“Bill Cosby, Tamir Rice, And The Power Of Prosecutors”: The Discretion Of A Single Unaccountable Prosecutor
What do Bill Cosby and Tamir Rice’s have in common? Their cases reveal the immense power of prosecutors.
Consider the fact that in 2005, Andrea Constand told police that Bill Cosby gave her drugs and sexually assaulted her. Why wasn’t he charged? The prosecutor didn’t think there was enough evidence.
Ten years later, Cosby is charged. Why? Partly because of new bits of evidence—Cosby’s admission that he sometimes gave women drugs in order to have sex with them, and at least 50 other accusations against him. But mostly, because now there’s a different prosecutor, Kevin Steele.
These are judgment calls, in 2005 and 2015.
Now consider the cases of Tamir Rice, Michael Brown, and Eric Garner. None of the police officers responsible for their deaths were ever charged—not convicted—charged. In all three cases, prosecutors practically told grand juries not to indict.
In Ferguson, Robert McCulloch decided to simply present all the evidence to the grand jury, rather than make a case against Officer Darren Wilson. In Staten Island, Darren Donovan, a Republican with extensive ties to the police department, failed to secure an indictment against Daniel Pantaleo, whose chokehold led to Eric Garner’s death. And most recently, in Cleveland, Tim McGinty stated openly that he didn’t believe anyone should be charged in the shooting of 12-year-old Tamir Rice.
Set aside, for the moment, the facts of these cases. What’s striking in all of them is that county prosecutors and district attorneys, singlehandedly and without oversight, decide the fates of the accused. More judgment calls, unreviewed and unreviewable.
True, there is some oversight: most of these prosecutors are elected. If voters don’t like how they’re doing (or not doing) their jobs, they can vote them out of office. Indeed, in the case of Bill Cosby, then-D.A. Bruce Castor’s decision not to indict in 2005 became an issue in his election battle with Kevin Steele this year.
But is this really “oversight”? As The Daily Beast reported last September, voters often know next to nothing about the candidates running for positions as prosecutors or judges. Turnout is extremely low, especially in off years. And when voters are paying attention, they are bamboozled by the only campaign message that seems to work: “tough on crime.”
This year, for example, Steele ran on his “98 percent conviction rate” and “tough sentences for sexual predators.”
That’s what people want, right? They see prosecutors as agents of the criminal justice system, and everyone wants less crime.
This leads to two perverse incentives for prosecutors. First, they have an incentive to over-charge criminal defendants and secure convictions more than justice. Second, they have an incentive not to charge police officers, who after all are fighting crime every day, and with whom they work closely on a daily basis.
In principle, if Officers Pantaleo, Wilson, and Loehmann violated the law, then they are criminals. But in practice, they are policemen, and perceived as the opposite of criminals. Voters who want to get tough on crime do not want to get tough on cops.
So not only is there no meaningful oversight of prosecutors, but the oversight that does exist is skewed to specific outcomes and behaviors, not impartiality and performance.
Now back to Cosby. If you pay close attention to what Steele said this week, you’ll notice that he went out of his way to mention the new evidence that has come to light in the last twelve months. “A prosecutor’s job is to follow the evidence wherever it leads and whenever it comes to light,” he said, announcing the arrest.
In part, this was to explain the nearly twelve-year gap between the crime and the charge. But in large part, it was to explain why Cosby is being charged in 2015, but wasn’t in 2005.
And what is that new evidence? Only what is known as “habit evidence”: that Cosby admitted to drugging and having sex with other women. But not Constand—however ludicrous it may seem, Cosby’s position is that she consented.
Is habit evidence really enough to reopen a closed case and file charges? Again, that’s another judgment call. Like Judge Robreno’s decision to unseal the damning deposition records, Steele’s decision was basically up to him.
Of course, Steele chose to make it an election issue as well. He’d look foolish if, having just accused Bruce Castor of doing nothing, he did nothing too. But again, that was Steele’s decision. Just as prosecuting “America’s Dad” in 2005 might have made Castor look bad, prosecuting America’s Rapist in 2015 makes Steele look good.
