Discover more from Discourse
Prosecutors Shouldn’t Be Above the Law
For more than 50 years, favorable treatment for prosecutors has resulted in many wrongful convictions. It’s time for this special treatment to end
This piece is the fifth in a series on defects in our criminal justice system that lead to wrongful convictions. The first piece introduces these seven critical breakdowns in the rules of constitutional criminal procedure, the second examines the problem of eyewitness misidentification, the third shows how the Supreme Court is perpetuating the problem of false confessions and the fourth examines prosecutorial misconduct.
In November 1979, John McGinest was fatally shot on a Long Beach, California, street, and engineering student Thomas Lee Goldstein was found guilty of committing the crime. But his conviction was a tainted one: It rested largely on the foundation of two prosecution witnesses who weren’t telling the truth.
One of these witnesses was a career criminal and jailhouse snitch, the aptly named Edward Floyd Fink, a heroin addict who had a longstanding symbiotic relationship with the Los Angeles County district attorney’s office. It consisted of a series of quid pro quo transactions: Fink would say what prosecutors needed him to say on the stand to secure convictions, in exchange for lighter sentences. Police made him Goldstein’s cellmate when the latter was awaiting trial.
On the stand in Goldstein’s trial, Fink claimed that Goldstein had confessed the murder to him, that he’d never received benefits from prosecutors in the past and that he’d been promised no leniency for the damning testimony he was providing in this case. These were all lies.
And yet they weren’t the only false statements uttered during the trial. All six eyewitnesses to the shooting had been shown a picture of Goldstein, and none originally identified him as the perpetrator. Yet one of these eyewitnesses, Loran Campbell, changed his mind and eventually pointed to Goldstein as the killer during the accused’s trial. Campbell later recanted his testimony, explaining that he’d been “coached.”
Eleven years after the murder a grand jury published a comprehensive report on the widespread and systematic misuse of informants by the Los Angeles district attorney’s office during the time of Goldstein’s conviction. That office had shown a “deliberate and informed declination to take the action necessary to curtail the misuse of jailhouse informant testimony,” the grand jury wrote in its report. It took 14 additional long and exhausting years for Goldstein to prove to the satisfaction of a court that he was among those victimized by the district attorney’s practices and win his release.
In 2008, a fully exonerated Goldstein brought his case against the prosecutor’s office that wrongly put him in prison for 24 years to the Supreme Court. The justices voted against him 9-0.
It is possible for prosecutors to do their jobs with courage, integrity and an intact moral compass. Many do. However, a series of Supreme Court rulings have permitted prosecutors, as a class, to become an oppressive, nearly omnipotent force within our criminal justice system, bending and breaking laws meant to protect those accused of crimes with virtual impunity. No group has suffered more due to the increased power of prosecutors over the past half-century than the innocent defendants they use dirty tricks to convict. While prosecutors can’t quite literally get away with murder under our laws, they are permitted to come awfully close.
All Too Common
Recent studies have shown that half of all wrongful convictions are due to law enforcement misconduct. In 2017, 84% of homicide exonerations were of convicts who had been wrongly imprisoned due to illegal conduct by police and prosecutors. Sixty-five of the first 255 DNA exonerations involved cases of prosecutors violating legal and ethical rules. Between 1989 and 2020, a total of 729 defendants convicted due to prosecutorial dirty tricks have been exonerated. Yet only one prosecutor has gone to jail—and he received a sentence of merely 10 days. Prosecutors are placing themselves above the very system of laws they impose on the rest of us.
The most common type of misconduct in wrongful conviction cases occurs when prosecutors mislead jurors by hiding evidence of innocence. It’s a practice that sews chaos and distrust throughout the criminal justice system. It warps the truth-seeking function of criminal trials, destroys the lives of the wrongfully convicted, betrays victims and their families and keeps communities dangerous by ensuring actual perpetrators remain at large to reoffend.
For the past 50 years or so, the Supreme Court has enabled this malfeasance by treating prosecutors as the law’s special favorite. With nearly every relevant case the court hears, it seems to get more difficult to overturn convictions due to prosecutorial misconduct, and the court has long since made it nearly impossible to sue prosecutors for the harms they cause the innocent defendants they wrongly convict.
In a line of cases stretching across the 1930s to the early 1970s, the court created rules that disciplined out-of-control prosecutors. These cases reached a crescendo during the chief justiceship of Earl Warren, a former county prosecutor and state attorney general determined to hold those practicing his former profession to the highest ethical and legal standards. These rulings were meaningful reforms that protected the rights of the accused from government lawyers who used underhanded methods to rig trials. The court put prosecutors around the country on notice that convictions based on illegal tactics would be reversed.
