Prosecutors

Prosecutorial Abuse Goes Unpunished in Massachusetts

Even when cases are overturned over prosecutor misconduct, judges often refuse to name names.

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In "at least 120 criminal convictions since

No accountability for bad prosecutors.
Dreamstime.com/Vladek

1985," the Massachusetts Supreme Judicial Court and Appeals court reversed prior rulings based "in part or entirely because of the prosecuting attorney's misconduct."

In a stunning report released last week, the New England Center for Investigative Reporting (NECIR) examined over 1,000 cases where prosecutorial misconduct was alleged. Of these, 11 people convicted were exonerated entirely, and 250 cases led to harsh rebukes of prosecutors by judges, though they were ultimately deemed "not serious enough to affect the jury's decision" and thus upheld. 

Examples of alleged prosecutorial misconduct in Massachusetts include failing to disclose crucial evidence to the defense, misrepresenting evidence in closing statements, and withholding information which could reflect poorly on witnesses' credibility.

The report's authors, Brooke Williams & Shawn Musgrave, write that "the self-regulatory system meant to deal with lawyers' ethical lapses is unusually protective of prosecutors" and even when convictions are reversed because of prosecutorial misconduct, the lawyers in question are hardly ever named publicly or disciplined in any way.

Williams and Musgrave write that because many judges are former prosecutors themselves, they often "sympathize with [prosecutors'] heavy workloads" and "share a general cultural norm against snitching on colleagues." For these reasons, "they almost always omit the errant prosecutor's name" when throwing out a conviction or indictment. Only seven of the reversed cases reviewed by NECIR included the name of an offending prosecutor.

Daniel Medwed of the Northeastern University of Law told the authors, "there is almost no accountability, no transparency, and the public isn't paying attention" when it comes to the actions of prosecutors.

It seems that even prosecutors who have been called out have no problem rising in the state's criminal justice system:

NECIR found no case in Massachusetts where a prosecutor was disbarred for professional misconduct since 1974, when the state Board of Bar Overseers was created to hear complaints against attorneys. Only two public reprimands for professional misconduct were found in that 42-year span, and they came without fines or other punishment. 

At least seven prosecutors whose behavior prompted courts to reverse convictions went on to higher posts. Some became judges and district attorneys.

Also alleged in the report is "a system that rewarded criminal suspects for cooperating with prosecution authorities by providing false testimony and false identifications." These included lighter sentences or more favorable prison locations for criminals who implicated other suspects by telling prosecutors whatever they wanted to hear. 

Read the whole report here

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  1. Williams and Musgrave write that because many judges are former prosecutors themselves, they often “sympathize with [prosecutors’] heavy workloads” and “share a general cultural norm against snitching on colleagues.”

    Who are they to judge?

      1. This is an outrageous insinuation, almost on a par with the “First Amendment dissent” filed by a single, isolated judge in America’s leading criminal “satire” case, documented at:

        http://raphaelgolbtrial.wordpress.com/

        As Tonio points out below, many state and federal judges (including, of course, the one who authored the proper, non-“dissenting” decision in the above-linked criminal “satire” case, denying “First Amendment” relief to a vicious social deviant) are themselves former prosecutors. But this is not a matter of “covering their own asses” ? another outrageous insinuation, conveyed with even more offensive language. Rather, as former prosecutors, our finest judges are properly informed on the illegal conduct, and in some instances illegal speech, that prosecutors have to deal with on a day-to-day basis in this country. That special, institutional knowledge gives these judges the requisite expertise with which to evaluate delicate situations of the sort described in this article.

    1. Remember that lots of judges are former prosecutors, so if this is definitely covering their own asses. This is why we need the Censor.

      1. I think you meant a censer. A heavy brass one on a stout chain. Upside the head. Pour encourager les autres.

  2. Examples of alleged prosecutorial misconduct in Massachusetts include failing to disclose crucial evidence to the defense, misrepresenting evidence in closing statements, and withholding information which could reflect poorly on witnesses’ credibility.

    Maybe throw some opprobrium on the defense attorneys and PDs who failed to call out such flagrant abuses.

    1. Yeah! Those lazy defenders should have protested not being told about evidence they didn’t know about!

      1. They found out about it at some point, Hugh. If the reaction then was, “well, whaddya gonna do” and to go on with their lives, CS raises a valid issue.

        1. What if the reaction was “Well I’d love to file a formal protest, but I’m already drowning in caseload of the next poor suckers to be put through the wringer/that client is already behind bars and the firm doesn’t like me wasting time on unbillable tasks”?

          1. OR, what if the reaction was a maniacal laugh, the blood of Christian infants dripping from his chin?

            Christ, Hugh.

      2. I didn’t say anything about lazy attorneys, but when prosecutors receive “harsh rebukes” from the judges it seems like something the defense should have addressed.

        1. Addressed how? What responsibility do defense attorneys have for withheld evidence that they don’t find out about until after the trial concludes, or for prosecutorial misrepresentations of evidence during closing statements?

          Should they be cited for failure to rip off their shirts and fly around the planet fast enough to travel back in time?

          1. What responsibility do defense attorneys have

            Well, they have an affirmative duty under the code of ethics to file complaints against other attorneys who act unethically, so there’s that.

