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A Culture of Prosecutorial Misconduct

Review by Peter Schmidt

The Center for Public Integrity (CPI), a non-profit, investigative journalism organization based in Washington, D.C., has recently published a major study on prosecutorial misconduct in America. The lengthy, empirical study, entitled Harmful Error: Investigating America's Local Prosecutors, which is available online, contains some revealing findings and conclusions.

CPI's team of investigators and reporters, headed by Steve Weinberg, analyzed 11,452 state cases, dating back to 1970, in which charges of prosecutorial misconduct had been reviewed by appellate court judges.

We found it interesting that no cases involving Federal prosecutors were examined - a fact which is, perhaps, an unwitting admission that there is virtually no meaningful oversight of misconduct by Federal prosecutors. The one body that has been granted authority to investigate Federal prosecutorial misconduct - the Department of Justice's own internal and infamous Office of Professional Responsibility (OPR) - is renowned for its pathetic record of impotency and inaction - no matter how scurrilous the charges may be. See, e.g., Above the Law: Secret Deals, Political Fixes, and Other Misadventures of the U.S. Department of Justice, by investigative reporter David Burnham, Scribner - New York, 1996.]

In the vast majority of the 11,452 cases analyzed in CPI's study, the allegation of misconduct was either ruled harmless error or was not addressed by the appellate judges, and the convictions at issue stood. There were, however, 2,012 cases in which the courts cited prosecutorial misconduct as a factor that led to charges being dismissed at trial, the convictions reversed or the sentences reduced. There were an additional 513 cases in which appellate judges offered opinions - either in dissents or concurrences - in which they found prosecutorial misconduct serious enough to warrant additional discussion; and, in some of those cases, the dissenting judges wrote that the misconduct was serious enough to warrant a reversal.

There are many interesting aspects of this lengthy study, which is divided into seven major categories. For example, "Anatomy of Misconduct" explores the different types of prosecutorial misconduct that were studied; and "Actual Innocence" explores the cases of 32 innocent defendants who were wrongfully convicted because of prosecutorial misconduct and who were later exonerated after spending many years in prison.

Two of the most intriguing parts of the study are "Shielding Misconduct" and "Misconduct and Punishment," which delve into the almost universally nonexistent or grossly ineffective measures taken to punish prosecutors who were found to have engaged in gross misconduct. Out of the 11,452 cases in which prosecutorial misconduct was alleged, some form of disciplinary action was taken in only 44 of such cases - a fraction that is almost too small to compute. Here's what happened in those 44 cases:

Ø In 7 of the cases, the court dismissed the complaint or did not impose a punishment.

Ø In 20 of the cases, the court imposed a public or private reprimand or censure.

Ø In 11 of the cases, the prosecutor's license to practice law was suspended.

Ø In 2 of the cases, the prosecutor was disbarred.

Ø In 1 of the cases, a period of probation was imposed in lieu of a harsher punishment.

Ø In 3 of the cases, the court remanded the case for further proceedings.

That inglorious record of inaction speaks volumes about what CPI described as "the culture of prosecutorial misconduct" in America. Copies are also available from: The Center for Public Integrity, 910 17th Street, NW, Seventh Floor, Washington, DC 20006, 202-466-1300,

Reprinted with permission from Punch & Jurists, P.O. Box 11, Washington Bridge Station, New York, N.Y. 10033. (212) 781-8685.

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