Monday, June 6, 2016
The editorial, titled To Stop Bad Prosecutors, Call the Feds, begins:
Prosecutors are the most powerful players in the American criminal justice system. Their decisions — like whom to charge with a crime, and what sentence to seek — have profound consequences.
So why is it so hard to keep them from breaking the law or violating the Constitution?
The short answer is that they are almost never held accountable for misconduct, even when it results in wrongful convictions. It is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights. There is a successful model for this in the Justice Department’s monitoring of police departments with histories of misconduct.
Among the most serious prosecutorial violations is the withholding of evidence that could help a defendant prove his or her innocence or get a reduced sentence — a practice so widespread that one federal judge called it an “epidemic.” Under the 1963 landmark Supreme Court case Brady v. Maryland, prosecutors are required to turn over any exculpatory evidence to a defendant that could materially affect a verdict or sentence. Yet in many district attorneys’ offices, the Brady rule is considered nothing more than a suggestion, with prosecutors routinely holding back such evidence to win their cases...
This is precisely what happened to Kerry Max Cook, a man who has spent 40 years proclaiming his innocence of the brutal 1977 murder of Linda Jo Edwards. Questions as to his guilt abounded, but one of the most troubling aspects of the case was the prosecutor's decision to withhold an eyewitness account that identified the victim's lover--and not Cook--as leaving the crime scene around the time of the victim's death. In this extensive piece (which is well worth reading), The Texas Monthly's Michael Hall writes:
Earlier this year, the dramatic case got even more drama. In January Udashen [one of Cook's appellate attorneys] filed a motion for the Smith County DA’s office to provide any exculpatory evidence it hadn’t provided before... They found several pieces of evidence they didn’t know about—and one was explosive.
It was a police report filed in 1991 by Tyler PD detective Eric Liptak. Rudolph [the only eyewitness in the case], Liptak wrote, told police she “thought” the man in the apartment was Mayfield [the victim's former lover]. But Liptak went on: “Ms. Rudolph did later state that [t]he man she saw was Mr. Mayfield but that was after extensive questioning by Mr. Thompson, the lead prosecutor in the case.” In other words, according to the report, the lead prosecutor knew that Rudolph originally identified Mayfield as the man in the apartment. But prosecutors never gave Liptak’s report to the defense, as they are required to do. They never corrected Rudolph on the stand when she said she’d never identified Mayfield, nor did they correct her when she identified Cook at the trial as the man she saw in Edwards’ room.
Fortunately for Cook, the newly elected D.A. announced today that he was dropping the charges against Cook.
When it convenes later this month, will the Supreme Court grant David Brown similar reprieve? As The Times explains:
This month, the Supreme Court will consider the latest challenge to prosecutorial misconduct in Louisiana in the case of David Brown, who was one of five men charged in the 1999 murder of a prison guard. Mr. Brown said he did not commit the murder, but he was convicted and sentenced to death anyway. Only later did his lawyers discover that prosecutors had withheld the transcript of an interview with another prisoner directly implicating two other men — and only those men — in the murder.
This is about as blatant a Brady violation as can be found, and the judge who presided over Mr. Brown’s trial agreed, throwing out his death penalty and ordering a new sentencing. But the Louisiana Supreme Court reversed that decision, ruling that the new evidence would not have made a difference in the jury’s sentence.
Regardless of the Court's decision, prosecutors will remain relatively immune from punishment unless steps are taken to curb their authority.
State courts often fail to hold prosecutors accountable, even when their wrongdoing is clear. Professional ethics boards rarely discipline them. And individual prosecutors are protected from civil lawsuits, while criminal punishment is virtually unheard of. Money damages levied against a prosecutor’s office could deter some misconduct, but the Supreme Court has made it extremely difficult for wrongfully convicted citizens to win such claims.
This maddening situation has long resisted a solution. What would make good sense is to have the federal government step in to monitor some of the worst actors, increasing the chance of catching misconduct before it ruins peoples’ lives. The Justice Department is already authorized to do this by a 1994 federal law prohibiting any “pattern or practice of conduct by law enforcement officers” that deprives a person of legal or constitutional rights.