Prosecutorial Misconduct: An Unpunished American Scandal Pt. 1


Prosecutorial Misconduct: An Unpunished American Scandal Pt. 1

Prosecutors are rarely disciplined or criminally prosecuted for their misconduct, and

The victims of this misconduct are generally denied any civil remedy

Because of prosecutorial immunities.

Fordham Law Review

Margaret Z. Johns

Prosecutorial Misconduct: An Unpunished American Scandal Pt. 1

When criminal defendants go to trial in our adversarial legal system, they expect to face a vigorous prosecution that will assume their guilt, and accept nothing less than convictions and maximum sentences. However, prosecutorial misconduct is on an entirely different level. Rogue prosecutors rarely face repercussions for their unethical and illegal behavior. Defendants, who are victimized by the tactics of these men and women, have been wrongfully convicted and imprisoned throughout the country. This is a national scandal, a topic far beyond the scope of an Internet blog. Because of this, the Court Jester will focus only on the Commonwealth of Massachusetts in this two-part series. These blogs will deal with the issues raised in the article written by Brooke Williams and Shawn Musgrave that were originally published in The Eye on April 6, 2016, with the title, “Wayward Prosecutors Go Unpunished as Prison Time for Victims Piles Up.” This article was reprinted in the November 2016 issue of Prison Legal News.

A quote from Daniel Medwed, a professor at Northeastern University School of Law, succinctly summarized the issue of prosecutorial misconduct. “Prosecutors have more power than anyone, in many respects, over the lives of the average person. But there is almost no accountability, no transparency, and the public isn’t paying attention – that is a very, very combustible concoction.” Examples of prosecutorial misconduct have included refusing to turn over potentially exculpatory evidence and misrepresenting evidence in court. In addition, prosecutors had information about their witnesses that would cast doubt about their credibility, but refused to disclose it to defense attorneys. Williams and Musgrave depicted the current dilemma as follows. “In Massachusetts, prosecutors have violated defendant’s rights to a fair trial regularly and without punishment, even as wrongfully convicted victims of tainted prosecutors have spent years in prison before being freed, decades of court rulings show.” There are bad actors in any profession, but prosecutorial misconduct takes away people’s freedom and subjects them to unrelenting, unfair punishment.  Being a prosecutor in the United States is perhaps the only profession in which a person is empowered to make decisions that can result in ruining people’s lives, while rarely suffering any consequences.

The New England Center for Investigative Reporting (NECIR) analyzed 1000 cases of alleged prosecutorial misconduct in the Commonwealth of Massachusetts. Despite 120 criminal cases that have been reversed and judicial findings of prosecutorial conduct worthy of censure, the NECIR discovered that not one prosecutor in Massachusetts has lost their legal license during the past 42 years! During this same time period, only two prosecutors were reprimanded publically for their egregious misconduct. In these two cases, there was no monetary fine or other sanctions placed upon them. Even when misconduct determinations are made, the names of the offending prosecutors are not released. Prosecutors with a pattern of misconduct are not made accountable by their overseers. Judges prefer not to disclose the names of violators of the Commonwealth’s ethical standards for professional conduct, because they share close collegial bonds with the men and women who try cases in their courtrooms. In the legal profession, judges are highly reluctant to report their colleagues, making it virtually impossible to determine who has violated professional standards.

Massachusetts Supreme Judicial Court Justice Ruth Abrams has been severely critical of the tendency of the judicial system to protect the identities of prosecutors who engage in misconduct and shield them from public accountability. Regarding a case of wrongful conviction of a man whose first degree murder charge was dropped after 35 years of unjust punishment, Abrams said the following. “The prosecutor’s misconduct forces the friends and families of the victim to relive the trauma of the crime and again suffer the ordeal of a trial. The prosecutor’s misconduct penalizes the defendant, who again must undergo the fear and anxiety associated with a criminal trial. Why then, is the prosecutor whose conduct results in such consequences not named in our opinion?” The protection of errant prosecutors from serious consequences for their misbehavior has been decried by reform minded judges and criminal justice advocates for over 30 years in the Commonwealth of Massachusetts, to no avail.

Another trial tactic used by prosecutors not worried about accountability for their egregious behavior is to grant jailhouse snitches sweet deals – sentence “adjustments” – if they are willing to fabricate incriminating testimony regarding criminal defendants. Providing favors for false incrimination testimony is an insidious behind the scenes tactic designed to ensure convictions in cases prosecutors want to “solve,” without having to find the real perpetrator. Convenience convictions should be termed criminal behavior by rogue prosecutors, who operate with impunity in our prosecution dominated criminal justice system.

It is the failure of the legal self regulatory system that allows wayward prosecutors to successfully switch to practice without having to face the consequences of their wrongdoings. In the Commonwealth of Massachusetts, the Board of Bar Overseers is tasked with investigating claims of prosecutorial misconduct and disciplining violators of the rules of ethics. Even when the claims are justified and the convictions of defendants have been thrown out, prosecutors remain unscathed, and are permitted to reinvent themselves. In Massachusetts, prosecutors who were guilty of misconduct have been able to advance their legal careers, becoming attorneys and judges. The vocational and financial rewarding of professional misconduct is unheard of in other professions in the United States. However, when it comes to prosecutors in America, professional misconduct has proven to be no obstacle to professional advancement.

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