A Very Rare Occurrence: A Prosecutor’s Prosecution!

In his Slate article, David Feige, formerly of the fabulous Bronx Defenders, points out what is obvious to most Public Defenders. Prosecutorial misconduct is rarely ever prosecuted.

Now that justice has prevailed in the Duke rape case, with the nice innocent boys exonerated and the prosecutor who hounded them disbarred, it is tempting to chalk the whole incident up to an unusual and terrible mistake—a zany allegation taken too seriously by a run-amok prosecutor. It would be pretty to think that Nifong's humbling suggests that our system of justice works well, harshly punishing the few rogue prosecutors who subvert the legal process. But this is simply not true.

Prosecutors almost never face public censure or disbarment for their actions. In fact, it took a perfect storm of powerful defendants, a rapt public, and demonstrable factual innocence to produce the outcome that ended Mr. Nifong's career. And because only a handful of prosecutors will ever face the sort of adversaries Nifong did or come close to the sort of scrutiny the former DA endured, the Duke fiasco will make little difference in how criminal law is practiced in courthouses around the country. Regardless of Nifong's sanction, the drama leaves prosecutorial misconduct commonplace, unseen, uncorrected, and unpunished.

As Angela Davis explains in her book Arbitrary Justice: The Power of the American Prosecutor, young prosecutors too often see their goal as winning rather than doing justice. The culture of their offices and the adversarial nature of the criminal justice system push them in this direction. Over time, they move further toward, and eventually across, the line separating fair play from systemic manipulation. How often this actually happens is hard to say. Because more than 90 percent of the criminal cases result in pleas, most instances of prosecutorial misconduct never even come to light. Nonetheless, in the rollicking back and forth of a normal state trial, it is a rare case in which problems involving the withholding of potentially exculpatory evidence (as Nifong was accused of doing) don't arise. In most of these instances, a judge deals with late disclosure by adjourning the trial to give the defense more time to respond, or by issuing an ineffectual reprimand. This isn't exactly remedying the problem.

There are, of course, a few particularly egregious cases that leave visible traces in appellate records. A 2003 study by the Center for Public Integrity found nearly 11,500 such cases. Of them, four out of five were shrugged off as harmless errors. And as previously noted in Slate, of the 2,012 cases since 1970 in which appeals judges actually threw out an indictment, conviction, or sentence because of prosecutorial malfeasance, in only 44 did prosecutors even appear before state ethics boards to answer for their actions. Another indicator: A Chicago Tribune investigation found 381 Illinois murder convictions that were reversed because prosecutors withheld evidence or prompted witnesses to lie. The number of those prosecutors publicly sanctioned or disbarred as a result? Zero.

That this particular “Rogue Prosecutor” was seriously sanctioned will make nary a dent in the practice of prosecutors stepping over the line and the courts allowing them to get away with a “virtual” slap on the wrist.

Please read the whole piece and be rightly appalled. It isn’t just AGAG and his minions who are running amok.