‘Invisibility’ of Prosecutor Misconduct Erodes Trust: PA Report

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The lack of transparency about the extent of prosecutorial misconduct in the U.S. undermines the legitimacy of the justice system, says the Quattrone Center for the Fair Administration of Justice.

While a number of states have adopted measures to address instances where prosecutors fail to provide timely evidence that could prevent the conviction of innocent individuals or neglect other rules of procedure, the aberrant conduct is largely “invisible” to public scrutiny in most jurisdictions across the country, said the Center in a new report.

“American citizens lack the ability to make even the most cursory inquiry into whether their prosecutors operate within the rules,” the report asserted.

Researchers at the Quattrone Center, based at the University of Pennsylvania Carey Law School, created what they said was a unique dataset of 4,644 opinions in which allegations of misconduct were raised in the more than 1.5 million judicial opinions published between 2000 and 2016 by federal and state courts in Pennsylvania.

They identified 7,207 separate claims of prosecutorial misconduct over that 17-year period. Courts failed to address 1,774 of those claims. In the remaining 5,432, misconduct was found in just 204 cases―or less than 4 percent.

But the apparent low figure, they suggested, was “almost certainly a substantial undercount.”

And, they argued, there is little reason to suggest that Pennsylvania was atypical.

“We have found no jurisdiction in the United States that regularly assembles and publishes information about how frequently allegations of prosecutorial misconduct are made, how often they are upheld, and what actions are taken when misconduct has been identified,” the report said.

“Without such basic information, communities are left with vague reassurances that misconduct is rare; that when it occurs, it is rapidly identified and addressed; and that no additional oversight or accountability measures are needed to improve the criminal justice system and ensure that good prosecutors will continue to serve our system, while bad prosecutors are weeded out.”

One likely reason for the undercount is that the cases examined in their database only corresponded to cases which went to trial.

The majority of Pennsylvania criminal cases are resolved through pretrial bargaining—when prosecutors strike deals with defendants to lower sentences in response to a guilty plea. Allegations of misconduct during the pretrial period never appear in final opinions.

“What became clear during our review is that the true extent of prosecutorial misconduct eludes a full analysis due to a number of systemic factors keeping such incidents from scrutiny,” said the report.

The 85-page report, entitled “Hidden Hazards: Prosecutorial Misconduct Claims in Pennsylvania, 2000-2016,” recommended ten steps that Pennsylvania legislators and judicial bodies could take both to develop a more comprehensive database on prosecutor misconduct, and to hold prosecutors accountable for “intentional” and “unintentional” courtroom mistakes.

The measures range from requiring certification that prosecutors have followed the rules of discovery to eliminating the “absolute” immunity from lawsuits currently granted to prosecuting attorneys.

‘Wrongful Convictions’ and Prosecutor Misconduct

Another indication that reported or “addressed” claims of prosecutorial misconduct are likely to be far higher than what is shown in available data is the extent to which such misconduct has played a primary role in wrongful convictions listed in the National Registry of Exonerations (NRE).

A 2020 study by the NRE of over 2,400 confirmed exonerations found that in 30 percent of the cases prosecutorial misconduct was specifically a factor. Of the 106 exonerations through the end of 2020 in Pennsylvania, prosecutors committed misconduct in 48 of them, or about 45 percent.

The stark difference in percentages suggests that most prosecutorial misconduct in the U.S. remains hidden from public view and is rarely addressed in a systematic fashion, researchers said.

“The few cases that go to trial…provide the only fully visible part of the criminal case universe,” said the report.

“In all other cases – those that are withdrawn, dismissed, diverted, or result in a guilty plea – misconduct or other prosecutorial error remain mostly or completely hidden, a critical mass of the criminal justice iceberg that is always beneath the surface, outside public view, and posing the biggest risk of undetected misconduct.”

Prosecutorial misconduct includes both intentional and unintentional acts, but the guidelines for determining when it occurs can be interpreted ambiguously.

Except for the most obvious cases, where a prosecutor lies or blatantly fails to provide “exculpatory evidence” that might call into question the defendant’s guilt, the bulk of prosecutors’ mistakes can be the result of unwitting lapses, or system failures arising from clogged courtroom dockets.

