After Misconduct

An interesting New York Times article notes that prosecutorial misconduct of the sort seen in the Duke lacrosse case is, if not exactly common, then hardly unheard of either. Nevertheless, prosecutors rarely face serious discipline since the typical prosecutor who withholds evidence isn't up against well-paid private attorneys representing clients from prosperous families:

“A prosecutor’s violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by the courts, and almost never by disciplinary bodies,” Bennett L. Gershman wrote in his treatise, “Prosecutorial Misconduct.” . . .

The Chicago Tribune, for instance, analyzed 381 murder cases in which the defendant received a new trial because of prosecutorial misconduct. None of the prosecutors were convicted of a crime or disbarred.

In one, Alan Gell was sentenced to death after prosecutors withheld witness statements from the defense. The witnesses said they had seen the victim alive after Mr. Gell had been jailed on other charges and was physically unable to have committed the murder. Mr. Gell was acquitted at a retrial.

In this last case, the prosecutors got a reprimand, but they're still out there prosecuting and, I guess, getting more innocent people convicted on death penalty charges.

Comments

Withholding of exculpatory, contradictory, or alibi evidence, as well as manufacturing prosecutorial evidence is far more likely to be done by the police (without or with prosecutor knowledge) than by the prosecutor itself. This never-produced evidence doesn't even get to the stage where the prosecutor withholds it.

Somehow our system evolved with the defense attorneys being a right, but no similar right to investigatory agent working alongside the police in the defense behalf has never evolved. Unless you are rich, in which case private investigators and forensic experts get involved early and often.

The recent spate of cases where DNA evidence shows a convicted person is innocent is just the tip of the iceberg. Lots of evidence used to convict would never be persuasive if a parallel investigation of the case occured alongside the police investigation.

We need a people's police in addition to the prosecutor's police for crime investigations. Why should only the rich have this protection?

Posted by JimPortlandOR | June 24, 2007 6:04 PM

Well, great -- at least now, The Man will finally learn that it's not okay to take shortcuts when He's trying to take away the liberty of rich white folks.

Posted by dj moonbat | June 24, 2007 6:26 PM

Prosecutors are lawyers, judges are lawyers. And lawyering is the only profession we allow to police it's own ethics. What else do you expect?

Posted by Brett Bellmore | June 24, 2007 6:48 PM

Also, most cases of prosecutorial misconduct in small Southern cities aren't egged on by the New York Times in dozens of hysterical articles. The big story in the Duke frame-up is "media misconduct" -- the prestige press' slathering after what Tom Wolfe called in "Bonfire of the Vanities" the "Great White Defendant."

Posted by Steve Sailer | June 24, 2007 6:56 PM

In recent years, there have been dozens of hate crime hoaxes on college campuses where a minority or a woman blames white males students for self-inflicted injuries or graffiti. Typically, the administrations and the press gullibly fall hard for these stories, but the cops and prosecutors don't, so the hate hoaxes fall apart quickly under skeptical (i.e., insensitive questioning) by the cops.

The Duke lacrosse hoax was significant because it marked a turning point in which media and campus hysteria infected the cops and DA, too. It set a precedent for how a white DA, egged on by the national media's hunger for a Great White Defendant, could win re-election in a heavily black city by framing white male college students.

Fortunately, the parents of the lacrosse students are not the kind of people to allow their sons to be framed by the DA, the college, and the press, so DA Mike Nifong is taking a hard fall, which, hopefully, will teach a salutary lesson to other cops and prosecutors the next time they think about riding another college hate hoax to media approval.

Posted by Steve Sailer | June 24, 2007 7:10 PM

Prosecutors are lawyers, judges are lawyers. And lawyering is the only profession we allow to police it's own ethics. What else do you expect?

This doesn't make any sense.

Are you saying that nobody gets disbarred, because it's the lawyers who are in charge? 'Cause that's not true.

Are you saying that the reason Nifong got disbarred, where other over-the-line prosecutors didn't, is that it's the lawyers who are in charge? Maybe true, but still doesn't make any damned sense.

No, this has little to do with lawyers policing their own ethics, and lots to do with the fact that justice in this country isn't.

Posted by dj moonbat | June 24, 2007 7:12 PM

Your point is the critical one about this case, and it hasn't gotten nearly enough attention. The Tulia, Texas case, in which about 10% of a mostly-minority town got sentences of 99 years on trumped-up evidence, makes Duke look like a lawn party. However, the case got no attention from the media until Bob Herbert of the NYT decided to look into it, because the defendants were poor minorities. I think it's fair to assume that these events are common. A lot of this nonsense is a consequence of what Scott Lemieux calls the War on Some People Who Use Some Classes of Drugs.

Posted by beckya57 | June 24, 2007 8:04 PM

Attached is an article by Jonathan Turley in todays' Washington Post on the subject of prosecutorial misconduct. In particular, note the part of the article on Nancy Grace, whose misconduct while a prosecutor apparently rivals that of Mr. Nifong. I have been complaining on several blogs about cable news commentators like Ms. Grace who convict defendants, sometimes even before they've been arrested. The cable news channels that put on shysters like Nancy Grace, Wendy Murphy, Gloria Allred, etc. have much to answer for.

http://www.washingtonpost.com/wp-dyn/content/article/2007/06/22/AR2007062201654.html

Posted by SLC | June 24, 2007 8:26 PM

Actually, Tulia is mostly white, but the fake drug sweep caught ten to fifteen percent of the black population (and a few people who were dating black people). Which of course makes it even worse, and proves beckya's point even more.

[A similar post with links is being held for moderation; apologies if they both show up.]

