Monday, June 26, 2006

Guest Shot: Overzealous prosecutors, cross-examine yourselves

Originally published in the Los Angeles Times:

Hunger for convictions leads many prosecutors to hide evidence that could prove innocence.
By Alan Hirsch

ALAN HIRSCH, a visiting professor of legal studies at Williams College, created and operates
June 21, 2006

BY ALL APPEARANCES, the sexual assault case against three members of the Duke University lacrosse team involves serious prosecutorial misjudgment, if not downright misconduct.

Michael B. Nifong, the Durham County, N.C., prosecutor, made public accusations long before the conclusion of the investigation and now forges ahead even as DNA, witness statements, medical reports and other evidence lead impartial observers to find the case ridiculously weak.

Sadly, such conduct is not uncommon. Prosecutors blatantly or subtly overstep professional bounds all too frequently. In a 2003 study, the Center for Public Integrity found that, since 1970, trial and appellate courts cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences in more than 2,000 cases. In thousands more, courts labeled prosecutorial behavior inappropriate but upheld convictions nevertheless.

The New York-based Innocence Project, whose DNA testing has led to the exoneration of 180 wrongly convicted people in the last 15 years, has studied these cases. It cites the following prosecutorial abuses as contributing to the punishment of the innocent: suppression of information favorable to the defense, knowing use of false testimony, improper closing arguments, coerced witnesses, false statements to the jury and fabrication of evidence.

Maybe such shenanigans will seem unsurprising — just a case of lawyers being lawyers. As the joke goes, what's the difference between lawyers and liars? The pronunciation. (I can make the joke. I'm a lawyer.) But prosecutors are supposed to be different. They are public servants who are supposed to be committed to justice rather than the single-minded pursuit of victory. The Supreme Court has referred to their "twofold aim": to ensure that "guilt shall not escape or innocence suffer."

Why is the second half of that command often neglected? Why do some prosecutors seem indifferent to the risk that their behavior will result in punishment of the innocent? The answer to these questions involves a combination of at least three factors.

First, the asymmetry of the criminal justice system arguably places unrealistic demands on prosecutors. Defense attorneys may pursue acquittals without regard for truth and are subject to few ethical constraints. For example, defense attorneys generally are not bound to share evidence unfavorable to their client, but a prosecutor's failure to share exculpatory material is a serious no-no likely to result in a conviction being reversed. Prosecutors understandably aren't fond of unequal combat. With trials structured as zero-sum competitions featuring a clear winner and loser, they resist allowing their opponent overwhelming tactical advantage.

Personal ambition compounds competitive instincts. Many prosecutors are elected. They wish to be re-elected and often aspire to higher office. One rarely wins popular acclaim for the indictment not brought (because of doubts as to guilt or because evidence was illegally obtained) or the case lost (because of appropriate restraint). Professionalism in prosecution can be subtle and unpublicized, whereas wins and losses are out there for everyone to see. Moreover, restraint is easily mistaken for weakness, rashness for strength. Today, Nifong receives criticism for prosecuting the lacrosse players, but at the time he charged ahead with the decision, public pressure pushed toward aggressive action.

Another cause of prosecutorial misconduct is the deep-seated human need to rationalize away our errors. It would be awfully difficult now for Nifong to admit — to himself — that he shouldn't have brought charges. He retains the discretion to drop the charges, but it would amount to an admission that he has shattered the lives of several innocent people. Who among us is capable of acknowledging mistakes of such magnitude?

The role of rationalization is on clearest display after DNA exonerates those already convicted. The occasional brave prosecutor will apologize and take action to release the man he or his office wrongly put behind bars, but more often the prosecutor refuses to admit the obvious. Though he routinely argues to juries about the infallibility of DNA evidence, now he isn't so sure. Or, though he advanced a theory about the defendant's guilt with certainty, he now abandons that theory while nevertheless maintaining the belief in guilt.

Consider the case of Earl Washington, a mentally retarded man convicted of rape and murder in Virginia who never should have been prosecuted. The case against him consisted of a wildly inaccurate confession, whose errors included misidentifying the race of the victim. Some time after Washington's conviction, DNA testing ruled him out as the source of the seminal fluid found in the victim. The prosecution merely changed its theory of the case, arguing that Washington was not the rapist but an accomplice. They stuck to that story (supported by zero evidence) even after Washington received a pardon and even though no neutral observer has found his guilt a realistic possibility.

Prosecutorial misconduct should not surprise us. Prosecutors are lawyers (intent on victory), politicians (craving popularity) and human beings (needing to rationalize serious errors). The question is what medicine can be prescribed to treat the malignant influences on their behavior. The solution begins with the right kind of public pressure. We must judge prosecutors by much more than how many headlines and convictions they muster.


blanfear said...

I cannot wait to see the outcome of this Duke Case. Our son's case has allot of similarities to it. I wanted to immediately turn around and file charges against a few people, but my husband said its probable not worth it??? Duh? Thirty grand in the hole, the cops hanging on to an innocent young man, as the pervert ran loose, still committing the ongoing crime, where he esculated up to breaking and entering and attempt of sexual assault. That PD's lack of investigation could of screwed the life up of one innocent young man and two innocent young women!! GGRR!

