Prosecutorial Misconduct: Winning at All Costs

     The criminal trial, as designed, is not the most efficient method of getting to the factual truth of a matter. Too much relevant evidence is excluded from the jury to make this the main purpose. The principal goal of a tri…

     The criminal trial, as designed, is not the most efficient method of getting to the factual truth of a matter. Too much relevant evidence is excluded from the jury to make this the main purpose. The principal goal of a trial, at least in theory, is not to produce information, but to produce due process, and justice. Prosecutors, as officers of the court, have a legal and ethical duty not to pursue defendants in cases involving weak or exonerating evidence. But some do, because regardless of the evidence, their priority is to convict, and to win.

The Michael Morton Case

     In 1987, a jury found Michael Morton guilty of beating his wife to death a year earlier in their Austin, Texas home. The prosecution, based on flimsy circumstantial evidence, convinced the jury the defendant had killed his wife because the night before, she had sexually rebuffed him. Mr. Morton, a supermarket manager, claimed that an intruder had murdered his wife that morning after he had left for work.

     The judge sentenced Michael Morton to life in prison. In 2005, attorneys for the prisoner began petitioning the court to have a bandanna found near the murder site tested for DNA. The Williamson County district attorney (who had not prosecuted Morton) fought this request for six years. He did this on advice from Ken Anderson, the man who prosecuted Morton, and has since become a judge.

     In 2010, a Texas court ordered the DNA testing of the blue bandanna as well as other physical evidence associated with the murder case. DNA analysts found that the bandanna contained the murder victim's blood mixed with the DNA of a man named Mark A. Norwood, a convicted felon with an extensive criminal history. At the time, Norwood lived 12 miles from the murder scene. Norwood had also been a suspect in a similar 1988 murder case. The police have arrested Norwood and charged him with the Morton homicide.

     In December 2011, after living 25 years behind bars, Michael Morton walked out of prison exonerated and free. His lawyer, and attorneys with the New York based Innocence Project, have asked for a "Court of Inquiry," a special hearing to determine if prosecutor Ken Anderson broke laws, or rules of ethics by withholding evidence that would have exonerated Mr. Morton in 1987.

     Morton's attorneys discovered that prosecutor Anderson had withheld the transcript of a telephone conversation between a police officer and the defendant's mother-in-law in which she reported that her 3-year-old grandson had seen a "monster"--not his father--attack and kill his mother. Also withheld were statements from neighbors who had seen a man park a green van and walk into the woods behind the murder house.

     In the Morton case, there were other claims of prosecutorial misconduct. If the Court of Inquiry agreed with Morton's legal team, former prosecutor, now judge, Ken Anderson would face bar association disciplinary action, or even criminal prosecution.  


After 30 Years Declaring Innocence, Chicagoan Set Free

Arthur Brown, convicted of murder in connection with a fatal arson fire in Chicago in 1988, had steadfastly insisted that he was innocent. Nearly 30 years later, prosecutors agreed, saying “there were significant evidentiary issues that raised deep concerns about the fairness of Mr. Brown’s conviction.”

Arthur Brown, 66, was freed from jail Tuesday in Chicago after serving nearly 30 years on a double murder conviction in connection with an arson fire that he had steadfastly insisted he did not set, reports the Chicago Tribune. Brown was ordered released after Cook County prosecutors reversed course, announcing at a morning court hearing that they were dropping charges. According to his lawyer, Brown was 37 and had no criminal history when he was arrested for a fatal fire in 1988 on Chicago’s South Side. He was convicted of murder and arson and sentenced to life in prison. As he emerged from jail, Brown said he wanted to focus on his family and hopes to work helping others. “I missed a lot,” he said.

Last month Judge Joseph Claps tossed out Brown’s conviction and ordered a retrial after concluding that prosecutors at a second trial in 2008 had made multiple false arguments to the jury and that Brown’s lawyer later failed to raise those issues on appeal. Earlier this month, prosecutors had said at a hearing that they would fight the judge’s decision but reversed course after looking into the case. Robert Foley, a senior adviser in the state’s attorney’s office, said in an email that prosecutors “determined there were significant evidentiary issues that raised deep concerns about the fairness of Mr. Brown’s conviction.” Brown maintained his innocence through two trials, multiple appeals and lengthy post-conviction proceedings.