In one of the early cases in this line, 1935’s Berger v. U.S., the court defined the role of the prosecutor in our system of justice. The case involved a rogue prosecutor who harassed witnesses, made outrageous statements during trial, willfully mischaracterized testimony and otherwise ran roughshod over the rules and norms of trial procedure. Chastising his conduct, the court made it clear that prosecutors must be just as concerned with protecting the innocent as convicting the guilty. “[The prosecutor] is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.” The court further insisted that, like the criminals they sought to punish, prosecutors were bound by the law and not permitted to cut legal corners to secure convictions. “While [a prosecutor] may strike hard blows,” the court wrote, “he is not at liberty to strike foul ones.” But this mandate isn’t being enforced: In courtrooms around America, prosecutors are striking too many foul ones because Supreme Court justices continue to give them—but not those they seek to punish—too much liberty.
Limiting the Power of Prosecutors
The court had occasion to think about the role of the prosecutor a few months prior to its ruling in Berger when it decided Mooney v. Holohan. Thomas Mooney was an anti-war radical who had been sentenced to hang for killing 10 people and injuring 40 while dynamiting a parade in San Francisco supporting U.S. entry into World War I. The bombing enraged the public, and Mooney’s prosecutors had been under intense pressure to secure a conviction. To ensure they got one, prosecutors hid evidence useful to the defense and deliberately put perjurers on the witness stand during Mooney’s trial.
While Mooney lost his case on a technical jurisdictional issue, a reproachful Supreme Court announced that going forward such misconduct wouldn’t be tolerated. State prosecutors, who’d previously operated with only minimal federal judicial oversight, were subject to the U.S. Constitution and all appellate courts, state and federal, were obliged, as a matter of constitutional law, to overturn guilty verdicts when they cheated their way to convictions.
The court expanded its Mooney ruling in the 1959 case of Napue v. Illinois. Henry Napue and his accomplices participated in a shootout with an off-duty cop in a cocktail lounge during a robbery gone bad. During Napue’s murder trial, the prosecutor failed to intervene while an accomplice of Napue’s who’d turned state’s evidence falsely testified that he wasn’t receiving leniency in exchange for his testimony. While this prosecutor may not have known in advance that his witness was going to commit perjury, as Mooney’s had, the court overturned Napue’s conviction and ruled that prosecutors have an affirmative duty to correct the record when they are aware their witnesses are defrauding the court.
Four years later, in Brady v. Maryland, the court ruled that the Constitution requires prosecutors to disclose to the defense all material exculpatory evidence in their possession to the defense before trials begin. Brady is a landmark case that changed not only trial rules but the basic understanding of what makes a trial fair under our Constitution. Prior to Brady, there had been no constitutional prohibition against prosecutors presenting only the most damning information to juries and secreting away the rest, including proof of innocence or information that might spare a guilty defendant a death sentence. To promote a fair adversarial process and maximize the likelihood that juries will arrive at accurate verdicts, prosecutors were now required to harm their own cases by sharing essential evidence with their opponents.
Brady’s significance as a step forward toward a more enlightened criminal justice system can hardly be overstated. The facts of John Leo Brady’s own case are a good illustration. He had been sentenced to death for the horrific fatal strangling of a middle-aged man during a botched robbery. Brady undoubtedly shared responsibility for the crime. However, the jury chose the harshest penalty available—death—without knowing that in a statement to the law enforcement, Brady’s co-defendant had minimized Brady’s role in the murder by admitting that he, not Brady, had physically killed the victim. The prosecutor had suppressed this information. In overturning his death sentence, the court ruled that had the jury known this, it might have given Brady a different sentence.
While Justice William O. Douglas’ majority opinion in Brady describes the “principal of Mooney v. Holohan,” which underpins his reasoning, as focusing more on the rights of the accused than the “punishment of society for the misdeeds of a prosecutor,” the impact of the new “Brady rule” it announces, if enforced, would have dramatically changed prosecutorial behavior. Prosecutors would have had to forfeit some of the inherent advantages they’d always enjoyed during trials. While the state has nearly infinite resources to investigate and try cases, most criminal defendants are poor and can’t afford investigators, expert witnesses and many of the other tools the state has on hand. Moreover, prior to Brady, prosecutors had secret knowledge and total control of the evidence they planned to use. Justice Douglas’ ruling was meant to change this history. (Instead of being suffocated in Maryland’s gas chamber, John Leo Brady was paroled in 1974, never reoffended and died in 2009.)