We imagine that district attorneys and other prosecutors are motivated by truth, justice, and the American way. But in fact, they are elected officials who paint in broad strokes for a mostly-ignorant public; who, unlike judges, cannot be held accountable for their misconduct by oversight boards; and who exercise discretion so broad that the disposition of justice often lies entirely within their judgment.
Finally, of course, Tamir Rice and Bill Cosby have more in common than under-zealous prosecutors: both African American males, one quite young and one quite old, operating in a system in which 95 percent of prosecutors are white and local police forces are 88 percent white.
For decades, Cosby was protected by his wealth, celebrity, class, and connections, particularly at Temple University. But he is the exception, not the rule. Black men comprise 6 percent of the U.S. population, but 35 percent of the prison population. They receive sentences roughly 10 percent more severe than white defendants convicted of identical crimes. And when they are perceived to be older than they are, bigger than they are, more dangerous than they are, or more violent than they are, their 88 percent-white police officers and 95 percent-white-prosecutors exercise “discretion” in remarkably similar ways.
The United States is the only country in the world that elects prosecutors based on sloganeering and then holds them to no standard other than majority whim. After nearly 12 years, Bill Cosby has indeed been charged with a crime. But only because a prosecutor decided to do so—this time.
By: Jay Michaelson, The Daily Beast, January 1, 2016
“How Prosecutors Get Away With Cutting Black Jurors”: ‘Articulating Juror Negatives’, A Perpetuation Of Institutional Racism
A curious thing happened at the trial of Timothy Tyrone Foster, a young black man accused of killing an elderly white woman: Every black prospective juror was dismissed. Foster was convicted, and sentenced to death, by an all-white jury.
Even more curious: There were 42 prospective jurors that morning, five of whom were black. All dismissed, four of whom by “peremptory challenge,” in which the prosecutor strikes a juror at his or her discretion. In Georgia, where Foster’s trial took place, prosecutors have 10 such options.
Peremptory challenges were entirely unreviewable for most of American history. That was their function: In addition to dismissals with reasons, they were meant to give prosecutors and defense attorneys (in Georgia, defense attorneys get 20 such challenges) leeway to strike potentially problematic jurors without explanation.
That changed somewhat in 1986, when the Supreme Court decided Batson v. Kentucky. In Batson, the court held that using peremptory challenges to strike jurors on the basis of race was unconstitutional.
Foster’s trial, though, took place after Batson. How is that possible? Because Batson has proven to be almost worthless in practice. All a prosecutor must do is provide some race-neutral reason for striking jurors, and that is extremely easy to do. Maybe the juror didn’t make eye contact. Maybe she was female. Maybe he looked bored or inattentive—as most of us are at the end of hours of jury duty.
Any of these reasons will do, and so, in Foster’s case and countless others, winning a “Batson challenge” is basically impossible.
Except Foster’s case has turned out to be different. During the lengthy appeals process (nearly 30 years and counting), the prosecutor’s notes were made public. And they are laughable and tragic at the same time. Black prospective jurors are annotated as B#1, B#2, et cetera. Weighing the different options, the prosecutor noted that one has “the most potential to choose from out of the four remaining blacks.” And so on.
And then there were the absurd pretexts the prosecutor provided to satisfy Batson. First, he listed over 30 different reasons, basically throwing everything against the wall to see what would stick. He said three didn’t make enough eye contact. He said another was a social worker, which in fact she was not. He said one was close in age to the 18-year-old defendant; she was 34.
All this make it abundantly clear that race was the predominant factor in striking these jurors, notwithstanding the pretexts given for their dismissals.
And that’s why Foster’s case is now at the Supreme Court, which will have an opportunity to update Batson, and perhaps give it some teeth. The court will also, of course, determine the fate of Foster, who is developmentally disabled and who has now spent nearly 30 years on death row.