States Take a Fresh Look at Snitching

Legislatures around the country are considering—and passing—bills to tighten rules governing the use of criminal informants. The “new wave of reforms” is long overdue for a practice that has historically been secretive and under-regulated, writes a University of California law professor.

Nobody likes a snitch, but never have so many people been doing so much about it.

Legislatures around the country, from Texas to Montana to New York, are considering and passing bills to better regulate the use of compensated criminal witnesses. As the New York Times Editorial Board complained just a couple of months ago, “[m]any prosecutors are far too willing to present testimony from people they would never trust under ordinary circumstances.”

Apparently state lawmakers agree.

Almost all of the legislation requires better tracking and disclosure. It has become an article of common sense that if the government is going to pay its criminal witnesses for evidence and testimony, it should have to keep track of them, their histories and those rewards—and disclose that information to the defense.

Texas has been a leader in this regard, passing comprehensive new requirements in July. Such reforms are driven first and foremost by the fear of wrongful conviction: Compensated witnesses hoping to gain their own freedom obviously have strong incentives to lie.

Better tracking and disclosure also strengthen the integrity of the adversarial system. While Supreme Court cases like Brady v. Maryland and Giglio v. U.S. already require prosecutorial disclosure, constitutional rules have turned out to be relatively weak guarantees that the defense will get salient information about informants in their cases. These new state laws are an important effort to level the adversarial playing field and improve its accuracy as well as its integrity.

Lots of states are going further, however. They are rethinking not just what the government should disclose about its informants but under what circumstances it should be permitted to use them at all.

Many states are trying to get the bench more involved, requiring pretrial reliability hearings in which judges act as gatekeepers to evaluate informant reliability before those informants get in front of a jury.

These procedures are like the Daubert hearings currently used to screen experts and they have the same rationale: Informants, like experts, are paid and controlled by one side, hard to cross examine, and often exert undue influence on lay juries. Both Washington and Montana considered exemplary legislation that would require reliability hearings in all cases.

Some legislators have worked on limiting the benefits that informants can receive, or, in death penalty cases, banning them altogether. Other states have taken a different tack, recognizing that unreliability is just one of many challenges raised by the creation and use of informants.

For example, parents around the country were shocked to learn that some college campus police pressure students into becoming informants. The coercion of young people and other vulnerable targets became headline national news several years ago when 23-year-old Rachel Hoffman became an informant to work off a minor drug charge in Tallahassee, Florida. She was killed during a dangerous sting operation, and her death led to the passage of Rachel’s Law which required Florida police to come up with stronger informant guidelines.

This year, North Dakota set a new standard for reform with Andrew’s Law, named after college student Andrew Sadek who was killed after being pressured into becoming an informant by a local drug task force.

At least eight states—California, Illinois, Mississippi, Montana, New York, North Carolina, Texas, and Washington—considered these sorts of new rules in 2017. Some of the bills passed, some didn’t—often legislation like this takes a couple of years to become law—but they all reflect a deepened awareness of the informant challenge and the legislative commitment to better regulate it.

Here are some highlights:

  • Texas passed comprehensive reform requiring prosecutors to track and disclose their informants’ criminal history, past testimony, and benefits. The New York Times called it “the most comprehensive effort yet to rein in the dangers of transactional snitching.”
  • Andrew’s Law in North Dakota prohibits campus police from using students as informants. State police may only use informants with a written agreement. Of particular note, Andrew’s Law bans the use of child informants under the age of 16, one of very few states to do so.
  • Illinois came very close to re-instituting reliability hearings. The state previously required them in capital cases: now that Illinois no longer has the death penalty this bill will require pretrial hearings for all jailhouse informants.
  • Montana’s Senate Bill 249 introduced comprehensive legislation that would require, among other things, electronic recording of informant statements, greater prosecutorial disclosure, pretrial reliability hearings, and cautionary jury instructions.
  • Washington recently considered two bills. One from 2016 would have required pretrial reliability hearings in all informant cases. The other would have required enhanced prosecutorial disclosure. Barry Scheck, founder and director of the Innocence Project, wrote that the Washington legislation was a “key advance” and that it represented an opportunity to “ensure that the strongest protections are in place for the innocent.”

