By Ross Miller
As recent stories in media around the county have shown, prosecutorial misconduct is a frequently cited contributor to wrongful convictions and undermines the credibility of our criminal justice system. When we try to dig deeper to understand the prevalence and frequency of these instances, there is very little information.
In contrast, the scientific study of other significant criminal justice errors like police excessive force and misconduct have advanced, even in the face of challenges posed by inaccurate reporting of incidents and the difficulty in getting police cooperation with data collection efforts.
Prosecutor misconduct, whether negligent, reckless or intentional, has evaded similar scrutiny, and the lack of data is a far more significant issue when there is virtually no data at all. This information void leaves reformers and prosecutors at odds on necessary policy reforms to improve the quality and accuracy of our justice system.
Recently, the Quattrone Center for the Fair Administration of Justice tried to fill this data gap. We reviewed every judicial opinion in Pennsylvania from 2000 – 2016 that contained the terms “prosecutorial misconduct” or “Brady v. Maryland” (a case that addresses prosecutor failures to turn over exculpatory information). The results are in our report: Hidden Hazards: Prosecutorial Misconduct in Pennsylvania.
Our review identified 204 confirmed instances of prosecutorial misconduct. While that’s a large number, one of the biggest findings of our review is how many prosecutorial decisions remain invisible and are impossible to review. Only a small percentage of cases lead to an appeal and published opinion (we found there was 1 published opinion to every 567 criminal cases in Pennsylvania) and, most significantly, only about 2% of all criminal cases go to trial. This systemic reliance on plea bargaining prevents the evidence in the other 98% from ever being evaluated by neutral factfinders (e.g., judges or juries). Add the fact that current law does not require prosecutors to turn over evidence before a guilty plea and it becomes clear how easy it would be to put a thumb on the scales of justice and leave no fingerprints.
Recent media accounts demonstrate this invisibility problem. According to a recent article, Roger King, a once highly respected prosecutor in Philadelphia, had a long history of misconduct that went undetected for decades until the Conviction Integrity Unit of the District Attorney’s Office conducted an investigation into several original case files. Only through that review of internal documents, and the related conviction reversals, did his trail of wrongful prosecutions become public.
At first blush, it may be tempting to characterize unethical prosecutors as “bad apples,” but even one Roger King damages the system and there are worrisome signs that similar conduct may not be so uncommon. The same CIU also found that under prior DAs, the homicide division had an informal policy of concealing evidence from defense lawyers and of retaliation against defense lawyers who cast light on the practice. In another example, the entire Orange County, California District Attorney’s office was disqualified from a death penalty case due to an office-wide practice of conspiring with law enforcement to facilitate an illegal jailhouse informant scheme and to hide evidence.
Even more disheartening than its invisibility is that in the few instances where misconduct is exposed, no remedial measures seem to follow and there is very little accountability. In our study we found that neither litigation nor Pennsylvania’s professional discipline process have functioned as effective tools for identifying or preventing misconduct. This is not unique to Pennsylvania - just a few weeks ago, a group of law professors filed official grievances on twenty-one New York prosecutors whose misconduct was described in court records.
The government position was that local prosecutors were “concerned” and there was “an abuse of the system” – but these characterizations were leveled at the reporting of the misconduct, not the misconduct itself. This response was similar to the District Attorney’s Association of New York (DAASNY) opposition to reforms and the creation of a prosecutorial oversight committee – the focus is illogically aimed at preventing transparency and remediation rather than preventing unethical conduct. The DAASNY claimed that “willful prosecutorial misconduct is rare” but offered no data to support that claim and doesn’t address negligent or reckless prosecutor conduct. Instead, it vigorously opposes efforts to increase transparency and oversight, the very processes that might prove its statement true.
American Bar Association standards state that “The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.” It is fair to assume that vast majority of prosecutors behave ethically and follow that standard. Everyone in the system – legislators, judges, defense lawyers and prosecutors themselves– should eagerly engage in cooperative ways to help them improve the quality of their offices and practices for the benefit of all.
Ross Miller is Assistant Director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School.