Head in the sand over prosecutorial misconduct

Law Professor Erwin Chemerinsky is dismayed by Supreme Court rulings that protect unscrupulous prosecutors from the consequences of their actions.  The Friends of Justice share this concern.  The pious doctrine that American citizens stand before the law as equals is a worthy aspirational goal, but it bears little relation to actual practice.  The title of this post is taken from the title of professor Chemerinsky’s article in the National Law Journal.

In the real world, American citizens are scattered along a continuum stretching from low-status black males (who can be prosecuted and convicted on the basis of uncorroborated snitch testimony) all the way to prosecutors and judges whose professional behavior, no matter how flagrantly illegal, cannot be prosecuted at all.  We cannot admit that some can be convicted without real evidence (ala Tulia) while others smoking-gun isn’t enough to put people like Terry McEarchern (Tulia, TX), Brett Grayson (AUSA, Western Louisiana) and Harry Connick Sr. (New Orleans) out of business. 

Most Americans can be located on the culpability spectrum somewhere between the hapless black drug defendant and the federal prosecutor, but your typical suburbanite has little personal contact with law enforcement or the judicial system.  We are easily persuaded, therefore, that stories of police brutality or prosecutorial misconduct are concocted by criminals with an axe to grind.  The notion that public officials are flagrantly breaking the law they are sworn to uphold is disturbing; believing that all is well in justice-land is reassuring.  Until we ourselves fall victim to prosecutorial misconduct (and we almost never do) we easily ignore the subject.

When the innocent victims of prosecutorial misconduct (almost invariably poor people of color) cross swords with their oppressors (usually pale males who wear expensive suits and live in exclusive suburbs) it’s a re-run of Bambi v. Godzilla.

The Supreme Court needs to change its rulings or remove the words “Equal Justice Under Law” from the facade of their workshop.  The system is rigged against the victims of official misconduct and most public officials fight like caged animals to keep it that way.  Please give professor Chemerinsky’s concerns your careful attention.

Head in the sand over prosecutorial misconduct

The Supreme Court has sent a disturbing message that it just doesn’t realize there is a serious problem infecting our criminal justice system.

Erwin Chemerinsky

The National Law Journal

April 25, 2011

The U.S. Supreme Court is oblivious to a serious problem in the American legal system: prosecutorial misconduct. Study after study has demonstrated serious prosecutorial misconduct at both the federal and state levels. For example, early this month, the Northern California Innocence Project at Santa Clara Univer­sity School of Law released a study in which it documented 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct. Egregious prosecutorial misconduct has occurred in high-publicity cases, such as the prosecution of the Duke University lacrosse players and the conviction of the now late Alaska Sen. Ted Stevens.

Unfortunately, the Supreme Court has not gotten the message. Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct. In both instances, the Court held that the victims could not recover. Together, these cases send a disturbing message that the Court is shielding prosecutors from liability. The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct.

Two years ago, in Van de Kamp v. Goldstein, 555 U.S. 335 (2009), the Court dismissed a suit against prosecutors by a man who spent 24 years in prison for a murder that he did not commit. Tommy Lee Goldstein was convicted of murder even though there was no physical evidence linking him to the crime, no eyewitness and no confession. The key evidence against Goldstein was the testimony of two witnesses who said that they heard him admit to the killing. One later recanted.

The other, the key witness, was a jailhouse informant, Edward Fink, who had a long history of making deals with prosecutors to get a reduction in charges and punishments in exchange for giving testimony against other inmates. Fink claimed that Goldstein made incriminating statements when they shared a jail cell together. The prosecutors never disclosed Fink’s history to Goldstein’s lawyers nor the discussions about the benefits Fink would receive for testifying against Goldstein.

After Goldstein prevailed in his habeas corpus petition and was exonerated, he sued the then-district attorney for failing to institute a policy of disclosing such information to criminal defendants, as is required by the U.S. Constitution. The Supreme Court unanimously held that Goldstein’s civil suit had to be dismissed because of absolute prosecutorial immunity.


The Supreme Court has held that prosecutors have absolute immunity for their prosecutorial acts, but only qualified immunity for their administrative and investigative acts. See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976). Goldstein argued that his suit was based on the administrative failure of the district attorney, including the failure to adequately train and supervise district attorneys on the need to disclose impeachment material. The Supreme Court rejected this argument and declared: “[W]e conclude that prosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of legal claims at issue here.”

On March 29, in Connick v. Thompson, 2011 WL 1119022 (U.S.), the Court ruled against a man who was convicted and spent 18 years in prison, and 14 years on death row, because of prosecutorial misconduct. One month before he was to be executed, John Thompson’s defense lawyers found blood evidence that prosecutors possessed, but did not disclose, that exonerated him for an armed robbery for which he had been convicted and that greatly affected his murder trial.

Two days before Thompson’s trial, the assistant district attorney received the crime lab’s report, which stated that the perpetrator had blood type B. The defense was not told of this, not at the trial and not until the report was discovered shortly before Thompson’s scheduled execution. Thompson has type O blood.

The district attorney conceded that it violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), in not turning over the blood evidence. Thomp­son sued for prosecutorial misconduct, and a jury awarded him $14 million. But the Supreme Court reversed, in a 5-4 decision, and held that the city could not be held liable for the prosecutorial misconduct. Justice Clarence Thomas, writing for the Court, said that a single instance of prosecutorial misconduct was not enough to show sufficient deliberate indifference to allow the city to be sued.

But as Justice Ruth Bader Ginsburg pointed out in her dissenting opinion, this was not a single instance of misconduct. She wrote: “Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight.…What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish.”

These two cases share much in common. Both involved innocent men convicted and imprisoned for a long period of time because of prosecutors’ failure to comply with the constitutional duty to turn material over to the defense. It is exactly the kind of misconduct that studies show happens with alarming frequency. In both cases, the Court rejected claims that constitutional violations occurred because prosecutors were inadequately trained and instructed as to their constitutional duty to disclose exculpatory and impeachment material.

Most importantly, in both cases, the Court ruled against the innocent victims of prosecutorial misconduct. In doing so, the Court has made it much harder to hold prosecutors accountable and has sent a disturbing message that it just doesn’t realize that there is a serious problem that infects our criminal justice system.

Erwin Chemerinsky is dean and distinguished professor of law at the University of California, Irvine School of Law.

3 thoughts on “Head in the sand over prosecutorial misconduct

  1. I would love for my case to be prosecuted under 18 USC 241 and 242. I am not saying that I suffered more or am more deserving than other people. What I have is proof that cannot be contested that within the 5 years of statute of limitations parties asked a former judge to have me detained without a criminal charge and I was detained without a criminal charge for 3 weeks. At the detention hearing it was acknowledged that there were no criminal charges against me, that I was being denied a bail hearing, and the magistrate / clerk of court who ordered the detention said that she was doing so because she had talked on the phone that morning with former judge Edward Nottingham who had told her that he wanted me brought to him 1200 miles away. I would love to testify.

  2. Why aren’t you mentioning case of Troy Anthony Davis? Do we just stand by as he gets closer to his execution?
    Frances Miller

  3. I second this question WHY??? are we not in the streets screaming for justice in Troy davis’ case. This is blatant disregard for justice. Amnesty,NAACP, color of change and others are all fighting for him but georgia and the supreme?? court will not listen. PLEASE go to amnestyusa.org/troy and read about him and sign petition and then forward it to others he may not have much time. We need to help him. PEACE

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