Thursday, September 23, 2010

Prosecutorial Misconduct

USA Today has an interesting article that is receiving attention around the blogosphere, including here and here. According to the article, USA Today has documented 201 criminal cases since 1997 in which federal prosecutors violated laws and ethical rules. According to sources interviewed for the article, this is just "the tip of the iceberg."

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

Judges have warned for decades that misconduct by prosecutors threatens the Constitution's promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses.

Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation's most elite and powerful law enforcement officials — themselves violated laws or ethics rules.

In case after case during that time, judges blasted prosecutors for "flagrant" or "outrageous" misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said others had broken plea bargains...

Sniffing out misconduct can be a matter of serendipity — or luck, as Lyons' attorneys discovered.

The evidence that eventually set Lyons free came to light only because of one sentence buried in a 40-page draft of a probation officer's sentencing report. Those drafts are dense and at times ignored, but this one offered a tantalizing clue: an account by one of Lyons' accusers, a federal inmate, that differed from his testimony during the trial.

That stuck out to Robert Berry, one of Lyons' attorneys, who wondered what else he hadn't been told. His digging led to hundreds of pages of other evidence prosecutors had never disclosed.

"If it wasn't for that one sentence, he would be in prison right now, probably for the rest of his life," Berry said. "The scary part is it probably does happen every day and nobody ever figures it out."

One reason violations may go undetected is that only a small fraction of criminal cases ever get the scrutiny of a trial, the process most likely to identify misconduct. Trials play a "very important" role, said former deputy attorney general David Ogden, because they force judges and attorneys to review a case in far more exacting detail.

The number of people charged with crimes in federal district courts has almost doubled over the past 15 years. Yet the number whose cases actually go to trial has fallen almost 30%, to about 3,500 last year, USA TODAY found. Last year, just four defendants out of 100 went to trial; the rest struck plea bargains that resolved their cases quickly, with far less scrutiny from judges.

"We really should be more concerned about the cases we don't know about," said Levenson, the Loyola professor. "Many of the types of misconduct you identified could happen every day, and we'd never know about it if defendants plead out."

The complete USA Today article can be found here.

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