tracy willis - prosecutorial misconduct thesis

Prosecutorial Misconduct: America’s Dirty Little Secret

Tracy Willis

4/7/2015

The Judicial Process

Prosecutorial Misconduct

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ABSTRACT

The prevalence of prosecutorial misconduct in this country is hard to calculate. Often, it

is never brought to light unless a conviction is overturned. A review of significant cases might

help bring attention to this very important issue.


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Many experts in the field of criminal justice agree that in a system of mandatory

sentences, and where approximately ninety percent of criminal cases are plea bargained, that the

power of the prosecutor “cannot be overestimated” (Aviram, 2013, p.2). It has been said that

with great power comes great responsibility. Although the vast majority of prosecutors try to

perform their duties ethically and with the utmost care, misconduct is unfortunately a common

occurrence. When misconduct occurs, prosecutors enjoy almost unlimited immunity in even the

most outrageous of cases.

Author Hadar Avarim writes that as much as nineteen percent of wrongful convictions

are the result of misconduct by the police or the prosecution (Avarim, 2013, pp.2-6). He blames

this misconduct on a “pervasive prosecutorial subculture that generates confirmation biases,

tunnel vision, and huge personal investment in a guilty verdict” (Avarim, 2013, p.5). In plain

language, this could be translated to mean that the more convictions a prosecutor obtains, good

or bad, the better it is for their career.

Successful trials and convictions are essential to an elected prosecutor’s political success.

They are also necessary for promotions and favorable evaluations for lower-level prosecutors.

Further corrupting the criminal justice system, elected judges and the governors who appoint

them run on political platforms touting their high death sentence numbers. These figures may

stand to lose re-elections if death penalty trials result in an acquittals or life sentences (Johns,

2005, pp.66-69).

To that end, author Avarim analyzed the Supreme Court decision in the case of Connick

v. Thompson, and its “example of the ineffectiveness of the existing legal approach to

prosecutorial misconduct” (Avarim, 2013, p. 4). In the Connick case, the misconduct in the

office of the District Attorney of Orleans Parish in Louisiana led an innocent man named John


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Thompson to be wrongfully convicted and spend eighteen years in prison. Mr. Thompson spent

fourteen of those years on death row (Avarim, 2013, pp. 6-7).

In the Connick case, the prosecutors did not disclose to defense counsel several key

pieces of exculpatory evidence. Among that evidence was impeachment testimony of a blood

sample taken from the crime scene (Avarim, 2013, p. 7). After John Thompson’s wrongful

conviction for murder, one of the prosecutors from his case was diagnosed with a terminal

illness. He revealed to another prosecutor that he had withheld exculpatory evidence in the case

of John Thompson. After the prosecutor’s office became aware of this revelatory information,

they did nothing. John Thompson sat on death row for several more years before a lucky break

by a private investigator, hired by his defense counsel, turned up the original blood sample from

the crime scene twenty years prior (Avarim, 2013 pp. 7-8).

After finally being exonerated, Mr. Thompson sued the prosecutor’s office for damages

under § 1983. District Attorney Connick admitted to a Brady violation by not disclosing the

blood sample. He argued that the municipality should not be held liable for this violation. A

jury awarded Thompson fourteen million dollars in damages, but the decision was appealed to

the Supreme Court by the prosecutor’s office. The Supreme Court reversed the earlier decision

and ruled in Connick’s favor. Finding in pertinent part, that Thompson had been unsuccessful in

his bid to link the municipality by claiming that Connick had failed to properly train his staff in

discovery obligations (Avarim, 2013, pp.8-10).

Another landmark case involving prosecutorial misconduct was Imbler v. Pachtman. Mr.

Imbler was sentenced to death in California for felony murder. Afterwards, Imbler

unsuccessfully appealed his conviction. While Mr. Imbler sat on death row, Deputy District

Attorney Pachtman found new evidence corroborating Mr. Imbler’s alibi, along with evidence


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that the chief witness against Imbler had recanted their testimony (Grometstein & Balboni, 2012,

pp. 1243-48).

Despite a letter written to the governor of California by Mr. Pachtman, in which he

described the new evidence, Mr. Imbler sat on death row for several more years. The federal

district court finally granted a habeas petition by Mr. Imbler, and the state declined to retry him,

ultimately leading to his release (Grometstein & Balboni, 2012, pp. 1246-47).

After his release, Mr. Imbler filed a § 1983 action against Mr. Pachtman and several

police officers. After his complaint was dismissed on grounds of absolute immunity, Imbler

appealed to the Ninth Circuit and eventually to the Supreme Court. The Supreme Court

determined that the actions of prosecutors are “quasi-judicial” and therefore protected by

absolute immunity (Grometstein & Balboni, 2012, p.1247).

In the Imbler opinion, several reasons were given by Justice Powell for this finding.

First, Justice Powell found that a prosecutor protected only by qualified immunity would be

distracted from doing their job by the possibility of being sued and having to devote resources in

his own defense (Grometstein & Balboni, 2012).

Next, Justice Powell considered the effect of liability on the honest prosecutor. Under

this logic, lawsuits would pose a “substantial danger of liability even to the honest prosecutor”

(Gromeststein & Balboni, 2012, p.1248). While acknowledging the possibility of a dishonest

prosecutor, the Supreme Court weighed both and decided that the interest of the public in

protecting the honest prosecutor was more important than that of protecting the wronged

individual (Grometstein & Balboni, 2012).


