Dishonest Prosecutors, Lots of Them, by The NYT Editorial

There are a million excuses for police corruption -- that they're underpaid, that they suffer stress, that their wives hate them, that they eat too many donuts, that their kids hate them, and that liberals use them as whipping boys. Read the official reports to hear the dreary recitation of why those who administer the laws never seem to obey them.

Dishonest Prosecutors, Lots of Them, by The NYT Editorial

Postby admin » Thu Oct 01, 2015 4:11 pm

Dishonest Prosecutors, Lots of Them
by The NYT Editorial Board
September 30, 2015

Prosecutors who bend or even break the rules to win a conviction almost never face any punishment. But even given lax controls, the blatant and systemic misconduct in the Orange County district attorney’s office in Southern California stands out. In a scheme that may go back as far as 30 years, prosecutors and the county sheriff’s department have elicited illegal jailhouse confessions, failed to turn over evidence that is favorable to defendants and lied repeatedly in court about what they did.

These unconstitutional abuses are all the more troubling because Orange County is not some corrupt backwater with one rogue prosecutor. With more than three million residents, the county itself is more populous than nearly half the states in the country. Its district attorney’s office employs 250 prosecutors. In March, a California judge, Thomas Goethals, removed all of them from the county’s highest-profile murder prosecution in years because misconduct had tainted the entire office’s handling of the case. He reassigned the case to the California attorney general, Kamala Harris, a ruling her office is appealing.

Judge Thomas Goethals Credit Pool photo by Mark Boster

The case involved a 2011 mass shooting in which eight people were killed by a man named Scott Dekraai. Mr. Dekraai pleaded guilty in 2014, and a jury will consider whether to sentence him to death or life in prison. In early 2014, Mr. Dekraai’s public defender filed a 505-page motion detailing illegal and unconstitutional acts by prosecutors and the sheriff’s department, arguing that this record should take the death penalty off the table. Among other things, the defense argued, deputies intentionally placed informants in cells next to defendants facing trial, including Mr. Dekraai, and hid that fact.

The informants, some of whom faced life sentences for their own crimes, were promised reduced sentences or cash payouts in exchange for drawing out confessions or other incriminating evidence from the defendants. This practice is prohibited once someone has been charged with a crime. Even when using an informant is allowed, defendants and judges must be told of the arrangement. That did not happen in Orange County. As Mr. Dekraai’s defense lawyer discovered, the sheriff’s department kept secret a computer file showing where jailhouse informants were placed that went back decades. The prosecutor’s office kept separate files of data on informants and their deals. Some of the informants have helped law enforcement repeatedly in exchange for favors, a fact that is highly relevant in weighing their credibility.

The debacle in Orange County may be notable for its sheer size and impact — already, some murder convictions have been thrown out while other prosecutions have fallen apart — but such misconduct is an all-too familiar scenario when prosecutors value winning above justice. Alex Kozinski, a federal appeals court judge in San Francisco, has written that the withholding of exculpatory evidence has reached “epidemic” levels, and that the only way to stop it is for judges to hold prosecutors accountable.

Judge Goethals has set an important example on that count. The district attorney’s office continues to deny any wrongdoing, and has recently sought to have the judge removed from dozens of cases. Meanwhile, District Attorney Tony Rackauckas says the office’s failings are no more than the result of overworked prosecutors making isolated mistakes. Given the scope of what has been uncovered, that explanation is implausible.

The Justice Department should conduct a thorough investigation. But there is no indication that’s going to happen. In fact, it appears that Erik Petersen, one of the prosecutors Judge Goethals found had withheld key information from the court and defense lawyers, was offered a job in the federal prosecutor’s office in Omaha. When questioned about this inexplicable decision, a Justice Department spokesman would say only that Mr. Petersen will not become an employee in the department.
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Re: Dishonest Prosecutors, Lots of Them, by The NYT Editoria

Postby admin » Thu Oct 01, 2015 4:13 pm

Rampant Prosecutorial Misconduct
by The NYT Editorial Board
January 4, 2014

In the justice system, prosecutors have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the outcome. That is why it is so important for prosecutors to play fair, not just to win. This obligation is embodied in the Supreme Court’s 1963 holding in Brady v. Maryland, which required prosecutors to provide the defense with any exculpatory evidence that could materially affect a verdict or sentence.

