Guilty Prosecutor

Baby Steps

By Halina Schiffman-Shilo

As LASIS has previously reported, former Texas prosecutor and judge, Ken Anderson, was found guilty of prosecutorial misconduct in a murder case that put an innocent man behind bars for almost 25 years. Just this month, in a special court of inquiry, Mr. Anderson was sentenced to ten days in prison on charges of criminal contempt for lying about exculpatory evidence. As the New York Times points out, ten days in jail for taking away 25 years of one man’s life is a mere pittance. But in the world of prosecutorial misconduct, jail time for a deviant prosecutor is unprecedented.

And then there’s the Brooklyn District Attorney’s office, which has figured large in our discussion of guilty prosecutors. The New York Times recently reported that the Brooklyn District Attorney’s office, which, as we’ve previously discussed, was sued by Jabbar Collins for wrongfully convicting him of murder, is being investigated by federal authorities for forcing a newbie assistant district attorney to lie about the Jabbar Collins investigation while under oath.

If these accusations are true, not only did the new assistant district attorney commit perjury, which is a federal offense, but the senior attorneys who convinced the young lawyer to commit perjury  engaged in ethical misconduct as well, and can be disciplined by the New York State Bar. We expect they will be.

Mere baby steps on the road to change, perhaps, but we have reason to be cheered by seeing prosecutors being held to account.   That’s some good news on a very grim subject, just in time for the holidays.


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The Prosecutor’s Impunity: Part II

By Halina Schiffman-Shilo

In our last installment, LASIS investigated prosecutorial immunity, the legal safeguard that protects prosecutors from being sued. As we wrote, both legislation and case law protects prosecutors from lawsuits. And even the courts have opined that exposing prosecutors to civil suits is against public policy because it would hinder their abilities to vigorously prosecute criminals.

We also noted there have been some recent chinks in prosecutors’ armor against civil liability. But why haven’t those chinks turned into chasms? What else is going here?


Prosecutorial misconduct doesn’t occur in a vacuum; it happens because there is an enabling environment that allows it to continue.

The 2010 Northern California Innocence Project Report noted that section 6068.7 of the California Business and Professions Code requires attorneys to report to the California State Bar instances when prosecutorial misconduct leads to a  judgment being reversed or modified. But, the Report noted despite the law, such cases are mostly never reported.

In 2012, the American Civil Liberties Union of New Jersey issued a report detailing prosecutorial misconduct occurring in the state. Like the Innocence Project report, the ACLU of New Jersey investigated what procedures were in place to discipline prosecutors who committed misconduct. It found that New Jersey does not have mandatory reporting to its state Bar Association; reporting such cases in the Garden State is optional, and rarely done.

When a new attorney is sworn in, he takes an oath to uphold the constitution and to adhere to the state’s code of ethics and professional responsibility. In addition, each state has its own mechanism for investigating and adjudicating charges of an attorney’s misconduct. Accusations are purportedly taken seriously and if the review board finds that an attorney engaged in unethical activity, the board may sanction the attorney through fines, or suspend the attorney’s license for a period of time. In extreme cases, an attorney can even be permanently disbarred for her misconduct.

In a 1997 Massachusetts case, an attorney was disbarred indefinitely for commingling his own funds with those of his client.  In a 2013 Ohio Supreme Court case, in which an attorney used his client’s bank account to pay for personal expenses, the attorney’s license was suspended for two years (though if he completed continuing legal education courses, the suspension would be reduced by half).

Yet, as the ACLU New Jersey found and reported, during the years of the study not a single prosecutor was disciplined for misconduct. In California, only six prosecutors were disciplined for misconduct during the 12 years the report covered.

So, what lessons have we learned?

Commingle your personal funds with that of your client and you can be indefinitely suspended from practicing law. Send an innocent man to prison, not even a slap on the wrist.

But perhaps something’s changing. Not the law, but something even more powerful.



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The Prosecutor’s Impunity: Part I

By Halina Schiffman-Shilo

“There is no freestanding Constitutional ‘right not to be framed.’” This was the position of prosecutors in Iowa, and the federal government, in the 2009 Supreme Court case, Pottawattamie County v. McGhee and Harrington.

In 1978, Iowa prosecutors framed two black teenagers for the murder of a retired white police officer. The teens were locked up for 25 years until an Iowa court overturned their convictions, finding that the prosecutor had, among other things, suppressed evidence (a Brady violation), which pointed to a white man as the murderer. The two men sued Iowa prosecutors under federal law, 42 U.S.C 1983, alleging the prosecutors had breached their constitutional rights to due process. Both the U.S. District Court for the Southern District of Iowa, where the two men started the lawsuit, and Eighth Circuit Court of Appeals held that the prosecutors were not entitled to qualified immunity (prosecutorial immunity),  because they had engaged in misconduct prior to even filing formal charges. (Had they suppressed evidence and coerced witnesses after filing the formal charges, we’d be having a different conversation). Without qualified immunity, the prosecutors could have been found liable for denying Mr. McGhee and Mr. Harrington their constitutional rights. So they appealed. And the U.S. Supreme Court agreed to review the case.

The Court’s justices pressed both sides during oral arguments to discuss the boundaries of prosecutorial immunity. As NPR’s Nina Totenberg reported, the debate became heated with no clear indication of which way the judges were going to decide. And then the case was dismissed and settled out of court. If only the case hadn’t settled…



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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.



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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.



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