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“It’s Not Just Bad Cops; Prosecutors Run Wild”: The Ones Who Lie And Cheat To Win At Any Cost

One year ago, Michael Brown was shot dead by a police officer. Since then, the nation has debated the justice system more feverishly than any other period in recent memory. Most of the scrutiny has rightly fallen upon the police, which is where the justice system meets the people viscerally and sometimes fatally. Cops only have the power to arrest, though; the power to prosecute and put millions of Americans in prison—and more than a few to death—rests with prosecutors.

And too many are abusing that power.

Suppressing evidence, coddling informants, even outright lying are some of the instances of prosecutorial misconduct that sent away nearly half the 1,621 people convicted for crimes they didn’t commit since 1989, according to the University of Michigan Law School’s National Registry of Exonerations. These are only the cases we know about, and they are surely only a fraction of the wrongly convicted. Even so, the figure is stunning—especially when you consider that 115 of them were people condemned to die.

The punishment for bad prosecutorial misconduct is virtually nil. In a 2011 report on 707 such cases, only six prosecutors were disciplined. Almost all still have their licenses, and are still practicing law.

Almost nothing is being done to systematically fix prosecutorial misconduct despite multiple avenues available for reform and bipartisan agreement that there’s an epidemic on our hands. But, let’s face it, convicted criminals (even wrongfully convicted ones) don’t play well at the polls.

Over the next several weeks, The Daily Beast will dive into this blight on the judicial system. We’ll look at how money, race, and politics distort the judicial system, and incentivize even decent attorneys to misbehave. We’ll talk with some of the leading critics of the system, liberal and conservative. And we’ll hear some of the most appalling tales of prosecutors run amok—in many cases, involving attorneys still on the job, unsanctioned and undeterred.

The prosecutorial role is an unusual one in the American judicial system. Usually, attorneys have one client, and their responsibility is to advocate solely for that client’s interests. Prosecutors, however, have a dual responsibility. On the one hand, they are the government’s lawyers, charged with making the state’s best case against the accused. On the other hand, prosecutors are also part of the judicial system, and they are meant not simply to secure convictions, but to pursue justice.

At times, those two obligations conflict. When a prosecutor discovers potentially exculpatory evidence, he or she must disclose it—as confirmed by the Supreme Court in the 1963 Brady decision. No civil lawyer would do this; nor would any criminal defense lawyer. But prosecutors are uniquely cast in the dual roles of advocates and what some have called “ministers of justice.”

In theory, anyway. In practice, numerous factors cause many prosecutors to tilt toward convictions. Perhaps the best known recent example is the corruption trial of former Senator Ted Stevens, which resulted in his conviction, and in which the government was later found to have withheld exculpatory evidence. By that time it was too late for Stevens, who had already died.

America is the only country in the world in which many prosecutors are elected—and many of them run as being “tough on crime.” The disciplinary commission that sanctioned Durham County, North Carolina District Attorney Michael Nifong—prosecutor of the Duke lacross team on false rape charges—noted his upcoming primary election as a motivating factor for his misconduct. The pressure to produce wins has led to a “win-at-all-costs” mentality in some offices, especially when voters reward such behavior.

Perhaps most importantly, prosecutors are granted immunity for most kinds of misconduct. It’s easy to see the reasons for this policy: otherwise, every well-heeled convict would sue, clogging the system and making it impossible for prosecutors to do their jobs. At the same time, that immunity is so absolute that prosecutors simply get off scot-free, even when misconduct is established. Even worse, most states lack any meaningful oversight of prosecutors: no commissions, no review boards, nothing.

Then there’s race. Ninety-five percent of elected prosecutors are white, and two-thirds of the states that elect prosecutors have no black ones. Yet 40 percent of the incarcerated population is black and one in three black men will have spent time in prison. How is the justice system supposed to be seen as fair when this crucial element of it is almost exclusively run by white people?

Despite the racial divide, the response to prosecutorial misconduct and overzealousness has been striking in its bipartisan nature.

In some ways, the issue of prosecutorial misconduct is an ideal opportunity for Republicans and Democrats to work together. Republicans wary of overzealous state action become concerned “when district attorneys attack,” to quote the National Review. Conservatives also place a high value on public trust in the justice system, and are thus keen to root out bad prosecutors who may undermine it.