Yet far too often, state and federal prosecutors fail to fulfill that constitutional duty, and far too rarely do courts hold them accountable. Last month, Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, issued the most stinging indictment of this systemic failure in recent memory. “There is an epidemic of Brady violations abroad in the land,” Judge Kozinski wrote in dissent from a ruling against a man who argued that prosecutors had withheld crucial evidence in his case. “Only judges can put a stop to it.”

The defendant, Kenneth Olsen, was convicted of producing ricin, a toxic poison, for use as a weapon. Federal prosecutors knew — but did not tell his lawyers or the court — that an investigation of the government’s forensic scientist, whose lab tests were critical to the case, had revealed multiple instances of sloppy work that had led to wrongful convictions in earlier cases. A state court found the scientist was “incompetent and committed gross misconduct.”

Yet the majority of the federal appeals court panel ruled that the overall evidence of Mr. Olsen’s guilt — including websites he visited and books he bought — was so overwhelming that the failure to disclose the scientist’s firing would not have changed the outcome.

This is the all-too-common response by courts confronted with Brady violations. Judge Kozinski was right to castigate the majority for letting the prosecution refuse to turn over evidence “so long as it’s possible the defendant would’ve been convicted anyway,” as the judge wrote. This creates a “serious moral hazard,” he added, particularly since prosecutors are virtually never punished for misconduct. According to the Center for Prosecutor Integrity, multiple studies over the past 50 years show that courts punished prosecutorial misconduct in less than 2 percent of cases where it occurred. And that rarely amounted to more than a slap on the wrist, such as making the prosecutor pay for the cost of the disciplinary hearing.

Brady violations are, by their nature, hard to detect, but Judge Kozinski had no trouble coming up with more than two dozen examples from federal and state courts just in the last few years, and those are surely the tip of the iceberg. According to the National Registry of Exonerations, 43 percent of wrongful convictions are the result of official misconduct.

The Brady problem is in many ways structural. Prosecutors have the task of deciding when a piece of evidence would be helpful to the defense. But since it is their job to believe in the defendant’s guilt, they have little incentive to turn over, say, a single piece of exculpatory evidence when they are sitting on what they see as a mountain of evidence proving guilt. The lack of professional consequences for failing to disclose exculpatory evidence only makes the breach of duty more likely. As Judge Kozinski wrote, “Some prosecutors don’t care about Brady because courts don’t make them care.”

Courts should heed Judge Kozinski’s call, but it will take more than judges to fix the problem. Prosecutors’ offices should adopt a standard “open file” policy, which would involve turning over all exculpatory evidence as a rule, thus reducing the potential for error.

Fighting prosecutorial misconduct is not only about protecting the innocent. It is, as Judge Kozinski wrote, about preserving “the public’s trust in our justice system,” and the foundation of the rule of law.
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Re: Dishonest Prosecutors, Lots of Them, by The NYT Editoria

Postby admin » Thu Oct 01, 2015 4:15 pm

John L. BRADY, Petitioner, v. STATE OF MARYLAND.

373 U.S. 83 (83 S.Ct. 1194, 10 L.Ed.2d 215)

John L. BRADY, Petitioner, v. STATE OF MARYLAND.

No. 490.

Argued: March 18 and 19, 1963.

Decided: May 13, 1963.

E. Clinton Bamberger, Jr., Baltimore, Md., for petitioner.

Thomas W. Jamison, III, Baltimore, Md., for respondent.

Opinion of the Court by Mr. Justice DOUGLAS, announced by Mr. Justice BRENNAN.

Petitioner and a companion, Boblit, were found guilty of murder in the first degree and were sentenced to death, their convictions being affirmed by the Court of Appeals of Maryland. 220 Md. 454, 154 A.2d 434. Their trials were separate, petitioner being tried first. At his trial Brady took the stand and admitted his participation in the crime, but he claimed that Boblit did the actual killing. And, in his summation to the jury, Brady's counsel conceded that Brady was guilty of murder in the first degree, asking only that the jury return that verdict 'without capital punishment.' Prior to the trial petitioner's counsel had requested the prosecution to allow him to examine Boblit's extrajudicial statements. Several of those statements were shown to him; but one dated July 9, 1958, in which Boblit admitted the actual homicide, was withheld by the prosecution and did not come to petitioner's notice until after he had been tried, convicted, and sentenced, and after his conviction had been affirmed.

