Prosecutor Misconduct

When Prosecutors Are Guilty

In a piece in Tuesday’s New York Times, Joe Nocera discusses the case of a prosecutor in Texas who knowingly withheld exculpatory evidence (evidence that could have materially lead a juror to vote “not guilty”);  without this evidence, the defendant was sentenced to life in prison.  The defendant, Ken Anderson, has since been exonerated.  Anderson’s situation is getting more headlines than the hundreds of other DNA exoneration cases because the evidence that was withheld implicated someone who committed a second murder after the murder for which Anderson was convicted.  At the root, this is about prosecutor misconduct.

This is also news because a prosecutor is being held accountable.

A Prosecutor’s Duties

A “prosecutor is a minister of justice whose obligation is to guard the rights of the accused as well as to enforce the rights of the public” State v. Penkaty, 708 N.W.2d 185, 196 (Minn. 2006).  According to the ABA Standards for Criminal Justice: Prosecution Function & Defense Function, “The duty of the prosecutor is to seek justice, not merely to convict.”

The Penkaty Court said,

Courts have struggled to effectively respond to the problems presented when prosecutors engage in off-limits conduct. The Illinois Supreme Court has referred to prosecutorial misconduct as “a problem that courts across the country have, for the most part, been unable or unwilling to control.” A Florida intermediate appellate court described a “veritable torrent of cases” involving significant prosecutorial improprieties, noted that “this pattern of conduct cannot be tolerated,” and expressed frustration that the court’s “prior efforts to eliminate the practice have proven entirely inadequate” [internal citations omitted].

Instances of prosecutors seeking a conviction — any conviction — can be seen almost every day in Minnesota courtrooms, in charges from assault to DWI to traffic violations.  Justice be damned.

Examples of Prosecutor Misconduct from My Files

These incidents happen all the time.

Blake was a client of mine who was charged with hit and run. He hit a car that stopped in front of him.  Blake was likely at fault.  Nobody was injured (it was a slow-speed bump). But the occupants of the other vehicle got out and one threatened Blake: “Get the fuck out of here, or we’ll kill you!” Blake drove a couple of miles away and called 911 to report the incident, including his involvement in hitting a car from behind.  He was arrested for hit and run.

I pointed out to the prosecutor that Blake’s behavior did not fit the hit-and-run statute because he did not “run” according to the definition of the relevant law (he stopped “as close to the accident as possible”).  The prosecutor agreed with my analysis . . . and announced, therefore, that he would charge my Blake with misdemeanor speeding (speeding is not a crime unless it reaches a certain degree of egregiousness; when it does, it is “misdemeanor speeding”).  I pointed out that he had no evidence to support that accusation, either.  He asked, as though genuinely baffled, why Blake didn’t just plead since, “it’s only a misdemeanor.”  I reminded him that a misdemeanor is a crime and that a law-abiding citizen has a right not to be guilty of any crime if he didn’t commit one.  The prosecutor wouldn’t budge, so we went to trial.  I won.

In a felony assault case, the alleged victim told my client that he would not show up to testify if my client gave him $5,000.00.  I properly reported this to the prosecutor who then threatened to charge my client with an additional and completely bogus felony, witness tampering, if he didn’t plead to the first felony.

Defense Counsel’s Responsibilities

In my experience, if a prosecutor dangles some lesser crime as an offer, most people plead to the lesser crime just to be done with it.  Or, if the prosecutor threatens to over-charge, most defendants plead to the first charge.  Prosecutors have almost no accountability. It is up to us in the criminal defense bar to force prosecutors to uphold their ethical obligations by fighting bogus charges — all the way to a jury if necessary.