Judge Alex Kozinski, no bleeding heart liberal, recently called the problem an “epidemic,” excoriated a California prosecutor for trying to maintain a conviction (in probably the only appellate court recording to qualify as “viral” on YouTube), and proposed a host of major reforms.

Liberals, meanwhile, may see overzealous prosecutors not as anomalies within an otherwise just system, but as examples of an inherently unjustice system doing little to protect the vulnerable, especially people of color. Liberals tend to value fairness and compassion over the strong administration of justice, even when some guilty people may go free as a result. Thus they, too, are wary of prosecutorial misconduct, albeit for very different reasons from conservatives.

It’s odd, then, that so little has been done. For example, efforts to create an oversight commission in New York have failed two years in a row, and there is nothing on the congressional agenda.

That’s not for lack of proposed reforms, which The Daily Beast will explore in detail in the coming weeks. These include proposals to:

– Create oversight boards, like those that already exist for judges, to monitor, censure, and report misconduct;

– Allow the wrongly convicted to sue for monetary relief—including from the prosecutor’s office, if misconduct is established;

– Reduce prosecutorial immunity to a qualified, rather than absolute, form. In particular, open prosecutors to be tried for perjury if they have lied under oath;

– Eliminate the election of prosecutors, which distorts the incentives they face;

– Expand Brady requirements with model rules which states could adopt as they see fit. These could include an “open file rule,” in which all information about a case must be shared with defense counsel; and

– Investigate the racial disparity among prosecutors and treat it as a civil rights issue.

Perhaps the time for such reform is, at last, at hand. The seemingly unlimited use of police violence against people of color, and the failure of prosecutors to take action against it, has led to a crisis of confidence in the criminal justice system at large—one amplified by the racial disparities within that very system.

Is it possible that the left’s concern with racial justice, and the right’s concern with law and order, might converge in this area where reform is so desperately needed? Will there be progress at last?


By: Jay Michaelson, The Daily Beast, August 8, 2015

August 9, 2015 Posted by | Criminal Justice System, Police Abuse, Prosecutorial Misconduct | , , , , , , , , | Leave a comment

“The Police Don’t Always Tell The Truth”: The Killing Of Walter Scott Sheds Light On The Problem Of Police Lying

Yesterday The New York Times published a video showing a police officer, Michael T. Slager, fatally shooting a black man, Walter L. Scott, as he ran away from the officer.

The video is disturbing enough by itself. But it becomes even more troubling when we consider how radically at odds the visual evidence seems to be with the police incident report filed on the killing. As the Times notes, Slager “said he had feared for his life because the man had taken his stun gun in a scuffle after a traffic stop on Saturday.” Yet the video shows Scott killed in flight, something like 20 feet away when the final bullet hit. After the shooting, Slager is shown placing an object next to Scott’s prone body. According to the Times, police reports also claim that officers performed CPR on Scott, an assertion not borne out in the video.

The death of Walter Scott will add more tinder to the already blazing political debate over police violence. The apparent contradictions between the incident report and the video highlight an overlapping but distinct problem: The police don’t always tell the truth. Police violence and police lying are two separate problems, although they also reinforce each other. Police violence flourishes in part because of the prevalence of police lying, which is rarely challenged by the criminal justice system.

In the Scott killing, there is good reason to believe that without the powerful counter-evidence provided by the video, which led to Slager being charged with murder yesterday, the police incident report would have been accepted as the official account of the shooting. Indeed, the persuasive power of police testimony extends outside official channels. Prior to the emergence of the video and Slager’s arrest, Slager’s version of events was echoed by the local media in South Carolina as if it were factual.

Police lying doesn’t just act as a shield for police violence, but as a larger source of corruption in the criminal justice system. Criminal cases are always narrative battles: Prosecutors and defense attorneys compete to win cases by presenting the most plausible stories consistent with admissible evidence. The police play a crucial part in this system as a supplier of narrative facts, in the form of both reports and testimony under oath.

As Ohio State law professor Michelle Alexander noted in a 2013 article in The New York Times, there is a powerful social presumption that we should put our faith in cops. “As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but?” Alexander said that this abiding faith in the police is misplaced: “In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.”

