Over the past decade, the most prominent voice on prosecutorial misconduct was probably that
of Alex Kozinski, former Chief Judge of the United States Court of Appeals for the Ninth Circuit.
In a widely-quoted opinion in 2013, Judge Kozinski wrote that a major form of prosecutorial
misconduct—concealing exculpatory evidence—had “reached epidemic proportions in recent
years,” and that courts were partly responsible because they failed to take action against the
offending prosecutors.
In a law review article two years later, Kozinski expanded at length on that critique, and
observed that “there are disturbing indications that a non-trivial number of prosecutors—and
sometimes entire prosecutorial offices—engage in misconduct that seriously undermines the
fairness of criminal trials.” One of the main indications Judge Kozinski pointed to was the high
number of exonerations since DNA exonerations began in 1989.
Prior research on official misconduct roughly tracks public attention. There has been a great
deal of interest and writing about misconduct by police officers in their interactions with
civilians on the street: corruption, violence, racial and ethnic prejudice. That behavior, however
abhorrent, is not the sort of misconduct we address here since it does not produce false evidence
of guilt or conceal true evidence of innocence; and little of the writing on police misconduct
analyzes systematic data on police behavior.
There is more systematic research on misconduct by prosecutors, mostly by journalists.
In 1999, Ken Armstrong and Maurice Possley reported in the Chicago Tribune that since 1963,
at least 381 homicide convictions across the United States were reversed “because prosecutors
concealed evidence suggesting innocence or presented evidence they knew to be false.” Virtually
no disciplinary actions were taken against the hundreds of prosecutors involved: one was fired
but reinstated, another was suspended for 30 days. A later article in the same series identified
42 prosecutors in Chicago who obtained criminal convictions that were later reversed because of
their misconduct, and who not only escaped any meaningful adverse consequences, but went on
to become judges. (oro: that is, zero prosecutors were charged with a crime)
In 2003, the Center for Public Integrity released a study of more than 11,000 state court
criminal cases across the country since 1970 in which prosecutorial misconduct was alleged.
Courts reduced sentences, dismissed charges, or vacated convictions in more than 2,000 of
those cases, but only 44 prosecutors were the subject of state bar complaints, and of those, only
two were disbarred and 12 were suspended. (oro: that is, zero prosecutors were charged with a crime)
A study in the Pittsburgh Post-Gazette in 1998 found much the same thing for prosecutorial
misconduct in federal criminal cases. The Department of Justice investigated only 9 percent of
some 4,000 complaints of misconduct by its prosecutors over 20 years, and of those, only 4
percent were found to have merit—approximately 15 cases all told. Twelve years later, USA
Today reported that little had changed. From 1997 to 2010, judges found misconduct by federal
prosecutors in 201 cases, but only six were disciplined by bar authorities. (oro: that is, zero prosecutors were charged with a crime)
The most detailed study on the subject was released by Kathleen Ridolfi and Maurice Possley of
the Northern California Innocence Project in 2010. They collected all decisions in which courts
found that state prosecutors in California had committed misconduct in trials that led to
convictions, 707 cases from 1999 through 2007. Only 159 of those convictions were reversed—in
the remainder, the misconduct was deemed “harmless”—and, despite a legal obligation that
California courts report all such findings to the California State Bar, only six California
prosecutors were disciplined in any manner for misconduct in a criminal case in that nine-year
period. (oro: that is, zero prosecutors were charged with a crime)
Taken together, the studies of prosecutorial misconduct reached two main conclusions:
(i) a
substantial number of prosecutors commit misconduct in criminal cases, and
(ii) almost none
are disciplined for it.
This is an important contribution to our understanding of the problem.
The journalists who conducted them did an impressive job of searching through thousands of
cases to locate the small minority in which courts found that misconduct had occurred, and then
determining whether the prosecutors involved were sanctioned.
These studies, of course, have limitations. The central one is that they are all based on official
findings that misconduct occurred, usually in written opinions by judges (or in the Pittsburgh
Post-Gazette study, internal Department of Justice memoranda). Most criminal cases, with or
without misconduct, do not produce written court opinions; in fact, most convictions based on
guilty pleas leave virtually no substantive records at all. In cases that do include court opinions,
misconduct is often overlooked by lawyers and judges alike because nobody knew about it at the
time. For other convictions, valid claims of prosecutorial misconduct are raised but rejected by
courts because critical evidence to prove those claims has not yet come to light. We see that
regularly in the records of cases that eventually do produce exonerations—and then, even when
misconduct is an undisputed fact, the case may simply be dismissed with no formal finding.
Let's note that 90% of criminal cases in the US are pled guilty and never go to trial. Only 1/5th of the "not guiltys" are convicted so all of this misconduct only comes to light regarding 2% of criminal cases.
In short, if we locked up every prosecutor who faked evidence to get a conviction, we'd have to put the majority of our judges and DAs in jail- our legal system would collapse.