Petitioner moved the trial court for a new trial based on the newly discovered evidence that had been suppressed by the prosecution. Petitioner's appeal from a denial of that motion was dismissed by the Court of Appeals without prejudice to relief under the Maryland Post Conviction Procedure Act. 222 Md. 442, 160 A.2d 912. The petition for post-conviction relief was dismissed by the trial court; and on appeal the Court of Appeals held that suppression of the evidence by the prosecution denied petitioner due process of law and remanded the case for a retrial of the question of punishment, not the question of guilt. 226 Md. 422, 174 A.2d 167. The case is here on certiorari, 371 U.S. 812, 83 S.Ct. 56, 9 L.Ed.2d 54. 1

The crime in question was murder committed in the perpetration of a robbery. Punishment for that crime in Maryland is life imprisonment or death, the jury being empowered to restrict the punishment to life by addition of the words 'without capital punishment.' 3 Md.Ann.Code, 1957, Art. 27, § 413. In Maryland, by reason of the state constitution, the jury in a criminal case are 'the Judges of Law, as well as of fact.' Art. XV, § 5. The question presented is whether petitioner was denied a federal right when the Court of Appeals restricted the new trial to the question of punishment.

We agree with the Court of Appeals that suppression of this confession was a violation of the Due Process Clause of the Fourteenth Amendment. The Court of Appeals relied in the main on two decisions from the Third Circuit Court of Appeals—United States ex rel. Almeida v. Baldi, 195 F.2d 815, 33 A.L.R.2d 1407, and United States ex rel. Thompson v. Dye, 221 F.2d 763—which, we agree, state the correct constitutional rule.

This ruling is an extension of Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791, where the Court ruled on what nondisclosure by a prosecutor violates due process:

'It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.'

In Pyle v. Kansas, 317 U.S. 213, 215—216, 63 S.Ct. 177, 178, 87 L.Ed. 214, we phrased the rule in broader terms:

'Petitioner's papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791.' The Third Circuit in the Baldi case construed that statement in Pyle v. Kansas to mean that the 'suppression of evidence favorable' to the accused was itself sufficient to amount to a denial of due process. 195 F.2d, at 820. In Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217, we extended the test formulated in Mooney v. Holohan when we said: 'The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.' And see Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9; Wilde v. Wyoming, 362 U.S. 607, 80 S.Ct. 900, 4 L.Ed.2d 985. Cf. Durley v. Mayo, 351 U.S. 277, 285, 76 S.Ct. 806, 811, 100 L.Ed. 1178 (dissenting opinion).

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: 'The United States wins its point whenever justice is done its citizens in the courts.' 2 A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not 'the result of guile,' to use the words of the Court of Appeals. 226 Md., at 427, 174 A.2d, at 169.

The question remains whether petitioner was denied a constitutional right when the Court of Appeals restricted his new trial to the question of punishment. In justification of that ruling the Court of Appeals stated:

'There is considerable doubt as to how much good Boblit's undisclosed confession would have done Brady if it had been before the jury. It clearly implicated Brady as being the one who wanted to strangle the victim, Brooks. Boblit, according to this statement, also favored killing him, but he wanted to do it by shooting. We cannot put ourselves in the place of the jury and assume what their views would have been as to whether it did or did not matter whether it was Brady's hands or Boblit's hands that twisted the shirt about the victim's neck. * * * (I)t would be 'too dogmatic' for us to say that the jury would not have attached any significance to this evidence in considering the punishment of the defendant Brady.

'Not without some doubt, we conclude that the withholding of this particular confession of Boblit's was prejudicial to the defendant Brady. * * *

'The appellant's sole claim of prejudice goes to the punishment imposed. If Boblit's withheld confession had been before the jury, nothing in it could have reduced the appellant Brady's offense below murder in the first degree. We, therefore, see no occasion to retry that issue.' 226 Md., at 429—430, 174 A.2d, at 171. (Italics added.) If this were a jurisdiction where the jury was not the judge of the law, a different question would be presented. But since it is, how can the Maryland Court of Appeals state that nothing in the suppressed confession could have reduced petitioner's offense 'below murder in the first degree'? If, as a matter of Maryland law, juries in criminal cases could determine the admissibility of such evidence on the issue of innocence or guilt, the question would seem to be foreclosed.

