Prosecutors Are Master Framers
By Hans Sherrer
Watching movies and television shows for decades has conditioned us to have the Pavlovian
response of thinking that police are the culprits when people are framed.
So it was that instead of presenting us with a new idea, the internationally televised O.
J. Simpson trial was a real-life affirmation that police plant evidence, falsify reports
and commit perjury in court. The opinion of many people that in O. J.'s case the police
worked hard to frame a guilty man doesn't change what they did. It just emphasizes that
fame and wealth doesn't protect someone from being vulnerable to such tactics.
However, as reprehensible as the unethical behavior by police can be, focusing on it tends
to deflect attention from the bigger picture of how people are successfully framed. Police
misbehavior alone is not enough to convict a person. This is because police investigations
are typically conducted under the watchful eye of a prosecuting attorney, and even when
they aren't, a prosecutor must give his stamp of approval to a case before criminal
charges can be pursued against someone.
This means that no police wrongdoing can ever see the light of a
courtroom without the complicity of a willing prosecutor. To one
degree or another, all frame-ups of people are orchestrated by
prosecutors acting behind the scenes. This is as true of the high
percentage of plea bargains compelled by the threat of a false conviction, as it is by the
actual presentation of phony evidence, deceptive arguments, and perjured testimony during
a trial.
One of the most effective ways prosecutors contribute to framing people is by manipulating
their access to evidence in the government's possession that may tend to cast doubt on
their guilt. This is known as discovery evidence, and as a guard against false convictions
the U. S. Supreme Court recognized a defendant's right to this information in Brady v.
Maryland (1963).
The investigative resources of the government exceed those available to any private
person. This includes the world's richest man, Bill Gates. Therefore, if there is physical
or testimonial evidence that someone isn't guilty, it is often in the possession of the
prosecution, yet revealing exculpatory evidence to a defendant can undermine the
government's case. This situation creates an irresistable temptation for prosecutors
across America to thumb their noses at the Supreme Court and at the rights of all
Americans by hiding the existence of evidence that may interfere with convicting an
accused person. Ironically, this means that innocent people are rarely helped by the
pre-trial discovery process because it is in the personal and professional interest of
prosecutors to conceal potentially exonerating information from them.
There are numerous cases of wrongful conviction known to have been orchestrated by the
concealment of evidence by prosecutors. These cases span the length and breadth of the
country and include state and federal courts.
A representative example is Ellen Reasonover's case, reported
in the September 1999, issue of Justice Denied. A federal judge in Missouri
ordered Ms. Reasonover released in August of this year after she had spent 16 years in
prison for a murder she didn't commit. She was framed by prosecutors who concealed the
existence of two exonerating audio tapes and who bought the perjured testimony of two
"jailhouse" witnesses for the state.
Irrespective of the possible merits of the government's case, the
government creates the appearance that it knows a defendant is falsely accused when it
conceals evidence. An example of this is the recent revelations that for six years the U.
S. Department of Justice concealed testimony and physical evidence related to the siege
and destruction of the Branch Davidians' compound in Waco, Texas in 1993. [1]
The Branch Davidian survivors convicted of criminal
charges were partly framed by this concealed evidence, and some of the jurors misled by
federal prosecutors into convicting them are now advocating their release from prison.
In addition to withholding evidence, some of the popular techniques prosecutors use to
frame defendants are:
• They permit, encourage, compel, or purchase perjurious testimony in Court by
prosecution witnesses. In Ellen Reasonover's case, for example, the prosecution paid cash
for the testimony of one witness and rewarded another witness by dropping felony charges
against her.
• They permit or encourage the introduction of tainted or phony
evidence in Court. This can be done by introducing tests conducted on contaminated
physical evidence, introducing fake evidence, or introducing planted objects as authentic.
