucrats.
9
Norm, please provide a link to your alleged "reveals" concerning the IRS and the INS investigations. Enough of the nameless, faceless, factless commentators.
how about looking outside the box for solutions. in many countries in Europe a special independent judge investigates the alleged crime to determine whether it should be prosecuted. I believe in France they are called instruction judges.
9
The details are hidden in the process. Start with plea bargaining.
14
To stop abuse, permit prosecution of Suspects only when Federal, State and local authorities agree and when the defense agrees. Better that all criminals go free than an innocent be convicted.
5
When the defense agrees? Where will you find a defense attorney in an adversarial system that will say, "sure, I think there's enough basis to prosecute my client". You would likely have zero prosecutions for anything.
1
I agree, although from the headline I thought you were going in a different direction -- to advocate that the feds look into the state attorneys general who dropped Trump University fraud inquiries in spite of solid evidence, and subsequently got Trump donations. This is massive power given to attorneys general, and this too needs oversight if people are to have confidence in our system of law.
32
The real reason prosecutors get away with ignoring our laws is that the American public doesn't care. The average American believes that most crimes are committed by blacks. And that, said blacks, if not guilty of the crime for which they are being tried, are guilty of some other crime they've thus far gotten away with. Although whites, Hispanics and other races are also victims of prosecutor misconduct, it's a total disregard for blacks that drives the indifference that allows this to continue. I'm a white American. I live in a white town just north of Philadelphia. I see cops pull over cars from time to time. If the driver is white, there is one cop. If the driver is black there can be as many as five cops. Last week, I saw 2 cops with guns drawn pointing at a sedan that contained one black man. There were a total of 5 cop cars and 2 more on the way, at high speed coming down Easton Road. All of this in Abington, PA. Welcome to America.
31
I think you're wrong about that. I know many people (including myself) who are not just appalled but frightened by prosecutorial misconduct. Anyone can be a victim of the law enforcement community, particularly of those who count coup by stacking up career-enhancing wins rather than being known for honorable and truth-seeking investigation. Truth doesn't seem to mean much any more.
"The average American believes that most crimes are committed by blacks"
You lost me there. The average American -- whatever that is -- might want you to define what you mean be "crimes" for starters. I think you want to say petty crimes? Not sure but it doesnt hold up anyway.
You lost me there. The average American -- whatever that is -- might want you to define what you mean be "crimes" for starters. I think you want to say petty crimes? Not sure but it doesnt hold up anyway.
Wow!!!
There are abusive prosecutors in every state, unfortunately some of the worst work for the U.S. Justice Department. A great idea but good luck getting them to police their own kind.
20
Ten years ago, D. Michael Risinger published "Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate," which empirically countered Antonin Scalia's optimism that the error rate in felony convictions was only .027 percent. Risinger's findings: in capital rape-murder cases 3.3-5% of the convictions are wrongful. And we know that misconduct by prosecutors and other law enforcement officers is often involved in these tragic cases.
The impact of this problem is massive. Roughly 2.2 million adults are incarcerated in the land of the free and another 4.7 million are on probation or parole--almost 6 million people total. If Risinger's numbers hold up across the spectrum of convictions, that means between 227,000 and 345,000 people are being punished for crimes they didn't commit. These numbers, of course, only represent those who are currently serving a sentence. If we include convicts who have completed their sentences, we find that there are likely 20 to 24 million Americans total. Applying Risinger's findings to this population, at least 660,000 people in our country live with the stigma of a conviction, even though they are innocent of the crime. That's roughly the population of Boston.
The impact of this problem is massive. Roughly 2.2 million adults are incarcerated in the land of the free and another 4.7 million are on probation or parole--almost 6 million people total. If Risinger's numbers hold up across the spectrum of convictions, that means between 227,000 and 345,000 people are being punished for crimes they didn't commit. These numbers, of course, only represent those who are currently serving a sentence. If we include convicts who have completed their sentences, we find that there are likely 20 to 24 million Americans total. Applying Risinger's findings to this population, at least 660,000 people in our country live with the stigma of a conviction, even though they are innocent of the crime. That's roughly the population of Boston.
28
Good message, wrong example. Start here instead:
http://www.nytimes.com/2016/05/20/us/andrew-hanen-immigration-texas-cour...
which details the lies behind the Obama administration's "case" on immigration, and the brave judge who's having none of it.
