Prosecutorial Misconduct: Above the Law

By Halina Schiffman-Shilo

Though it may be surprising to some, American lawyers are actually governed by a code of ethics. In fact, all aspiring lawyers must pass the Multistate Professional Responsibility Examination to be admitted to the bar. And if you’re admitted and still confused, the American Bar Association developed the Model Rules of Professional Responsibility, upon which many states have based their own rules of ethical conduct, to guide you through the haze. While the Model Rules are just a model, state ethics rules are binding, and breaching them can have serious professional consequences.

First enacted in 1908, the current Model Rules address a wide-range of situations, but give prosecutors their own ethical shout-out. Rule 3.8 provides a framework for what prosecutors ought to do in situations when they either uncover evidence that “tends to negate the guilt of the accused or mitigates the offense,” or know of “new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted.”

Legalese much? Boiled down, the rule basically tells prosecutors to disclose evidence to the defense that could show that someone is not guilty, either before his trial or after he was convicted.

Prosecutors acting outside the law is nothing new, of course. In the 1935 Supreme Court case Berger v. United States, Justice Sutherland eloquently explained the aim of criminal prosecutions: “that guilt shall not escape or innocence suffer.” The Court continued, “It is as much his [the prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

The Berger Court then helpfully listed the improper methods the prosecutor used to secure conviction at trial: he misstated facts, bullied witnesses, and “conduct[ed] himself in a thoroughly indecorous and improper manner.”

In 1961, Illinois state prosecutor Blaine Ramsey used these same “improper methods,” in addition to withholding and mischaracterizing key evidence, to (wrongly) convict Lloyd Eldon Miller Jr. for the barbaric sexual assault and murder of an eight year old girl.

The evidence in question was a pair of allegedly bloody undershorts that Mr. Miller had allegedly worn when he killed the little girl. Turns out, the shorts weren’t Mr. Miller’s and the “blood” was actually paint.

Allowing these facts to surface would have pretty quickly torpedoed the prosecution’s case.

So, they didn’t.

The prosecution never disclosed the original chemical analysis which showed the substance on the shorts to be paint and, instead, repeatedly asserted throughout trial that the stains were the victim’s blood. The jury was persuaded, and Mr. Miller was sentenced to death.

Just a few years earlier in a seminal 1963 case, Brady v. Maryland, the Court explained that suppressing evidence which is “material to either guilt or to punishment” of a defendant violates the “due process” clause of the Fourteenth Amendment. This case resulted in the adoption of the “Brady Rule,” a key component of American criminal jurisprudence, which imposes upon the prosecution the duty to disclose exculpatory evidence to the defense.

By 1967, Mr. Miller’s case had worked its way up to the Supreme Court as Miller v. Pate. Using false evidence to get a criminal conviction, the Court reminded us, just isn’t kosher. Even with the Supreme Court on his side, it took Mr. Miller four more years to be exonerated and released from prison.

I think it’s safe to say that repeatedly misstating facts and suppressing exculpatory evidence is antithetical to our notions of justice and fair play. Yet, our prosecutors engage in this kind of behavior again and again.  And studies show that it may not even be intentional.

This is the crux of an argument Professor Randolph Jonakait, a former defense attorney, was making in a law review article back in 1987.

Take, for example, a prosecutor who truly believes she has identified the perpetrator of a violent murder. The victim’s family is bereaved, and wants justice. The police have tried to track down the killer for months, with no success. So when a local informant comes forward and says he knows who did it, the prosecutor thinks it’s her big break.  So much of the evidence adds up, and the prosecutor wants to see the criminal brought to justice. The victim’s family is relieved and grateful, and a dangerous killer is off the streets. It’s an all-around win.

But as a result of these circumstances, the tenacious prosecutor might overlook, or just not recognize, evidence that could exonerate the alleged perpetrator. Or she may interpret evidence so that it satisfies her conclusion of guilt. In such instances, the prosecutor isn’t trying to keep potentially exculpatory evidence from the defense. In her mind, not only is the evidence not exculpatory, it’s inconsequential. In this hypothetical, the prosecutor has certainly violated rules of ethical conduct, but her motives were understandable, even honorable.

Judging by how hard prosecutors work to keep misconduct hidden, or the depths of denial they sink to — in Miller, despite a Supreme Court ruling to the contrary, the State of Illinois vehemently denied any wrongdoing in prosecuting the case — it is probably fair to say that distinguishing between this more subtle form of misconduct and the intentional kind is difficult.

But whether purposeful or unintentional, prosecutorial misconduct always ends with injustice — the innocent are imprisoned and the guilty walk free.

And the prosecutors who commit misconduct?

Well, as LASIS will discuss in the next segment, they seem to be above the law.


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