Prosecutorial Misconduct Grabs Headlines (Again)

Every few years, revelations of prosecutorial misconduct in a sensational case grab the headlines, shining a light on one of the darker corners of American justice.

In the most recent case, the Noura Jackson murder trial, a prosecutor’s failure to turn over a crucial document to the defense spurred a Tennessee Supreme Court to overturn a guilty verdict that sent a young woman to prison for 20 years. A New York Times report about the story said the lead prosecutor had been singled out for scathing criticism by the Tennessee court for withholding evidence and prejudicing the jury.

Public outrage spawned by misconduct of this sort tends to spark legislation to eliminate the cracks and flaws in the system that enable the abuse of power. Most of these bills aimed at criminal justice reform ride a brief wave of popular support before falling by the wayside as opponents deride them as “anti-law enforcement,” and “soft on crime.”

No new legislation is needed, critics argue, as prosecutorial misconduct is a rare occurrence. With the exception of a few isolated cases, they say, the so-called misconduct is the product of “error,” not deliberate wrongdoing.

Not everyone agrees with that charitable view. While the vast majority of federal prosecutors no doubt carry out their duties in good faith, a searing report in USA Today a number of years ago indicated that prosecutorial wrongdoing is by no means confined to a “few isolated cases.”

The report lifted the veil on what the authors called “glaring and rampant misconduct” in courthouses across the nation. Subsequent investigations by other organizations confirmed the widespread abuse of the power of office.

The USA Today report said an investigation had uncovered over 200 cases of serious abuse by federal prosecutors since 1997. Ten of these cases were tried in Iowa’s federal courts. Prosecutorial misconduct by U.S. attorneys in Iowa has triggered serious consequences,” a Des Moines Register article noted.

Iowa’s court records show that in most of cases where prosecutorial misconduct was found, it was the presiding judge who blew the whistle on the errant prosecutor. This resulted in charges being thrown out in many cases, and some defendants winning reduced prison sentences. Others were granted a new trial and one defendant was fully acquitted.

The Iowa cases reviewed by USA Today highlight a disturbing pattern that is tainting this state’s highest law enforcement office. But prosecutorial misconduct is not limited to Iowa or any single state, said Case University law professor and legal expert Bennett Gersham.

How Widespread Is It?

“It is systemic,” Gersham said, meaning prosecutorial abuse infests the entire system of American justice. “The system in unable to control this type of behavior. There is no accountability.”

Some legal experts called the report’s findings “the tip of the iceberg,” because many more cases are tainted by misconduct than are found. “Federal prosecutors are supposed to seek justice, not merely score convictions,” the authors wrote. “But an in-depth investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation.”

In some cases, federal prosecutors hid or faked evidence or lied to the jury. In others, they allowed or encouraged witnesses to lie under oath, tainted juries with prejudicial comments, reneged on plea bargains and committed other violations of ethics.

“The abuses have put innocent people in prison, set guilty people free, destroyed lives and cost taxpayers millions of dollars in legal fees,” the article said. The report, published in 2010, continues to be cited by many who have been trying to raise public awareness about the corruption that allows powerful, win-at-all-costs prosecutors to subvert justice in countless courtrooms across the country.

“Such abuses probably infect no more than a small fraction of the tens of thousands of criminal cases filed in the nation’s federal courts each year,” the authors wrote. But the prosecutorial transgressions identified by the researchers were so serious that, in each case, judges threw out charges, overturned convictions or rebuked prosecutors for misconduct.

 

Prosecutors Rarely Punished

In many cases, misconduct is exposed only thanks to vigilant scrutiny by defense attorneys and judges—and at times, the defendant himself.

In the abovementioned Jackson case, the case began to unravel shortly after the trial ended. With no physical evidence or witnesses linking the accused to the murder, the prosecution’s case was built solely on eliciting testimony from various friends and relatives that the defendant was an angry teenager “whose life was spinning out of control.”

Then, five days after the widely publicized trial ended with a guilty verdict, a handwritten note penned by a key witness was belatedly turned over to the defense by prosecutors. That became the foundation of a successful appeal.