But Maryland's constitutional provision making the jury in criminal cases 'the Judges of Law' does not mean precisely what it seems to say. 3 The present status of that provision was reviewed recently in Giles v. State, 229 Md. 370, 183 A.2d 359, appeal dismissed, 372 U.S. 767, 83 S.Ct. 1102, where the several exceptions, added by statute or carved out by judicial construction, are reviewed. One of those exceptions, material here, is that 'Trial courts have always passed and still pass upon the admissibility of evidence the jury may consider on the issue of the innocence or guilt of the accused.' 229 Md., at 383, 183 A.2d, at p. 365. The cases cited make up a long line going back nearly a century. Wheeler v. State, 42 Md. 563, 570, stated that instructions to the jury were advisory only, 'except in regard to questions as to what shall be considered as evidence.' And the court 'having such right, it follows of course, that it also has the right to prevent counsel from arguing against such an instruction.' Bell v. State, 57 Md. 108, 120. And see Beard v. State, 71 Md. 275, 280, 17 A. 1044, 1045, 4 L.R.A. 675; Dick v. State, 107 Md. 11, 21, 68 A. 286, 290. Cf. Vogel v. State, 163 Md. 267, 162 A. 705.

We usually walk on treacherous ground when we explore state law, 4 for state courts, state agencies, and state legislatures are its final expositors under our federal regime. But, as we read the Maryland decisions, it is the court, not the jury, that passes on the 'admissibility of evidence' pertinent to 'the issue of the innocence or guilt of the accused.' Giles v. State, supra. In the present case a unanimous Court of Appeals has said that nothing in the suppressed confession 'could have reduced the appellant Brady's offense below murder in the first degree.' We read that statement as a ruling on the admissibility of the confession on the issue of innocence or guilt. A sporting theory of justice might assume that if the suppressed confession had been used at the first trial, the judge's ruling that it was not admissible on the issue of innocence or guilt might have been flouted by the jury just as might have been done if the court had first admitted a confession and then stricken it from the record. 5 But we cannot raise that trial strategy to the dignity of a constitutional right and say that the deprival of this defendant of that sporting chance through the use of a bifurcated trial (cf. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337) denies him due process or violates the Equal Protection Clause of the Fourteenth Amendment.


Separate opinion of Mr. Justice WHITE.

1. The Maryland Court of Appeals declared, 'The suppression or withholding by the State of material evidence exculpatory to an accused is a violation of due process' without citing the United States Constitution or the Maryland Constitution which also has a due process clause. * We therefore cannot be sure which Constitution was invoked by the court below and thus whether the State, the only party aggrieved by this portion of the judgment, could even bring the issue here if it desired to do so. See New York City v. Central Savings Bank, 306 U.S. 661, 59 S.Ct. 790, 83 L.Ed. 1058; Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920. But in any event, there is no cross-petiton by the State, nor has it challenged the correctness of the ruling below that a new trial on punishment was called for by the requirements of due process. In my view, therefore, the Court should not reach the due process question which it decides. It certainly is not the case, as it may be suggested, that without it we would have only a state law question, for assuming the court below was correct in finding a violation of petitioner's rights in the suppression of evidence, the federal question he wants decided here still remains, namely, whether denying him a new trial on guilt as well as punishment deprives him of equal protection. There is thus a federal question to deal with in this Court, cf. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, wholly aside from the due process question involving the suppression of evidence. The majority opinion makes this unmistakably clear. Before dealing with the due process issue it says, 'The question presented is whether petitioner was denied a federal right when the Court of Appeals restricted the new trial to the question of punishment.' After discussing at some length and disposing of the suppression matter in federal constitutional terms it says the question still to be decided is the same as it was before: 'The question remains whether petitioner was denied a constitutional right when the Court of Appeals restricted his new trial to the question of punishment.'