“Batson has failed miserably to prevent race discrimination,” says Stephen Bright, who is Foster’s lawyer, a professor at Yale Law School, president of the Southern Center for Human Rights, and one of the leading advocates for criminal justice reform, including abolition of the death penalty. Bright has been down this road before, having won two Supreme Court cases on race discrimination and jury selection. And he says that Foster’s case is not unusual in the least.
“What went on at trial was typical,” he told The Daily Beast. “What’s unusual is we know what’s in the prosecutor’s files. These notes that show not just a consciousness of race but an obsession with race.”
Batson has failed to prevent discrimination, says Bright, for at least three reasons.
First, “every prosecutor has a handy-dandy list of race-neutral reasons that they give. They even distribute reasons in advance. Some state training programs even distribute a list called ‘Articulating Juror Negatives.’”
That’s right, all prosecutors have to do is read from a prewritten list of reasons, and they’ll prevail. “They just say, ‘Take a lot of notes when you strike a black juror.’”
Second, Bright notes the awkward dynamic that Batson challenges present. “When you challenge a prosecutor’s strike, you’re saying the prosecutor intentionally discriminated on the basis of race and lied about it. The psychological dynamics between judge and prosecutor are such that it’ll be very hard for the judge to make either one of those findings. You deal with the prosecutor day in and day out—you’re gonna call the guy a liar and a racist?”
Third, and most damningly, “elected judges in the state courts are not known for recognizing constitutional violations, especially in cases of race. The local judge would’ve been voted out of office had he found a Batson violation. He and the district attorney work together all the time. There’s just no chance that’s going to happen.”
As a result, says Bright, “A lot of defense lawyers have quit making Batson objections because they just don’t think there’s any point.”
The result is a perpetuation of the institutional racism of the judicial system itself.
First, of course, individual cases are influenced. In the case of Foster, Bright says “this kid got sentenced to death because he was a black kid who committed a horrible crime against a white woman. If it had been a black woman, it wouldn’t have been a death penalty case.”
Amazingly, in front of his all-white jury, the prosecutor in Foster’s case told the jury in his closing argument to “give Foster the death penalty to deter people in the projects”—which Bright calculated to be 94 percent black at the time. “That’s a pretty racist appeal to say to an all-white jury.”
Second, the net effect of blocking black jurors from service, in addition to the discrimination they experience, is to diminish the integrity of the judicial system. Says Bright, “A person comes to a courtroom where you may have a 30-40% black population, and the average citizen sees all-white juries. Not only that: everybody’s white up there in the front: the prosecutor, the judge, the jury. The only person of color is the person on trial.” (As reported in an earlier installment of Out of Order, 95 percent of prosecutors are white.)
As a result, says Bright, “black people know they are not part of the criminal justice system. It’s an all-white system. And white people know it too.”
What happens now? In Bright’s opinion, the Foster case will likely be decided on its specific facts: with this evidence, the Supreme Court may well decide that there is a clear inference of racial discrimination.
But Foster may turn out to be too easy a case. Most prosecutors don’t leave smoking guns lying around—as Bright said to me, the mistake this one made was not shredding his notes afterwards. So what about the more numerous cases where racial discrimination takes place without smoking guns like this one?
One option would be to reduce the number of peremptory challenges available to prosecutors—but that is a matter of state law, with each state having different regimes in place. (Bright says there is no appetite for eliminating peremptory challenges altogether because prosecutors, needing unanimous verdicts, are “scared to death there’ll be that one eccentric person on the jury who’s going to hang the jury.”) At the very least, that would limit prosecutors’ capacity to use challenges to stack all-white juries.
Another could be to change the evidentiary standard for finding racial discrimination. The current standard requires that the prosecutor have a “mind to discriminate”—basically, that a prosecutor be found racist. But the court could set out a standard that looks more like disparate impact. Without making any inference as to what’s in a given prosecutor’s head, the bare statistical imbalance could enable a defendant’s challenge to prevail.
