Mapping the Landscape

By Halina Schiffman-Shilo

In 1999, the Chicago Tribune ran a nine-part series on the criminal justice system —investigative reporting at its finest.  The first chapter dealt exclusively with prosecutorial misconduct. Tribune reporters churned over 11,000 court rulings dating back to 1963, the year the Supreme Court decided Brady v. Maryland, and separated out homicide cases that were overturned because prosecutors either withheld potentially exculpatory evidence, or used false evidence altogether. The Tribune found 381 examples of these most grievous forms of misconduct, but also noted that it is impossible to determine just how often misconduct occurs because, like all abuse, it’s done in secret, and often goes undiscovered.

In 2008, the New York State Bar Association convened a Task Force on Wrongful Conviction. In 2009, the Task Force released a cursory report on wrongful convictions in the New York State.  The Task Force examined 53 cases in which convictions were overturned and determined that in at least 27 of them, poor prosecutorial or police behavior may have been factor contributing to the wrongful conviction.

Chief among the Task Force’s findings was the use of perjured and false testimony or evidence. Yet the findings stopped short of assigning blame, and there were no words of admonishment for prosecutors.

Could this have something to do with the fact that Brooklyn District Attorney Charles J. Hynes was a member of the Task Force? Perhaps.

District Attorney Hynes’ office was accused in 2010 of committing prosecutorial misconduct to convict Jabbar Collins of homicide in 1994. Mr. Collins, who served 16 years in prison for a crime he didn’t commit, is suing the District Attorney’s office, and various other law enforcement officials, for $150 million. More recently, the Brooklyn District Attorney’s office has had yet another accusation of misconduct lobbed its way, this time, in connection with a particularly shady police officer.

As we’ve reported, in 2010 The Northern California Innocence Project released an extensive report on prosecutorial misconduct committed over a 12-year period in California. Investigators reviewed over 4,000 appellate state and federal court decisions, news reports, and trial court rulings between 1997 and 2009 that had allegations of prosecutorial misconduct. Investigators discovered that in 707 of these cases, the presiding judge found that the prosecutor had committed misconduct. That, the report noted, translates into prosecutorial misconduct occurring once a week, every week, for 12 years.

Like the Tribune article, the Innocence Project report noted the impossibility of determining how often prosecutorial misconduct occurs. This report, however, did find that in the 600 cases of misconduct in which the prosecutor could be identified, about 67 of the prosecutors (or 11 percent) were repeat offenders.

During the 12-year period the Northern California Innocent Project investigated for its report, only six prosecutors were ever disciplined for their misconduct.

In 2012, the New Jersey American Civil Liberties Union released its own report on prosecutorial misconduct. Their researchers studied 570 cases gleaned from New Jersey appellate courts between 2005 and 2011 in which prosecutorial misconduct was alleged.

The report found 229 cases of prosecutorial misconduct. Of these, 53 were considered “harmful,” meaning the misconduct directly and adversely affected the outcome of the case and warranted a reversal.

So how many New Jersey prosecutors from 2001 until the end of September 2011 were disciplined for misconduct? Not even one.

The New Jersey report did concede though that because the 98 percent of cases that reach conviction through plea bargains were not part of the study, “no statistical inference about the incidence of prosecutorial error” could be drawn.

Unfortunately, prosecutorial misconduct in plea-bargain cases is like a tree falling in the forest with nobody (and no tape recorder) to hear it.  We know it happens, we just don’t know when.

As LASIS digs deeper, we’re see that court decisions, news reports, law review articles, commissions of inquiry, and advocacy organization studies on prosecutorial misconduct abound. And yet, prosecutorial misconduct is occurring under the radar with alarming frequency; with little prosecutorial accountability; and with few of the disciplinary mechanisms in place ever even implemented.  Our investigation continues.


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