ProPublica has a long report on the problem of prosecutorial misconduct — withholding evidence, sometimes even falsifying it completely, in order to get a conviction — and the total lack of accountability for those who engage in it. The report points out some high profile cases where the city or county paid up but the perpetrators got no punishment at all:
The damage from prosecutorial misconduct can be devastating, not only allowing guilty people like Bennett to go free, but also putting innocents behind bars. In 10 cases identified by ProPublica, defendants convicted at least in part because of a prosecutor’s abuse were ultimately exonerated, often after years in prison.
Shih-Wei Su was incarcerated for 12 years on attempted murder charges before a federal appeals court cleared him, finding that a prosecutor had “knowingly elicited false testimony” in winning a conviction. The city eventually paid Su $3.5 million. The prosecutor received nothing more than a private reprimand.
Jabbar Collins served 15 years in prison for a murder he didn’t commit before his conviction was thrown out in 2010; Michael Vecchione, a senior Brooklyn prosecutor, had withheld critical evidence during trial. Collins has filed a $150 million lawsuit against the city. No action has been taken against Vecchione.
Last July, two men filed lawsuits for a combined $240 million against the city for wrongful convictions that a state appeals court found were won in part because Manhattan prosecutors had withheld evidence. The men served 36 years in prison, collectively. The prosecutor, who long ago left the district attorney’s office, has not been publicly disciplined.
“It’s an insidious system,” said Marvin Schechter, a defense attorney and chairman of the criminal justice section of the New York State Bar Association. “Prosecutors engage in misconduct because they know they can get away with it.”
Under multiple Supreme Court precedents, they have absolute immunity. The prosecutor’s office can be sued for wrongful convictions that result from misconduct, but not the prosecutor himself. And they rarely face any professional or personal consequences either:
There have been a variety of reports over the years, both national and local, that documented a substantial array of serious misconduct involving front-line and senior prosecutors alike.
Across those years, there has been at least one constant: the inability or unwillingness to meaningfully punish the offending prosecutors.
ProPublica, in the latest analysis, examined the years 2001 to 2011, chiefly scrutinizing instances in which state or federal courts identified misconduct serious enough to throw out a conviction. The analysis also incorporated civil cases during those years, virtually all of which resulted in financial awards being given to the victims of such misconduct.
The analysis found a total of 30 cases that met those criteria. Four of them involved civil cases addressing harmful misconduct that took place as far back as 1985. Again, in all those cases, no prosecutor other than Stuart was seriously disciplined for misconduct.
Also bear in mind that all of these are cases that actually go to trial, which is less than 5% of all criminal cases. Over 95% of criminal cases are plea bargained, so there’s no way of knowing how many of those cases also involve prosecutorial misconduct that is never detected. But the bottom line is that while withholding or faking evidence is a criminal offense, very few people are ever charged with it, even when the case for that misconduct is strong enough to overturn a conviction. Why? Because those charges can only be brought by another prosecutor.
Here’s what needs to happen: First, there should be a conviction integrity unit in every single prosecutor’s office and it should be stocked with defense attorneys with expertise in such investigations. In the very few DA’s offices that have such units, the rate of finding wrongful convictions is much higher than in those that don’t, which shows why they are so important. Second, prosecutorial immunity should be done away with entirely. And third, there should be an independent body within the DOJ and every state AG’s office that investigates and prosecutes allegations of misconduct.
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