          2. My point is that judges are picking up on this stuff, so obviously somebody is noticing it in real-time. I should have restricted my remark to just the 250 rebukes, withheld evidence is of course entirely on the prosecutors.

          3. Perhaps they could hold a press conference where they name the crooked prosecutor and the judge who enabled them. Or, being lawyers and such, they could file complaints against those prosecutors with the intent of having them punished, or even disbarred.

            Or they could go along to get along. Not rock the boat. Avoid offending the people they work with at the expense of the people they work for.

      3. In arguments before the Supreme Court, state lawyers did not dispute that Cook had been coached and that Farr was paid for his help. But they said Banks’ lawyers were at fault for not uncovering the information sooner.

        The Supreme Court ruled that without the testimony of the two witnesses, Banks might not have been sentenced to death. “It has long been established that the prosecution’s ‘deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice,'” Justice Ruth Bader Ginsburg wrote in the court’s majority opinion.

    2. Blame the victim.

  3. Examples of alleged prosecutorial misconduct in Massachusetts include failing to disclose crucial evidence to the defense, misrepresenting evidence in closing statements, and withholding information which could reflect poorly on witnesses’ credibility.

    Every one of which is a violation of the code of legal ethics, and should result in sanctions up to and including loss of license.

    And, guess what? “Prosecutorial immunity” doesn’t protect you from sanctions for violating legal ethics.

    I think there is a productive line of attack on abusive prosecutors here. The ACLU or a similar organization truly interested in protecting the civil rights of the accused could make it an ongoing operation to file ethics complaints, and I think it would have an effect.

    1. The IJ, maybe. The ACLU has its hands full with bathroom politics.

      1. Oh, if the defendents are poor and/or minorities the ACLU will suddenly remember its historical interest in this sort of case.

        1. Now I just need to know where these videos are, so that I can stay away from them.

          1. Check the campus security office, local PDs, no doubt more than a few administrators…

    2. should result in sanctions up to and including loss of license

      *and* serving the sentence your malfeasance enabled, right? RIGHT?!

      1. That’s “rich,” Rich.

        1. Sorry.

          *** ponders “reasonable mistake of law” ***

          1. It’s the law. Not just anyone can interpret it. For that you’d need the expertise only a lawyer can provide. And when they make mistakes or violate their ethics, well, that’s just how difficult it is to practice law.

  4. At least seven prosecutors whose behavior prompted courts to reverse convictions went on to higher posts. Some became judges and district attorneys.

    Wait a minute. Hold on. I think I may actually have spotted the problem.

    1. Fox, henhouse, etc.

      1. *Ponders “Fox Henhouse” as the name of a character in a novel.*

        1. A private eye who specializes in surveilling unfaithful wives.

          1. These “masturbation” “euphemisms” are getting “abstract”.

          2. I was thinking a paranormal-seeking FBI man with a giant Southern rooster for a partner.

            1. Many women have described my southern rooster as “giant”.

            2. Finally, the Chicken Boo movie we’ve been waiting for.

    2. Hitler?

      1. Nothing euphemistic about that.

  5. Why should prosecutors be treated any differently than police?

    Six per year on average. How many prosecutors are there in MA? How many criminal cases?

    This is one of those horrible things that conveniently gets glossed over as statistical noise. All you have to do to reduce the “size” of the problem is create a whole bunch of new crimes and add a bunch of additional prosecutors.

  6. NECIR found no case in Massachusetts where a prosecutor was disbarred for professional misconduct…[after] the state Board of Bar Overseers was created to hear complaints against attorneys.

    Sounds like a new world record for speed of regulatory capture.

    1. Board of Bar Overseers

      *** snort ***

      1. Gives me an idea for an episode of Bar Rescue.

    2. One of these days while I’m at the Florida Bar’s annual meeting I’m going to go into that closed-door prosecutors’ meeting and ask them a few questions. I might have to win the lottery first.

  7. “and the public isn’t paying attention”

    And the ones who do are deemed ‘extremists’.

    1. Yes, because prosecutors play on the fears of the public that if the cops and prosecutors are “hamstrung” then criminals will run amok.

  8. I know Howie Carr can be a little, erm, too conservative but to his credit he does a great job bringing this up on his radio show.

    Massachusetts seems to have quite the little corruption machine going.

    1. “Nothing is on the level. Everything is a deal. No deal is too small”

  9. Prosecutors are in charge of putting the bad guys in jail. Many people are just fine with that happening by any means necessary. Like when cops bring a thug into the quiet room for a little tune up.

    ANY MEANS NECESSARY!

  10. Is it me or is the ‘stunning report’ link broken? It goes nowhere.

    1. Same with NECIR by the way.

  11. “Examples of alleged prosecutorial misconduct in Massachusetts include failing to disclose crucial evidence to the defense, misrepresenting evidence in closing statements, and withholding information which could reflect poorly on witnesses’ credibility.”

    The second example can be handled by an instruction from the bench. The first and third examples should result in criminal charges. The state has a duty to disclose exculpatory evidence and withholding it subverts and impedes the administration of justice. Plebes go to jail for this.

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