But DOJ is determined to block. Among the reasons they state, are estimated costs of $8m for ethics training and related lost productivity. Argument so ridiculous, sort of proves the judge's point doesn't it? But of course the NYT EB won't fault the Obama DOJ.
So much for the NYT's angry cries for accountability. Doth protest too much methinks.
http://www.nytimes.com/2016/05/20/us/andrew-hanen-immigration-texas-cour...
which details the lies behind the Obama administration's "case" on immigration, and the brave judge who's having none of it.
But DOJ is determined to block. Among the reasons they state, are estimated costs of $8m for ethics training and related lost productivity. Argument so ridiculous, sort of proves the judge's point doesn't it? But of course the NYT EB won't fault the Obama DOJ.
So much for the NYT's angry cries for accountability. Doth protest too much methinks.
3
Perhaps we should also look at the role of the Republican Congress that refused to even consider any rational immigration reform... all as seen by a Republican appointed judge.
1
No, that is an example of judicial activism by a far-right Republican appointee determined to overturn the rule of law and the separation of powers.
2
@Bear, Garak
The issue of what is rational, rule of law, separation of powers, and executive overreach will be settled by SCOTUS later this week/month. My prediction is, it will fully though firmly rebuke your larger positions giving Obama and co. a pass.
Look the other way all you want. For now though, it is irrefutable fact that the feds have been caught lying to a court of law and facing severe repercussions. Let's see how they tap-dance their way out of that!
The issue of what is rational, rule of law, separation of powers, and executive overreach will be settled by SCOTUS later this week/month. My prediction is, it will fully though firmly rebuke your larger positions giving Obama and co. a pass.
Look the other way all you want. For now though, it is irrefutable fact that the feds have been caught lying to a court of law and facing severe repercussions. Let's see how they tap-dance their way out of that!
1
Agreed that, should prosecutors abuse the power of their office to unjustly convict someone by deliberate action violating the known canons of their profession, they should be liable to face charges in their personal capacity in that regard. Also agreed that the federal government possesses both the tools and the appropriate power to do so.
But what is the remedy when the violator is himself, a federal attorney? Just recently, a Texas judge, in an admittedly overreaching judgment, found that DOJ attorneys appearing in his court had deliberately lied and misled the court in the case concerning President Obama's immigration amnesties, wherein they had assured the judge that certain actions were not taking place when they knew that the DOJ was hustling 100,000 or more applications through. What is the appropriate action against them? And do we really think that the DOJ would even think to discipline its own when the decision to lie was obviously a matter of department policy?
And what do you do about prosecutorial overreach when legal authorities seek to use the criminal justice system to suppress legitimate political dissent? For instance, state attorneys general are seeking to prosecute those they term climate change deniers and Loretta Lynch has herself said that the DOJ has discussed referring such cases to the FBI. This is dangerous territory here regardless of the specific facts of the cases in question.
But what is the remedy when the violator is himself, a federal attorney? Just recently, a Texas judge, in an admittedly overreaching judgment, found that DOJ attorneys appearing in his court had deliberately lied and misled the court in the case concerning President Obama's immigration amnesties, wherein they had assured the judge that certain actions were not taking place when they knew that the DOJ was hustling 100,000 or more applications through. What is the appropriate action against them? And do we really think that the DOJ would even think to discipline its own when the decision to lie was obviously a matter of department policy?
And what do you do about prosecutorial overreach when legal authorities seek to use the criminal justice system to suppress legitimate political dissent? For instance, state attorneys general are seeking to prosecute those they term climate change deniers and Loretta Lynch has herself said that the DOJ has discussed referring such cases to the FBI. This is dangerous territory here regardless of the specific facts of the cases in question.
5
Prosecutorial misconduct is a blight on the judicial system and happens far too often. Lives are destroyed to support a prosecutors career.
The solution is simple. If a prosecutor is proven to purposely withhold exculpatory evidence or "manufacture" damaging evidence, they should be held criminally accountable. Equal justice under the law is not an abstract concept.
The solution is simple. If a prosecutor is proven to purposely withhold exculpatory evidence or "manufacture" damaging evidence, they should be held criminally accountable. Equal justice under the law is not an abstract concept.