The court expanded its Brady ruling in 1972 when it overturned the conviction of mobster John Giglio, who’d stolen money orders with the help of a young bank teller. Unbeknownst to Giglio, a prosecutor had secretly offered the teller leniency in exchange for his testimony, thus depriving Giglio of the opportunity to question the teller’s credibility by exposing bias and a motive for lying. This, in turn, increased the possibility that the jury credited unreliable evidence when deciding to convict Giglio. The court ruled that agreements like this one between prosecutors and snitches are “Brady evidence” that must be disclosed to the defense.
Giglio v. U.S. turned out to be the high-water mark of the court’s use of constitutional due process to regulate prosecutors. Richard Nixon had promised voters during his 1968 presidential campaign that he’d appoint justices who would restore “law and order.” However, the misplaced faith his appointees had for law enforcement resulted in a failure to rein in lawlessness among the prosecutorial bar. They repudiated the progress of their predecessors and redefined the court as a bastion of protection for rogue prosecutors. They did so, first, by immunizing them from civil lawsuits filed by the victims of their misconduct, then by narrowing the scope of the Brady rule so that fewer convictions involving prosecutors who suppress evidence could be overturned. In the words of one leading scholar, Bennett L. Gershman, the case that once promised to usher in a new era of fairness to criminal law became “a monument to judicial and ethical impotence.”
Shifting in Favor of Prosecutors
An opinion written by one of those Nixon appointees, Justice Harry Blackman, set the narrowed Brady rule scope that the Supreme Court currently follows. In 1985’s U.S. v. Bagley, the Bureau of Alcohol, Tobacco and Firearms commissioned two private security guards to help them uncover evidence that Hughes Anderson Bagley was guilty of illegal arms and drug trafficking. The security guards agreed to work for the Bureau of Alcohol, Tobacco and Firearms, signed formal employment contracts and were paid after providing testimony against Bagley that resulted in his conviction on the arms trafficking charge. Before the trial, Bagley had asked prosecutors to turn over evidence involving “any deals, promises or inducements made to [Government] witnesses in exchange for their testimony.” Rather than disclose the employment contracts, prosecutors mislead the defense by giving it sworn affidavits from the security guards “that stated that [they] received no promises of reward in return for providing information,” thus depriving Bagley of the opportunity to impeach the credibility of these witnesses as biased in favor of the government.
Despite what seemed like a clear-cut violation of the Giglio precedent, Bagley’s conviction was upheld. Under the court’s new, more limited, application of the Brady rule, prosecutors only need to disclose evidence so manifestly exculpatory that, in hindsight, its suppression created a reasonable possibility of a wrongful conviction. The employment contracts in this case, the court ruled, didn’t meet that high standard.
The Bagley standard has been a boon to prosecutors in countless ways. First, it overturned the “automatic reversal” rule that the Ninth Circuit Court of Appeals announced when trying to resolve the questions presented in this case. That lower court would have mandated the reversal of every conviction in which prosecutors suppress evidence, undermining the credibility of government witnesses. Second, as professor Gershman has written, it lowers the chances of reversal so greatly that it invites prosecutors to “play the odds” by suppressing exculpatory evidence. Because incriminating evidence is usually the product of police investigations, and law enforcement maintains strict and secret custody of it, it’s usually difficult for defense attorneys to catch prosecutors when they are determined to keep it hidden.
In Bagley’s case, the contracts between the government and its informants were found six years after his conviction through a Freedom of Information Act request. In two death penalty cases I describe below, Imbler v. Pachtman and Connick v. Thompson, the lives of innocent men on death row were saved after their prosecutors happened to have suffered bouts of conscience and revealed the evidence of innocence. Because it’s difficult for the defense to prove during a post-conviction hearing that a single piece of suppressed evidence might have caused a jury to change its mind, “playing the odds” can seem like a wise strategy, especially in cases where prosecutors’ plans to admit strong evidence at trial that might outweigh that which they’re suppressing in the unlikely event that that post-conviction hearing ever takes place.
The court should reverse Bagley so that the promise of the Brady rule can finally be fulfilled. Doing so would be easy: The losing judges in this case described excellent alternatives. Justice Thurgood Marshall mentioned an open-file rule in his dissent, which would grant the defense full access to all of the prosecutors’ evidence, making proof of innocence difficult to hide. Implementing the Ninth Circuit’s automatic reversal rule would instantly deter some of this misconduct and better ensure fair trials. Combining both policies would substantially reduce the number of wrongful convictions.
Too Much Immunity
Merely overturning an innocent defendant’s conviction doesn’t give him enough justice. Our civil justice system promises plaintiffs restitution from those who’ve harmed them. Those wrongfully convicted of crimes shouldn’t be exceptions to this rule. However, the Supreme Court has made it nearly impossible for them to sue malfeasant prosecutors who made them suffer.