The state supreme court ruled that the prosecutor’s failure to disclose this note earlier, before the trial, was a ‘‘flagrant violation’’ of the defendant’s constitutional rights. The telltale note not only cast doubt on the veracity of the author’s trial testimony, it also opened up the possibility that the writer himself may have been a suspect in the murder.

Prosecutors at the federal and state level are supposed to be bound by laws that require them to disclose all material evidence to defendants. But as with any form of accountability, rules are meaningless without a mechanism for enforcement that includes penalties. To date, that mechanism is absent.

“Only a tiny number of prosecutors have been disbarred or jailed for withholding evidence,” the New York Times article said. Prosecutors found to have hid evidence, elicited false testimony and even lied to the court, in most cases receive little more than a scolding from the bench or from an appeals court when such misconduct is discovered.

 

“Trial by Ambush”

The right of defendants to see the government’s evidence against them in advance of the trial is relatively new in this country. For centuries, “trial by ambush” – in which prosecutors “surprise attacked” the defendant with secret evidence—was the norm not only in this country but in Britain, where the basic code of American justice originated, the NY Times article explained.

In the late 19th century, the British and some European governments liberalized their criminal justice systems, requiring disclosure of the prosecution’s case before trial, plus a full list of witnesses and a summary of their planned testimony. U.S. courts, however, lagged behind these reforms.

Change came in March 1963, when the U.S. Supreme Court dramatically altered the process the government must follow to convict someone of a crime. The Court mandated public defense lawyers for poor defendants, forbade police officers from coercing confessions and required them to inform defendants of their rights.

That same year saw a ruling by the Supreme Court in Brady v. Maryland that revolutionized the criminal justice system – at least in theory. Defendants for the first time won a constitutional right to see some of the evidence in the state’s possession. The case concerned an Air Force veteran, John Brady, who was given the death penalty for murder.

Brady’s lawyers argued that prosecutors should have disclosed that a co-­defendant had confessed to the killing. The Supreme Court agreed, ruling that prosecutors must turn over, ahead of trial, any evidence that is ‘‘favorable’’ or material to the defense; in other words, evidence that could likely win an acquittal.

The Brady ruling was meant to level the playing field between the defense and the prosecution, as British and European courts began doing a century and a half earlier. For many years, however, the Brady rule was obeyed in the breach, in part because prosecutors get to decide what counts as ‘‘material’’ or ‘‘favorable’’ and what to hold back. The defense has no way of knowing what is being withheld and thus no way of challenging the decision.

The USA Today investigation cited above documented 86 cases since 1997 in which judges found that federal prosecutors had failed to turn over evidence that they were legally required to disclose. In a 2013 case cited by the New York Times, the U.S. Court of Appeals for the Ninth Circuit roiled the legal community by declaring there was “an epidemic” of prosecutors withholding evidence.

The underlying reason Brady may all too often be ignored is that prosecutors are naturally out to win the cases they’re assigned, and the temptation to rationalize the holding back of evidence (“it’s not material/ it’s deceptive/it won’t affect the outcome of the case”) can be very compelling. At the end of the day, how many people have the moral discipline and integrity to place honor above career advancement?

One of the system’s biggest liabilities, experts say, is that it’s essentially a Catch-22. In order to make a Brady claim, you need to prove evidence was withheld. But “hidden evidence” by definition is useless until by some twist of fate it’s discovered.

 

Rubashkin Case Parallels

For those following the long-running Rubashkin saga, the subject of Brady violations touches a nerve. Here too, the discovery of withheld and newly discovered evidence has shocked the public and powered a hard-hitting appeal to the 8th Circuit Court of Appeals.

As in the case mentioned earlier in which a “forgotten” handwritten note became the instrument of justice, here too, the discovery of hand-written notes (by a reputable lawyer with no ties to Rubashkin) created a game-changer, empowering Sholom to prove his constitutional rights had been violated.

The enormous significance of the notes lies in their demonstration that prosecutors had knowingly elicited false testimony from their star witness about a government-initiated no-Rubashkin policy. The notes also support defense claims about the government’s program of intimidation against potential buyers of Agriprocessors that led to a bank’s massive loss.

