Major study examines prosecutorial misconduct

By Alan Bean

In another sign that the American mainstream is taking notice of a broken system of justice, USA Today has published “Justice in the Balance“, a series of articles focusing on prosecutorial misconduct, particularly in the federal justice system.  The series began in September of last year and the most recent submission was posted on December 29, 2010.

According to writers Kevin McCoy and Brad Heath, “USA TODAY documented 201 cases since 1997 in which federal courts ruled that prosecutors had violated laws or ethics rules.  Some of these violations put innocent people in prison, but in at least 48 cases defendants were later convicted, then had their sentences reduced or were even set free . . . Although those represent a tiny fraction of the tens of thousands of federal criminal cases filed each year, the problems were so grave that judges dismissed indictments, reversed convictions or rebuked prosecutors for misconduct.”

Here’s the real kicker: “USA TODAY found only 13 cases in which the government paid anything toward defendants’ legal bills.  Most people never seek compensation.  Most who do end up empty-handed.”

This is because, as readers of this blog are well aware, federal prosecutors enjoy absolute immunity from law suits.  No matter how devastating the damage, and no matter how many times you re-mortgage your home to cover the expense of fighting in court, the government assumes no responsibility for the behavior of its prosecutors no matter how blatant and shocking.

True, Congress did pass the Hyde Amendment in 1997, a law that ostensibly requires the Justice Department to reimburse the legal expenses of defendants who win in court and can prove prosecutorial misconduct.  Not surprisingly, the Justice Department fought the Hyde Amendment tooth and claw when it was first introduced and, according to USA TODAY, “nearly always resists efforts to win compensation, no matter how egregious a prosecutor’s conduct might have been.”

Jon May, Chair of the National Association of Criminal Defense Lawyers, says the Hyde Amendment “is practically a useless tool for dealing with prosecutorial misconduct.  The standard is so high that a prosecutor practically has to know that his case is so meritless that it is unlikely to get a conviction” and went ahead anyway.

Rarely can this be proven.  This explains why only 13 wronged defendants have received Hyde Amendment compensation since 1997 and why only $5.3 million has been paid out over thirteen years.  To win, a defendant must prove that the prosecution has been “vexatious, frivolous or in bad faith.”  No definition for this standard has ever been offered.

Only 92 people have pursued Hyde Amendment claims since 1997.  Most prosecutors refuse to dismiss charges unless the defendant signs a waiver not to pursue a Hyde Amendment application.

The USA TODAY study deals only with cases in which prosecutors were censured by judges.  This explains why the harrowing ordeal of Ann Colomb from Church Point, Louisiana and three of her sons wasn’t considered.  Although federal judge Tucker Melancon was clearly displeased by the behavior of AUSA Brett Grayson, all the blame for the Colomb fiasco was laid at the feet of lying snitches.  Federal prosecutors are free to use the uncorroborated testimony of convicted drug dealers who receive generous time cuts as payment for their testimony.  Melancon flew to Washington to warn the Federal Sentencing Commission to be wary of this kind of prosecution, but he couldn’t lay a finger on Grayson.

“Nearly 35 years ago,” the Heath and McCoy point out, “the U.S. Supreme Court ruled that prosecutors cannot face civil lawsuits over how they handle criminal cases in court, no matter how serious or obvious the abuses.  Since then, courts have further limited the circumstances under which prosecutors — or their bosses — can be sued for civil rights violations.”

Absolute immunity covers virtually all prosecutors, whether state or federal.  According to Kathleen Ridolfi, director of the Northern California Innocence Project, “Prosecutors know . . . they can commit misconduct with impunity.”

John Thompson, a Louisiana man who came within a month of execution because the New Orleans District Attorney withheld a lab report that contradicted their theory of the case recently won a $14 million settlement.  Soon the Supreme Court will decide if he will actually receive the money.  Thompson sued the DAs office for failing to properly train its prosecutors.  At the federal level, even this argument is considered off-limits.

The case for prosecutorial immunity is simple.  Heath and McCoy give us a quick history lesson:

In 1976, the Supreme Court decided, in a case called Imbler v. Pachtman, that prosecutors have absolute immunity from civil rights lawsuits for their work in the courtroom.  The court acknowledged that its ruling ‘does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty,’ but said the alternative was worse: leaving prosecutors to fear a lawsuit, or even bankruptcy, every time they lose a trial.

