Prosecutorial Abuse Speech

In the early 1980s, Bakersfield, California found itself awash in a crime wave. So, in 1982, newly elected District Attorney Ed Jagels vowed to crack down on crime and proceeded to convict the former high school principal and the president of the senior class in separate murder cases. He then uncovered more than eight massive child molestation rings - investigating hundreds of people and prosecuting seventy. By March 29, 1999 the Los Angeles Times reported that, proportionally, Jagels' office sends more people to prison than any other county in the state. With such a strong conviction rate, Bakersfield would seem to be a success story. But there's just one small problem, which Pulitzer Prize-winning author David Humes brought to light in his 1999 book Mean Justice. Over ninety men and women convicted by Jagels were innocent - their convictions overturned years later in appellate courts which issued scathing opinions of Jagel's overzealous behavior.

Sadly, prosecutorial abuse is not a phenomenon limited to Bakersfield. The nationwide efforts to crack down on crime have made prosecutors some of the most powerful people in America, subject to little corresponding accountability. Prosecutorial abuse is a threat to the integrity of our judicial system and endangers the liberty and dignity of every American. We will discover why this issue demands our attention by first, looking at the charges leveled against overzealous prosecutors. Next, we will examine their motive and opportunity so that we can finally issue a fair sentence that will enable justice to prevail without sacrificing the innocent.

Now, don't get me wrong, I fully support prosecutors who do their part to uphold the law - they have a thankless but vital role in our system of justice. But it's when they cross over that line between prosecution and persecution that their actions need to be condemned. That line was clearly established in the 1963 Supreme Court case, Brady v. Maryland, when the Court ruled that prosecutors have a legal obligation to disclose evidence favorable to the defendant. Unfortunately, prosecutors fail to do this all too often. The Chicago Tribune published a series of articles January 10-14, 1999, revealing 381 homicide cases in which convictions had been overturned because prosecutors had concealed exculpatory evidence. In 67 of the cases, the defendants had received the death penalty - tragically, the findings came too late for at least one man, who had already been executed by the time his case was reviewed.

In another case in upstate New York, prosecutors covered up an eyewitness statement from the victim's brother that the killers were white, so as not to disrupt their prosecution of the black defendants. And the New Orleans Times-Picayune of August 14, 1999 tells of a prosecutorial cover-up in which a man received the death penalty because prosecutors hid the results of a blood test showing that the defendant's blood type didn't match the blood of the attacker.

But prosecutorial abuse in murder cases is just the tip of the iceberg, as murder cases represent less than 1% of all criminal prosecutions, according to the Bureau of Justice Statistics Website, last updated October 27, 1999. In one recent quantitative study, the Pittsburgh Post-Gazette of November 24, 1998 reviewed more than 1500 allegations of prosecutorial misconduct, finding clear evidence of discovery violations in hundreds of the cases.

So how is this relevant to you? Well, the not-so originally titled Lifetime Likelihood of going to State or Federal Prison, a March 6, 1997 report by the Justice Department reveals that one in 20 Americans will spend time behind bars at some point in their life. But even if you are never charged with a crime, you can still be victimized by prosecutorial abuse. Remember, for each and every innocent person wrongfully convicted by overzealous prosecutors, there is a criminal left to roam the streets.

So, having established that prosecutorial abuse is an issue worth our individual consideration, we need to understand how and why prosecutors commit such unethical acts. My argument is that prosecutors are not inherently bad individuals, but the incentives of the system encourage them to act in negative ways. First, prosecutors have a strong incentive to maintain high conviction rates. Second, there have numerous opportunities to manipulate the system. And third, they are able to get away with this because the public's misperception of a growing crime threat has enabled prosecutors to obtain immunity under the law. Combined, these three factors make prosecutorial abuse a perfectly rational choice for a career-driven attorney.

The conflict of interest between the pursuit of justice and the personal interest of prosecutors is fairly intuitive. On May 17, 1999, the Fulton County Daily Report, Atlanta's legal newsletter, explained that high conviction rates open up job opportunities at lucrative private law firms, while creating a solid reputation for a future in politics. This fosters a win-at-all costs mentality, dubbed "The Prosecution Complex" by Thomas Frisbie and Randy Garrett, authors of the 1998 book Victims of Justice. The authors suggest that in many instances, prosecutors will take any action necessary to get a conviction, any conviction, particularly in cases that might get headlines in the local paper.