This handwritten record of a crucial meeting also supports the defense position that the government’s allegations against Sholom Rubashkin of bank fraud were themselves fraudulent.

Exculpatory evidence that would have enabled Sholom’s lawyers to lay bare the truth about the devastating impact of the government’s forfeiture position were withheld from him, defense attorneys discovered in a long-running investigation..

The new evidence that surfaced post-trial, consisted of, among other things, a letter from First Bank to the U.S. Attorney’s Office in 2008 complaining that the government’s forfeiture position was stifling the Agriprocessors bidding process. This claim was buttressed by a similar message from the bankruptcy trustee protesting the negative fallout the forfeiture threats were having on the bankruptcy sale.

These letters which puncture the government’s claim that their use of forfeiture had no impact on the bidding process, prove that government interference in the bankruptcy proceedings indeed caused First Bank to suffer the loss of its $26 million loan.

Sholom Rubashkin has already been locked up for 9 years after being framed for this loss – doctored up as “bank fraud.”

The above-mentioned letters from the bank and the bankruptcy trustee that would have shone a light on prosecutors’ schemes were never turned over to the defense, as the law demands. These are clear-cut Brady violations that resulted in devastating consequences for the accused.

 

Media Outcry

The shocking disclosures, presented in a Merits Brief to Judge Linda Reade in 2015, and the government’s inadequate reply sparked an outcry in the legal community and in many media organs.

The case, which is seeking review by the 8th Circuit Court of Appeals, has attained notoriety for the prosecutorial and judicial misconduct uncovered by the defense investigation. Over 100 former high level Department of Justice officials, U.S. Attorneys, federal judges and legal experts, including three former Attorneys General of the United States, have petitioned the current U.S. Attorney of Iowa’s Northern District, Mr. Kevin Techau, to right the severe miscarriage of justice in the Rubashkin case.

“Prosecutors who take shortcuts in winning convictions or lengthy sentences are not only violating the rights of the accused, they’re also undermining our entire system of justice,” the Des Moines Register lashed out. “That’s worth remembering when considering the ongoing legal battle over the 27-year prison sentence handed down to Sholom Rubashkin.”

Prosecutors, Judges Decry Rubashkin Witch Hunt,” an editorial penned by legal luminaries Charles B. Renfrew and James H. Reynolds, a former U.S. Attorney in Iowa, declared, “The criminal prosecution of Sholom Rubashkin was so overzealous, it bordered on a veritable witch hunt. There is new evidence of false testimony and willful manipulation that exacted the most possible punitive sentence for Rubashkin. That makes this a shocking case of prosecutorial misconduct.”

 

Moral Crossroads

Defense attorneys are demanding a new trial based on evidence that not only did prosecutors commit unconscionable wrongdoing in their prosecution of Sholom Rubashkin, the presiding judge herself was implicated in their transgressions.

Presiding Judge Linda Reade held secret meetings with prosecutors and collaborated with them on the 2008 immigration raid that targeted Agriprocessors. New FOIA documents released by the government indicate those ex parte communications extended beyond the trial to the sentencing phase.

Rubashkin attorneys Stephen Locher of Des Moines, Iowa, and Gary Apfel of LA, working pro bono, also demonstrated that Judge Linda Reade’s multi-leveled personal entanglement in the Rubashkin case and the conflicts of interest it engendered, required her to recuse of her own initiative.

Judge Reade had several opportunities to remedy the lapses of justice in this case. Cogent evidence of prosecutorial manipulation of the bankruptcy process and the soliciting of false testimony at Sholom’s sentencing brought the judge to a moral and legal crossroads.

She could have used the new evidence to revisit the burning question of who in fact was responsible for First Bank’s $26 million loss. In light of the overwhelming appearance of judicial bias, and the conflicts of interests affecting her handling of the case, she could have turned the case over to another judge.

She did not do so.

Instead, in her January 2017 ruling denying the 2255 Motion, Reade chose to circle the wagons in a 140-page “echo chamber,” repeating prosecutors’ discredited arguments and furiously attacking Sholom Rubashkin for trying to “undo all her work.”

She thus chose to reject a final opportunity to salvage a bit of honor from the disgrace enveloping all those responsible for the Rubashkin travesty.