Disparate impact reasoning was recently (barely) upheld by the Supreme Court in the last term in the context of the Fair Housing Act. To be sure, it is imperfect and can lead to quotas, thus increasing, rather than decreasing, race-based decisionmaking. But it also eliminates Batson’s embrace of the ridiculous pretext, and the uncomfortable inference that a legal colleague is a liar and a racist.
It’s also possible that, amazingly, Foster could lose. If the court finds that the race discrimination at issue was a harmless error—in particular, if the new evidence of discrimination is not a “relevant circumstance” that the appeals court should have considered—Foster could still face execution. Given the current composition of the Supreme Court, this is a very real possibility.
But even if Foster gets a new trial, the phenomenon of the “all-white jury,” which Bob Dylan sang about in 1975, will remain as long as prosecutors can exercise challenges on a pretext, and bar people of color from sitting on a jury of one’s peers.
In Bright’s words, “When one part of the community is systematically kept off the juries undermines the respect that people pay to the courts’ decisions. Something needs to be done about it.”
By: Jay Michaelson, The Daily Beast, September 28, 2015
“Higher Courts Let Prosecutors Get Away With Murder”: Supreme Courts Bear Responsibility For Conduct They Accept From Attorneys
For anyone studying the bubbling issue of prosecutor misconduct, the LAT states—Louisiana, Arkansas, and Texas—form a good lab. March alone brewed up:
—belated charges against a prosecutor in Texas, where the defendant was executed a decade ago;
—soul-searching in Louisiana, where a prosecutor bemoaned his win that sent an innocent man to prison;
—and absolution in Arkansas, where the state’s Supreme Court informed me that a prosecutor who withheld critical evidence from a man on trial for his life did not violate any rules of professional conduct.
The Texas case centered on Cameron Todd Willingham, who was executed in 2004 for the arson murder of his three young daughters. Now the State Bar of Texas has filed a formal petition accusing the prosecutor of obstructing justice by making false statements and concealing evidence favorable to Willingham’s defense.
“Before, during and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel,” the bar said.
It won’t help Willingham, who protested his innocence to the end. But the move suggests that at least some Texans are paying attention.
Next door in Louisiana, a former prosecuting attorney reflected on a conviction he’d won that kept a man on death row for 30 years—and held himself accountable.
“As a prosecutor and officer of the court, I had the duty to prosecute fairly,” attorney A.M. “Marty” Stroud III wrote to a Shreveport newspaper. “Part of my duty was to disclose promptly any exculpatory evidence relating to trial and penalty issues of which I was made aware. My fault was that I was too passive. I did not consider the rumors about the involvement of other parties…”
Stroud agreed that Louisiana owed significant monetary compensation to the man whom he’d helped convict. Yet, he wrote, “The state does not accept any responsibility for the damage suffered by one of its citizens. The bureaucratic response appears to be that nobody did anything intentionally wrong, thus the state has no responsibility. This is nonsensical.”
Noting that evidence that would have cleared the defendant was available at the time of the trial, Stroud wrote: “The easy and convenient argument is that the prosecutors did not know of such evidence, thus they were absolved of any responsibility for the wrongful conviction.”
Stroud dismissed that argument. And he refused to absolve himself.
Last year, 125 men and women were released from prison because they were wrongfully convicted, according to a report by the National Registry of Exonerations. Two-thirds of those cases were overturned because prosecutors either reopened investigations themselves or cooperated with other investigators to ensure that justice was done.
But supreme courts, who bear the ultimate responsibility for the conduct they will accept from attorneys, have stood by like indulgent parents, tolerating outrageous behavior and even ruling that others must too.
(In the infamous Louisiana case of Connick v. Thompson, the U.S. Supreme Court decided in 2011 that a prosecutor could not be held liable for withholding evidence in a murder case because the defendant, who was a month from execution before the withheld evidence was discovered, had not shown that the prosecutor’s office displayed “deliberate indifference” to its duties.)
