Tag: Berger v. United States

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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