Help the Wrongfully Convicted! said...

i am sorry about your son's case. there are two sides to every unfortunate event and most people do not realize that it affects both sides involved. I will pray that the truth will come out to exonerate your son. I no longer am quick to judge people's innocence or guilt due to the amount of evidence that is never made known. Far too often, the over zealous prosecutors twist one's words around and make he or she look guilty. Anybody could get blamed for a crime they did not commit and could be found guilty and given the death penalty. The amount of wrongful convictions is incredibly high. Hundreds of people since the 90's were release due to DNA proving their innocence after almost 15-20 years in prison, or a witness recanting their statements, the actual killer had come forward or was caught, or evidence was found that the state withheld info that would have cleared the person they were trying to convict. Should it continue to be about winning or losing, or making sure a client gets a fair trial? How can the corrupt prosecutors sleep at night knowing they sent an innocent person to the death row and how can a defense attorney feel good about trying to put a pedophile back on the street after he's already confessed to his crime? please try to help me understand how our system is supposed to work.

Franklin D. Vipperman said...

Franklin D. Vipperman
Las Vegas, NV. 89121

Re: The overwhelmingly corrupt, deceitful, lying, falsifying, fabricating
Police, prosecutors, courts, judges, attorneys, jail and prison personnel and
guards, parole and pardon boards, politicians, and the entire despicable
cowardly news media that keeps it all covered-up. Who are in truth and in
fact, the underlying cesspool of this country. That daily, since the beginning
of time, have been robbing and depriving the people of their liberty and
property for their own personal, monetary, and political gains. And the same
has been going on in this country since the days of the Salem Witch Trials,
whereat, they murdered 20 innocent people, because they would not make a
deal by falsely confessing to being witches: And absolutely nothing has
changed since that time. It is simply secreted from the public behind great
walls of injustice, in the courts, jails, and prisons, with the aid and assistance
of the deplorable news media.

This writer, against all odds, caught them in their despicable, illegal, and
horrifying acts and actions, wrote it all down as it happened, and then
published it all. And named each and every one of them that were involved
and participated in the sad and shameful horrendous framing him for a
murder they all know he did not commit, and railroading him through two
different trials. And tried to keep him in prison for the rest of his life
because he would not roll over and confess to a crime he was not guilty of.
But; after secretly catching the abominable parole board on a hidden tape
recorder committing unimaginable acts of lying, deception, perjury, and
blatant abuse of power, discretion, and conspiracy, he transposed the
secret tape recording into a transcript, and filed same into the despicable
district court, whereat it was all covered-up by devious immoral corrupt
judges. This caused him an additional eight years in prison of retaliation by the parole board. Until one day he had learned enough about law after fifteen years imprisonment, to file a massive civil rights law suit in the corrupt federal court, naming all of them that had been involved in the continual conspiracy. Including all of the despicable parole board members and hearing officers. And only then did they decide to throw him out of prison, for they knew he would never give up or falsely confess. He then took his case through the despicable corrupt state and federal courts as required by law, all the way up to the highest most corrupt court of all, the US Supreme Court. See his Writ Of Certiorari to the US Supreme Court at

This author, Franklin D. Vipperman, can be credited for taking down his first alleged defense attorney, the abominable Harry E. Claiborne, who had since his conviction became a federal judge. Vipperman caused him to be convicted of committing crimes while setting on the federal bench, imprisoned, and impeached by the US Senate. Thank you very much. He further caused the despicable prosecutor that originally framed him for murder, Earl Gripentrog, to be convicted and imprisoned. In addition, Vipperman caused his deplorable trial judge Carl J. Chirstensen, who railroaded Vipperman through two different trials to be thrown off the bench. And recently, through his writings, caused his despicable alleged trial/appeal attorney Jeffrey D. Sobel to be thrown off the bench in recent elections after having become a district court judge.

Vipperman's series of four books are quite probably the most enlightening ever written. The entire news media of Nevada have kept them covered-up and hidden from public view. He attacked the entire despicable legal and judicial systems of Nevada, which are the same everywhere in this country. It being a cancer within this country that must be cured. And what is as bad, if not worse, the entire news media in this country knows it all to true, yet keeps it all covered-up while acting in collusion and conspiracy with the power brokers of both the state and federal governments. And every word written in Vipperman's books are true, and he has indisputably backed up everything he has written with court records, affidavits, trial and hearing transcripts, police reports, written statements, testimonies, scene of the crime and autopsy photographs, all incorporated right into the pages of his books. He caught the abominable bums at each and every step of his horrific journey through the horrendous legal and judicial systems. Only to find that the higher courts simply aid and abet the lower courts in keeping it all covered-up and out of the sight and minds of the brainwashed public of this country. His four books,
The Deal Makers , The Cesspool , Hell Hole , and BRAINWASHED , are all available for free previews and purchases at, through their Book Store. And
are further available through Barns & Noble, Borders, Amazon, and almost all book stores and computer book sites everywhere through their ISBN (International Sales Book Number). So please; for the sake of yourselves, family, and loved ones, read his books, learn from them, and post, forward, and spread this information everywhere possible. For
if we don't do something about this now, we will all end up in a prison, with only ourselves to blame….