Monday, June 25, 2007

Guest Shot: Adam Liptak on Prosecutorial Misconduct

Prosecutor Becomes Prosecuted


The misconduct that cost the prosecutor in the Duke lacrosse case his career certainly seemed to call for a severe penalty: he withheld evidence from the defense, misled the court and inflamed the public.

Yet other prosecutors found by the courts to have done similar things have almost never lost their jobs or their licenses to practice law. Even in the aftermath of prosecutorial wrongdoing that helped put innocent men on death row, discipline has been light or nonexistent.

What makes Michael B. Nifong different?

The answer, it appears, is that he got a taste of something like his own medicine, a trial in the court of public opinion.

“The very same facts that made this case attractive to a prosecutor up for election and a huge publicity magnet — race, sex, class, lacrosse stars, a prominent university — also led to his undoing when the case collapsed and his conduct was scrutinized in and beyond North Carolina,” said Stephen M. Gillers, a law professor at New York University and the author of “Regulation of Lawyers: Problems of Law and Ethics.”

“If the same case had involved three poor men, instead of defendants with private counsel and families that supported them financially and publicly,” Mr. Gillers continued, “we would not likely see a disbarment, in North Carolina or anywhere. I’d be surprised if there were even serious discipline.”

There is widespread agreement that sanctions for prosecutorial misconduct are quite unusual, but heated dispute about why.

Prosecutors say they seldom face discipline because conduct like Mr. Nifong’s in this sexual-assault case is exceptional.

“Nifong’s case is rarer than human rabies, which is one reason it is such huge news,” said Joshua Marquis, the district attorney in Clatsop County, Ore., and a vice president of the National District Attorneys Association. “The defense bar is piling on and trying to claim this is typical behavior.”

But the defense bar is not alone. Law professors who study professional discipline of prosecutors have also noted that misconduct like Mr. Nifong’s is often unpunished.

“A prosecutor’s violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by the courts, and almost never by disciplinary bodies,” Bennett L. Gershman wrote in his treatise, “Prosecutorial Misconduct.”

Mr. Gershman, a former prosecutor in Manhattan who teaches law at Pace University, said the Nifong case was handled differently because of the publicity. “The fact that it resulted in national exposure,” he said, “had to have put the disciplinary body and the entire system of justice under the spotlight.”

“You have rogue prosecutors all over the country who have engaged in far, far more egregious misconduct, and in a pattern of cases,” he added. “And nothing happens.”

The Chicago Tribune, for instance, analyzed 381 murder cases in which the defendant received a new trial because of prosecutorial misconduct. None of the prosecutors were convicted of a crime or disbarred.

There have been about 120 death-row exonerations since the Supreme Court reinstituted the death penalty in 1976, said Samuel R. Gross, a law professor at the University of Michigan. (Prosecutors say the number is much smaller.)

“I don’t know of a single case of discipline against a prosecutor who engaged in misconduct that produced the wrongful conviction and death sentence, and many of the cases involve serious misconduct,” Mr. Gross said.

Indeed, the North Carolina disciplinary commission that disbarred Mr. Nifong faced criticism for its handling of two recent cases involving charges of misconduct in death-penalty cases.

In one, Alan Gell was sentenced to death after prosecutors withheld witness statements from the defense. The witnesses said they had seen the victim alive after Mr. Gell had been jailed on other charges and was physically unable to have committed the murder. Mr. Gell was acquitted at a retrial.

Two prosecutors received a reprimand.

Last year, the commission dismissed charges, largely on statute of limitations grounds, against two prosecutors accused of withholding evidence in the 1996 capital trial of Jonathan Gregory Hoffman. Mr. Hoffman has been granted a retrial.

The chairman of the disciplinary commission, F. Lane Williamson, discussed those cases as he ordered Mr. Nifong’s disbarment last Saturday. “In those two cases, the situation was very different, although you could look at it and say the harm that was caused by the conduct was greater,” Mr. Williamson said. “In both of those cases someone was actually wrongfully convicted of a capital crime.”