The Supreme Court has suggested that misbehaving prosecutors can be disciplined in other ways, but this almost never happens.  Of the 201 cases in which federal prosecutors were castigated by judges, only one, Richard Convertino, was ever prosecuted, and he was acquitted. 

The Justice Department’s Office of Professional Responsibility, founded in 1975 in the wake of the Watergate scandal, serves as an internal check against corruption, at least in theory.  But Heath and McCoy assert that “Even when judges have cited prosecutors for flouting constitutional rules, the government often clears the attorneys of wrongdoing and concludes the violations were unintentional.   The Office of Professional Responsibility (OPR), found wrongdoing in about one-quarter of the roughly 750 complaints it investigated during the past decade.”

90% of the cases submitted to the OPR weren’t investigated at all.

Moreover, the content of these investigations is routinely kept from the public.  According to Joseph diGenova, a former US Attorney in Washington, D.C. the government allowed lawyers “who should not be federal prosecutors to continue in that role.  The record on discipline is very, very poor.  The history of serious discipline is basically non-existent.”

Even on those rare occasions when the OPR admits abuse, its rulings have no real consequences.  Heath and McCoy point out that “OPR can only recommend a range of disciplinary penalties — for example, from 5 to 15 days’ suspension without pay — but cannot impose the punishment itself.”  It is left to the offending prosecutor’s supervisor (the person who sets the ethical tone for the office) to impose punishment.  Even then, prosecutors can appeal to the deputy attorney general.

Rarely will the OPR even release the names of the prosecutors it has recommended for discipline.  Jim Livine, president of the National Association of Criminal Defense Attorneys, calls OPR “a black hole.  Stuff goes in, nothing comes out.  The public, the defense attorneys and the judiciary have lost respect for the government’s ability to police themselves.”

“It’s not just its own files that the department keeps secret,” Heath and McCoy claim, “In some cases, it has asked judges to expunge misconduct findings from public court records.”

Prosecutors, whether at the state or federal level, must be free to pursue criminal activity aggressively and without fear of retaliation.  Unfortunately, the legal culture’s wagon-circling philosophy, coupled with the doctrine of absolute immunity, encourages prosecutors to be as nasty as they wanna be.   How many are tempted to cheat?  There is no way of knowing.  But defendants who fall victim to wrongful prosecution won’t be impressed by assurances that they got the one bad apple in the prosecutorial barrel.

In theory, lawyers organizations like the American Bar Association have the power to discipline their own.  It rarely happens.  Heath and McCoy discovered that the AMA has disciplined only six prosecutors since 1997.  State bar associations occasionally discipline prosecutors, but these cases almost never end in disbarment.

Terry McEachern, the former Swisher County DA who prosecuted the fruits of the Tom Coleman sting even though he knew Coleman was corrupt and untrustworthy, was suspended by the Texas Bar Association.  But the suspension was probated, meaning that, so long as he kept his nose clean, McEachern could continue to practice law.  He is now happily defending drug defendants.

To no one’s surprise, the Justice Department is shocked . .  . shocked by the USA TODAY series on prosecutorial misconduct.  Department spokeswoman Tracy Schmaler published a statement arguing that “A selective review of a handful of the many thousands of cases stretching as far back as 18 years ago does little to provide an accurate and representative picture of the honorable work done by federal prosecutors in courtrooms every day across this country.”

Heath and McCoy are not impressed.  “Since lives are ruined one at a time, the acceptable level of prosecutorial abuse is zero.  But Justice appears not to see it that way.”

Should Senator Ted Stevens forgive the Justice Department because most prosecutors don’t withhold evidence from defense counsel? 

The writers focus on the case of Nino Lyons, “an Orlando businessman convicted in 2001 of carjacking, trafficking in cocaine and drug conspiracy.”

Cases like this are simple to prosecute if you can line up enough snitches to point the finger and relate stories of drug deals back in the day.  That’s the way the Colomb case (see above) plaid out. 

But in the Lyons case, U.S. District Judge Gregory Presnell “ruled that Lyons was the victim of a ‘concerted campaign of prosecutorial abuse.’  The most damning testimony against Lyons came from ‘jailhouse snitches’ who were allowed, if not encouraged, to lie under oath,’ the judge found.  In 2004 — after Lyons had served 1,003 days in jail — the government dropped the major charge and Presnell dismissed the rest.  In July, he took the extraordinary step of exonerating Lyons on all charges.”

