by Patrick H. Moore
Prosecutorial misconduct is the dirty little secret that plagues our justice system. It is distressingly common but is rarely sanctioned. Prosecutors who have been caught withholding or fabricating evidence typically continue their careers unimpeded and often receive subsequent accolades, raises and promotions.
In a recent high profile Texas case, Williamson County Superior Court judge Ken Anderson was arrested and charged with withholding critical evidenceat the trial of Michael Morton for the murder of his wife. Morton spent 25 years in prison before gaining his freedom with the help of new DNA evidence. It turned out that the disgraced soon to be former Judge Anderson knew all along that Morton could not possibly have been the murderer. So what did he do with this evidence? He withheld it and watched as the jury convicted Morton after being out for less than two hours on the bogus murder charges. To add insult to injury, at Morton’s trial, Anderson shed crocodile tears in front the jury as he described Morton’s non-existent crime.
Now that Anderson’s “dirty deeds” have been uncovered, it seems unlikely that he will receive the kind of punishment he deserves for callously destroying an innocent man’s life. He is out on bail and his lawyer has filed an appeal claiming that the statute of limitations bars any action against him. In the final analysis, this case may prove to be more symbolic than anything else, a rare instance where an unethical prosecutor has actually faced criminal charges, even if the charges don’t stick.
At Anderson’s hearing, African-American Judge Sturns stated:
“The court cannot think of a more intentionally harmful act than a prosecutor’s choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence.”
George Kendall, a veteran defense lawyer experienced in death penalty prosecutions, called the Anderson case “unprecedented.”
Naturally, prosecutors claim misconduct on their part is a rare occurrence while defense lawyers state that it happens all too frequently. What is certain, however, is this:
Proof of prosecutorial misconduct often results in previously convicted individuals being freed from prison or granted new trials. ACTION, HOWEVER, IS RARELY TAKEN AGAINST THE OFFENDING PROSECUTORS.
In an Article entitled “Reversal of Fortune: A Prosecutor on Trial, Raymond Bonner cites the following examples of prosecutorial misconduct:
- An investigation by ProPublica found 30 cases in New York in recent years where convictions had been overturned because of prosecutorial misconduct. Yet in only one instance was a prosecutor punished in any meaningful way.
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In fact, many of the New York prosecutors found to have withheld evidence and accepted false testimony were promoted, or received raises, even after courts overturned convictions because of their misconduct.
- In one case, a Queens man was sent to prison for raping his four-year-old daughter even though the prosecutor had evidence showing the child hadn’t been sexually abused. After spending nearly two years in prison, the man’s conviction was overturned. A judge later ruled that what the prosecutor had done was “tantamount to fraud.” But after the conviction was overturned, the prosecutor received a raise and became head of a department where she oversaw and guided young assistant district attorneys.
- In California, “prosecutors continue to engage in misconduct, sometimes multiple times, almost always without consequence,” according to a study by the Northern California Innocence Project and Santa Clara University School of Law. In some 600 cases in which courts found there had been prosecutorial misconduct, the study found, only six times did the State Bar discipline the prosecutor.
This means that in California only ONE PER CENT of prosecutorial misconduct cases result in any kind of sanctions or discipline. In other words, prosecutors who have sworn to uphold the get away with GRAVE ABUSES OF POWER OVER AND OVER AGAIN. Or, you might say, metaphorically speaking: “They’re getting away with murder.”
- In Virginia, four murder convictions have been overturned within the last year because of prosecutorial misconduct, according to The Open File, a website launched last year “to monitor prosecutorial misconduct and accountability.” None of the prosecutors have been sanctioned.
And, of course:
- Twenty-six years ago in Texas, Michael Morton was charged with bludgeoning his wife to death with a club while she lay on the couple’s waterbed.
After fighting his case in jail for 15 years without success, Morton contacted Barry Scheck, head of The Innocence Project. Scheck assigned the case to Nina Morrison, who at that time was just out of law school. Since then, Morrison has secured the release of more than a dozen men from prison based on DNA testing.
During the hearing before Judge Sturns in February, Anderson was grilled for several hours by Texas Court of Inquiry Special Prosecutor Rusty Hardin, one of the most feared death penalty prosecutors in Texas. According to Rusty Bonner:
Anderson defiantly defended his actions, “discounted the importance of the inquiry itself, struck a sarcastic tone, and cast himself as the victim of a ‘media frenzy,’” Colloff reported.
He also suffered memory lapses. He routinely turned over all evidence to the defense that he was required to, he testified. But he had “no independent memory” of having given the defense the interview in which Morton’s young son told his grandmother that a monster had killed his mother.