Alexander’s contention rests on a strong scholarly literature about “testilying”—the practice of police officers committing perjury to secure a conviction, usually against someone they think is guilty. In a classic 1996 article for the Colorado Law Review, Vanderbilt Law professor Christopher Slobogin demonstrated that both “reportilying” (falsifying police reports) and “testilying” are pervasive in many American jurisdictions.

Police perjury, Slobogin argues, occurs because “police think they can get away with it. Police are seldom made to pay for their lying.” Not just prosecutors but even many judges see themselves as sharing a common set of goals with the police of making sure the guilty get punished. Working in a shared enterprise, they are loath to challenge police perjury. “Prosecutors put up with perjury because they need a good working relationship with the police to make their cases,” Slobogin notes.

Slobogin documented his case by citing a compelling 1992 study by Myron Orfield of the Chicago criminal justice system showing that a large percentage of judges, prosecutors, and defense attorneys acknowledge the reality of police perjury: “In his survey of these three groups (which together comprised 27 to 41 individuals, depending on the question), 52 percent believed that at least ‘half of the time’ the prosecutor ‘knows or has reason to know’ that police fabricate evidence at suppression hearings, and 93 percent, including 89 percent of the prosecutors, stated that prosecutors had such knowledge of perjury ‘at least some of the time.’”

If officer Slager did fabricate his incident report in the Scott killing, he wasn’t being a bad apple but rather adhering to a dishonesty that is all too common in American police forces. Such is the credence given to police reporting that Slager’s rendition of events was only overturned by the compelling counter-narrative offered by the video, shot by a civilian onlooker.

Videos, including police body cameras, are not a panacea to the problem of police violence. The 1992 Rodney King trial alone should remind us that compelling visual testimony can be overridden by the social trust many jurors give to police. Still, in a society where both the state and many citizens are too credulous about police testimony, videos are often the best way to break the stranglehold of the official narrative.


By: Jeet Heer, Senior Editor, The New Republic, April 9, 2015

April 10, 2015 Posted by | Criminal Justice System, Police Shootings, Police Shotings | , , , , , , , | Leave a comment

“Adding Insult To Injury”: First Mike Brown, Then Eric Garner; Prosecutors Can’t Be Trusted To Try Cops

A New York City man who was at most guilty of selling loose cigarettes on the street was tackled and placed in a chokehold by a police officer in late August. The man, Eric Garner, protested that he couldn’t breathe, but the officer with his arm around Garner’s didn’t let up. Today, a grand jury announced that it would not indict the officer, Daniel Pantaleo.

The lack of indictment comes just a week after a grand jury in Ferguson, Missouri, did not indict a police officer there, Darren Wilson, for his role in the shooting death of an unarmed teenager, Michael Brown. Both Eric Garner and Michael Brown are black and their deaths, within just days of each other in August, helped reignite a national conversation—as well as protests—about disproportionate police violence against the black community. At a time when black men are killed by police with disturbing regularity, Garner and Brown’s deaths added urgency to a long-simmering but woefully unaddressed crisis.

I’ll leave it to the legal analysts to rehash the evidence presented to the Pantaleo grand jury. Hopefully there will be a transparent accounting of what was introduced. But the fact that two grand juries in fairly rapid succession have failed to indict police officers involved in highly questionable deaths of unarmed black men should give us all pause. In Panaleo’s case, the grand jury’s refusal to indict him despite his use of dangerous and violent tactics doesn’t pass the smell test. Add in historic patterns of NYPD abuse against black men in New York—Amadou Diallo, Abner Loiuma, stop and frisk generally—and the lack of an indictment downright stinks.

Combined, the two cases suggest that more should be done to decouple criminal investigations of police abuse from the conventional prosecutorial system. Attorneys who usually work hand-in-hand with the police in pursuing other criminal cases can’t honestly be expected to be impartial and aggressive in then prosecuting those same officers. It’s worth noting that when prosecutors nationwide decide to bring charges before a grand jury, they usually succeed. In 2010, for instance, federal prosecutors sought indictments in about 162,000 cases and in only 11 cases did grand juries not return indictments. In the face of those statistics, these two non-indictments are glaring.