The result, of course, is that the due process discussion by the Court is wholly advisory.

2. In any event the Court's due process advice goes substantially beyond the holding below. I would employ more confining language and would not cast in constitutional form a broad rule of criminal discovery. Instead, I would leave this task, at least for new, to the rule-making or legislative process after full consideration by legislators, bench, and bar.

3. I concur in the Court's disposition of petitioner's equal protection argument.

Mr. Justice HARLAN, whom Mr. Justice BLACK joins, dissenting.

I think this case presents only a single federal question: did the order of the Maryland Court of Appeals granting a new trial, limited to the issue of punishment, violate petitioner's Fourteenth Amendment right to equal protection? 1 In my opinion an affirmative answer would be required if the Boblit statement would have been admissible on the issue of guilt at petitioner's original trial. This indeed seems to be the clear implication of this Court's opinion.

The Court, however, holds that the Fourteenth Amendment was not infringed because it considers the Court of Appeals' opinion, and the other Maryland cases dealing with Maryland's constitutional provision making juries in criminal cases 'the Judges of Law, as well as of fact,' as establishing that the Boblit statement would not have been admissible at the original trial on the issue of petitioner's guilt.

But I cannot read the Court of Appeals' opinion with any such assurance. That opinion can as easily, and perhaps more easily, be read as indicating that the new trial limitation followed from the Court of Appeals' concept of its power, under § 645G of the Maryland Post Conviction Procedure Act, Md.Code, Art. 27 (1960 Cum.Supp.) and Rule 870 of the Maryland Rules of Procedure, to fashion appropriate relief meeting the peculiar circumstances of this case, 2 rather than from the view that the Boblit statement would have been relevant at the original trial only on the issue of punishment. 226 Md., at 430, 174 A.2d, at 171. This interpretation is indeed fortified by the Court of Appeals' earlier general discussion as to the admissibility of third-party confessions, which falls short of saying anything that is dispositive of the crucial issue here. 226 Md., at 427—429, 174 A.2d, at 170. 3

Nor do I find anything in any of the other Maryland cases cited by the Court (ante, p. 89) which bears on the admissibility vel non of the Boblit statement on the issue of guilt. None of these cases suggests anything more relevant here than that a jury may not 'overrule' the trial court on questions relating to the admissibility of evidence. Indeed they are by no means clear as to what happens if the jury in fact undertakes to do so. In this very case, for example, the trial court charged that 'in the final analysis the jury are the judges of both the law and the facts, and the verdict in this case is entirely the jury's responsibility.' (Emphasis added.)

Moreover, uncertainty on this score is compounded by the State's acknowledgment at the oral argument here that the withheld Boblit statement would have been admissible at the trial on the issue of guilt. 4

In this state of uncertainty as to the proper answer to the critical underlying issue of state law, and in view of the fact that the Court of Appeals did not in terms address itself to the equal protection question, I do not see how we can properly resolve this case at this juncture. I think the appropriate course is to vacate the judgment of the State Court of Appeals and remand the case to that court for further consideration in light of the governing constitutional principle stated at the outset of this opinion. Cf. Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920.

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Neither party suggests that the decision below is not a 'final judgment' within the meaning of 28 U.S.C. 1257(3), and no attack on the reviewability of the lower court's judgment could be successfully maintained. For the general rule that 'Final judgment in a criminal case means sentence. The sentence is the judgment' (Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 166, 82 L.Ed. 204) cannot be applied here. If in fact the Fourteenth Amendment entitles petitioner to a new trial on the issue of guilt as well as punishment the ruling below has seriously prejudiced him. It is the right to a trial on the issue of guilt 'that presents a serious and unsettled question' (Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 547, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528) that 'is fundamental to the further conduct of the case' (United States v. General Motors Corp., 323 U.S. 373, 377, 65 S.Ct. 357, 359, 89 L.Ed. 311). This question is 'independent of, and unaffected by' (Radio Station WOW v. Johnson, 326 U.S. 120, 126, 65 S.Ct. 1475, 1479, 89 L.Ed. 2092) what may transpire in a trial at which petitioner can receive only a life imprisonment or death sentence. It cannot be mooted by such a proceeding. See Largent v. Texas, 318 U.S. 418, 421—422, 63 S.Ct. 667, 668—669, 87 L.Ed. 873. Cf. Local No. 438 Const. and General Laborers' Union v. Curry, 371 U.S. 542, 549, 83 S.Ct. 531, 536, 9 L.Ed.2d 514.