Echoes of that protectionism can be heard in the Arkansas case of Tim Howard, who will be retried later this month for a double murder that occurred 18 years ago near where these three states join. As I wrote here before, Howard is being retried because after he was sentenced to death, investigations turned up potentially exculpatory evidence that had been withheld from his attorneys.
I know firsthand how loath state officials have been to hold his prosecutor accountable. Four years ago, when I learned of the withheld evidence, I wrote an article for my newspaper first. Then, as a citizen, I wrote a letter to the state supreme court’s Committee on Professional Conduct, complaining about what the prosecutor, Tom Cooper, had done.
Supreme courts routinely sanction lawyers for offenses as minor as misspelled words in briefs or as serious as defrauding clients or showing up drunk in court. I thought that withholding evidence in a death case constituted a gross violation of the court’s Rules of Professional Conduct.
While I didn’t say as much in my letter, I viewed Cooper’s failure to turn over key evidence as horrific neglect, at best. To my mind, it rose to the same level as that of a surgeon who killed by failing to sterilize an instrument, or a driver who ran over a kid while texting. Given the high stakes of a capital trial, there seemed no kinder way to spin it.
The director of the court’s Office of Professional Conduct promptly notified me that he would wait for a court to rule on whether the misconduct I alleged—and which the state’s attorney general by then had tacitly acknowledged—had actually occurred.
The letter also informed me, in all caps and bold type, that I must not disclose the nature of my complaint to anyone, including, ironically, members of the news media. If I did, the letter warned, I could be held in contempt of court and “punished by fine or jail.”
While Howard’s case wound its way back to court for a ruling, I reflected on the Arkansas Supreme Court’s threat. I concluded that it was unlawful, a violation of First Amendment.
I wrote to the committee explaining my concern, but after receiving no response I filed a federal civil rights lawsuit against the state Supreme Court’s Committee on Professional Conduct. That was in 2011.
Arkansas’s attorney general represented the committee. My attorney, Jeff Rosenzweig, argued that the boiler-plate letter I’d received, which went to all persons filing complaints about attorneys, constituted prior restraint and struck at the heart of free-speech protections—protections that were voted into the Bill of Rights particularly so that citizens could discuss their elected officials.
The state never did admit error. But in January 2013, we settled. I withdrew my lawsuit and the court ordered that henceforth the content of complaints could be discussed.
The following November, the judge hearing Howard’s claim about the withheld evidence concluded that misconduct had indeed occurred, though he softened his ruling by opining that the misconduct had been “inadvertent.” Nevertheless, he vacated Howard’s conviction, opening the way for the new trial that will take place this month.
As soon as the judge announced his finding of misconduct, I wrote again to the Office of Professional Conduct. Pointing out that a court had now made a finding of misconduct, I would renew my complaint against Cooper.
Sixteen months passed without a response. During that time I learned that, of the hundreds of attorneys the committee has sanctioned during the past 25 years, not one has been a prosecutor.
I began to think that my letter about Cooper, like my earlier ones about the First Amendment, would be totally ignored. But in the middle of March, just three days after my article about Howard’s upcoming trial appeared here, a letter from the director of the Office of Professional Conduct arrived at my office.
Could it be? A judge had found misconduct serious enough to warrant a new trial for a man who’d spent 16 years on death row, and would the state Supreme Court’s Committee on Professional Conduct finally break with its long tradition and actually punish a prosecutor instead of threatening those who dared to complain about one?
Nope.
This latest letter advised me that, though my complaint against Cooper was “carefully reviewed,” “sufficient evidence” had not been found that Cooper—the former prosecutor who is now a judge—had violated even one tiny rule of professional conduct.
No doubt most defendants facing a judge would love to murmur the word “inadvertent” and be graciously forgiven. But that doesn’t work in America’s courts—unless you’re a prosecuting attorney.
By: Mara Leveritt, The Daily Beast, April 6, 2015
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