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Policing prosecutors

Prosecutorial misconduct is more widespread than the numbers indicate, but it's nearly impossible to police lawyers who would sacrifice justice for convictions.


Published July 12, 2003

Frank Lee Smith died of cancer in 2000 while awaiting execution for a crime he didn't commit. He had spent 14 years on Florida's death row protesting his innocence. It wasn't until after his death that the FBI determined through DNA testing that he could not have committed the murder and rape of 8-year-old Shandra Whitehead, the crimes for which he was convicted.

There had been doubts all along about Smith's guilt, but for years prosecutors stood in the way of a new DNA test. Prosecutors also vigorously objected to Smith's request for a new trial, even after the case's one eyewitness recanted her original testimony and implicated someone else in the crime - the man who turned out to be the real murderer.

It is difficult and rare for a convict to successfully challenge the misconduct of prosecutors - even when there are doubts about guilt. Determining the true amount of prosecutorial misconduct in the system is nearly impossible. It would be like trying to count drivers who speed; the problem is larger than the number of tickets would indicate.

But one group has recently examined the problem to the extent public records allow. The Center for Public Integrity, a nonpartisan organization involved in public service journalism, reviewed more than 11,000 cases in which prosecutorial misconduct was alleged at the appellate level. It concluded that hundreds of local prosecutors across the country have bent or broken the rules.

The report, "Harmful Error: Investigating America's Local Prosecutors," took a team of 21 researchers and writers three years to complete. The study identified 223 prosecutors across the nation who, since 1970, had used tactics that unfairly affected the outcome of 2,017 trials. In Florida, the center identified 253 cases in which a court found that a prosecutor's conduct prejudiced the accused.

The misconduct ran the gamut from failing to disclose evidence helpful to the defense to mischaracterizing the nature of evidence before a jury. But it all came with the same taint: a prosecutor willing to sacrifice justice and fair play to win a conviction.

Though the number of prosecutors cited by courts for misconduct is relatively low - there are 30,000 local prosecutors - the study makes clear that the bulk of improper action is impossible to quantify. "In most jurisdictions, at least 95 percent of the cases that pour in from the police never reach a jury," noted the report, "which means any misconduct occurs away from public view. The only trial those defendants receive takes place in the prosecutor's office; the prosecutor becomes the judge and jury."

The disproportionate power prosecutors have under our system means it is vital to have some policing mechanism to ensure they do their jobs fairly. Yet, this is where we fall far short. The system protects prosecutors from civil liability even when they knowingly mishandle cases. And the legal concept of "harmless error" allows convictions to stand unless the prosecutor's improper actions affected the outcome of a trial.

The experts say the best approach to policing prosecutorial abuse would be for state bar associations to investigate and act firmly against the licenses of prosecutors who abuse their discretion. Unfortunately, lawyers are not very good at upholding the ethics of their own profession. According to the study, only two prosecutors have faced disbarment for their misconduct in the last 33 years. Prosecutors who knowingly hold back evidence of innocence from the defense or willingly used faulty witness testimony know they have little worry that they will be called to account.

Smith was one of dozens of innocent people who spent years behind bars because prosecutors cared less about finding the truth than about protecting convictions. The advent of DNA testing has shown how fallible the system can be. Now the challenge is to make it better.

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