Judge Simon E. Sobeloff when Solicitor General put the idea as follows in an address before the Judicial Conference of the Fourth Circuit on June 29, 1954:

'The Solicitor General is not a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case. My client's chief business is not to achieve victory but to establish justice. We are constantly reminded of the now classic words penned by one of my illustrious predecessors, Frederick William Lehmann, that the Government wins its point when justice is done in its courts.'


See Dennis, Maryland's Antique Constitutional Thorn, 92 U. of Pa.L.Rev. 34, 39, 43; Prescott, Juries as Judges of the Law: Should the Practice be Continued, 60 Md.St.Bar Assn.Rept. 246, 253 254.


For one unhappy incident of recent vintage see Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4, 60 S.Ct. 215, 84 L.Ed. 447, 537, that replaced an earlier opinion in the same case, 309 U.S. 703.


'In the matter of confessions a hybrid situation exists. It is the duty of the Court to determine from the proof, usually taken out of the presence of the jury, if they were freely and voluntarily made, etc., and admissible. If admitted, the jury is entitled to hear and consider proof of the circumstances surrounding their obtention, the better to determine their weight and sufficiency. The fact that the Court admits them clothes them with no presumption for the jury's purposes that they are either true or were freely and voluntarily made. However, after a confession has been admitted and read to the jury the judge may change his mind and strike it out of the record. Does he strike it out of the jury's mind?' Dennis, Maryland's Antique Constitutional Thorn, 92 U. of Pa.L.Rev. 34, 39. See also Bell v. State, supra, 57 Md. at 120; Vogel v. State, 163 Md., at 272, 162 A., at 706 707.


Md.Const., Art. 23; Home Utilities Co., Inc., v. Revere Copper & Brass, Inc., 209 Md. 610, 122 A.2d 109; Raymond v. State ex rel. Szydlouski, 192 Md. 602, 65 A.2d 285; County Com'rs of Anne Arundel County v. English, 182 Md. 514, 35 A.2d 135, 150 A.L.R. 842; Oursler v. Tawes, 178 Md. 471, 13 A.2d 763.


I agree with my Brother WHITE that there is no necessity for deciding in this case the broad due process questions with which the Court deals at pp. 86—88 of its opinion.


Section 645G provides in part: 'If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper.' Rule 870 provides that the Court of Appeals 'will either affirm or reverse the judgment from which the appeal was taken, or direct the manner in which it shall be modified, changed or amended.'


It is noteworthy that the Court of Appeals did not indicate that it was limiting in any way the authority of Day v. State, 196 Md. 384, 76 A.2d 729. In that case two defendants were jointly tried and convicted of felony murder. Each admitted participating in the felony but accused the other of the homicide. On appeal the defendants attacked the trial court's denial of a severance, and the State argued that neither defendant was harmed by the statements put in evidence at the joint trial because admission of the felony amounted to admission of guilt of felony murder. Nevertheless the Court of Appeals found an abuse of discretion and ordered separate new trials on all issues.


In response to a question from the Bench as to whether Boblit's statement, had it been offered at petitioner's original trial, would have been admissible for all purposes, counsel for the State, after some colloquy, stated: 'It would have been, yes.'
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Re: Dishonest Prosecutors, Lots of Them, by The NYT Editoria

Postby admin » Thu Oct 01, 2015 4:19 pm


An Epidemic of Prosecutor Misconduct

Center for Prosecutor Integrity
P.O. Box 1221
Rockville, MD 20849

Copyright © 2013, Center for Prosecutor Integrity. Updated December 2013.


The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous….While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. – Former U.S. Attorney General Robert Jackson1

When persons envision the wheels of justice in motion, they picture a black-robed judge solemnly presiding over a prosecutor and defense attorney, a defendant, and impassive members of the jury.