• They overcharge or pile on charges to compel an innocent person to plead guilty to
avoid a devastatingly long or harsh sentence if they go to trial and lose. The
effectiveness of this tactic is indicated by a study published in the Harvard Law Review
that concluded that over one-third of everyone who pleads guilty in a federal court would
have been acquitted after a trial. [2] This
finding is confirmed by the known cases of innocent people who pleaded guilty to
murder to avoid a possible false conviction and death sentence. [3]
• They make unsupported, disparaging and inflammatory
remarks about a defendant and the motives of the defense lawyer so that jurors will have
an emotional, rather than rational response, and want to convict a defendant the
prosecution hasn't proved to be guilty beyond a reasonable doubt.
It is abhorrent to the very concept of justice, but it is becoming
increasingly common knowledge that state and federal prosecutors are participating in
framing defendants with monotonous regularity.
This isn't surprising considering that prosecutors are given a green light to do so by a
lack of negative consequences when their wrongdoing is uncovered.
Although prosecutorial tactics are regularly recognized by courts as
deplorable, it doesn't stop defendants from being framed by
prosecutors. This is due in large part to the narrow interpretation by courts of what is
known as the "harmless error" rule. If a prosecutorial tactic isn't considered
sufficient in and of itself to have altered the outcome of a trial, it is dismissed by
courts as a "harmless error." Therefore, prosecutors know that as long as they
use tactics to frame a defendant that aren't excessively obvious or prejudicial of their
rights, these won't be deemed a sufficient reason to reverse a conviction or even prompt a
judicial reprimand.
A dramatic example of this was the recent denial of Terry Nichols'
motion for a new trial. He sought a new trial on the grounds that the government
deliberately concealed the existence of 43,000 documents he had the right to
review prior to his 1997 trial in Denver, Colorado, for his alleged role in the Oklahoma
City bombing. [4] The prosecution was
given a helping hand by the illegal concealment of these tens of thousands of documents
and the FBI admitted hiding them from Nichols. However, U. S. District judge Richard
Matsch ruled that their concealment wasn't enough of an error to have deprived Terry
Nichols of a fair trial, so it was ruled a "harmless error." [5]
Since prosecutors suffer no personal or professional
penalty for
participating in framing people, there is no downside for them. The U.S. Supreme Court,
for example, granted prosecutors absolute immunity from civil liability when exercising
their prosecutorial
functions in Imbler v. Pachtman (424 U. S. 409, 1976). Likewise, they face no
criminal responsibility for their actions because history has shown that with very rare
exceptions, prosecutors don't prosecute fellow prosecutors. This means a prosecutor can
withhold evidence tending to show that someone accused of murder is innocent, and if it is
brought to light after the person is convicted, sentenced and executed, that the
information was withheld, the prosecutor doesn't have to worry about being criminally
charged. Prosecutors are even protected from prosecution when they leak secret grand jury
testimony to the news media. [6]
One small ray of light in this otherwise bleak scenario is the
Citizen's Protection Act of 1998 (28 USC 530B) which went into effect in April of
this year. Although severely watered down from the version first introduced for
consideration by Congress, it makes federal attorneys subject to the state bar ethics
rules and disciplinary proceedings that apply to all other lawyers in the state where they
are located. However, since bar associations are loathe to discipline private attorneys
who lack the political pull of a U. S. Attorney, the protection provided Americans
by the Citizen's Protection Act is more symbolic than real.
Prosecutors are well aware of their privileged position and they are
opposed to being constrained from exercising their power in any way. The Justice
Department, for example, vigorously lobbied against the minimal restraints imposed on its
behavior by the Citizen's Protection Act. A congressional aide explained this by
remarking that U. S. Attorneys "get hysterical about being subjected to external
ethical standards. They don't want to have to live by rules." [7]
When he was the Attorney General of the U. S., Robert Jackson
recognized the power he and his colleagues possessed when he noted in a speech, "The
prosecutor has more control over life, liberty, and reputation than any other person in
America." [8] Considering what is known
about human nature and the way absolute power tends to corrupt people, it isn't surprising
that working in an environment of non-accountability brings out the worst behavior
imaginable in prosecutors. Framing people is one way prosecutors express the corrupting
influence of power.