This wave of new reform has been a long time coming.

The innocence movement warned us for years that criminal informants are a leading cause of wrongful conviction. In Orange County, California, a multi-year ongoing jailhouse snitch scandal has derailed numerous homicide and gang cases and triggered a federal investigation.

Alexandra Natapoff

Almost every week brings a new media story about an informant case gone awry. Criminal informants have historically been secretive and under-regulated; today, this problematic law enforcement practice is getting its much-deserved day in the sun.

Snitching will never be the same.

Alexandra Natapoff is Professor of Law at the University of California, Irvine School of Law. She is a national expert on the use of criminal informants, author of Snitching: Criminal Informants and the Erosion of American Justice (NYU Press 2009), and runs the educational resource website Snitching.Org. She welcomes comments from readers.


Looking Beyond the ‘White Bears’ in Criminal Justice

Preventing wrongful convictions and misconduct means fixing mistakes and flaws before they happen. That’s only possible if justice agencies (and the media) stop focusing exclusively on whom to blame for an error, and look at the circumstances that make errors possible.

In a famous experiment, subjects were instructed not to think of a white bear for five minutes but to ring a bell if they did happen to think of a white bear. The subjects rang their bells on an average once every minute.

To see an example of this phenomenon in action consider the New York Times’ sustained coverage of wrongful conviction scandals in Brooklyn.

The star of this long-running series is retired New York Police Department detective Louis Scarcella. Fifty of Scarcella’s old cases are under review; at least ten have been overturned.

In the TimesScarcella has the status of a white bear.

Wherever a Brooklyn exoneration story starts, it will bend back toward Scarcella before it ends.

There’s nothing unnatural about this. Readers and editors love a monster. So, a Scarcella story will get some space; another might not.

Still, this augments a feature of American criminal justice commentary that seems very strange to people who take the word “safety” in “public safety” seriously: Our enduring conviction that safety can be pursued by asking “Who?” after a disaster, and skipping the “Why?” and the “How?”

The gravitational pull towards “Who” exerted by white bears like Scarcella is on display in the Times’ skeptical article describing the response of Eric Gonzales, the Acting Brooklyn District Attorney, to the allegations against the detective.

The Brooklyn prosecutors, according to the Times, “made a curious acknowledgment.” According to the article, “ even though they had agreed in recent years to dismiss seven murder convictions that Mr. Scarcella helped obtain, he had done nothing wrong.”

The Gonzales version of this conclusion quoted in the article strives to add a nuance:   “We just never found any allegations of specific misconduct — there’s not been a smoking gun.”

That didn’t satisfy Times reporter Alan Feuer. As Feuer wrote, “By stating on the record that it has no evidence that Mr. Scarcella committed any crimes, the district attorney’s office has relieved itself of a handful of unpleasant consequences.”

Maybe. But the Acting District Attorney, by clearing Scarcella, has intensified the need to find out what actually happened in the Scarcella cases.

If your system generates ten wrongful convictions (and leaves ten actual perps running free) when everyone is acting properly, then examining the weaknesses of your system is an emergency.

Your system constitutes a tragedy waiting to happen.

Interested in preventing future wrongful convictions? Then you have to move past the Times’ approach (“It’s Scarcella, hang him”) and the Acting District Attorney’s (“Scarcella cleared, nothing to see, move along”) and account for the many other factors that, safety experts would warn us, contribute to criminal justice errors and, if adjusted, could contribute to preventing them.

A wrongful conviction is an “organizational accident.”  Many small failures, no one of them independently sufficient to cause the event, combine and cascade, and only then produce a tragedy.

