Justice: Denied -- The Magazine for the Wrongly Convicted Volume 1, Issue 6 (July 1999)

(No inference should be made about any political statement made by any guest writer about Justice Denied. The writer is solely responsible for the content and ideas of his or her writing. Our concern is to provide a platform for dialogue about the criminal justice system.)

Prosecutorial Lawlessness is its Real Name

By Hans Sherrer (Guest writer)

One common thread running through the true stories of personal tragedy published in Justice Denied is the central role played by what is referred to as "prosecutorial misconduct." The time has come to recognize that prosecutorial misconduct is a euphemism used to hide the truth of what is actually lawlessness by prosecutors.

People can act lawlessly by breaking the law, but they can also be lawless by acting in an "unbridled; unruly; unrestrained" manner. (The Random House Webster's Unabridged Dictionary, 1996). This definition aptly describes the behavior of state and federal prosecutors nationwide. Based on the known rate of false convictions in capital cases, the routine failure of prosecutors to exercise caution or sound judgment in performing their duties results in an estimated one and one third million innocent men and women in prison, on probation, or parole at any given time.

Lawless behavior by prosecutors takes many forms, and they all undermine the substance and appearance of justice. It is lawless to focus the prosecutorial process on the objective of gaining convictions to the point of failing to act with dignity, fairness, honesty and respect towards someone suspected or accused of a crime. This behavior is even more reprehensible because it is directed at impairing the rights of people whose liberty is at stake, and who are involved in one of the most traumatic experiences of their lives against an opponent with an overwhelming advantage in resources, experience, and manpower.

Some of the more well-known forms of lawlessness by prosecutors are:

● Withholding exculpatory evidence from a defendant during pretrial discovery.

● Piling on spurious charges to try to compel a defendant to plead guilty or to confuse a jury enough to convict the defendant on at least one of the charges. (The jury foreman in Randy Weaver's 1993 trial said he was charged "with everything but speeding.")

● Seeking excessive pretrial bail to prevent a defendant's release, adding to the appearance of guilt and increasing the pressure to plead guilty.

● Falsely charging family members, friends or business associates with crimes to pressure a defendant to plead guilty and betray confidences by becoming an informant for the government. (Ken Starr used this tactic to successfully compel Webster Hubbell to plead guilty in June of this year and become an informant.)

● Wording or structuring (or both) an indictment in an inflammatory way to prejudice jurors, the news media, and the judge against a defendant.

● Misusing the Grand Jury indictment process to selectively prosecute someone to satisfy a political agenda, a bureaucratic goal, or out of personal vindictiveness. This practice is so common that it is a national joke that a prosecutor can get an indictment against a *ham sandwich.*

● Falsifying a search warrant affidavit to induce a judge to issue a fraudulent search warrant. (Books about the O. J. case revealed this was one of prosecutor Marcia Clark's specialties.)

● Threatening to seek judicial or professional sanctions against conscientious defense lawyers who vigorously defend their clients.

● Making false, misleading, or disparaging statements in court against a defendant or his attorney, or both.

● Planting stories, leaking information, or both, to the news media to influence public opinion and poison the minds of potential jurors against an accused or suspected person.

● Using innuendo and supposition, instead of facts and evidence, to create the illusion that a defendant is guilty.

This is not harmless misconduct, but life-devastating lawlessness. These tactics are so prevalent that one Texas appellate judge estimated that at least 60 percent of all criminal cases presented for review involve claims of prosecutorial wrongdoing (Alschuler, 631). This misconduct is particularly reprehensible because it is directed at undermining the system's function of fairly determining if an accused person is innocent or guilty.

The pervasive lawlessness of prosecutors who will resort to any tactic in their desperation to win at all costs was documented in exposés and reports published recently by the Pittsburgh Post-Gazette, the Chicago Tribune, the Seattle Post-Intelligencer, Reason magazine, and Amnesty International.

As shocking as they are, these public exposés don't reveal anything the legal community and concerned lay people haven't known for decades. The problem has been described in several books, beginning with Yale law professor Edwin Borchard's 1932 book, Convicting the Innocent, and in many law review articles in the 67 years since Borchard's book was published.