Paul Imbler was freed from death row in 1971 after a federal court found that his state prosecutor had withheld exculpatory fingerprint evidence and put an “eyewitness” on the stand who gave “misleading or false testimony.” That witness was later discovered to be “a mental patient and ex-con” who worked as a bookie in the victim’s illegal gambling racket and expected a reward from the victim’s wife. The witness later recanted his testimony under oath. Imbler sued the prosecutor who put him on California’s death row for violating his Fourteenth Amendment right to a fair trial.
In 1976, the Supreme Court ruled that Imbler’s lawsuit could not proceed because prosecutors have “absolute immunity” from suit for any actions they take, no matter how nefarious or harmful, in their role as prosecutors. In his opinion for the majority, Justice Lewis Powell, another Nixon appointee, cast the government’s criminal lawyers, not those they wrongly convict, as potential victims in these cases. He worried that resentful defendants would subject them to frivolous and vexatious suits that “would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.”
The Imbler rule remains the law of the land today. No matter how egregious their illegal conduct—suborning perjury, hiding evidence, willfully sending innocent defendants to death—prosecutors can’t be sued by those they harm in the courtroom. The court affirmed and expanded Imbler with its 2009 holding in Van de Kamp v. Goldstein, the case described at the beginning of this article.
Thomas Goldstein argued that the absolute immunity Imbler provided the trial prosecutor didn’t apply to that prosecutor’s supervisor, the district attorney, whose administrative and policymaking decisions in that office ultimately led to the suppression of evidence and the wrongful conviction. Goldstein argued that Los Angeles County District Attorney John Van de Kamp had maintained a system in which prosecutors in that office weren’t required to share essential information with one another, which might have led to his trial prosecutor being unaware that evidence existed that needed to be disclosed. Goldstein claimed that he was suing Van de Kamp in his capacity as an administrator, not a prosecutor.
The court unanimously rejected Goldstein’s claim. Justice Stephen Breyer wrote for the court that certain administrative functions, like “information-system management ... enjoy absolute immunity” because, unlike typical office management and human relations decisions, they require prosecutorial expertise and are “directly connected with the conduct of the trial.”
But prosecutors don’t need this much protection to keep their communities safe. Instead of the absolute immunity afforded them under Imbler and Goldstein, the court should, at the very least, apply the lower, but still strong, “qualified immunity” standard used in civil rights lawsuits against police officers accused of unnecessary force. Under this standard, prosecutors would be held responsible whenever their conduct violates “clearly established constitutional rights” of which a reasonable prosecutor would have been aware. As with overturning Bagley, abandoning Imbler and Goldstein would instantly deter Brady violations and reduce wrongful convictions.
While Imbler and Goldstein shut the courthouse door to wrongfully convicted exonerees and others suing trial prosecutors and their supervisors as individual persons, complex immunity rules still allow suits against those offices as a whole. John Thompson sought to take advantage of this rule by filing a claim against the New Orleans district attorney’s office after he had been freed from death row. In Thompson’s case, prosecutors made a “strategic decision” to try him first for robbery and then for murder, reasoning that it would be easier to convict someone already convicted of armed robbery of murder. During the course of his two trials, prosecutors suppressed exonerating blood evidence, eyewitness identification evidence and evidence that an incriminating witness had been motivated by a $15,000 reward put up by the victim’s family. After a state court overturned his conviction, the New Orleans district attorney’s office retried him. The jury acquitted him after just 35 minutes of deliberation.
Thompson sued the entire district attorney’s office, led by District Attorney Harry Connick, Sr., for violating his right to a fair trial. He argued that the office’s failure to train prosecutors when to turn over exculpatory evidence to the defense showed a “deliberate indifference” to the Brady rule. Justice Clarence Thomas, writing for the majority of the court, was unimpressed: He reasoned that, the wrongdoing against Thompson by multiple prosecutors notwithstanding, failure to disclose evidence in a “single incident,” even one like this that nearly resulted in an innocent man’s death, does not show a “deliberate indifference” to the Brady rule. Instead, for Thompson to win his case, he had to meet the Herculean test of proving that there had been a more widespread “pattern of similar violations.”
Prosecutors are revered by the public, promoted by their supervisors and admired within the legal profession when they win cases. The temptation to cheat, when punishment for doing so is so unlikely, is too much for too many to withstand. Reversing the rulings described above would lessen the number of wrongful convictions, bring discipline to an out-of-control class of law enforcement officers, give exonerated defendants their day in court and strengthen public confidence in the integrity of criminal convictions. It’s long overdue.