Posted by Matt Weiner | June 24, 2007 9:07 PM

I hope that the Nifong case becomes a precedent: Withhold exculpatory evidence, and lose your license to practice law.

We don't need prosecutors who deliberately press charges against people they know, or ought to know, are not guilty. And we need to make sure that all Americans, not just the white middle class, has access to competent legal representation. The Sixth Amendment should require not just that the defendant have someone with a law license sitting at his table, but that the public defense team has financial resources and caseloads on par with the prosecution.

Posted by Josh G. | June 24, 2007 9:20 PM

The flip side is that sometimes prosecutors are reluctant to bring cases against well heeled potential defendants even when they can ostensibly meet their burden of production because they are concerned about going up against high powered counsel.

Which points to a larger problem: the asymmetry of legal representation can be an impediment to the aims of justice in both criminal and civil cases.

Posted by Rich | June 24, 2007 9:44 PM

Several years ago my mother served as foreperson of a jury in a retrial on a rape case in Madison County, Alabama. The accused was a prisoner on a work-release program with neither a history of sex crimes nor violence. The victim claimed that she was a virgin at the time of the rape. She contracted gonorrhea as a result of the rape. In the first trial, the prosecutor withheld this evidence from the defense, an action that proved to reckless. The defendant did not have gonorrhea, thus potentially exculpatory evidence was withheld from the defense.

My mom told me that she had two thoughts when she saw the victim as they acquitted the defendant on appeal:

1. This poor woman has to face the fact that the man who attacked her is still out there.
2. Who else might the actual perpetrator of this crime have raped.

Posted by Randy Paul | June 24, 2007 10:47 PM

Prosecutors will always say they believed the accused was guilty. In most cases that is probably true. It doesn't excuse withholding evidence and the like but it's a stunningly powerful defense with the public. Especially since the defendants are usually poor and or minority.

Illinois had quite a record in regard wrongfull convictions in murder and death penalty cases. It was so bad the now jailed former Governor Ryan stopped all executions. The thing is as a former Ill. resident I cannot for the life of me figure why Illinois would be worse in this regard than any other average state, and if it's worse than Texas I'll eat the entire state corn crop.

I would hardly call Illinois a model good government state but in all sorts of ways politics there is surprisingly low key. Crusading prosecutors don't seem all that common.

I recall thinking of the Duke case if the prosecutor was going after white students, for a black party girl, then this must be one good case. Now the idea is that it was done to garner black voters. There are so many ironies in the case I can't count them all.

Posted by rapier | June 24, 2007 11:01 PM

Prosecutors are lawyers, judges are lawyers. And lawyering is the only profession we allow to police it's own ethics. What else do you expect?

Lawyers get disbarred all the time. There's no judge-on-lawyer protection racket going on, at least for ordinary lawyers. Prosecutors are different for reasons that should be obvious to everyone. Who is the prosecutor's "client", whom he or she represents every day? The government. And the government is more powerful than any privace sector client ever could be. Hence, the protection for prosecutors.

Nifong was disbarred because he became politically toxic. You can argue about his violations until you're blue in the face, but as the article suggests, such violations are routine for prosecutors.

Posted by owenz | June 24, 2007 11:05 PM

I nearly wish Nifong walks unscathed.

If he gets hammered, the only conclusion fellow prosecutors will draw is "Don't prosecute rich white kids for any reason". As if we need more incentives to make the administration of justice even more unfair in this country.

Posted by Fifi | June 25, 2007 1:45 AM

lawyering is the only profession we allow to police it's own ethics.

Nonsense--accountants, doctors, architects, and other professionals are all involved in regulating their professions, too.

Posted by rea | June 25, 2007 8:10 AM

Fifi- I assure you, prosecutors are sophisticated enough to understand this case.

Posted by Patrick | June 25, 2007 10:10 AM

While there is no protection racket, as such, elected judges routinely solicit (and receive) campaign contributions from the lawyers who appear before them. This creates a tremendous conflict of interest on both sides.

Posted by Rob Mac | June 25, 2007 11:06 AM

Posted by JimPortlandOR | June 24, 2007 6:04 PM:"Somehow our system evolved with the defense attorneys being a right, but no similar right to investigatory agent working alongside the police in the defense behalf has never evolved. Unless you are rich, in which case private investigators and forensic experts get involved early and often.

Posted by JimPortlandOR | June 24, 2007 6:04 PM:"We need a people's police in addition to the prosecutor's police for crime investigations. Why should only the rich have this protection?"

We have a people's police. In the same way that the Prosecutor does not represent him(or her)self but the community, so do the police. If you want the defendant to have a police man, well the problem there is that the police investigate before charges are laid. Asking for your own private detective to tag along would be kind of like admitting guilt. Unless everyone who *might* be charged can send their own private dick along just in case. I can see two detectives and twenty witnesses milling around the crime scene. Then there's the problem of confidential information. Do you want everyone involved in, say, a drug bust to interview every possible witness? What fun testimony that would produce.

Posted by Fifi | June 25, 2007 1:45 AM:"I nearly wish Nifong walks unscathed.

Posted by Fifi | June 25, 2007 1:45 AM:"If he gets hammered, the only conclusion fellow prosecutors will draw is "Don't prosecute rich white kids for any reason". As if we need more incentives to make the administration of justice even more unfair in this country."

Wow. Sista Soulja is posting on the internet now. Yep, this is what we need - some lynching of White kids. That'll make them think.

Did your Mother ever mention how two wrongs don't make a right? We need justice for all, not equal opportunity injustice.

Posted by HeiGou | June 25, 2007 12:30 PM