An awareness of what prosecutors do to illegally win false convictions is only one side of the coin. The other side of it is what can be done to stop it, which is a two-pronged problem.

First, is to heighten society's level of consciousness about the human impact of the routine and improper things prosecutors do to win convictions. Two concurrent events contribute to this. One, the growing publicity given to the enormous number of false convictions resulting from the criminal justice system's 1000% growth over the past 25 years. Two, the national reporting of every sordid detail of special prosecutor Ken Starr's years-long criminal investigation of President Clinton, his wife Hillary, and his business and political associates.

Second, is to determine what can be done to stop the rapacious, unchecked actions of prosecutors. Law review articles dating back at least to the 1940s have explored different aspects of this persistent problem. They identify methods potentially useful to discipline wrongdoing by prosecutors:

● Appellate reversal of a conviction

● Objection by a defense lawyer and admonishment by a trial judge

● Contempt of Court

● Discipline by a state bar association

● Criminal prosecution

Unfortunately, these have all proved pathetically ineffective at controlling prosecutorial lawlessness.

The "harmless error" rule has been expanded by appellate courts to give prosecutors license to do almost anything they want to affect the outcome of a trial, in or out of a courtroom, without fear of their behavior causing a conviction to be reversed (Alschuler, 658-668).

A defense lawyer's objection to what a prosecutor says or does, or a trial judge's admonishment of a prosecutor means nothing (Alschuler, 648-656). It has as much impact on a prosecutor's behavior as telling children not to raid the cookie jar after they already did it.

Two studies by law professors revealed that over several decades, there was not a single known instance of a state or federal prosecutor being held in contempt of court or otherwise disciplined by court-ordered sanctions (Alschuler, 674). On the other hand, it is common for judges to find defense lawyers in contempt for doing things of far less severity than what prosecutors do with impunity.

Meaningful discipline of prosecutors for misconduct by a state bar association is about as rare as the appearance of Haley's Comet (Alschuler, 670-673). The bar association's toothless oversight is demonstrated in the notorious case of Miller v. Pate (386 U. S. 1 (1967)). The Illinois State Bar Association refused to recommend any disciplinary action against the prosecutor. In that case the Supreme Court reversed the murder-rape conviction of Lloyd Miller, whose innocence didn't prevent him from spending eleven years on death row. Among other lawless acts, the prosecutor in his case "deliberately misrepresented the truth" in court by claiming that a pair of under-shorts allegedly found a mile from the crime scene was smeared with Miller's blood, when he knew they were actually covered with red paint.

Although prosecutors routinely engage in many activities that violate criminal laws, they are protected from accountability by two almost impenetrable barriers: The Faustian code of silence that is a part of the old boys' network; and the ancient problem of "who polices the police"?

Since prosecutors are often involved in some form of wrongdoing, it means none can break the "code of silence" without potential danger to themselves. This was dramatically demonstrated in a recent Seattle, Washington case. After a five year ordeal that cost her $42,000 in legal fees, 74 year-old Laura Park settled her federal lawsuit for false arrest and violation of her constitutional rights in June this year for $230,000. Deputy King County DA Ivan Orton had wrongly criminalized a civil probate dispute between Ms. Park, a former Washington State Teacher of the Year, and an heir to her mother's estate. King County DA Norm Maleng refused to discipline Orton, even though he filed false felony theft charges against Ms. Park for a routine civil dispute that didn't even involve the attempted theft of any money.

The question of "who polices the police" was driven home when the DuPage Seven (4 sheriff's deputies and 3 former prosecutors) were recently acquitted in a Chicago suburb. A special prosecutor for Illinois filed charges against the Seven for conspiring to frame Rolando Cruz for a rape and murder he didn't commit. The seven were acquitted after a trial by a judge (they waived their right to a jury), even though a DuPage County deputy sheriff admitted he fabricated evidence to ensure Cruz's conviction, and said other deputy sheriffs and the prosecutors involved knew it. Cruz has a multi-million dollar civil suit pending to compensate him for spending 11 years on death row for a crime he didn't commit. None of the deputy sheriffs and prosecutors involved in his case will be held criminally accountable for their role in the three false prosecutions he endured before being exonerated.

