BAD PROSECUTORS

A prosecutor is an officer of the court. It is his or her responsibility to present to the judge alone or the judge and jury the facts of the crime committed by the defendant and disclose why the defendant committed the crime.

Needless to say, a prosecutor must be honest in his or her role as an officer of the court. A dishonest prosecutor can end up sending an innocent person to prison or death or alternatively free a guilty person for the crime he or she actually committed.   

While in most cases. prosecutors act in accordance with their legal and ethical obligations however, bad behavior by prosecutors are not hard to discover when you look at the case law. (previous court decisions). Courts and regulators rarely sanction lawyers and prosecutors who engage in it, but examples of bad conduct  by prosecutors are easy to find.

The Supreme Court of Canada said in part in Boucher v. The Queen;

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury or judge what the Crown (prosecutor) considers to be credible evidence relevant to what is alleged to be a crime. The prosecutor has a duty to see that all available legal proof of the facts is presented: It should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings,

The prosecutor who believes that he or she has a special insight into what justice requires, his or her desire to win will make anti-justice decisions that are particularly desirable to his or her belief in his or her justice-discerning abilities. This will make them unaware of the corrupting effect of their desire to win, and their bad decisions that can follow. Further, the do justice ethic does not easily represent the prosecutor’s adversarial role in any courtroom.

How can any prosecutor act as a strong advocate within the adversarial process who vigorously pursues a legitimate result to the best of its ability while simultaneously is excluding any idea of winning and losing from her assessments?   

 That inconsistency may lead prosecutors to simply ignore the “do justice imperative” and to pursue ordinary advocacy without at the same time having a strong sense of the limits of that advocacy that must also apply to the defence lawyers representing their clients during the trials.

In addition, ignoring the do justice ethic arguably distorts the criminal justice system that should provide prosecutors with a source of moral authority in the courtroom and in society in general.

For a prosecutor to claim that he or she possesses proper ethics during a trial while acting improperly at their trials, are not honest prosecutors who are entitled to respect as if their conduct in the courtroom was done by an advocate pursuing justice.

The do justice ethic comes from a high-minded and admirable place in the field of justice. It is designed to capture the indisputably unique and complex aspects of the prosecutorial function in a free and democratic society. Unfortunately, the problem with some prosecutors, they do not always do so with any degree of insight or sophistication, and their conduct may have the tendency to undermine the ethical discharge of their function to conduct a fair trial.

If there is anything concrete in this issue, the next question to be considered is—how do prosecutors possess the special features of the prosecutorial function and articulate the legal and ethical duties attached to that function? 

Tucker Carrington, founding director of the Mississippi Innocence Project, suggested one answer to this question when he said in response to the critique that the most ethical prosecutors he deals with are those who are “really great lawyers” who are  advocating effectively within the bounds of the law, substantively and procedurally.

It is my positon that it is an account of the prosecutor’s role, if his or her conduct during before and during the trial that is coupled with consideration of unique prosecutorial challenges such as the absence of clients, provides a better and richer ethical account of the lawyer’s role than does an empty and meaningless exhortation to do justice.

Now I will tell you about some bad prosecutors who should never have been permitted to enter a a courtroom at any time other than as a defendant.

I refer you to some examples that I wrote about in the article I published in my blog on January 8^th 2018. And now, some other examples of bad prosecutors.

There’s no shortage of bad prosecutors in the United States. The deeper you look, the more you can turn up local and state examples of overzealous prosecutors bringing a battlefield mentality to their job, or botching prosecutions, or covering up for police brutality, or using their job as a stepping-stone for political office.

In Brooklyn, New York’s top prosecutor, Charles Hynes has been in office for 23 years, the Village Voice recently noted in a long profile that detailed why a prosecutor who was once seen as “innovative” had to go. In recent years, Hynes has presided over an office filled with bad prosecutions, including scores of cases such as one detective who fabricated evidence, sending innocent people to prison. In other instances, his deputies let innocent people languish in jail after witnesses recanted or others were charged with the same crime.

Further, , Hynes, who was elected, is known for ignoring evidence in politically sensitive cases, such as not prosecuting Orthodox Jews—a big voting block who were accused with child abuse. “The D.A. consistently ignored red flags brought to its attention.

Alameda County, where the Ciy of Oakland is located, has been an epicenter of overwrought policing for years. Whether it was firing wooden bullets at protesters, breaking up the Occupy camp, or the killing of an unarmed man at a subway stop, local police have been known for their heavy-handed tactics. And police brass—and now the county prosecutor—has cleared one of the worst officers in a misconduct investigation. A half-dozen years ago, the officer mistook a 20-year-old man leaving a convenience store for a robbery suspect, leaving him shot twice in the back, handcuffed and bleeding to death on the street. District Attorney Nancy O’Malley’s April 17 letter to the local police chief said “the evidence does not justify criminal charges.” Unfortunately, her dismissal of deadly force by police is not an isolated incident. In 2012,  O’Malley reached the same conclusion in another instance where an Oakland cop killed a teen.