It’s even harder to prove an allegation of misconduct, since the bar is high, said researchers, noting that courts will reverse a decision only when there is evidence that a prosecutor deliberately attempted to “destroy the objectivity of the factfinder” such that the jury “could not weigh the evidence and render a true verdict.”

“This high bar means a wide range of inappropriate conduct is ignored, leaving prosecutors with nearly unchecked reign in presenting their closing argument,” the study authors said.

In one pointed example, a defendant spent 15 years behind bars while higher courts wrangled back and forth over whether his multiple claims of prosecutor misconduct arose from a failure to present “material” evidence that would prove his innocence. That petitioner raised 292 specific allegations of prosecutorial misconduct.

When he was finally freed, the appeals court further compounded the problem by deciding not to publish its final decision, “thereby eliminating the possibility that other prosecutors or the public would learn from the opinion.”

“The general public has an almost total lack of understanding about what actually goes on in most prosecutor’s offices,” said the authors.

“No organization – not courts, not prosecutors themselves, and not professional ethics boards – systematically publishes information on the frequency of prosecutorial misconduct allegations, much less the resolution of those allegations or any acts taken in instances where the allegations are proved accurate.”

Absolute Immunity

At the root of the issue is the huge amount of discretion given prosecutors in American courtrooms, reinforced by the doctrine of “absolute immunity.”

“Prosecutors who commit misconduct are rarely identified and no comparative data exists to evaluate whether misconduct occurs more frequently in some jurisdictions than others,” the report said.

“In the absence of oversight boards and civil litigation, criminal charges against prosecutors and ethics board disciplinary measures are the only means of incentivizing appropriate prosecutorial actions.

“Unfortunately, a review of these mechanisms shows they are not used for these purposes, leaving the public with no suitable incentives for prosecutors to meet their ethical and professional obligations.

Two categories of misconduct were responsible for over half of the claims identified in the Quattrone dataset: improper withholding of exculpatory evidence (29.3 percent) and improper comments made by the prosecutor during closing arguments (26 percent).

Of the 204 verified misconduct cases in Pennslvania, a relatively small number involved cases in which courts found that the prosecutor(s) acted intentionally to deprive a defendant of a fair trial.

“The vast majority of prosecutorial misconduct appears to be inadvertent,:” researchers said.

Errors of procedure, failure to file appropriate paperwork, missed communications with defense attorneys or the judge are common examples.

But, they added, “Even inadvertent mistakes can be hugely consequential to the crime victim, family members, and the defendant, and greatly undermine public confidence in our judicial system.”

The Plea Bargaining ‘Iceberg’

The fact that most trials are resolved by plea bargaining means the actual extent of misconduct is usually hidden, just as the bulk of an iceberg is hidden below the surface, said the report.

In Pennslvania, 71 percent of criminal prosecutions end in guilty pleas—a proportion similar to other states.

“The few cases that go to trial…provide the only fully visible part of the criminal case universe,” the report said.

“In all other cases – those that are withdrawn, dismissed, diverted, or result in a guilty plea – misconduct or other prosecutorial error remain mostly or completely hidden, a critical mass of the criminal justice iceberg that is always beneath the surface, outside public view, and posing the biggest risk of undetected misconduct.”

Since the obligation of a prosecutor to disclose exculpatory evidence before working out a plea deal is unclear, any misconduct is less likely to come to light.

“it is possible for a prosecutor to selectively withhold exculpatory information known to police and prosecutors from a defendant, secure a negotiated plea, and close the case file without revealing the exculpatory information,” the study said.

“Such a prosecutorial strategy would be difficult to uncover and could effectively hide any negligent, reckless, or deliberate prosecutorial misconduct.”

 Recommendations

The report laid out 10 steps that Pennsylvania legislature or state judicial bodies could take—some of which were already in use by other states. But taken as a whole, they offer a comprehensive template that could be applied to jurisdictions across the country.

They include:

1.Require Open File Discovery

Since most cases of misconduct are linked to the failure to make evidence available in a timely fashion to the defendant that might bear on their innocence, rules of criminal procedure should reduce any opportunities for prosecutors to withhold information in criminal cases.. The Texas legislature has passed a “sweeping” law on the issue and many other jurisdictions are moving toward open file discovery rules, the report said.