All these facts paint an ugly picture of the prosecutorial lawlessness that infects all aspects of the criminal justice system. It also makes obvious the absence of any institutional remedy that can protect any of us from the depravations of prosecutors. As keepers of the keys to the doors of the criminal justice system, prosecutors have no interest in curbing lawless behavior that is directly responsible for demolishing the lives of unconscionable numbers of Americans.

There is hope. However, meaningful change can only stem from the proactive efforts of people outside the system At the height of the Soviet Union's power in the late 1970s, people throughout Eastern Europe were inspired to stand up as human beings for the first time in their lives by Václav Havel's essay, The Power of the Powerless. His message? That ultimately we each determine our fate by what we are willing to tolerate and bear witness to in silence. Faced by the concerted actions of people determined to call a spade a spade and live by their standards and values, unresponsive political leaders and out of sync government bureaucrats are helpless. Tearing down the Berlin Wall and the collapse of the Soviet Union are a testament to the accuracy of Havel's vision.

This thinking formed the basis for the guerrilla type action lawyer Michael Mello used to save an innocent man from being executed in Florida. He threw himself on the gears of the legal system by enlisting the editorial aid of the Miami Herald to galvanize public opinion against an unresponsive legal and political system that was intent on following bureaucratic procedures that would have resulted in the execution of a plainly innocent man.

By publicizing stories of injustice that would otherwise remain buried in the torn souls of their victims and in files entombed in the depths of courthouses around the country, Justice Denied is part of the expanding network of publications, groups and concerned people who realize that if positive, meaningful things are to be done, it is up to them.

At any time, any of us could be subject to the vagaries and whims of some prosecutor, so we all have a compelling reason to care about stopping the insanity of prosecuting and imprisoning innocent people, that not only depends on prosecutorial lawlessness, but is symbolized by it.

Sources:

"Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice," Edwin M. Borchard, Yale University Press New Haven, Connecticut, 1932.

"The Innocents," Hans Sherrer, Introduction reprinted in Justice Denied, February, 1999 (No. 1, Vol. 2) and March, 1999 (No. 1, Vol. 3). The introduction elaborates on the estimate, based on the known rate of false convictions in capital cases (where the highest standards of proof are maintained and every case is appealed), that over 1-1/3 million innocent people are among the over six million people under the control of the criminal justice system at any given time.

"Win At All Costs," Bill Moushey (staff writer), Pittsburgh Post-Gazette, Pittsburgh, PA, 10-part series published from Nov. 22 to Dec. 14, 1998.

"The Power To Harm," Andrew Schneider and Mike Barber, Seattle Post-Intelligencer reprint of coverage and commentary on the Wenatchee false prosecutions published from Feb. 23 - March 17, 1998.

"The Verdict Dishonor," Ken Armstrong and Maurice Possley (staff writers), Chicago Tribune, Chicago, IL, 5-part series published from January 10 to 14, 1999.

"Starr Teachers: Think independent counsels use dirty tricks? Check out the Justice Department's regular prosecutors," Harvey A. Silverglate and Andrew Good, Reason, May, 1999, Vol. 31, No. 1, pp. 26-33.

"Courtroom Misconduct by Prosecutors and Trial Judges," Albert W. Alschuler, 50 Texas Law Review, 629-735 (1972). A remarkable aspect of professor Alschuler's study is that the tenfold growth of the criminal justice system since 1972 provides more evidentiary support for his findings, and adds their relevance to today's national crisis of prosecutorial lawlessness.

"Rights For All: United States of America," Amnesty International, NY, October, 1998.

"The Power of the Powerless," Václav Havel, "Open Letters: Selected Writings 1965-1990," Václav Havel, Alfred A. Knopf, NY, 1991, pp. 125-214.

"Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment," Michael Mello, University of Wisconsin Press, Madison, Wisconsin, 1997, pp. 13-14.

"Woman gets record $230,000 from county for false arrest," Elaine Porterfied (staff writer), Seattle Post-Intelligencer, June 30, 1999, pp. A1, A6.