Sunday, May 06, 2012

Scheck: Better remedies needed on prosecutor misconduct

Barry Scheck of the national Innocence Project (with whom, in the interest of disclosure, my employers are affiliated through the national Innocence Network) has an  op-ed in the Austin Statesman today titled, "Errant prosecutors seldom held to account." Wrote Scheck, "as a recent article in the Yale Online Law Review thoroughly documents, our system rarely disciplines, much less brings criminal charges against, prosecutors who have engaged in acts of intentional misconduct. Far too often, prosecutors, who wield enormous power over our lives, aren't investigated at all, even for intentional misconduct that has led to a wrongful conviction, much less 'harmless' intentional misconduct in cases in which the defendant was guilty."

Incidentally, the Yale Online Law Review essay Scheck mentioned is an especially effective discussion of prosecutorial misconduct and its oversight, or the lack thereof. Here's a sample from their description of the dilemma:
What little evidence we do have indicates that prosecutorial misconduct is a serious problem. A 2003 study by the Center for Public Integrity, for instance, found over two thousand appellate cases since 1970 in which prosecutorial misconduct led to dismissals, sentence reductions, or reversals. Another study of all American capital convictions between 1973 and 1995 revealed that state post-conviction courts found “prosecutorial suppression of evidence that the defendant is innocent or does not deserve the death penalty” in one in six cases where the conviction was reversed. Other scholars and journalists have also documented widespread prosecutorial misconduct throughout the United States.
Available statistics significantly underreport the extent of prosecutorial misconduct, not only because of the empirical challenges discussed above, but also because courts have embraced a “harmless error” standard when reviewing criminal convictions. In order to win a reversal, a defendant must not only prove misconduct, but must also show that the misconduct substantially prejudiced the outcome of his or her trial. Courts can therefore avoid making a finding of misconduct altogether by finding that the alleged error, even if proven, was harmless. By reducing the likelihood of reversal, the harmless error standard substantially weakens one of the primary deterrents to prosecutorial misconduct. Knowing that “minor” misconduct is unlikely to jeopardize a conviction on appeal, prosecutors may be more likely to bend the rules in the pursuit of victory.
There is an obvious need for an effective check on prosecutorial misconduct. Yet, as this Essay will show, no such check currently exists. (Citations omitted.)
Returning to Scheck's column, he recited some Texas data Grits has adumbrated in the past, then asked, "What can be done to reform the system? One remedy, civil litigation, is increasingly unavailable. Last year, the U.S. Supreme Court in Connick v. Thompson severely limited the ability of wrongfully convicted plaintiffs to hold a district attorney's office accountable for intentional acts of misconduct by line prosecutors."

Arguing to limit the absolute immunity from civil liability presently afforded prosecutors, Scheck added, "While we all agree that prosecutors juggle enormous responsibilities and should not be gratuitously second-guessed, it's worth noting that no other profession with so much power over life and death enjoys anywhere near this level of immunity from civil liability for intentional misconduct — not doctors, not other lawyers, not police officers, not teachers, not construction workers, not farmers." He then echoes a point made by UT law prof Jennifer Laurin that the external controls the courts say should substitute for civil liability are largely dysfunctional:
What about internal systems that the district attorney groups claim will prevent misconduct? With a handful of exceptions — primarily offices that have "conviction integrity units" designed to address miscarriages of justice and misconduct — most prosecutors do not have written internal guidelines for differentiating between error and misconduct, audits of old cases handled by line prosecutors and supervisors who commit acts of misconduct, or processes for doing root-cause analysis when there is significant finding of error or misconduct by courts — quality assurance and control protections we routinely require in hospitals, financial institutions and factories.

Similarly, relying on judicial monitoring and reporting of misconduct has been a failure. In California, where judges are required by law to report prosecutorial misconduct to the State Bar when it results in reversal of a conviction, a study by the Veritas Initiative shows that over a 10-year period involving 159 reversals, not one case was referred by judges to the State Bar.
The column closed suggesting a few other possible remedies for prosecutorial misconduct besides expanded civil liability: "Solutions discussed include developing better internal systems to deal with misconduct, greater oversight from the disciplinary arms of state bar associations, better reporting of misconduct from judges with better systems for dealing with their complaints, and the creation of an independent state agency with the authority and resources to investigate allegations of prosecutorial misconduct."