185
Paul, you are correct. Criminal prosecution with long jail terms (comparable to the terms that innocent convicts would face) seem fair. Prosecutors who abuse their status should be aggressively pursued and punished. There is no way that justice can be served in a society which allows thugs to operate without harsh consequences. This may be the best way to address the Black Lives Matter problem on the judicial side. In that sense, this is a civil rights issue.
7
Mine was.
Holding them criminally liable is a good idea but prosecuting and convicting them would take too long. The state Supreme Courts could advance the cause of justice for all by instituting disbarment proceedings for unethical conduct.
Misconduct by prosecutors is a cautionary tale for those who believe that local government is best suited to identifying and solving problems. It shows clearly how public opinion and the desire to be elected or re-elected can pervert justice. That's especially true when there are insufficient resources to provide robust defense for those who are not rich.
The struggles for civil rights demonstrated that people go to the level of government where they think they might be successful when they want to advance a cause or seek redress. Activism by the Justice Department would surely stimulate more reaction against intrusion by the federal government into state and local rights. I've always thought that individual rights ought to be more important.
The struggles for civil rights demonstrated that people go to the level of government where they think they might be successful when they want to advance a cause or seek redress. Activism by the Justice Department would surely stimulate more reaction against intrusion by the federal government into state and local rights. I've always thought that individual rights ought to be more important.
16
Sure, Louisiana is bad in this respect but it is not alone. Look at Orange County, California, and also L.A. County:
https://theintercept.com/2016/05/14/orange-county-scandal-jailhouse-info...
"Over the last two years, a scandal involving both has engulfed Orange County, California, exposing systemic violation of defendants’ constitutional rights and calling into question the legality of the prosecution of a number of violent felony cases.
What makes the Orange County situation particularly troubling is its eerie similarity to another such scandal that unfolded just miles to the north, in Los Angeles County, starting in the late 1970s, and culminated in an exhaustive grand jury report that detailed widespread misuse and abuse of criminal informants and revealed questionable prosecutorial tactics, potentially in more than 200 cases."
To call this kind of misconduct rampant still sounds like maybe it's still exceptional. What is more likely the case is that misconduct in many jurisdictions is the rule, not the exception.
Between the rampant cheating by prosecutors, cops testilying (or worse) and judges refusing the fulfill their role as neutral arbiters, it is sadly left to the Federal Government (one of the worst offenders) to fix this? (See Licensed to Lie by Sidney Powelll about this.)
https://theintercept.com/2016/05/14/orange-county-scandal-jailhouse-info...
"Over the last two years, a scandal involving both has engulfed Orange County, California, exposing systemic violation of defendants’ constitutional rights and calling into question the legality of the prosecution of a number of violent felony cases.
What makes the Orange County situation particularly troubling is its eerie similarity to another such scandal that unfolded just miles to the north, in Los Angeles County, starting in the late 1970s, and culminated in an exhaustive grand jury report that detailed widespread misuse and abuse of criminal informants and revealed questionable prosecutorial tactics, potentially in more than 200 cases."
To call this kind of misconduct rampant still sounds like maybe it's still exceptional. What is more likely the case is that misconduct in many jurisdictions is the rule, not the exception.
Between the rampant cheating by prosecutors, cops testilying (or worse) and judges refusing the fulfill their role as neutral arbiters, it is sadly left to the Federal Government (one of the worst offenders) to fix this? (See Licensed to Lie by Sidney Powelll about this.)
42
Agreed. Federal oversight of continually offending prosecutors is way over due. The Prosecutors function is ripe for redefinition and reform. The justice dispensed should become the measure of success not the number of convictions.
However.
This is just a part of the larger problems with our legal system both criminal and civil. It takes too long. Many more judges and staff are desperately needed to honor the 'justice delayed is justice denied' ideal. Too much of the process is geared toward profit. Judges, lawyers, and staff cost too much. And cities that use the municipal courts system as a cash cow simply must be stopped and the people running them never be allowed to practice again.
If it takes $600 billion to defend the country from our enemy's then a similar commitment must be made by a nation of laws to see to it that the law is administrated fairly and openly for all.
However.
