The Unethical Prosecutors Ethics Train Wreck

I went to law school to be a prosecutor, and was one for about two weeks after I passed the Massachusetts Bar. Then I was quickly disillusioned, and realized that the weird, intrinsically ethically-conflicted criminal justice system was something out of which I had to get, and the sooner the better. I never looked back, and the situation is even worse now than I thought it was then.

Netflix has truly eye-opening and disturbing documentary about the subject of John Grisham’s only non-fiction book (out of more than 40). Both the book and the film are called “An Innocent Man,” and involve two criminal cases, both murder-rapes of young women, in the small town of Ada, Oklahoma in the Eighties. The title is ambiguous, for there isn’t just one innocent man, but four, all wrongly convicted of rape and murder because of police and prosecutorial misconduct of head-exploding magnitude. At the end of the documentary, two of the men had been freed after serving 12 years for a murder and rape with no physical evidence that incriminated them, and the remaining two were pursuing appeals. (One of them, who had been on death row, was finally freed last summer. The other has had his conviction overturned, but the state is appealing. Both of the men had been in prison for 35 years.)

The prosecutor was the same for both murder cases, and his comments defy belief. In one case, the actual murderer was the prosecution’s prime witness against the innocent men convicted, and evidence implicating him at the time of the crime was withheld by the Ada police who were involved with killer in a drug scheme. More evidence, so-called Brady material that prosecutors are required by law to reveal to defense attorneys, was illegally withheld by the DA. Asked if he owed an apology to the two men the jury convicted when the uncovered evidence prompted their release, the prosecutor’s reply was that he had nothing to apologize for, because he did his job.

No, his job is to try and convict guilty people. That case was finally blown up by the Innocence Project and DNA evidence.

The other case is even worse, believe it or not. A missing girl was seen by a single witness, from a distance, at night, being pulled into a car by two men. An artist’s crude approximation of the witness’s description led to the arrest of one suspectn, who was first shown to the witness, and then the witness was asked to pick him out of a line-up. (That’s an illegal line-up trick, as you can guess.) The second suspect was arrested because he knew the first suspect, and because one of the sketches vaguely resembled him. The first suspect, a young man known in the town as “slow,” confessed following r many hours of grilling by police and gave a detailed description of what the two men had done to the girl, including where they had buried her. Then the second man was led to confirm his own participation in the crime as it had been described by his friend. The taped confessions (and not the illegal questioning leading up to them, which was not recorded) were the only evidence presented at their trial.

Decades later, the body of the victim was found in a shallow grave 30 miles from where the convicted men had said she was buried. She was clothed in a dress bearing no resemblance to the one the men described. Most disturbing of all, forensics showed no evidence of rape, and she had been killed by a single bullet to the back of the head, not by stabbing. The men got a new trial, and were convicted again, with the same DA arguing for their guilt. His explanation: the girl was dead, they confessed to the killing, and the details don’t matter.

Among the 800 pages of Brady material withheld from the two men’s lawyers: a man who resembled one of the sketches had come to police and confessed to the murder before they were convicted.

I was reminded of “The Innocent Man” when I learned about the recent controversy in New York City over unethical prosecutors. Three men convicted of murders they did not commit were exonerated in March, and a group of law professors decided to focus public attention on the kind of prosecutorial misconduct that had put the innocent men in prison for decades. Like the Ada DA, the Queens prosecutors withheld Brady evidence and had made false statements at trial, a judge found, and it wasn’t the first time.

The professors filed grievances against 21 Queens prosecutors, and they built a website that placed all of their evidence and complaints online. They also announced that Queens was just the beginning, with the other New York City boroughs in their sights.

New York City prosecutors were not pleased. A city lawyer accused the professors of politicizing the process (which they had) and violating the law. They were threatened with legal and disciplinary action if they continued to file grievances, according to a lawsuit filed publicly on behalf of the professors and their partner organization, Civil Rights Corps, in federal court in Manhattan this month.

The problem is that grievances—that is, unproven ethics complaints—against lawyers, including prosecutors, should not be made public. Ethics Alarms has criticized such stunts before. However, despite some movement toward more accountability for unethical prosecutions since the infamous Duke Lacrosse case, the problem of prosecutors abusing their power and violating ethics standards remains a serious and largely unaddressed problem in the justice system. (Kyle Rittenhouse is a current blazing example.)

“The Innocent Man” is a valuable wake-up call. I recommend that you see it, and persuade others to see it. Warning: It’s slow in unfolding. I bailed out when I first tried to watch it, I’m ashamed to say. Don’t be like me; it is important. And as two lawyers I know well and trust said after I described what I saw said: “That kind of thing goes on all the time.”

It can’t be permitted to continue.

18 thoughts on “The Unethical Prosecutors Ethics Train Wreck

  1. Are there no consequences when police or the DA violate the principles of justice to deny people a fair trial? I’d argue that if they’re found to have committed any wrongdoing they should automatically receive, at minimum, the sentences that resulted from their deception, up to and including death, regardless of how much of the sentence was actually carried out.

    Please also take note that when people call to defund and replace the police, this is one thing that motivates their opinion. They are more afraid of and outraged by corruption than turmoil, and I fully respect that position. As with most positions, the loudest voices are the ones that speak in soundbites and bumper sticker slogans, but my role is to fix that.

      • That sounds reasonable to me. Not only is there absolutely no excuse for a prosecutor to do such a thing, no mitigating factor of emotion or desperation, but the crime itself is such a heinous betrayal and injury not only to the person wrongfully convicted (which is bad enough) but to all of society for undermining the justice process. I’m not sure there’s any coming back for someone who would do this, but maybe sociopaths would at least think twice if they see that the offense is taken seriously. If there’s any crime that merits the “make an example of them” treatment, it’s this one.

  2. Basically, if you are a terrible prosecutor, your reputation may be harmed by a Netflix documentary, but not much else will happen to you except in rare circumstances. Prosecutors serve a valuable role, but they are given too much discretion, and some of the personalities who want to be prosecutors have an almost sick enjoyment in punishing people. Punishment is often necessary, but some of them seem to almost love watching it happen.

  3. I re-watched “My Cousin Vinny” last night due to some recent references to it stemming from the Rittenhouse trail (sarcastic statements or questions being used by the prosecution as statements of fact). Towards the end of the movie, when is becomes clear that the defendants are innocent, the prosecutor, in open court, graciously drops all charges. Does that ever happen in real life? I’m guessing not.

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