Guest Shot: Overzealous prosecutors, cross-examine yourselves

Originally published in the Los Angeles Times: http://tinyurl.com/jwqqa

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 www.truthaboutfalseconfessions.com.
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.