At the federal level, 97 percent of all charges were not even decided by a judge or jury, because few people have the resources to fight the feds. There, federal prosecutors decide the charges and punishments, with little to balance their power.

You might think that putting an innocent person in prison for a major crime like rape or murder would end or at least impede a prosecutor’s career. But prosecutors are rarely sanctioned for mistakes, even when their misconduct is egregious. In fact, they are often re-elected, promoted to being a judge, or encouraged to run for political office. Sometimes they even owe these successes to the publicity they get from high-profile convictions of people who turned out to be innocent. Here are some of the worst cases of prosecutors who put more than one innocent person in prison but suffered no significant professional consequences because of their bad conduct as a prosecutor.

Four people prosecutor Forrest Allgood has had wrongfully convicted of murder were later set free. Two of them served time on death row.

One was Sabrina Butler, an 18-year-old mentally retarded woman Allgood convicted of killing her infant son in 1990. Butler was retried in 1995 after the Mississippi Supreme Court ruled that Allgood had committed misconduct when he told jurors that Butler’s refusal to take the stand in her own defense was an indication of her guilt. In the retrial, the medical examiner that Allgood had used the first time around admitted to making some key mistakes, and outside examiners testified that Butler’s child likely died of Sudden Infant Death Syndrome or kidney disease. Butler was acquitted and released from prison.

Another Allgood victim was Tyler Edmonds. In Ed-monds’ 2007 trial, Allgood told the jury  that the defendant and his sister, Kristi Fulgham, had teamed up to kill Fulgham’s husband 13 years earlier. The duo, he argued, had waited until the man was asleep and then simultaneously pulled the trigger. At trial, Allgood called on controversial medical examiner Steven Hayne, who preposterously claimed that he could tell by the bullet wounds in the victim’s body that two people had held the gun. On review, the Mississippi Supreme Court threw out Hayne’s testimony and ordered a new trial. In 2008 Edmonds was retried, acquitted, and released. Kristi Fulgham was convicted in a separate trial and was sentence to death.

In his 1995 prosecution of Kennedy Brewer, Allgood again solicited testimony from Hayne, this time accompanied by Hayne’s long-time sidekick, the disgraced bite mark specialist Michael West. West testified that he found bite marks on a 3-year-old murder victim that could only have been made by Brewer’s teeth. Based largely on that testimony, Brewer was convicted of raping and killing Christine Jackson, his girlfriend’s daughter, and sentenced to death. After the conviction, Allgood attempted to have the biological evidence from the case destroyed. Brewer’s lawyer objected and managed to preserve it.

A decade later, more-advanced DNA testing determined that there was semen from two men inside of Jackson, and neither of them was Kennedy Brewer. The state Supreme Court ordered a new trial. Despite the test results, Allgood planned to prosecute Brewer again. When The New York Times asked him why he hadn’t bothered checking the crime scene DNA against the state’s DNA database, Allgood replied that the state doesn’t have such a database. This came as a surprise to the man who had been running it.

Allgood’s decision to retry Brewer and his opposition to checking the crime scene evidence against the state DNA database kept Brewer in prison for another six years. When the DNA was finally checked, it revealed Christine Jackson’s murderer and showed that he had also raped and murdered another young girl two years later, just a few miles away. Allgood had used Hayne, West, and dubious bite mark testimony in that case too, convicting the wrong man. In 2008, that man, Levon Brooks, was exonerated and freed. The DNA in both cases matched a man named Justin Albert Johnson, who later confessed to both crimes.

Allgood continued  to win re-election, and there are still countless people in prison based on his use of Hayne and West. One of them, Eddie Lee Howard, is still on death row.

Michael Mermel, assistant state attorney,(prosecutor) of Lake County, Illinois has a history of standing behind his hunches, even in the face of contrary DNA evidence. 

Mermel’s biggest blunder was Jerry Hobbs, who was arrested in 2005 on charges of raping and stabbing to death his 8-year-old daughter and her 9-year-old friend. Hobbs confessed to the killings, but only after 16 straight hours of questioning that began after he’d spent the previous night looking for the girls. The interrogation was not videotaped. Hobbs later retracted his confession and has since claimed he was physically and psychologically tortured by police. The confession was the only evidence against him.

When Hobbs’ attorneys revealed in court in 2008 that DNA tests showed the semen found in the mouth, rectum, and vagina of Hobbs’ daughter didn’t belong to Hobbs, Mermel postulated that the foreign semen must have found its way into the girl’s body while she was playing in a patch of woods where teenagers were known to have sex. That evidence and the fact that the girl had been found fully clothed actually meant that Hobb’s couldn’t have raped his daughter.

Hobbs was finally vindicated in July 2010, when Jorge Torrez was arrested in Arlington, Virginia, for the abduction and rape of a University of Maryland student. When police ran Torrez’s DNA against a national database, it provided a match to the semen found in Hobbs’ daughter. After five years in jail, Hobbs was released in August 2010.

There are hundreds of prosecutors in the United States and Canada who did not and still have not done their jobs with honesty and properly. It is an unfortunate fact of life that most of them were not fired. Fortunately there are a great many who did and continue to do their jobs honestly and with due diligence.