I would suggest that the wild card in this story is Judge Presnell.  Many federal judges would have allowed the AUSA to place anyone under oath so long as no one could prove they were lying.  I am currently working with six federal inmates who tell me they were convicted by lying snitches.  Do I believe them?  That’s what investigations are for, but my guess is that in most of these cases it will be impossible for anyone, including the federal prosecutors involved, to assess the credibility of these witnesses.  To put a man away for thirty years, you must simply line up a dozen snitches, pay them off with a generous time cut, and walk away.  Juries will believe the snitches because they are sponsored by the federal government.

It is not the least bit surprising that the government was able to dig up two dozen snitches to bury Mr. Lyons under an avalanche of lies.  The big surprise is that a federal judge saw through the scam.  This rarely happens.

Heath and McCoy are willing to stipulate that most federal prosecutors have high ethical standards.  “Like plane crashes in the nation’s remarkably safe aviation network, cases of misconduct by federal prosecutors  are rare.  But when breakdowns do occur . . . the right response is not to downplay them, but to investigate, assign responsibility and learn how to improve the system.”

I wish I could be this sanguine.  The real problem is not that prosecutors lie.  Because most cases are pretty straightforward, prosecutors don’t have to fiddle with the rules to get a win.  But in a sizable minority of cases at both the state and federal level, evidence of guilt falls short of acceptable standards.  Most of the cases Friends of Justice gets involved in are in this category.  Prosecutors can either walk away, or start beating the bushes for witnesses willing to make convenient statements in exchange for a get-out-of-jail-free card, a sweetheart deal, or, in the case of Curtis Flowers, a $30,000 cash award.

Misconduct rarely involves prosecuting a defendant you know to be innocent, although this certainly happens on rare occasions.  Most abuses stem from ambiguous facts, an over-reliance on uncorroborated snitch testimony or over-confidence in eye-witness identifications. 

To his credit, Attorney General Eric Holder has established new ethics training classes and now publishes statistics on infractions, but Heath and McCoy argue that “there’s still virtually no public scrutiny of the department’s actions.”

You can’t blame Holder.  No Attorney General, especially a Democrat, can afford to be labeled soft on crime.

4 thoughts on “Major study examines prosecutorial misconduct

  1. I have a current case.

    USMS held me for 5 months in 2005-2007. I sued DOJ and they responded that everything they did was totally legal.

    I have a letter from Rena Y. Kim, DOJ FOIA Criminal division dated 12/21/10 CRM 201000863P

    Dear Mrs. Sieverding

    This letter is in reference to your pending Freedom of Information Privacy Act request the the U.S. Department of Justice, dated November 16, 2010, and your subsequent letter dated December 6, 2010. In your request you asked for copies of records of all criminal charges, search warrants, or arrest warrants concerning yourself. In your follow-up letter you indicated that you were detained by the United States Marshals Service (USMS) several times.

    A search of our central index of records did not locate any records concerning you….

  2. We have a right to expect that prosecutors be held to a high ethical standard. It is NOT okay to present “ambiguous facts, an over-reliance on uncorroborated snitch testimony or over-confidence in eye-witness identifications. ” It is NOT acceptable to be more concerned about winning than offering an honest and reliable case. It is NOT good when the system rewards prosecutors, investigators, law enforcement, et al for the number of CONVICTIONS. We need to realize that truth and justice is what we are supposed to strive for.

  3. I was detained and my incense (suspected marijuana) confiscated to be sent to the crime lab for testing. The officer said there would be a warrant for my arrest “if the crime lab tested positive.” This was written in the police report. They had my incense for 90 days and did not test it. The state prosecutor filed a warrant for my arrest and I was arrested and jailed for FELONY possession of narcotics on the 90th day. After posting bail, hiring attorney and many sleepless nights preparing for my defense, my attorney found out that the confiscated incense was never tested in the crime lab. He demanded they test and of course, found it clean. The case was dismissed. Is the State Prosecutor covered under absolute immunity for such negligence? He wrote the information to the judge, falsely swearing that I possessed narcotics. He either did not read the police report or he disregarded it. I conclude that he was either negligent or malicious.


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