Widespread Prosecutorial Misconduct in the U.S.?

Thursday, November 24th, 2011
Baton Rouge, Louisiana

PROSECUTORS GONE WILD!

Over the past few months, there has been a rash of reports and charges of widespread and intentional withholding of evidence on the part of federal prosecutors in a number of high profile criminal cases. Intentional is the key word here. Mistakes can be made when prosecutors work under heavy case loads and the pressure of meeting deadlines. But in way too many cases, prosecutors hiding evidence that is favorable to the defense has proven to be deliberate, and in direct violation of the law.

Even though such miscarriage of justice often leads to the conviction of an innocent defendant, rogue prosecutors who violate the law in this way are rarely prosecuted, or even sanctioned. This is a blight on the American justice system, today.
It takes a courageous and determined judge to weed out the abuse of prosecutors who willfully violate the law. In too many instances, there is a mere slap on the wrist, or even the ignoring of the abuse altogether. But every now and then, a tenacious judge comes forth and shows his mettle and demands full accountability from the cadre of rogue prosecutors. One such judge is Emmet G. Sullivan, of Federal District Court in Washington.

Judge Sullivan presided over the Senator Ted Stephens case, where a whistleblower provided information of the widespread hiding of evidence. Upon learning of the extensive improprieties of the Justice Department officials in the case, Judge Sullivan appointed a special investigator, who, just this week, issued a scathing report. The 500 page document concluded that the Stephens case was “permeated by the prosecutors’ serious, widespread, and at times intentional and illegal concealment of evidence,” -- evidence that would have been extremely helpful to Stephens’ defense.

The judge lashed out at the prosecutors, who deliberately withheld information favorable to the defense, and quoted from the report that the case was “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Stephens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.” The Judge is now considering making a strong recommendation for obstruction of justice charges against the prosecutors in the case.

My home state of Louisiana is certainly not immune from wayward prosecutors who withhold information helpful to a defendant. Just two weeks ago, the United States Supreme Court again heard a New Orleans case where key evidence was withheld from a defendant who was convicted of murder. Defense attorneys in Louisiana have said for years that the standard modus operandi for prosecutors in New Orleans when it comes to handing over key evidence helpful to the defendant is, “When in doubt, don’t give it up.”

As quoted in the New York Times, a former U.S. Attorney from New Orleans said that the office policy was “keeping away as much information as possible from the defense attorney.” Defense lawyers in New Orleans confirm that there have been 28 convictions, many that put defendants on death row, where later it was determined that prosecutors had withheld key evidence that would have supported the innocence of the accused.

In the notorious case of Dan Bright, convicted and put on death row for a murder he did not commit, evidence came out years after his conviction that the FBI, thanks to a credible informant, had been in possession of the name of the actual killer all along. Luckily for Dan Bright, because of the unconstitutional withholding of key evidence by the prosecution and the FBI, his conviction was thrown out, and he now is a free man.

The Forman of White’s jury, who recommended he be put to death, was Kathleen Norman, who was a guest on my radio show on several occasions before her untimely death last year. She was so incensed over White’s wrongful conviction and the hiding of evidence that would have cleared him by the FBI, that she became head of the Louisiana Innocence project, helping others like White mount a credible defense.
Unfortunately, a calculating prosecutor who intentionally hides evidence that could find a defendant innocent runs only a slight risk of sanctions. There are few judges like Judge Sullivan, who demand an accounting for violating the law. A recent examination of prosecutorial misconduct by The Yale Law Journal concludes that “prosecutors gone wild” by intentionally violating the law, and even sending innocent defendants to the gas chamber are rarely sanctioned. Their conclusions stated:

“Given the Supreme Court’s repeated endorsement of professional discipline as the appropriate vehicle for addressing allegations of prosecutorial misconduct, one might suppose that state bar agencies frequently sanction prosecutors. In fact, prosecutors are rarely held accountable for violating ethics rules. A Chicago Tribune study identified 381 homicide cases nationally in which Brady violations (withholding evidence) produced conviction reversals. Yet prosecutors faced disciplinary action in only forty-four of those cases, and seven of these actions were eventually dismissed.

As these studies indicate, infrequent punishment of prosecutors cannot be blamed on a paucity of discoverable violations. Even when judicial findings of misconduct result in conviction reversals, disciplinary sanctions are almost never imposed against the offending prosecutor.”

Conduct by rogue prosecutors of withholding information that could prove an accused innocent is far too prevalent. A segment of ambitious prosecutors are looking for another notch on their gun to add to their resume for advancement. The higher the rate of convictions, the more likely they can parley their actions into becoming an elected district attorney or perhaps a judge. The only way to reign in their efforts to convict at any price is through sanctions, disbarment and criminal prosecution. We need a lot more Judge Emmet Sullivans on the bench to both uphold justice, and to make certain that those who compromise justice are held fully accountable.
*****

“The only thing that assures fairness in the courtroom are judges with courage to keep their eyes open, watch what is happening, keep an open mind and make fair decisions fair to both sides.”
Brandon Sullivan

Peace and Justice

Jim Brown

Jim Brown’s syndicated column appears each week in numerous newspapers and websites throughout the South. You can read all his past columns and see continuing updates at www.jimbrownusa.com. You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownusa.com.