This is just a part of the larger problems with our legal system both criminal and civil. It takes too long. Many more judges and staff are desperately needed to honor the 'justice delayed is justice denied' ideal. Too much of the process is geared toward profit. Judges, lawyers, and staff cost too much. And cities that use the municipal courts system as a cash cow simply must be stopped and the people running them never be allowed to practice again.
If it takes $600 billion to defend the country from our enemy's then a similar commitment must be made by a nation of laws to see to it that the law is administrated fairly and openly for all.
27
Yes!.... In North Carolina prosecutorial misconduct now extends to seeking revenge on those who challenge it. The News & Observer of Raleigh recently reported that
"For most of 2015, the North Carolina State Bar vigorously and publicly pressed ethics charges against two anti-death penalty lawyers for what were eventually judged to be unimportant inaccuracies in two sworn affidavits.
“During the same time, the bar privately dismissed complaints that three prominent prosecutors – one running for attorney general, another now a Superior Court judge – used a false affidavit in a racially divisive case that has roiled Winston-Salem for more than a decade….”
"For most of 2015, the North Carolina State Bar vigorously and publicly pressed ethics charges against two anti-death penalty lawyers for what were eventually judged to be unimportant inaccuracies in two sworn affidavits.
“During the same time, the bar privately dismissed complaints that three prominent prosecutors – one running for attorney general, another now a Superior Court judge – used a false affidavit in a racially divisive case that has roiled Winston-Salem for more than a decade….”
91
Good article. But misconduct takes a variety of forms. Baltimore's prosecution of police officers in the case of Freddie Gray's death certainly should be reviewed.
6
Really, Paul? So, Freddie Gray, whose head was essentially severed while being driven all over the place in a police van, without any effort by those officers to properly secure him in that van before departing on their joy ride, simply died of "natural causes?" Sorry - those prosecutions should continue. Freddie Gray's death was the direct result of negligent failure to protect him by the Baltimore police, full stop.
3
LACK OF OVERSIGHT Is always taken as license to do wrong. Honoring the rights of the accused to full access to exculpatory evidence, competent representation and a presumption of innocence. Yes, there are bad actors out there who have repeatedly committed violent crimes. But no prosecutor has the right to break the law in order to enforce the law. I think that if the federal government introduces oversight in an unobtrusive manner initially, they may be able to garner more cooperation than has been the case recently. With partisan politics polarizing the nation, states relish suing the federal government as they dig in and refuse to budge. That is poor governance and dubious fulfillment of oaths of office. But who can prevent it? I think that Attorney General Loretta Lynch has her hands full with this one. I know from direct experience working in dangerous areas of the city where I live that while there is often violence in the neighborhood, but since 1969 I have not been attacked by a child or an adult. I cannot say the same for school administrators and so-called colleagues. But that's another story. I did evaluations in a residential program for adjudicated adolescent males. There were cooperative and friendly, except in a very few cases. In many ways, but not all, they were typical adolescents. For these reasons, I think that care must be taken to uphold the rights of the accused, even in cases where the evidence is overwhelming. It's not easy but can be done.
7
Another aspect of abuse is the refusal to exercise prosecutorial discretion.
Everyone commits "crimes" every day. Who conforms absolutely and perfectly to every speed limit? Who never did a rolling stop, or never forgets to signal? Who never ever did a bit of road rage? Whose kids never ever crossed a line for a thrill? Who as a kid never did that? Be honest.
If a prosecutor wanted to get someone, and sets a focus on it, the prosecutor can get them. So can police, and then the prosecutor can take that "case" as real rather than a pretext. If a cop followed your car on a whole trip, looking for his chance to get you, would he be able to get you? If you saw him do it, how would you feel at the end of your trip, even if by great care you escaped him?
This sort of unfair targeting is the abuse of "prosecutorial discretion."
Problem: The Feds do it too. They love it. They devote more resources to it than do state levels, if only because they have the resources to do it.
When a Special Prosecutor team is sent out from Main Justice to clean up a "problem" they are going to get someone. They are going to ruin lives.
And some of the most famous cases of hidden evidence have been done by the Feds.
The Feds are part of the problem, a big part of it. That means they are not going to be an effective solution.
We need something like a police Internal Affairs to police the prosecutors, both Feds and State. They are not going to police themselves.
Everyone commits "crimes" every day. Who conforms absolutely and perfectly to every speed limit? Who never did a rolling stop, or never forgets to signal? Who never ever did a bit of road rage? Whose kids never ever crossed a line for a thrill? Who as a kid never did that? Be honest.