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Finally, in the Imbler case the Supreme Court reasoned that even the “subconscious

knowledge” of a favorable verdict for the defendant in a § 1983 claim could “weaken the

impartiality of the criminal justice system” (Grometstein & Balboni, 2012, pp. 1248-49).

Put simply, prosecutorial misconduct can take many different forms. It can come in the

form of not revealing exculpatory evidence. It can manifest in the suppression of a death-bed

confession by a guilt-ridden former prosecutor. It can also be found in the apparent neglect of

the state to read correspondence from a deputy district attorney explaining the innocence of a

defendant, as it did in the Imbler case.

Author Margaret Z. Johns describes several other forms of outrageous conduct in her

2005 article. One case involved the withholding of seventeen witness statements that said the

victim was alive after the defendant supposedly killed him. These statements were withheld by

the prosecutors from the defendant’s trial and appellate counsel (Johns, 2005, p.63).

Another case involved an innocent man in Texas who served thirteen years on death row

before his release because of what a federal judge called “outrageous” misconduct committed by

the prosecutor who failed to disclose evidence revealing that another man was the killer.

Likewise, in another California case two men were wrongfully convicted of murder

because the prosecutors withheld exculpatory evidence, including: a confession by a different

person; an eyewitness corroboration; and an admission of perjury by a trial witness (Johns, 2005,

p.63).

One especially shocking misconduct case occurred in Tulia, Texas in 1999. Ten percent

of the black population of Tulia was arrested on drug charges. Out of the thirty-nine defendants,

thirty-five of them were convicted based upon a former deputy sheriff’s false testimony and the


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suppression of exculpatory evidence by a prosecutor. The defendants received eighteen to ninety

year sentences, for a combined sentence total of 750 years (Johns, 2005, pp.63-64).

Whatever the cause or the form of prosecutorial misconduct, the consequences for those

who are wrongfully convicted are tragic and difficult to measure. Not only are the innocent

forced to spend years in confinement, their families are ripped apart and they suffer economic

loss and stigma. Moreover, their health can suffer because of inadequate medical care in prison.

Even after a successful exoneration and release from prison, the innocent defendant can have

very limited employment prospects (Johns, 2005, p.64).

Wrongful convictions because of prosecutorial misconduct also harm the victims of the

underlying crime and the family of the victim. While the innocent defendant sits in jail, the

actual offender is free to commit further crimes. There is no closure or justice for the victim or

their family when the real perpetrator of the crime remains free (Johns, 2005, p.64).

Author David Rittgers writes that while the prosecutor “may strike hard blows, he is not

at liberty to strike foul ones” (Rittgers, 2011, p.203). His review of the Connick case concludes

that legislative reform may be necessary if the Supreme Court is not willing to reverse itself post-

Connick on the issue of public immunities (Rittgers, 2011, p.236).

Author Nathaniel Lipanovich advocates for the expansion of defendants’ rights to obtain

immunity for their witnesses in federal court as a possible answer to instances of misconduct

(Lipanovich, 2012, p.176). Additionally, author Paul Larkin, Jr. believes that it is time for more

judges to step up to the plate when it comes to instances of misconduct. Instead of worrying

about whether they will be labeled as “activist,” judges should use criminal law doctrines to

“protect morally blameless parties” from ending up in prison due to political factors (Larkin, Jr.,

2013, p.793).


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It is obvious that there is not one single solution to the problem of prosecutorial

misconduct. It is also apparent that this problem does not get the attention it deserves. There is

no way to know what could be the catalyst for change when it comes to this issue. Hopefully, it

will be addressed by legislation or other means before it is too late for countless innocent

defendants and their families. Perhaps the increasing number of victims’ rights groups could

play a role in this process and in that way turn their pain from the crime into something positive.

At this point in time, one can only hope for the best.


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References

Avarim, Hadar (2013). Legally Blind: Hyperadversarialism, Brady Violations, and the

Prosecutorial Organizational Culture. St. John’s Law Review, 87(1), 1-46.

Grametstein, Randall, & Balboni, Jennifer M. (2012). Backing Out of a Constitutional Ditch:

Constitutional Remedies For Gross Prosecutorial Misconduct Post Thompson. Albany

Law Review, 75(3), 1243-1281.

Johns, Margaret Z. (2005). Reconsidering Absolute Prosecutorial Immunity. Brigham Young

University Law Review, 2005(1), 53-149.

Larkin, Jr., Paul J. (2013). Public Choice Theory and Overcriminalization. Harvard Journal of

Law & Public Policy, 36(2), 715-793.

Lipanovich, Nathaniel (2012). Resolving the Circuit Split on Defense Witness Immunity: How

the Prosecutorial Misconduct Test Has Failed Defendants and What the Supreme Court

Should Do About It. Texas Law Review, 91(1), 175-198.

Rittgers, David (2011). Connick v. Thompson: An Immunity That Admits of (Almost) No

Liabilities. Cato Supreme Court Review, 2010-2011, 203-236.

tracy willis - prosecutorial misconduct thesis

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