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Eye on the Courts: Focusing on Rampant Prosecutorial Misconduct

prosecutorial-misconductThe problem of prosecutorial misconduct has not received nearly enough attention, even in the wake of Supreme Court decisions such as the one that nullified John Thompson’s damages for wrongful imprisonment after his conviction was overturned.

Mr. Thompson was convicted of murder and spent 14 years on death row before private investigators learned that prosecutors had failed to turn over evidence that would have cleared him at his robbery trial.  Prosecutors also destroyed clothing that would have shown that his blood type did not match the blood on the scene.

His conviction overturned, Mr. Thompson was awarded $14 million by a jury for the wrongful imprisonment, but the US Supreme Court overturned it in what some called “one of the most cruel Supreme Court decisions ever,” with Justice Clarence Thomas ruling that the district attorney can’t be responsible for the single act of a lone prosecutor.

The New York Times argued his ruling protects prosecutors, giving them “nearly absolute immunity over civil suits.”

However, despite the criminal prosecution of the prosecutor in the Michael Morton case, too often prosecutors are given immunity for misconduct that costs years of freedom to defendants and takes additional lives when the guilty go free, and there has been little focus on prosecutorial misconduct.

However, a dissent by Alex Kozinski, chief judge of the U.S. Court of Appeals for the Ninth Circuit, from a decision not to rehear U.S. v. Olsen, may change that.

In his dissent, he wrote, “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

Writes Phil Locke, “Kozinski’s statement is interesting, because it is recognizing that there is nothing in the law that punishes (sanctions) prosecutors for this unethical behavior.  They are supposedly subject to sanction from their bar association, but guess what – this just about never happens.”

He also notes that there has been some meager legislative progress; for instance the Michael Morton Act will go into effect on Wednesday and “goes farther than ‘Brady’ in that it requires disclosure of all police reports and witness statements, regardless of whether the evidence is material to guilt or punishment.”

This weekend that case was given a huge boost by the New York Times in their editorial, “Rampant Prosecutorial Misconduct.”

The Times writes, “In the justice system, prosecutors have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the outcome. That is why it is so important for prosecutors to play fair, not just to win. This obligation is embodied in the Supreme Court’s 1963 holding in Brady v. Maryland, which required prosecutors to provide the defense with any exculpatory evidence that could materially affect a verdict or sentence.”

“Yet far too often, state and federal prosecutors fail to fulfill that constitutional duty, and far too rarely do courts hold them accountable,” the Editorial Board writes.

Last month, Alex Kozinski, as stated, the chief judge of the United States Court of Appeals for the Ninth Circuit, issued the most stinging indictment of this systemic failure in recent memory. “There is an epidemic of Brady violations abroad in the land,” Judge Kozinski wrote in his dissent from a ruling against a man who argued that prosecutors had withheld crucial evidence in his case. “Only judges can put a stop to it.”

The Times notes, “The defendant, Kenneth Olsen, was convicted of producing ricin, a toxic poison, for use as a weapon. Federal prosecutors knew — but did not tell his lawyers or the court — that an investigation of the government’s forensic scientist, whose lab tests were critical to the case, had revealed multiple instances of sloppy work that had led to wrongful convictions in earlier cases.”

 A state court found the scientist was “incompetent and committed gross misconduct.”

However, “Yet the majority of the federal appeals court panel ruled that the overall evidence of Mr. Olsen’s guilt — including websites he visited and books he bought — was so overwhelming that the failure to disclose the scientist’s firing would not have changed the outcome.”

“This is the all-too-common response by courts confronted with Brady violations,” the Times continues.

They argue, “Judge Kozinski was right to castigate the majority for letting the prosecution refuse to turn over evidence ‘so long as it’s possible the defendant would’ve been convicted anyway,’ as the judge wrote. This creates a ‘serious moral hazard,’ he added, particularly since prosecutors are virtually never punished for misconduct. According to the Center for Prosecutor Integrity, multiple studies over the past 50 years show that courts punished prosecutorial misconduct in less than 2 percent of cases where it occurred. And that rarely amounted to more than a slap on the wrist, such as making the prosecutor pay for the cost of the disciplinary hearing.”

They continue: “Brady violations are, by their nature, hard to detect, but Judge Kozinski had no trouble coming up with more than two dozen examples from federal and state courts just in the last few years, and those are surely the tip of the iceberg. According to the National Registry of Exonerations, 43 percent of wrongful convictions are the result of official misconduct.”

“The Brady problem is in many ways structural,” they write. “Prosecutors have the task of deciding when a piece of evidence would be helpful to the defense. But since it is their job to believe in the defendant’s guilt, they have little incentive to turn over, say, a single piece of exculpatory evidence when they are sitting on what they see as a mountain of evidence proving guilt.”

The key is: “The lack of professional consequences for failing to disclose exculpatory evidence only makes the breach of duty more likely.”

As Judge Kozinski wrote, “Some prosecutors don’t care about Brady because courts don’t make them care.”

The Times concludes: “Courts should heed Judge Kozinski’s call, but it will take more than judges to fix the problem. Prosecutors’ offices should adopt a standard ‘open file’ policy, which would involve turning over all exculpatory evidence as a rule, thus reducing the potential for error.”

“Fighting prosecutorial misconduct is not only about protecting the innocent. It is, as Judge Kozinski wrote, about preserving ‘the public’s trust in our justice system,’ and the foundation of the rule of law.”

—David M. Greenwald reporting

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About David Greenwald

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.


  1. Davis Progressive

    The issue of prosecutorial immunity must be addressed through Court precedent and as the times points out aptly here, through legislation. If prosecutors can’t be held accountable for misconduct, then there is a serious imbalance in our system.

  2. Fight Against Injustice

    The prosecutor’s already have some big advantages.

    1. They can charge crimes in a way that will stack up charges to make a plea be more appealing. This can sometimes cause someone who is innocent to take a plea because the sentencing if they don’t is so harsh due to the large number of charges.

    2. They also get more funding than the public defenders office and the advantage of police/sheriff support.

    3. They also have more grant funds available to them.

    To have the insuffficent check and balance system we do on prosecutorial misconduct, gives prosecutors way too much power. In fact, a US Supreme Court Justice stated that prosecutors are some of the most powerful people in our society. Our whole democratic system is based on checks and balances. Our legal system should be too.

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