Carte Blanche for Prosecutors

The prosecutor's function is "not to tack as many skins of victims as possible against the wall," wrote William O. Douglas.  As the great Supreme Court Justice stated, prosecutors have an obligation not just to "win a case" but to ensure "that justice shall be done."  Thus, while the prosecutor "may strike hard blows, he [or she] is not at liberty to strike foul ones. It is as much his [or her] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

In a review of California state and federal criminal cases in 2010, the Northern California Innocence Project found 102 cases in which there were 130 instances of prosecutorial misconduct.  Common examples of improper behavior by prosecutors include providing undisclosed deals to witnesses in exchange for testimony, failing to turn over evidence to the defense that might be favorable, and misleading the jury during their closing argument.

CNN, reporting on the study, states that some of the instances of misconduct "were so egregious that they resulted in the reversals of 18 convictions."  What is more egregious is that only 18 out of these 102 cases were reversed.  Appellate courts affirmed the other 84 based on two doctrines that are used in countless other cases to avoid overturning convictions despite errors that occurred at trial.  First, if the defense lawyer fails to timely object the error is deemed "waived" for appeal.  Second, even if not waived, the error will be found non-prejudicial.  Under the principle known as "harmless error," appellate courts are able to find that whatever errors may have taken place during the trial would not have made a difference in the outcome.  (This is how the California Supreme Court was able to affirm all 24 death penalty appeals it heard in 2010, and 24 out of 25 in 2009.  See California's Dysfunctional Death Penalty)

Not only are convictions upheld despite D.A. misconduct, but prosecutors who are found to have acted improperly are rarely disciplined.  (This is in stark contrast to defense lawyers who are reported to the State Bar if they are found to have provided ineffective assistance of counsel.)  Nor are prosecutors in danger of being held civilly liable for their misdeeds, even when it results in a wrongful conviction.

In 1985, John Thompson was tried for murder in Louisiana.  He did not testify in his own defense out of concern that the jury would learn of an earlier robbery conviction.  He was found guilty of murder and sentenced to death.  In 1999, it was learned that the prosecution had withheld key evidence in the robbery case that would have cast serious doubt on his guilt.  Both robbery and murder convictions were overturned, and Thompson was acquitted in a new murder trial.  All told Thompson served 18 years in prison.  Thompson sued the D.A.'s office for violating his civil rights.  Thompson won a $14 million judgment, which was upheld by the federal appeals court but reversed last week by the U.S. Supreme Court.  In a nasty 5-4 decision written by Justice Clarence Thomas, which minimized both the wrongdoing of the District Attorney and the harm done to Thompson, the majority found that the D.A. could not be held liable for one bad act of a single prosecutor.  (Connick v. Thompson.)

Prosecutors well know that if they commit misconduct the resulting convictions will stand and they won't be  disciplined or sued.  Accordingly, those prosecutors who are, shall we say, ethically challenged have little incentive to avoid improper conduct that will help them tack more skins on the wall.