When The Prosecutor Lies

By Jeralyn, Section Misconduct
Posted on Mon Mar 09, 2015 at 07:00:00 AM EST
Tags: prosecutorial misconduct (all tags)

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Law Prof Glenn Reynolds (author of Instapundit)has an excellent article about prosecutorial misconduct in an op-ed in today's U.S.A. today. It's titled, "Prosecutors Save Themselves first."

Defending any criminal case is hard enogh, even when your prosecutor plays it straight.What happens when they lie? Prosecutors have immunity for most things, including withholding evidence, faking opinions and reports.They rarely, if ever, even get a slap on the wrist.

Glenn writes about a California case called " the California case of "The People v. Efrain Velasco-Palacios." In the course of plea bargaining, the prosecutor came up with a translated document, to which he attached a false confession. Eventually, the DA copped to what he did, and the client's charges were dropped. The prosecutor's punishment? None. He's still prosecuting cases in the same office. [More...]

[P]rosecutors are also immune from civil suit, under a Supreme Court-created doctrine called "absolute immunity" that is one of the greatest, though least discussed, examples of judicial activism in history. So prosecutors won't punish prosecutors, and victims of prosecutors' wrongdoing can't even sue them for damage.

Glenn suggests a number of ways we could hold prosecutors accountable for their "outrageous conduct." He's skeptical any will be implemented. He adds:

bq.[U]ntil prosecutors are held accountable in the same way that the rest of us are, there will be no assurance that they're not breaking the law themselves. And that's no way to run a "justice" system.

Go and read it. I'll just add a line I say frequently when I write about cases with this kind of unfairness: If we can't trust in the credibility of the verdict, we can't trust in the integrity of the system that delivered it.

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When The Prosecutor Lies | 12 comments (12 topical)

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Prosecutor to Politician (none / 0) (#1)
by Uncle Chip on Mon Mar 09, 2015 at 09:09:04 AM EST

The worst part about this is that prosecutors go on to run for higher office and become part of our political class of legislators and administrators, governors and senators,....

They learn how to lie, obfuscate and hide evidence and get away with it without remorse as prosecutors and then carry that absence of ethics forward into higher office.

What this prosecutor did inexcusable (5.00 / 1) (#2)
by Reconstructionist on Mon Mar 09, 2015 at 10:31:15 AM EST

and indefensible, and too many other prosecutors engage in misconduct of various sorts.

That said, it is not the case that all, or even most, prosecutors are unethical and lie, obfuscate and hide evidence, with or without remorse.

I certainly agree that those who do "cheat" should be removed from prosecutor's offices and considered unworthy of holding any public office or being members of the bar.

I'd also tend to doubt that the impact of unethical former prosecutors holding higher offices is really a very significant factor in the widespread deficiency of ethics which plagues our governing class.


In my experience, prosecutors (5.00 / 1) (#3)
by oculus on Mon Mar 09, 2015 at 12:07:02 PM EST

Frequently become judges, not elected officials in other capacities.


"frequently" (none / 0) (#4)
by Reconstructionist on Mon Mar 09, 2015 at 12:17:54 PM EST

is an imprecise term. I think you are correct insofar as judge is the most common higher office to which prosecutors rise, but there are former prosecutors in Congress and many state legislatures, and attorney generals are elected in at least most states and I'd bet some of them used to be prosecutors.


: Perhaps I should have typed (none / 0) (#5)
by oculus on Mon Mar 09, 2015 at 12:30:20 PM EST

"more frequently."

Okay.. (none / 0) (#9)
by sj on Mon Mar 09, 2015 at 03:21:03 PM EST

but it would be nice if they would wait until they are actually appointed to the bench.


It's important for prosecutors and judges to (none / 0) (#6)
by McBain on Mon Mar 09, 2015 at 01:47:11 PM EST

appear to be tough on crime in order to advance their careers. Most people sleep better at night thinking our system errors on the side of wrongful conviction more so than wrongful acquittal even though that's not how it's supposed to work.

We've seen bad behavior from prosecutors in some of the recent high profile cases..... Zimmerman, Casey Anthony..... the problem is , often, the judges don't seem to care. Fortunately, in the case Jeralyn linked to, the judge did his job. Perhaps, one day soon, we'll have significant penalties for prosecutors who withhold evidence or elicit false confessions.

They Went After... (5.00 / 1) (#7)
by ScottW714 on Mon Mar 09, 2015 at 01:59:31 PM EST

....can't think of his name, but the prosecutor for the Duke Lacrosse team fiasco. He was disbarred I believe.

Like teachers, when you start basing promotions, pay raises, and bonuses on end product rather than their talents, some unethical people are going to try and game the system for their benefit.

I don't know what to do, but conviction rates should not be a metric tied to income for prosecutors. Seems like us human beings have to take something that isn't really measurable, like talent, and pare it down to something that is measurable, like convictions.

But prosecutors are like cops, they are given so much leeway in terms of wrongdoing that it's nearly impossible to convict unless they go seriously off the rails. The system is rigged in terms of bad apples never having to answer for their bad deeds.


: Mike Nifong was the exception (none / 0) (#8)
by McBain on Mon Mar 09, 2015 at 02:16:18 PM EST

I believe there have been many others as bad as him who got away with it.... especially with cases involving poor defendants.
I'm trying to remember the turning point of that case? Something about the way he conducted the photo lineup...... only including pictures of Duke Lax players who were at the party.

A Structural Fault (none / 0) (#10)
by RickyJim on Mon Mar 09, 2015 at 04:15:35 PM EST

As I have said in this forum, many times previously, the US system aggravates problems like this. Evidence is not the property of the court and shared equally among the parties. There is no wall (an investigative judge) between prosecutors and police and prosecutors rather than a judge have the biggest say in whether a case goes forward. Prosecutors are often politically motivated since they are not civil servants.

Woah... (none / 0) (#11)
by toggle on Mon Mar 09, 2015 at 08:50:40 PM EST

First of all, this case isn't so much egregious as it is bizzare. The prosecutor added those lines "as a joke" in a translated transcript of the defendant's interrogation. It wasn't introduced into evidence in the case, just provided to the defense as part of discovery. The defense attorney promptly discovered the added lines but decided to hold their absence from the recording close -- for a tactical advantage. Not only was the defendant not prejudiced, but he got a huge windfall -- the guy walked.

Then you have this lame USA Today story that attacks a legal argument about a word ("outrageous"), without noting that it is a term of art.

And then there's jeralyn's complaint -- that the guy should be able to sue the prosecutor (and presumably the state itself). "Yes, my client molested a little kid. And he got away with it because of prosecutorial misconduct. But that's enough -- make him (us) rich, too!"

I'd say the defendant still came out way, way ahead in the end.

Shocked, shocked... (none / 0) (#12)
by thomas rogan on Mon Mar 09, 2015 at 08:51:37 PM EST

How shocking that prosecutors who are agents of justice lie whereas defense attorneys would never dream of telling lies to help get acquittals for their clients.