USA Today investigates misconduct by Dept. of Justice

For the past two months, USA Today reporters Brad Heath and Kevin McCoy have been running an informative series of articles called “Justice in the Balance” which describe their findings about the nature and extent of misconduct by Department of Justice prosecutors. According to their statement of methodology, the two journalists used legal databases to review a sizable number of court cases that have taken place since 1998 and identified a number of instances where prosecutors engaged in serious acts of misconduct.

The findings have been reported in four lengthy front page articles, a number of shorter pieces, and a database which includes a map with all the cases of misconduct they identified charted on it. USA Today has also put together videos which focus on two of the cases identified by the reporters. The first tells the story of Nino Lyons, a man who was jailed for three years and lost his home and business after a prosecutor framed him for selling cocaine, while the second video deals with a law called the Hyde Amendment (discussed below). I’ve summarized the four front page articles below.

In their first report, Heath and McCoy write that

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

Judges have warned for decades that misconduct by prosecutors threatens the Constitution’s promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses.

Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation’s most elite and powerful law enforcement officials — themselves violated laws or ethics rules.

In case after case during that time, judges blasted prosecutors for “flagrant” or “outrageous” misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said others had broken plea bargains.

Such abuses, intentional or not, doubtless infect no more than a small fraction of the tens of thousands of criminal cases filed in the nation’s federal courts each year. But the transgressions USA TODAY identified were so serious that, in each case, judges threw out charges, overturned convictions or rebuked prosecutors for misconduct. And each has the potential to tarnish the reputation of the prosecutors who do their jobs honorably.

— Brad Heath and Kevin McCoy, “Prosecutors’ conduct can tip justice scales” (Sept. 23rd, 2010), USA Today

In their second report, the two journalists describe how people who are harassed by prosecutors often end up with huge legal bills, lost homes, ruined careers, and other financial problems even when their innocence is proven. In theory, these people are supposed to be reimbursed by the government (read: taxpayers) under what is called the Hyde Amendment, but Heath and McCoy found that the government only reimbursed individuals in 13 of the 201 cases of misconduct they were able to identify (by my calculations, a mere 6.47%). They note several problems people face when they seek compensation:

• Many defendants don’t apply. The wealthy and those so poor they had court-appointed lawyers don’t qualify. Others hold back because they’d have to spend time and money in court and pursue a new civil action against the government after winning their criminal cases. The investigation identified just 92 Hyde Amendment compensation cases since the law’s enactment.

• Some defendants are pressured by federal prosecutors to give up their right to seek repayment in exchange for lenient plea bargains or getting their cases thrown out.

• Even those who seek compensation face what an appeals court called the “daunting obstacle” of proving, sometimes in another trial, that prosecutors wronged them. Congress deliberately set a high legal standard to qualify for payment: To win, a defendant must prove a prosecution had been “vexatious, frivolous or in bad faith.” But the House and the Senate never held committee hearings that could have defined that standard.

— Brad Heath and Kevin McCoy, “Not guilty, but stuck with big bills, damaged career” (Sept. 29th, 2010), USA Today

They conclude that Hyde has failed to serve as a meaningful deterrent to misconduct by prosecutors.

In their third report, Heath and McCoy observe that

Americans can sue almost anyone for almost anything. But they can’t sue prosecutors.

Not when prosecutors hide evidence that could prove someone’s innocence. Not when they violate basic rules designed to make sure trials are fair. Not even when those abuses put innocent people in prison.

Nearly 35 years ago, the U.S. Supreme Court ruled that prosecutors cannot face civil lawsuits over how they handle criminal cases in court, no matter how serious or obvious the abuses. Since then, courts have further limited the circumstances under which prosecutors — or their bosses — can be sued for civil rights violations.

….

In 1976, the Supreme Court decided, in a case called Imbler v. Pachtman, that prosecutors have absolute immunity from civil rights lawsuits for their work in the courtroom. The court acknowledged that its ruling “does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty,” but said the alternative was worse: leaving prosecutors to fear a lawsuit, or even bankruptcy, every time they lose a trial.

— Brad Heath and Kevin McCoy, “Prosecuting offices’ immunity tested” (Nov. 5th, 2010), USA Today

They point out that not a single one of the 201 cases of misconduct they identified ended with a successful lawsuit against a prosecutor — including a case where a prosecutor knowingly framed a man to win a conviction that resulted in a death sentence.

Finally, in their most recent report, Heath and McCoy write that their “investigation has found that prosecutors have little reason to fear losing their jobs, even if they violate laws or constitutional safeguards designed to ensure the justice system is fair.” They place much of the blame on the fact that the Justice Department is allowed to police itself with its toothless “Office of Professional Responsibility.”

When it finds misconduct, OPR can only recommend a range of disciplinary penalties — for example, from 5 to 15 days’ suspension without pay — but cannot impose the punishment itself. The recommendations go to the U.S. Attorney in the area where the prosecutor works. The penalty is imposed by the prosecutor’s supervisor, but can be appealed to the deputy attorney general, the No. 2 official at Justice, and in some situations to an outside board. It can be a lengthy process.

— Brad Heath and Kevin McCoy, “Federal prosecutors likely to keep jobs after cases collapse” (Dec. 9th, 2010), USA Today

Furthermore, they point out that OPR conducts its investigations in total secrecy. OPR claims that privacy laws (as if anything done by a public official can be considered private) prevent it from releasing the details, however, OPR has gone above and beyond respecting these these privacy laws, going so far as to actually pressure judges to remove evidence of misconduct from public court records.

The articles paint a sad picture of the American criminal justice system and makes it clear that it is in need of a radical overhaul. My own opinion is that the Hyde Amendment ought to be done away with because even if every wrongfully prosecuted individual was actually reimbursed by the government, there’s still no reason to believe that it would deter prosecutors from engaging in malicious practices. The only way to deter abuse is completely remove prosecutors’ immunities and hold them personally responsible for their actions. If a prosecutor engages in unethical or illegal behavior or prosecutes someone who turns out to be innocent, he or she should be expected to reimburse the victim for legal bills and other damages. It shouldn’t matter if the misconduct was minor or unintentional, whether the victim was rich or poor, and prosecutors should never be allowed to offer plea bargains that take away a defendant’s right to compensation — there is simply no excuse for acting against someone in a fraudulent manner or trying to use the legal system as a weapon to destroy someone’s life, period.