Who Polices the Prosecutors?
We in America have lost faith. Not only is there a decline of religious faith in the United States, there is also a lack of confidence in the institutions that made this country what it became – a worldwide superpower, respected by all.
I’m most worried about the lack of faith in our justice system.
Today, people of all races, creeds and colors believe the status quo, which has created a current prison population of 2.3. million plus another 4.5 million on probation or parole, simply isn’t fair. Rich people get to pay their way out of problems while poorer people (mostly those with darker skin) get swallowed up by the system, imprisoned and tainted by their conviction record for life.
This column will likely make me no friends in the legal community, but things need to be said and facts need to be revealed. The problems within the justice system can be traced to the lawyers who run it – the judges, defense attorneys and government prosecutors – and the watchdog organizations established to police those lawyers, like the American Bar Association and its statewide chapters.
When taxpayer funded prosecutors commit malpractice they are rarely held accountable. To err is human, of course, but when a prosecutor deliberately withholds information that could go to exonerate a defendant, tampers with a witness or routinely puts winning ahead of the search for truth then steps should be taken to remove that person from office. That rarely happens.
Across the nation there are provable cases of prosecutorial misconduct yet most often neither the ABA or state bar chapters fulfill their mandate to protect the citizenry by issuing a public censure, sanction or some other type of punishment for an offending attorney.
According to a recent commentary at TheAppeal.org, an organization that tracks trends within our justice system, prosecutors are almost untouchable under the current legal structure. The authors, California public defenders Jeff Adachi and Peter Calloway say prosecutors are “essentially absolutely immune from (citizens’) civil suits” in cases of misconduct that lead to unwarranted convictions.
It is fairly uncomplicated for someone to sue a police officer for misconduct but federal law still provides an enormous umbrella of protection for those who do their lawyering from a district attorney’s office.
There have been several studies into the problem of dishonest prosecutors. The Yale Law Journal reported a few years ago that prosecutors withholding evidence favorable to the accused, “accounts for more miscarriages of justice that any other type of malpractice.” Yet their offenses are “rarely sanctioned by courts and almost never by disciplinary bodies.”
Talk about protecting your own at the expense of justice.
In Massachusetts, the New England Center for Investigative Reporting scoured more than 1,000 rulings going back to 1985 in which a defendant claimed harmful prosecutorial misconduct. In 120 cases state appeals courts reversed the conviction due to misbehavior by the prosecutor. That is a small percentage of reversals, but there is agreement that this kind of malpractice is way underreported. Lawyers for the wrongfully convicted frequently move on or don’t want to complain about a local prosecutor they’ll have to deal with again. Just think of all the time served by those defendants who either didn’t get a fair trial or were just plain innocent of the charges.
The NECIR also found that when courts tossed out these unconstitutional convictions or outright exonerated the prisoner the prosecutor was rarely named or disciplined. No prosecutor has been disbarred in Massachusetts since records began 50 years ago.
So, if a wrongfully convicted person can’t sue an unethical prosecutor and neither the state or national ABA takes steps to remove the offender then what’s to keep that prosecutor from continuing their unscrupulous behavior? The answer is: nothing. Bad actors in Massachusetts, California, New York and other states have been allowed to continue in their prosecutorial positions. Some have become judges or district attorneys.
The situation became so egregious in San Francisco in 2017 that public defender Adachi filed a formal complaint against one particular local prosecutor who, he said, was a habitual repeat offender. Adachi, who died suddenly two months ago wrote, “When people are accused of crime … they cease to be seen as people by our legal system and become merely ‘criminals.’”
San Francisco Assistant D.A. Benjamin Mains was accused of withholding important evidence and crucial witness statements in “seven serious cases” going back years. In December 2017 Mains was fired from the D.A.’s office. I could find no California State Bar Association action against Mains. He is currently listed as having an active law license and is now reported to be in private practice.
As usual, allowing a company, organization or the government to police itself doesn’t work. If we truly want to restore the public’s faith in our judicial system everyone – I repeat, everyone – needs to be held accountable. Time for the Bar Associations and District Attorneys everywhere to demand better ethics from their members.