MORE: The Statesman paired Scheck's op ed with one from Shannon Edmonds of the prosecutors' association, who argues that "Prosecutors rarely go wrong, should not be hindered."

See related Grits posts:

12 comments:

  1. Why don't they do the same thing to them that they do to the police;
    put them in jail.

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  2. There's no public outrage over this kind of conduct. Destroying lives and families, raping people's future, turning your back on the truth for personal profit - meh! No one gives a shit about that.

    I mean, it's not like showing a bare breast in public - now that will get you some "moral" outrage!

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  3. Judges not reporting are participating in prosecutor misconduct. I applaud Judge Burgess (Denton?) for recently tossing a case and tossing the prosecutors out of his court.

    Yes, the legal rape of freedom and the legal extortion of liberty must stop. A nation of sheep breeds a government of wolves...

    See open letter to Judge Brett Hall, Rockwall TX below detailing an ongoing case. 10 due diligence hearings, 2 district court transfers, police, prosecutor misconduct, 2 Judges supporting the misconduct...

    https://docs.google.com/document/d/1nyzlyOROVYLQSaCXMlbQixwSK_rcP9uhXMJ4tg7LV9c/edit#

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  4. Um, Grits, when I read the Statesman this morning, I saw two op ed pieces side by side. A sort of "let's look it from both sides" type thing. Yet, you only link to Mr. Scheck's piece and conspicuously omit the other side of the story, written by Shannon Edmonds. Here it is if anyone is actually interested in the entire feature that was in the paper this morning.

    http://www.statesman.com/opinion/insight/prosecutors-rarely-go-wrong-should-not-be-hindered-2342115.html

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  5. Just didn't come up on the same feed this morning, 4:43, for whatever reason. Will add an addendum.

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  6. You keep alluding to this study on prosecutorial misconduct in Texas. Where is this study and are we ever going to see the underlying data? I've Googled the topic every way I know how. I keep seeing references on here to 91 cases but we know nothing about the cases or the underlying facts. What gives?

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  7. It is just beyond me to understand how anyone can look at all the evidence and say that prosecutorial misconduct is not a serious problem. Yet, they do.

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  8. Prosecutors are always using victims to justify what they do. They are the ones standing up for the victims. Yet, when the perpetrators are among their own, they suddenly don't care about the victims anymore. Makes them a little hypocritical, don't ya think.

    Crime victims are sacred, unless the perpetrator is a police officer or prosecutor, then the crime victims suddenly become money grubbing scum.

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  9. Personally, I think all types of immunity are unconstitutional. If we say that a prosecutor or a judge can intentionally violate a person's constitutional right, and the victim of this action has no legal recourse, we are denying that person due process. Either we believe in things like due process or we don't. Currently, with absolute prosecutorial and judicial immunity, this country has rejected the notion that people have a constitutional right to due process. Now, that I think about it, I'm not sure this country ever really embraced the Constitution. It was just an ideal that we never really intended to live up to.

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  10. 6:00, I'm not "alluding" to a study, just linking to news accounts of it. E.g., Shannon Edmonds cited it in his column. I haven't reviewed the underlying data (in part because it's such a small, limited study - in Texas most prosecutor misconduct is deemed "harmless" by the courts and so wouldn't be included). Here's the original press release; feel free to call and get it yourself.

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  11. Prosecutorial misconduct threatens public respect for and support of the law in general. It also sometimes puts the public in danger, as so vividly shown by the consequences of the alleged misconduct of Ken Anderson right up the road from us. If have no doubt that Debra Masters Baker would still be alive today had Anderson and (late) Sheriff Boutwell simply done their jobs. Bradley's contribution was possibly a coverup for Anderson, but whatever the reason his entrenched opposition to DNA testing cost Mike Morton 6 more years in prison, years now proven the result of being wrongfully convicted.

    Two families were ripped to shreds. I cannot imagine Mike's pain over those years, but I know ours only too well. Two small children suddenly without a mother, years of grief and anger, her sisters, brother, mother all devastated. The worst was the heartbreaking damage to her son, who never got the answers he so badly needed and has held a rage inside all these years. One case of probable misconduct caused all this suffering and much, much more. Yet the US Supreme Court gives these criminals immunity for deliberately violating the law? My respect for "the law" has been destroyed over these years. I doubt I'll ever see any DA or law enforcement official in a favorable light again. This flaw must be corrected.

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  12. Somebody forwarded me a link to the underlying data you wanted. Here it is (pdf).

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