But just how are they able to manipulate the system? The most obvious tactics are concealing evidence favorable to the defendant or using false and misleading evidence. But an article published online by PBS Frontline in May of 1998 reveals a number of more subtle strategies: they "squeeze and flip" low-level insiders in order to work their way up a supposed chain of command, they "drive a wedge" by threatening to indict the defendant's family members and they use legal hairsplitting to multiply minor charges in order to bring additional pressure on a defendant. Even worse, prosecutors threaten to press more severe charges if the defendant fails to cooperate or they can offer reduced charges in exchange for testimony - a tactic so successful that it is used in 40% of cases.

But this power to pressure defendants into testimony against others has created a further problem: many times witnesses have an incentive to testify even if they have no knowledge of the crime. In short, many witnesses for the prosecution don't just sing, they compose as well. But the consequences to innocent victims can be devastating. An online report by the Death Penalty Information Center, last updated July 16, 1999, reveals that in the past ten years, seven death row inmates were freed after it was discovered that the key witnesses against them were informants who had fabricated their testimony to escape prosecution.

Unfortunately, our checks on prosecutors have been eroded due to the public's misperception that crime is worse now than ever before. Congress, state legislatures and the courts have responded to public demands to get tough on crime by making prosecutors immune to any reprisals. The Chicago Daily Law Bulletin of July 15, 1999 reveals that the Supreme Court's 1976 decision in the Imbler v. Pachtman has made prosecutors immune to civil suits alleging misconduct. But this idea of placing certain people above the law is contrary to the very notion of justice, and can no longer be allowed to continue.

The injustice of prosecutorial abuse presents us with an imperative to act. But where do we start? One appealing proposal would hold prosecutors to the same standard as defense attorneys when dealing with witnesses - thereby viewing any exchange of testimony for money or a reduction in prison sentence as an act of bribery. Another excellent step would be for states to eliminate the conflict of interest by replacing their internal discipline panels with external oversight commissions. And, rather than issuing meaningless reprimands, such commissions could take the "three strikes, you're out" laws common in many states and apply them to prosecutors. But I think we're getting ahead of ourselves - none of these solutions have any likelihood of enactment until there is a groundswell of public outrage. Therefore, in order to bring about real change, we must first promote public awareness of the problem.

If the idea of capturing the public's attention seems overwhelming to you, you're not alone. When I began to research this topic, I searched in vain to find an organization dedicated to the problem of prosecutorial abuse. So I decided to start one on my own, the Prosecutorial Abuse Reform Coalition or PARC. The mission of PARC is to educate the public of the problem of prosecutorial abuse and give them a means to make their views known. PARC achieves this goal through its website, on the web at parc.itgo.com. The PARC website contains a number of resources addressing the problems of prosecutorial abuse, including the text of this speech. In addition, visitors to the PARC website have easy access to send customizable letters to their representatives.

The main role that we, as individuals, can serve at this point, is as educators and agitators, using a variety of means to publicize the problem of prosecutorial abuse. Studies show that letters to the editor are among the most frequently read sections of the paper - so, please, take the time to write a letter to your local paper. In addition, call your local paper and TV stations and ask them to consider running stories on prosecutorial abuse or to investigate any allegations of prosecutorial abuse by your District Attorney or candidates for the office. By taking these simple, practical steps, we can start the ball rolling towards realistic reform of this unjust practice.

Prosecutorial abuse is offensive to the very idea of justice. Yet we have seen that it is prevalent in our nation's courts. By learning how and why prosecutors abuse their power and understanding why it's allowed to continue, we are able to propose solutions that address the incentives causing the problem, rather than just treating the symptoms. By taking a realistic look at the situation we can realize that there is no quick fix. But we can also realize that through our determined and directed action in our own communities, we can gradually bring awareness of, and repulsion for, the witch-hunts conducted every day in our nation's courts.