If a prosecutor wanted to get someone, and sets a focus on it, the prosecutor can get them. So can police, and then the prosecutor can take that "case" as real rather than a pretext. If a cop followed your car on a whole trip, looking for his chance to get you, would he be able to get you? If you saw him do it, how would you feel at the end of your trip, even if by great care you escaped him?
This sort of unfair targeting is the abuse of "prosecutorial discretion."
Problem: The Feds do it too. They love it. They devote more resources to it than do state levels, if only because they have the resources to do it.
When a Special Prosecutor team is sent out from Main Justice to clean up a "problem" they are going to get someone. They are going to ruin lives.
And some of the most famous cases of hidden evidence have been done by the Feds.
The Feds are part of the problem, a big part of it. That means they are not going to be an effective solution.
We need something like a police Internal Affairs to police the prosecutors, both Feds and State. They are not going to police themselves.
51
Well said, Mark. The DOJ is by no means above this fray, they're right in the thick of it. Let's remember that famous and oh-so true line "a prosecutor can indict a ham sandwich". What needs to be re-emphasized is the point about consequences. Remember Mike Nyfong? Yes, he lost his job, got disbarred and all, but after conducting a well oiled conspiracy of a witch-hunt for a year or so, he spent exactly 1 day in jail. Had his victims not been upper-middle class kids with the means to defend themselves, he might never have been caught. But it's not just prosecutors, it's the cops, as you note, and the judges, like those on the LA. supreme court who concluded that death penalty cases needn't follow the law either, convictions are sacred.
Liability for both civil and criminal penalties must be introduced, and the process audited far better than it is. But just bringing in the feds isn't going to cut it. Another layer of bureaucracy will simply get bogged down, like the VA's inspector general's office. A good first step would be to establish a public defense infrastructure as robust as it's opposition, funded and staffed on par, and then keep all elements of the system, judges, cops, lawyers, and especially CSI's, separated at least by arms length. I'm quite certain as many legal outcomes are predetermined on golf courses, tennis courts and bars as there are business deals consummated at those places. Is it going to be tough? Yes, but it would begin to approach fair, finally.
Liability for both civil and criminal penalties must be introduced, and the process audited far better than it is. But just bringing in the feds isn't going to cut it. Another layer of bureaucracy will simply get bogged down, like the VA's inspector general's office. A good first step would be to establish a public defense infrastructure as robust as it's opposition, funded and staffed on par, and then keep all elements of the system, judges, cops, lawyers, and especially CSI's, separated at least by arms length. I'm quite certain as many legal outcomes are predetermined on golf courses, tennis courts and bars as there are business deals consummated at those places. Is it going to be tough? Yes, but it would begin to approach fair, finally.
2
While I agree that any and all evidence is subject to discovery, your implication of a defendant's statement of, "I didn't do it", as evidence of innocence or wrong doing by prosecutors is laughable. By that standard, the U.S.'s prison population would be zero.
1
The system would be vastly improved if both side's lawyers in civil disputes had to agree on what law applies to the circumstances of the case before any discovery. Most lawyers shoot in the dark because the intent of the lawsuit is a shakedown.
1
The Caroline Small case in Georgia is a textbook example of how prosecutors can get away with just about anything.
http://investigations.myajc.com/caroline-small-shooting/
http://investigations.myajc.com/caroline-small-shooting/
5
As a career prosecutor, I find this argument wanting. Failure to disclose material exculpatory evidence violates the law and may result in reversal whether the nondisclosure is intentional or by mistake. I was a white collar prosecutor. Often the evidence in my cases was voluminous. I never had the inclination to withhold any material, but I may well have done so by mistake. Violent crime cases involve far less paper. But they tend to be a volume practice, so that prosecutors, at any one time, are still managing a large volume of evidence. No one knows how many Brady violations are intentional and how many are by mistake. The only cases that get attention are those involving nondisclosure of exculpatory material. No one knows whether there are comparable quantities of nondisclosure of innocuous evidence, suggesting that prosecutors tend to be overwhelmed by their disclosure obligations, making all kinds of negligent errors, so that the ones that get attention are more often due to overwork rather than intent. There is an unspoken assumptionn in this editorial that nondisclosure is generally intentional. There is no evidence that that is true and there is good reason to believe it may be false.