The illicit behavior of prosecutors is compounded by the powerful
incentives they have to engage in wrongdoing. One of these is that the performance rating
of a prosecutor can be based on his or her conviction rate in the same way a batting
average is used to judge a baseball player. Their ability to obtain a high conviction rate
is often used as a promotional tool for gaining a political or judicial office or
appointment. Janet Reno parlayed a tough reputation as Miami's state attorney into her
appointment as U. S. Attorney General.
As contrary as it is to the American notion of justice, prosecutors
have nearly free reign to manipulate the judicial process for their own benefit. The
tactics they use to get convictions have caused various commentators to call them our
modern version of medieval torturers and lawless gunmen. [9] With this freedom to be unaccountable, it is no wonder that
prosecutors can accumulate the experience necessary to acquire the dubious honor of being
recognized as master framers.
The End
[1] See e.g., FBI's 'Waco boys' had role at Ruby Ridge: Same
discredited officials ran both cases," Thomas Shapley, Seattle Post-Intelligencer,
September 19, 1999, p. G2; and "Storm Clouds Gather Above Waco, Texas,"
Thomas Shapley, Seattle Post-Intelligencer, August 29, 1999, p. E2.[back to story]
[2] "A Statistical Analysis of Guilty Plea Practices in the Federal
Courts," Michael O. Finkelstein, Harvard Law Review, Volume 89, Number 2, pp. 293-315
(December 1975).[back to story]
[3] See e.g., "In Spite of Innocence: Erroneous Convictions in
Capital Cases," Michael L Radelet, Hugo Adam Bedau, and Constance E. Putnam,
Northeastern University Press, Boston, 1996, Inventory of Cases at pp. 282-356.[back to story]
[4] "Nichols: FBI withheld key data," Howard Pankratz (staff
writer), Denver Post, July 8, 1999.[back to story]
[5] "Terry Nichols denied new trial," Mike McPhee (staff
writer),
Denver Post, September 14, 1999. In October of 1999, the U. S. Supreme Court let Terry
Nichols' conviction stand by refusing to review his appeal (see:http://news.findlaw.com/News/s/19991012/courtnichols.html).
[back to story]
[6] "Court Order to Prosecute Starr Overturned," Pete Yost
(AP),
Seattle Post-Intelligencer, September 14, 1999, p. A4. [back to
story]
[7] Quoted in "Games Prosecutors Play," Wendy Kaminer, The
American Prospect, Sept./Oct. 1999, Number 46, p. 26.[back to
story]
[8] "The Federal Prosecutor," Robert H. Jackson, Journal of
Criminal Law and Criminology, Vol. XXXI, 1940-1941, p. 3, text of speech given April 1,
1940, in Washington D. C.. [back to story]
[9] For a comparison of prosecutors to highwaymen who get what they want
by holding people at gunpoint, see "Criminal Justice and the Negotiated Plea,"
Kenneth Kipnis, 86 Ethics 93 (1976). For a comparison of prosecutors to medieval
torturers, see: "Torture and Plea Bargaining," John H. Langbein, The Public
Interest, Number 58, Winter 1980, pp. 43-61. [back to story]
Sources:
"Prosecutorial Misconduct," Bennett l. Gershman, Clark, Boardman, Callaghan, a
division of Thomson Legal Publishing, Inc., Sept., 1997, 12th release, esp. chapter 13:
"Sanctions for Misconduct," pp. 13-1 to 13-29.
"Prosecutorial Misconduct: The Limitations Upon the Prosecutor's Role As An
Advocate," John H. King, Jr., Suffolk University Law Review, Vol. XIV, No. 4, Summer,
1980, pp. 1095-1135.
"Forensic Misconduct by Federal Prosecutors -- and How It Grew," Singer,
20 Alabama Law Review 227 (1968).
"Good Samaritan Freed 16 Years After One Juror Saved Her From A Death
Sentence," Hans Sherrer, Justice Denied, September, 1999, Vol. 1, No.8.
© Justice Denied