But the earlier cases differed from the case against Mr. Nifong, Mr. Williamson said, because neither one involved allegations of intentional wrongdoing.
That point is important, prosecutors say. What courts label prosecutorial misconduct is often the product of carelessness or oversight rather than an intent to pervert the justice system by convicting the innocent.

Mr. Nifong’s admission of wrongdoing certainly helped propel the case against him.

“It is very hard to get discipline against a prosecutor to stick,” said Rory Little, who teaches at the Hastings College of the Law in San Francisco and serves on an American Bar Association task force on prosecutorial ethics. “The main reason is that it’s just too mushy to decide intent.”

Wednesday, June 20, 2007


Vidkun Quisling was a fascist politician in Norway during World War II. He invited Hitler to invade and occupy the country, then proclaimed himself the new head of Norway’s government and ordered Norwegian troops to lay down their arms. His name–Quisling–has come to mean traitor.

Mike Nifong was the DA in Durham County, North Carolina. He won a close election and drew significant public attention to himself by prosecuting four Duke University lacrosse players–in the media–for allegedly raping a stripper who danced at a private party at the home of another player. The North Carolina State Bar charged him, first, with “conduct involving dishonesty, fraud, deceit, or misrepresentation” for his handling of the case. Then a second charge was issued, “systematic abuse of prosecutorial discretion ... prejudicial to the administration of justice” when it was learned Nifong withheld DNA results that cleared all four lacrosse players from their defense attorneys. Even after he was disbarred, Nifong tried to hold onto his office for another month. He had to be removed by judicial order and escorted out by the sheriff.

His name–Nifong–has come to mean a prosecutor who systematically abuses his office to obtain convictions and garner self-promoting publicity. When someone says a defendant was “Nifonged” into prison, we now have a frame of reference for the type of prosecutorial misconduct involved.

Prosecutors are supposed to play fair for both sides. State bar rules across the country are clear that a prosecutor has the responsibility of a minister of justice and not simply that of an advocate. In plain English, a defense lawyer may win with the acquittal of a client. A prosecutor, however, wins with a just outcome, which includes a ruling of innocence. That’s the ideal. It is not the reality.

The same media that hung on Nifong’s every word, painted him as the hero and the Duke lacrosse players as “hooligans,” now assures us that the Durham DA is an aberration. Wrong. The only aberration was the North Carolina State Bar, which charged, tried and disbarred him. The usual response from lawyer discipline panels is to ignore the behavior and dismiss complaints to cover the backsides of their colleagues.

A Duke University law professor, James Coleman, told The Herald-Sun of Durham: "Everybody wants to say that Mike Nifong is some kind of a rogue prosecutor, but in fact, what he did is not that different from what other prosecutors do on a regular basis in cases out of the spotlight.”

If you doubt that, take a look at news reports linked to Police/Prosecutor Misconduct. And why do so many prosecutors kick justice to the curb in pursuit of convictions and publicity? With a handful of rare exceptions, they are rewarded with higher offices. They warm the bench as judges. They get elected to state and federal offices. And while they almost certainly recognize the same unethical and illegal behaviors among the prosecutors who follow them, they aren’t going to throw any stones. Instead, they condone and perpetuate it.

Mike Nifong may have done justice a favor after all, however. He raised the curtain and showed us what goes on in too many prosecutors’ offices across the country. Now everyone knows. And as Professor Coleman said, “What's important now is that they not tolerate it."

Wednesday, June 13, 2007

Guest Shot: Weeding Out the Innocents

(This Op Ed article originally appeared in the June 11, 2007 edition of the Los Angeles Times.

Weeding out the innocents
Just because a vast majority of prisoners were rightly convicted doesn't mean we shouldn't look for those who weren't.

