• Prosecutorial Misconduct

    Author : White Collar Firm May 8, 2017

    The government – both state and federal – have massive discretion when it comes to when, how and which cases they intend to prosecute. Some of their considerations are of course success: are they likely to prevail in court? There might also be a huge public concern to prosecute a case, such as cases involving terrorists or child murderers. Cases where celebrities are the defendants or victims also have merit, as ultimately, most prosecutors are elected officials, held accountable to the public by their constituents. The pressure to be successful, particularly on high-profile cases, can cause some prosecutors to behave badly, called prosecutorial misconduct. It happens more than you think, but it is rarely ever pursued, and even more rarely is it used successfully to free or acquit a defendant.

    Since 1963, after SCOTUS issued its opinion in Brady v. Maryland, prosecutors are required to provide any evidence that could exculpate the defendant to the defendant. In other words, any evidence that provides proof of a defense must be handed over. However, many times, this does not happen, and more often than not, the courts do not hold prosecutors accountable for such misdeeds. According to the Center for Prosecutor Integrity in 2014, less than 2 percent of cases where prosecutorial misconduct occurred were punished over the last 50 years. The punishment was often quite light, such as making the prosecutor pay the costs of any associated hearing. Even more frightening, according to the National Registry of Exonerations, 43 percent of wrongful convictions stem from official misconduct.

    Some recent and fairly notorious examples of prosecutorial misconduct is in the Duke lacrosse case, where members of the Duke University lacrosse team hired a female stripper for a party, who accused several players of raping her at the party. The prosecutor proceeded with the case despite multiple inconsistencies in the accuser’s story, no DNA evidence, and two of the defendants having alibis. Eventually the charges were dropped and the players were declared innocent. The prosecutor in this instances was disbarred for his actions on the case. In 2011, a Texas man was released from prison after serving almost 25 years in prison for murdering his wife. The prosecutor in that case admitted guilt in withholding exculpatory evidence in his case. He spent ten days in jail and was disbarred. Despite these successes, only about 18% of cases where prosecutorial misconduct is alleged have resulted in dismissed charges, reversed convictions or a reduction in sentence.

    The public has caught on to some of these issues, using their votes to demonstrate their disgust at the misconduct. In 2013, the incumbent District Attorney for Brooklyn lost his position after 24 years in office after it came to light that he was involved in cronyism and questionable practices. However, the problem is that most voters would prefer a strong prosecutor with a ‘tough on crime’ attitude, as voters cast their ballots in line with their concerns. People are more concerned they will be a victim of a crime, compared to being convicted of a crime (whether or not that is logical or not is an issue for another day).

    Judges and other attorneys should be far more vigorous about reporting and enforcing prosecutorial misconduct. Such behavior impugns the integrity of the justice system, and damages the trust from the public for law enforcement. While district attorneys are results-based, their results should be obtained on good, hard evidence and strong lawyering – not cheating the system and citizens of the country of their due process rights.

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