Errors in Trial: Prosecutors Rarely Held Accountable for Mistakes and Misconduct

“The prosecutor has more control over life, liberty and reputation than any other person in America.” – Former United States Attorney General and Supreme Court Justice Robert H. Jackson

Imagine that you are convicted of two separate crimes – a robbery and a murder.

First, you are prosecuted for the robbery, because that will make it easier for prosecutors to secure the death penalty in your murder case.

You sit on death row for 14 years.

While facing the horror and trauma of your seventh execution date, a private investigator hired by your appellate attorneys reveals a shocking and heartbreaking discovery.

Scientific evidence of your innocence had been concealed by the district attorney’s office for 15 years.

This scenario may sound like the plot from a John Grisham legal thriller, but this story is not fictitious.

In 1985, John Thompson was convicted of killing hotel executive Raymond Liuzza Jr. He spent 18 years in prison – 14 of those isolated on death row – before being exonerated in 2003. The state of Louisiana gave Thompson $10 and a bus ticket upon his release.

Thompson sued the district attorney’s office, and a jury awarded him $14 million.

Louisiana appealed, and the case went to the U.S. Supreme Court. On March 29, 2011, Justice Clarence Thomas issued the majority 5-4 decision in Connick v. Thompson.

The court found that the prosecutor’s office could not be held liable, ultimately granting prosecutors broad immunity for their misconduct.

Today marks the 5th anniversary of the day Thompson’s $14 million judgement was reversed by the Supreme Court, and today, the Prosecutorial Oversight Coalition released a report on prosecutorial misconduct.

The Coalition was formed by The Innocence Project, the Veritas Initiative at Santa Clara University, the Innocence Project of New Orleans, and Resurrection After Exoneration.

Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson details the findings of original research conducted by the coalition. It reviewed court findings of misconduct over a five-year period for five geographically diverse states – California, Arizona, Texas, Pennsylvania, and New York – and documented 660 findings of misconduct between 2004 and 2008. This is likely under-count given the difficulties in identifying this behavior, the report says.

The findings revealed that prosecutors are rarely held accountable for misconduct and mistakes that have left innocent people imprisoned for crimes they didn’t commit. And, there are almost no adequate systems in place to keep this misconduct in check.

Out of the 660 cases reviewed, only one prosecutor had been disciplined, even though convictions were reversed in 133 of the cases.

Prosecutorial misconduct is defined by courts as any conduct by a prosecutor that violates a defendant’s rights, regardless of whether that conduct was known or should have been known to be improper by the prosecutor, or whether the prosecutor intended to violate legal requirements.

But misconduct isn’t the only issue the Coalition is concerned about: they emphasize that errors and genuine oversights can have consequences that are just as devastating.

Prosecutorial misconduct and errors can occur during any stage of a criminal proceeding, but the more recognized behaviors usually happen during trials. A wide variety of problems can occur, but the report lists the following as the most common:

• Improper arguments or examination at trial
• Inflammatory comments in the presence of the jury
• Mischaracterizing evidence
• Allowing false testimony to stand uncorrected
• Failure to disclose evidence favorable to the accused, which includes evidence that tends to negate a defendant’s guilt, that would provide grounds to mitigate or reduce a defendant’s potential sentence, or evidence going to the credibility of a witness (known, respectively, as “exculpatory evidence” or “impeachment evidence”), which generally occurs prior to or during trial

Some points from the report’s conclusion:

• Despite the Supreme Court’s assertion in Thompson that the public can rely on numerous systems of prosecutorial oversight to ensure that prosecutors will act within ethical and legal bounds, it is abundantly clear that, across the country, our systems of prosecutorial oversight are either failing or nonexistent.
• Prosecutors are susceptible to cognitive biases that distort perception and like other human beings, tend to look at information in a way that fits with their already constructed mindsets.
• There is also a small, but important, minority of prosecutors who commit intentional and egregious misconduct.

The report also offers detailed recommendations to improve systems of oversight and accountability.

It is important to keep in mind this report was very small in scope. We will never know for sure how many innocent people are imprisoned, and how many have already been executed. It is estimated that between 2.3% and 5% of all prisoners in the U.S. are innocent (for context, if just 1% of all prisoners are innocent, that would mean that more than 20,000 innocent people are in prison).

Since 1989, there have been 337 people exonerated by DNA evidence, and 7 exonerated by other means. More than 20 of those have served time on death row. The wrongly convicted serve an average of 14 years in prison before exoneration and release.

Prosecutors, police officers, and other officials whose misconduct leads to wrongful convictions are rarely held accountable. Very few police, prosecutors, and crime lab analysts have ever faced criminal prosecution for their role in wrongful convictions in the United States.

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