Even worse, the failure to indict the officers who killed both Eric Garner and Michael Brown deprives their communities of the transparency and accountability that trials ensure. No one is saying that the officers should be tried if there’s not sufficient evidence, but many legal analysts have agreed there’s enough in both cases to at least warrant a trial. There are questions about facts in terms of both Michael Brown and Eric Garner’s movements before their death, questions of fact that should be debated in a court. There are questions about the officers’ states of mind—questions that could be fleshed out and better understood if the cases went to trial.

But the lack of indictments, now twice in a row, seems to add insult to injury—that not only are black men routinely, disproportionately victimized by the police but they are victimized by a legal system that refuses to hold the police accountable.


By: Sally Kohn, The Daily Beast, December 3, 2014

December 5, 2014 Posted by | Criminal Justice System, Ferguson Missouri, New York City | , , , , , , , | Leave a comment

“We Need More Ferguson-Style Grand Juries”: A Model For How To End The Over-Incarceration Of African-Americans Today

We need more grand juries like the Ferguson grand jury. In an ironic twist, Ferguson’s grand jury provides a blueprint for a radical civil rights revolution that could help end the worst racial injustice in America today. Here’s why.

Many observers have noted that the grand jury result in Darren Wilson’s case is highly unusual. Federal grand juries indict in more than 99 percent of cases; state grand juries aren’t quite at that level, but still indict in an overwhelming number of cases. The grand jury deck is heavily stacked to favor prosecution. For instance, prosecutors have no obligation to present all of the evidence in a case, just enough evidence to get an indictment. The old adage is that if a prosecutor asked them, a grand jury would indict a ham sandwich.

Other than sandwiches, who are grand juries indicting, and how? They disproportionately indict young African-American men, and they usually do it very quickly. Grand juries often hear dozens of cases in a single day, and may hand down an indictment based on ten minutes or less of testimony. As one news article notes, “Prosecutors present as many as 40 cases a day to grand juries,” who in turn “indict most suspects in less time than it takes to brew a pot of coffee.”

This is why the grand jury in Darren Wilson’s case was so unusual. It isn’t just that the result was out of the ordinary— the process was also unique. The grand jury heard an incredible 70 hours of testimony from 60 witnesses over a three month period. In another unusual move, the grand jury considered not only the basic elements of the crime, but also affirmative defenses. Ashby Jones writes at the Wall Street Journal blog that “It’s not disputed that Ferguson police officer Darren Wilson shot and killed 18-year old Michael Brown on August 9. The question jurors were likely asked to consider went beyond that: whether Mr. Wilson was justified in shooting Mr. Brown.” And in yet another atypical move, prosecutors presented this grand jury not just a cherry-picked case for prosecution  but “absolutely everything … Every scrap of paper that we have. Every photograph that was taken.”

This approach should not be condemned; it should be expanded upon. While cases like the Mike Brown and Trayvon Martin killings receive media attention, they aren’t actually representative of the way that most African-American young men interact with the justice system today. Instead, today’s criminal justice system mostly interacts with young Black men by putting them behind bars at an alarming rate. In recent years nearly one million African-Americans have been incarcerated at the federal, state or local levels. As many as one in three Black men born today will spend time incarcerated.

When they do leave prison, these men are largely unemployable and ineligible to vote, and often end up back in the system. This mass incarceration is destroying the Black community — it is, as Michelle Alexander writes, the New Jim Crow. And it depends on grand juries who act as a conveyor belt, quickly funneling tens of thousands of young Black men into prison.

The contrast with the Wilson grand jury is a stunning illustration of the racial double standards in criminal justice. We should undo that double standard by offering similar protections to every young Black man who is arrested in this country. If grand juries across the United States regularly deliberated for twelve weeks rather than twelve minutes, it would become physically impossible to incarcerate a million African-Americans. If every grand jury heard seventy hours of testimony from sixty witnesses over three months, it would mean the end of mass incarceration in America.

Of course, racial double standards have been lived reality throughout American history. But perhaps the sheer visibility of the grand jury in this case will call attention to the problems of how grand juries usually operate. Ironically, the Ferguson grand jury provides a model for how to end the over-incarceration of African-Americans today. I hope that a thousand more grand juries will follow its lead.


By: Kaimipono Wenger, Thomas Jefferson School of Law in San Diego, California; The Daily Beast, November 30, 2014


December 3, 2014 Posted by | Criminal Justice System, Ferguson Missouri, Grand Juries | , , , , , , | Leave a comment


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