29
"The only cases that get attention are those involving nondisclosure of exculpatory material. No one knows whether there are comparable quantities of nondisclosure of innocuous evidence"
Innocuous evidence is not Brady material.
"the ones that get attention are more often due to overwork rather than intent"
If the failure to disclose Brady evidence due to inadequate resources, that issue needs to be addressed. Meanwhile, the failure of the prosecutor's office to provide adequate resources to fulfil their constitutional responsibilities should not fall on the defendant.
Innocuous evidence is not Brady material.
"the ones that get attention are more often due to overwork rather than intent"
If the failure to disclose Brady evidence due to inadequate resources, that issue needs to be addressed. Meanwhile, the failure of the prosecutor's office to provide adequate resources to fulfil their constitutional responsibilities should not fall on the defendant.
5
This is a particularly weaselly and contemptible sounding excuse. I would find it beyond difficult to explain to someone that a family member had in error been executed or served decades in prison because I or my office was just overwhelmed with too much work.
8
I applaud your professionalism and thank you for your service but while the vast majority of prosecutors may be as honest as you are, there are enough who are not that they demand our attention. Understanding that you are correct that the many thousands of times things are done right do not get noticed, the damage caused by the few bad apples is devastating to those whose lives end up being ruined. The case cited in the article is a good example. A transcript of the interview where two men were implicated in a murder is not something that was lost in a pile of paperwork.
2
And how do we stop bad fed prosecutors?
24
Louisiana may be the most egregious example, but unrestrained, unaccountable power almost inevitably leads to high levels of arrogance and corruption. States that knowingly, even openly, continue incarcerating people they have come to know are innocent have crossed a crucial line; they have become criminals themselves, and are an especially frightening and dangerous type because they seldom recognize this themselves. Federal oversight may help in a situation like Louisiana, but in my opinion, some of the worst offenders are federal prosecutors themselves. Who should monitor them? Perhaps we can seek advice from within the justice system of Egypt or Uganda.
15
And what punishment was meted out to the federal prosecutors who withheld exculpatory evidence from a defendant who was also a sitting US Senator (Stevens)? The federal system is no better. Until judges can and do punish misbehavior of prosecutors with serious prison time this will continue.
16
Good and long needed. What does it say about this legal profession that in court holds all other professions accountable but itself makes a mockery of holding itself to the rule of law? Lives have been ruined. But why oversight of only the worst repetitive offenders? They've demonstrated that they can't police themselves and require supervision. Oversight should be routine and pervasive, and punishments should be severe. Then, and rather quickly I suspect, this toxic culture will begin to correct itself. The goal: Real Truth, Real Justice.
6
As a former assistant district attorney in Brooklyn, NY (kings county) I couldn't agree more with this editorial. I would like to inform however that the problems are much worse than you think. Prosecutors are rarely ever "checked" by anyone. If not for the cell phone camera, nobody would believe a young African American was wrongly beaten or arrested. The cozy friendly relationships between cops and prosecutors must end. The appearance of impropriety is great between law and order and there are hardly any checks and balances. Most judges just side with the law and ignore all prosecutors mistakes and unethical behavior.
91
Does the Justice Department have enough lawyers and clarity of purpose to police prosecutors? How did they get going monitoring those city police departments? Any details with statistics to substantiate those positive results? You said that the courts were blocking justice, not just the prosecutors. Can the Justice Department help out there as well?
2
So how is one case, in 1999, a pattern or practice? I suspect courts are going to be very reluctant to take away from the citizens power over prosecutors.
1
Yes, yes and yes.
It's a simple issue of power. When significant power is put into the hands of people those people need to be watched closely by a disinterested authority.
Seems so obvious and yet is so routinely ignored.
It's a simple issue of power. When significant power is put into the hands of people those people need to be watched closely by a disinterested authority.
Seems so obvious and yet is so routinely ignored.
10
Giving this type of power to bad prosecutors is the direct result of the false war on drugs used to imprison mainly people of color. Making prosecutors personally responsible by exposing them to law and civil suits for their duplicity would stop these types of convictions yesterday.