  1. Adopt American Bar Association Rules for Defining Prosecutorial Misconduct.

Some 23 states have adopted these verbatim or with some modifications.

  1. Certify Compliance

Judges should certify that the “Brady rule,” mandated under a 1963 Supreme Court ruling, is followed at each criminal trial. New York State initiated this practice in 2017, and the requirement was added to the Federal Rules of Criminal Procedure in 2020.

  1. Enhance Prosecutorial Self-Regulation and Reporting

Every prosecutor’s office should have a clear policy explaining how it handles credible allegations of prosecutorial misconduct, whether by current or former members of the office. The Texas legislature has passed sweeping discovery reform laws, and many jurisdictions are moving toward similar open file discovery rules.

  1. Formally Review Cases of Prosecutorial Misconduct to Identify Opportunities for Improvement

“Sentinel Event Reviews” exploring contributing causes of errors through a mutual fact-finding exercise with stakeholders can help set a template for improvement.

  1. Require Automatic Reporting of Misconduct

In July 2020, California changed its rules of professional responsibility to require judges to take action upon a judicial finding of misconduct, even without reference to the Professional Rules of Conduct.

  1. Eliminate Absolute Immunity

Prosecutors cannot be sued in their official capacity for even intentional and egregious acts of misconduct. This should be changed to provide them with “qualified” immunity, similar to what is currently enjoyed by police officers, who can only be sued under limited circumstances.

Although prosecutors can in theory be charged with malfeasance, the report said it  found no cases where a prosecutor faced criminal charges for conduct related to their role in conducting a trial, such as withholding evidence or intimidating witnesses.

“This is not just a Pennsylvania problem,” the authors said. “Of the 1,064 cases identified in the National Registry of Exonerations across the United States involving prosecutors withholding exculpatory evidence, not one of those prosecutors was charged with a crime.

“Across the country only one prosecutor has been held criminally responsible for official prosecutorial misconduct.”

Editor’s Note: In practice, under Supreme Court interpretations of qualified immunity, most law enforcement officers have escaped charges connected with shootings of unarmed civilians on the ground that they perceived their lives were in danger.

  1. Make Prosecutors Liable in Civil Court for Damages Caused by Misconduct

“Every prosecutor who subjects a person within the jurisdiction of any State or the United States to a criminal conviction by intentionally withholding from the defense evidence or information that is exculpatory and material to guilt or punishment and known to the prosecutor shall be liable to the injured party for monetary damages,” the report said.

  1. Make Prosecutors Liable to Criminal Charges

North Carolina is among several jurisdictions have already established criminal penalties for “intentional suppression of discoverable evidence.”  California amended its penal code criminalize “[i]ntentional alteration of physical matter, digital image, or video recording with intent to charge person with a crime” whether the individual is a peace officer or prosecutor.

Such measures can act as a powerful deterrent, the report noted, adding that it should be joined to a measure extending the statute of limitations, “to run from the time of discovery of the misconduct or when the putative plaintiff is fully discharged, whichever is later.”

  1. Establish an Oversight Commission

The New York State Legislature has created a commission aimed at monitoring and identifying prosecutor misbehavior. Other states should follow suit, the report said.

But the Quattrone researchers acknowledged that punishment is only a limited remedy for prosecutorial misbehavior.

“A growing body of research has shown that, in general, the certainty of ‘being caught’ has proven to have a greater deterrent effect on would-be criminals than punishments themselves, regardless of severity, “ the study authors wrote.

“This means the reforms that are more likely to be impactful are those that either prevent the conduct from occurring or create an environment where misconduct is highly likely to be detected and ‘caught.’”

Doing nothing, however, will only further erode trust in the justice system, the report warned.

”For the most part, allegations of prosecutorial misconduct are handled in ways that contribute to an overall perspective of cynicism and distrust of prosecutors throughout the Commonwealth [of Pennsylvania],” the authors concluded.

“[That] result ultimately makes the already challenging job of criminal prosecution even harder, and reduces the legitimacy of the criminal justice system.”

The full Quattrone report can be downloaded here.

Stephen Handelman is executive editor of The Crime Report.

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