By Samuel R. Gross
June 11, 2007

THE FIRST innocent American defendant to be exonerated by DNA evidence was Gary Dotson of Chicago. Before his conviction was overturned on Aug. 14, 1989, he'd spent 10 years in prison and on parole. This year, on April 23, Jerry Miller obtained the 200th DNA exoneration, also in Chicago. He had served 25 years for a rape he did not commit.

Two hundred innocent prisoners exonerated by DNA — plus more than 200 other exonerations that did not involve DNA. That sounds like a lot. But over 18 years in a criminal justice system that sends hundreds of thousands to prison each year? How frequent are wrongful convictions?

The truth is, we don't know. But that hasn't stopped prominent members of the legal profession from staking out a position.

More than a year ago, prominent Oregon prosecutor Joshua Marquis, commenting on my research on exonerations, wrote in the New York Times that the rate of erroneous convictions could be no higher than .027%. Last June, Justice Antonin Scalia endorsed that calculation in a concurring opinion in a Supreme Court case. This April, after the 200th exoneration, Colorado District Judge Morris B. Hoffman wrote in the Wall Street Journal that false convictions occur in fewer than .065% of criminal cases. Whatever the number, the message is the same: Not to worry, we get it right more than 99.9% of the time.

These reassuring words are nonsense.

Here's how Hoffman and Marquis arrive at their numbers. Start with the number of known, proven exonerations (for Hoffman, the 200 DNA exonerations so far), then multiply that by 10 "to be safe" (Marquis' formula). Take that product, divide it by an estimate of the millions of all criminal convictions over time, and you end up with something less than one-tenth of 1%.

This makes no sense. Imagine that a car company gets reports that 65 of its 2007 sedans have faulty steering columns, which sometimes lock up. What if the company said: "That's no big deal. We have 10 million cars on the road, so that's less than one-thousandth of 1%."

But that's ridiculous. The total number of defects could be 10 or 100 or 1,000 or 10,000 times greater than the first batch that came to light. Unless we investigate systematically, we just don't know — not for steering columns and not for criminal convictions.

Further, the car company has divided by the number of all cars in service, when it should use the number of 2007 sedans only. Marquis and Hoffman make this mistake too. Hoffman, for example, divides the 200 DNA exonerations to date by his estimate of all criminal convictions — including check kiting, tax evasion and car theft. But DNA testing requires biological evidence; it has only been useful in a fraction of rape convictions and a scattering of murder cases (if the killer bled). Rape and murder account for fewer than 2% of felony convictions and a much smaller percentage of all convictions.

As it happens, we're just beginning to learn something real about the rate of false convictions. The Virginia Department of Forensic Science recently found a large group of closed rape files with untested DNA, which will make possible the first systematic study of false convictions. So far, tests on a small preliminary sample are troubling: two previously unknown wrongful convictions out of 29, or an error rate of 7%.

We can also learn from death sentences, which are reviewed much more carefully than other criminal convictions, so more errors are caught. Of the 3,795 defendants sentenced to death from 1973 through 1989, 86 were freed because of DNA or other new evidence of innocence. That's 2.3%. Of course, some of those freed may be guilty, while others still on death row are no doubt innocent. So last year, Michael Risinger, a professor at Seton Hall Law School, did a study of death row DNA exonerations only. His results? Among defendants sentenced to death between 1982 and 1989 for murders involving rape, at least 3.3% were innocent.

The good news is that the great majority of convicted defendants in the United States are guilty; the bad news is that a substantial number are not. Is an error rate of 2% or 3% or 5% high or low? That depends on your point of view and your purpose.

If 1% of commercial airliners crashed on takeoff, we'd shut down every airline in the country. That would be nearly 300 crashes a day. If as few as 1% of criminal convictions are erroneous, right now there are more than 20,000 innocent defendants behind bars.

Correcting false convictions is much harder than recalling automobiles, but we have to try. We'll never save the innocent defendants who are already in prison — or keep others from suffering their fate — if we just wish the problem away. --

SAMUEL R. GROSS is a law professor at the University of Michigan.