3
Nicely put. The common denominators are the defendant has inadequate representation and likely--though not always--black skin. Some system has to be set up to demand that lawyers are obligated to devote a fraction of their time to representing the indigent. The present framework doesn't work. The press has done a good job highlighting these issues. Now it is time for a substantive reform. The blood we see on the street every day is in no small part due to public cynicism with regard to the judicial system.
3
Sen. Charles Grassley (R-IA) is bending a jaundiced eye as well on the antics of wayward prosecutors. I support Sen. Grassley’s move, but he’s trying to change the nature of lawyers; and, frankly, I don’t think he’ll get very far.
Years ago, Justice Dept. lawyers inaugurated a curious practice of charging a corporation with RICO crimes – Arthur Andersen was destroyed as an effect of the Enron scandal by the first such creative legal excursion: criminal laws intended by Congress to prosecute the mob were used to brand a corporation “criminal”, destroying its ability to do business. Andersen won in court eventually, but too late to save itself from an act of corporate murder by Justice Dept. lawyers. Thousands lost their jobs while the partners lost their equity – for many of them their life savings.
Every year prosecutors are incentivized to get more and more creative in redefining the meaning of the word “is”, in order to serve their interests. While the U.S. Supreme Court has made it clear that the purpose of prosecution is justice, prosecutors don’t “win” without convictions.
To change this materially in the teeth of the adversarial system of justice we’ve devised, in which prosecutors use convictions as a means of establishing a public record to make bids at high political office more compelling, is a herculean task. Chances for success are counterintuitive.
Years ago, Justice Dept. lawyers inaugurated a curious practice of charging a corporation with RICO crimes – Arthur Andersen was destroyed as an effect of the Enron scandal by the first such creative legal excursion: criminal laws intended by Congress to prosecute the mob were used to brand a corporation “criminal”, destroying its ability to do business. Andersen won in court eventually, but too late to save itself from an act of corporate murder by Justice Dept. lawyers. Thousands lost their jobs while the partners lost their equity – for many of them their life savings.
Every year prosecutors are incentivized to get more and more creative in redefining the meaning of the word “is”, in order to serve their interests. While the U.S. Supreme Court has made it clear that the purpose of prosecution is justice, prosecutors don’t “win” without convictions.
To change this materially in the teeth of the adversarial system of justice we’ve devised, in which prosecutors use convictions as a means of establishing a public record to make bids at high political office more compelling, is a herculean task. Chances for success are counterintuitive.
3
Louisiana's entire system of injustice should be taken over by the feds. Whether it is local prosecutors, the mafia that is local police forces that profit from those they jail, or that abomination of a prison called Angola, a plantation in modern-day America, one in which prisoners can be kept in solitary confinement for decades; one in which the Angola Three were imprisoned, the last of them, Albert Woodfox, for 43 years during the last ten of which, a judge kept refusing to let him go, even though his innocence had been proven.
http://www.rimaregas.com/2015/06/close-angola-and-rikers-prisons-end-lon...
Louisiana is hardly alone in perpetrating grave injustices and allowing bad prosecutors to get away with human rights violations. Pasadena, California, is the latest jurisdiction in which a prosecutor has decided to use an arcane lynching law. A Black Lives Matter protester is being prosecuted under that law and hers is now the second case of California prosecutors who are targeting specific types of protesters with it. It is an abomination that such a law is on the books and a group of prosecutors can turn it around on African Americans who are exercising their rights to free speech in demanding justice and freedom from racist practices. Pasadena police have wrongfully killed several young people in the last four years.
http://act.colorofchange.org/sign/freejasmine-no-jail-time-black-lives-m...
http://www.rimaregas.com/2015/06/close-angola-and-rikers-prisons-end-lon...
Louisiana is hardly alone in perpetrating grave injustices and allowing bad prosecutors to get away with human rights violations. Pasadena, California, is the latest jurisdiction in which a prosecutor has decided to use an arcane lynching law. A Black Lives Matter protester is being prosecuted under that law and hers is now the second case of California prosecutors who are targeting specific types of protesters with it. It is an abomination that such a law is on the books and a group of prosecutors can turn it around on African Americans who are exercising their rights to free speech in demanding justice and freedom from racist practices. Pasadena police have wrongfully killed several young people in the last four years.
http://act.colorofchange.org/sign/freejasmine-no-jail-time-black-lives-m...
57