Even if you stick with the “Who” questions, you have to recognize that—as none other than Louis Scarcella himself once pointed out—he didn’t do it alone.

Somebody hired, promoted and assigned Scarcella. Someone was supposed to supervise him. The crime scene and forensics people were supposed to investigate the cases too.

Someone designed, and someone was supposed to maintain, an elaborate scaffolding of rules and procedures organized to deal with the reality that now and then a “Louis” may show up. The prosecutors, the defenders, the judges, the jurors and the appellate courts are all supposed to intercept his mistakes. Someone organized the responsibilities and training and set the budgets for this legion.

The answer to “Who is responsible?”  is  “Everyone involved, to one degree or another.”  We failed together.

How?  To answer that riddle you have to ask more questions. The answer “These are bad people,” just doesn’t suffice.

Even a Scarcella’s decisions—the incompetent or immoral ones included—were “locally rational.”  He made his choices; he had his reasons. Something in his environment provided incentives; something erased disincentives.

Ethical violations break moral rules, but whether people choose to break or follow the rules has a behavioral dimension; it isn’t purely a question of upbringing or intrinsic character. Fixable features of the everyday work culture that surrounds people can undermine or encourage compliance.

The seductive features we leave lying around can induce the next detective who comes along to zig when he should zag.

The same is true for all of the other fallible players: the other cops, the Assistant District Attorneys, the defenders, and the judges implicated in the exoneration nightmares.

Safety expert James Reason once argued  that although we can’t change the human condition, we could change the conditions under which humans work.

But we can only do that if we resist the temptation to move along without accepting the risks of turning over some rocks to analyze what those working conditions are.

It isn’t hard to see why the Brooklyn District Attorney’s office hesitates before undertaking the sort of non-blaming, all-stakeholders review of the circumstances and culture that surrounded Scarcella and that shaped his conduct which aviation, the military, and medicine would mobilize (and which the National Institute of Justice is exploring in criminal justice with its Sentinel Events Initiative).

To the Brooklyn prosecutors, any demand for that sort of comprehensive review inevitably looks like a vindication of the maxim that no good deed (e.g., creating an active Conviction Integrity Unit) goes unpunished. The Acting DA is afraid that any search for “Why” and “How” will inevitably turn up more than one “Who” —in fact, lots of “Whos,” and lots of them within the DA’s office.

After all, any review that assesses the choices not only of a Scarcella but of the whole system and includes the prosecutors involved in his cases will expose people who are not swashbuckling Scarcella types, but are the innocent authors of omissions, slips, oversights, dangerous “work-arounds,” and other simple human errors.

Why risk making “white bears” of those staff members for the foreseeable future—vulnerable to the arbitrary (and persistent) attentions of the Times and others?

But as uncomfortable as it is to say it, exonerating the innocent, waving off Scarcella, and then moving on really isn’t enough if prevention of future tragedies is something you care about.

In fact, it doesn’t begin to be enough.

Calling endlessly for the discipline or prosecution of Scarcella isn’t enough either.

It may be that Louis Scarcella is every inch the creep that many contend he is, but we have to be careful about seeing this White Bear as a White Whale. Scarcella didn’t, like Moby Dick, act from “inscrutable malice.”

The white whale is a powerful literary device, but tolerating the illusion that the only thing wrong in Brooklyn criminal justice is that a white whale comes along now and then and requires harpooning isn’t simply incomplete; it is false.

The fact is, the Times’ approach and the Acting District Attorney’s reinforce each other.

We all need to look past the One Big Villain explanation.

James Doyle

Interventions—small changes in the practice of any one of an array of other people—could have changed the catastrophic outcomes in the wrongful convictions cases.

Those people don’t want to convict the innocent and leave the guilty free. They will change their practices if we can help them figure out how. We should enlist them in working to improve the safety consciousness of their everyday frontline work.

They present a much more hopeful path to future safety than the punishment (or not) of Louis Scarcella.

James Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.