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If a Lawyer Stole $5 From a Client...

Tanya Greene,
Advocacy and Policy Counsel,
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February 7, 2012

“If a lawyer stole $5 from a client, he would probably be prosecuted and might even go to jail — but that prosecutor stole 18 years of my life and what happened to him? Nothing.

This from John Thompson last night in New York, as he kicked off a multi-state speaking series on prosecutorial misconduct in the criminal justice system. You may remember Thompson as one of the men Harry Connick, Sr.’s Orleans Parish (Louisiana) District Attorney’s Office sent to death row by hiding evidence that would have proven his innocence. You may also remember that Thompson was released after 18 years in prison, 14 of them on death row awaiting his execution, that he sued for the damage done to his life, and that a jury awarded him $14 million. And you may recall that last year the United States Supreme Court denied him that reward, refusing to find the prosecutor’s office that broke the rules to send Thompson to death row liable for monetary damages for his stolen life.

The speaking tour that began last night is designed to educate the public about prosecutorial oversight and to engage prosecutors and other legal experts in collaborative strategizing about how to respond to this sort of extreme misconduct on the part of government lawyers.

Lack of prosecutorial oversight is a real and persistent problem in our nation’s justice system, and the consequences are dire. Thompson, for instance, was almost executed for a crime he did not commit. But it’s also a problem that is often overlooked and seldom punished. In the most comprehensive report of prosecutorial misconduct to date, in 707 cases where courts found prosecutorial misconduct during a 13-year period in California (averaging about one instance a week), only six prosecutors were disciplined. Mind you, some of this bad behavior resulted in murder convictions that were later overturned — bringing more pain for victims and expense for the taxpayers. And nary a prosecutor was fired for it. In fact, 11 percent of the misconduct was committed by the same prosecutors over and over, compounding the problem — and proving that bad behavior gone unpunished only spawns more. In Louisiana, the lying and cheating prosecutor’s office that locked Thompson away put five additional innocent men on death row during Connick’s tenure and was never once censured for it. The office wouldn’t even come clean when asked about it by Supreme Court Justice Elena Kagan.

At last night’s panel, judges, former prosecutors, practicing attorneys and legal ethics experts considered how to define the misconduct problem: Is it episodic — a case of a few “bad apples,” or epidemic? Is it a mainly problem of intentionally-misleading bad behavior, or “less serious” errors — a “lost” page of evidence that happens to have the name of an eyewitness who tells a different story from the prosecution, or a recalcitrant cop who doesn’t tell the prosecuting attorney the entire story of what he discovered? And aren’t those “mistakes” still a serious issue? Failure to sanction a prosecutor who gets a conviction because he “lost” potentially exonerating material certainly doesn’t encourage him not to “lose” it again.

Some say this is a question of sloppy training and supervision; one panelist last night discussed how attorneys in the New York prosecutor’s office working on Dewey Bozella’s case were taught incorrect evidence law by superiors. Others claim that in many prosecutors’ offices, the quest for the glory of a conviction has superseded the ethical duty to seek justice. And still others insist these problems are due to simple, isolated personality flaws.

As a law-bound society, what should we do to ensure accountability of lawless lawyers charged with enforcing the law? One member of the media in the audience last night suggested an independent commission including journalists and others with no political ties to watch trials. Someone else suggested mandated reporting by judges, many of whom started out as prosecutors themselves. Unfortunately, these solutions would do little to protect evidence secreted away before trial, and would have no effect on the majority of criminal cases — upwards of 95 percent — that end in pleas before trial.

Last night prompted more questions than answers, but it started a much-needed national conversation. Misconduct by attorneys charged with upholding the law must not go unpunished, especially when the lives of people like John Thompson hang in the balance.

The speaking tour has events planned in Arizona, Pennsylvania, Louisiana and California — the next date in March 29 in Austin, Texas. Stay tuned for more details. Meanwhile, click on our map to see what you can do to help end the death penalty in your state.

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