How could Anderson not remember a statement by a child seeing his mother killed? Hardin demanded to know.
“I have no recollection of it,” Anderson repeated. Besides, he said, he’d put no credence in what a little boy said.
The fact that Ken Anderson has actually been charged, booked and released on bail is quite unique within the annals of prosecutorial misconduct. Much more typical is the South Carolina case of Edward Lee Elmore. Elmore was a semi-literate African-American who “was convicted and sentenced to death for the sexual assault and murder of a 75-year-old white woman.”
In this instance, the prosecution didn’t just withhold critical evidence. The police and the investigators apparently went much further concocting false evidence and committing perjury.
At Elmore’s trial, officers testified that more than 40 of Elmore’s pubic hairs had been found on the bed where he was alleged to have sexually assaulted the victim.
Because it was all a bald-faced fabrication, what had been presented a “scientific evidence” was disproved completely upon re-examination.
By the time Elmore’s conviction was finally overturned in an unprecedented 194 page opinion by the Fourth Circuit Court of Appeals, Elmore had spent nearly 30 years, more than half his life, in prison. The Circuit Court held that there was “persuasive evidence,” that the investigators “were outright dishonest,” and that they “lied about” some of their investigative findings at Elmore’s trial.
That judgment was rendered more than 18 months ago, and Elmore was released shortly afterward. But there is no indication of any investigation into the police or prosecutors involved in the case.
THESE FACTS ARE JUST THE TIP OF THE ICEBERG
Most Americans live more or less comfortably in the false belief that the so-called “good guys” (the prosecutors) are good and the “bad guys” (those accused of crimes) are bad. Well, it is true that the “bad guys” often are bad; i.e., they have committed crimes of one kind or another. In my line of work, I represent these “bad guys” and try to get them fair sentences. If the crime is serious, they typically go to prison for a substantial period of time. If the crime is minor in nature, they may receive probation with house arrest, electronic monitoring, a community service requirement, and in fraud cases, a restitution order.
Part of my job in working on these cases is to try and determine WHAT ACTUALLY HAPPENED which is often no easy task for two very specific reasons:
- My clients, the criminals, typically MINIMIZE THE BAD STUFF THEY’VE DONE.
- All too often, the Federal prosecutors EXAGGERATE the bad stuff that my clients, the criminals, have done.
In other words, both sides LIE to strengthen their side of the story. That’s just the way it is. I generally assume that the truth lies somewhere in the middle. My Federal clients usually ARE guilty of breaking the law. Unlike, in State court, Federal prosecutors are generally careful to avoid indicting innocent people. They have infinite resources and build their cases carefully. Unfortunately, much of the time, they also exaggerate culpability (guilt) as they carefully build their cases.
I suspect that many of you are doing your best to convince yourselves that I’m FULL OF IT. Let me give you an example to try and make myself clear.
A TYPICAL EXAMPLE OF PROSECUTORIAL EXAGERRATION
Many Federal cases are built around information gathered through wiretaps. And, many criminals, while discussing their “dirty deeds” on their cell phones talk in code, some of the time, to disguise their criminal actions. At others times, they are merely talking, “shooting the breeze,” as they say. Well, in building their cases, the prosecutors have the bad habit of claiming that statements that are actually completely inconsequential refer to drug trafficking, money laundering and/or fraud. I would cite specific examples if I could but obviously I cannot reveal the particulars of actual cases I have worked on for reasons of confidentiality.
WHY DOES OUR SYSTEM WORK THIS WAY?
There are several reasons.
- Prosecutors are under great pressure to build cases, bring charges, and convict the accused. Their careers depend on it.
- Our criminal justice system is adversarial in nature. Prosecutors are tasked with vigorously prosecuting the accused. Defense attorneys are tasked with vigorously defending their clients. These job descriptions naturally lead to exaggerations, untruths and outright lies.
- It is human nature to try and win. People in the criminal justice world are just like everyone else in this respect and, all too often, do not hesitate to “gild the lily” to get what they want.
For every case of prosecutorial misconduct that results in previously convicted individuals being exonerated, often after serving decades in prison for crimes they never committed, there are dozens, perhaps hundreds of other cases, in which individuals were wrongly convicted based on trumped up evidence.
One would probably expect criminals to lie to make their actions look better than they actually were. After all, they are criminals. But one would also expect our prosecutors to uphold the law fairly and honorably in the manner in which they have sworn to when taking their oaths.
All too often, however, they do not. Our justice system is RIDDLED WITH INJUSTICE. That’s just the way it is. I rest my case.