Such a depiction may have been true a generation ago. But now the great majority of convictions are reached by means of a prosecutor-negotiated plea bargain—representing over 90% of all criminal cases.2 Prosecutors make fateful decisions about whether to order an arrest, disclose evidence to the defense, propose the terms of a plea bargain, and make sentencing recommendations to the judge. Most important of all, prosecutors decide whom to charge and what crimes to charge them with.

District attorneys are called upon to play a dual role, serving both as advocates for victims as well as ministers of justice. The U.S. Supreme Court has explained:3

Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.

The overwhelming majority of lawyers who choose to become prosecutors are ethical. But powerful incentives – political ambitions, media pressures, and a culture of prosecutorial infallibility – can serve to induce prosecutors to act unethically.

This White Paper explores the question, How well are American prosecutors discharging their oath-bound duty to act as ministers of justice?


Innocent men are never convicted. Don't worry about it, it never happens in the world. It is a physical impossibility.4

Wrongful convictions were once presumed to be extremely rare, even non-existent in our criminal justice system, as this quotation reveals. But the advent of DNA analysis in the late 1980s opened up the possibility of post-conviction DNA testing, often serving to exclude the person convicted of the crime. To date, over 1,200 persons have been exonerated following DNA analysis, witness recantation, confession by the actual offender, or by other means.

Estimates of the extent of wrongful convictions vary. A 2007 analysis of persons sentenced to death from 1973 to 2004 yielded a 2.3% exoneration rate.6 A more recent study of post-conviction DNA analyses in Virginia found that for 15% of persons convicted of sexual assault, the defendant was later excluded due to lack of a DNA match.7

Whether the actual percentage is closer to two or fifteen, this means that each year, thousands, or tens of thousands, of innocent Americans are branded as criminals and sent to prison for an offense they did not commit.

Innocence Project co-founder Peter Neufeld laments, “the number of people who are unjustly convicted in our system is extraordinarily high.”8


For years, Americans assumed prosecutors were acting in a fair and honest manner. But in the late 1990s, the received wisdom came under challenge when the Pittsburgh Post-Gazette9 and Chicago Tribune10 ran separate exposés revealing widespread prosecutorial impropriety, which is defined in this White Paper as “misconduct by the relevant Rules of Ethical Conduct,”11 violation of any law, or other conduct that prejudices the administration of justice, whether intentional or inadvertent.12

The year 2007 turned out to be a watershed as Americans were riveted by events in the Duke University lacrosse case, eventually resulting in the North Carolina State Bar’s decision to disbar District Attorney Michael Nifong for “dishonesty, fraud, deceit and misrepresentation.”

Types of Misconduct

Prosecutor misconduct can assume many forms, including:13

• Charging a suspect with more offenses than is warranted
• Withholding or delaying the release of exculpatory evidence
• Deliberately mishandling, mistreating, or destroying evidence
• Allowing witnesses they know or should know are not truthful to testify
• Pressuring defense witnesses not to testify
• Relying on fraudulent forensic experts
• During plea negotiations, overstating the strength of the evidence
• Making statements to the media that are designed to arouse public indignation
• Making improper or misleading statements to the jury
• Failing to report prosecutor misconduct when it is discovered

Culture of Prosecutorial Infallibility

I have never actually tried a case…where I had doubts about a defendant's guilt. – Georgia prosecutor Robert James14

Prosecutors are subjected to a variety of powerful incentives that serve to reward zealous advocacy: the gratitude of victims, favorable media coverage, career promotions, appointment to judgeships, and the allure of high political office.

The most insidious incentive of all may be a culture of prosecutorial infallibility. This mindset gives rise to practices that can only be termed bizarre, such as prosecutors who reportedly wear neckties decorated with images of nooses or who throw a party after “winning” a death sentence.

One prosecutor inquired of candidates for employment if previous experiences in the law had provided them with a chance to “taste blood.” The prosecutor revealed he only intended to hire trial lawyers who had already “tasted blood” and liked it.16

In Louisiana, ADA James Williams once admitted, “There was no thrill for me unless there was a chance for the death penalty.” Williams reputedly kept a miniature electric chair on his desk, wired to a battery to deliver a jolt to anyone who might doubt his intentions.


No one knows the exact extent of prosecutor misconduct. That’s because many prosecutorial activities take place behind closed doors, rendering any misconduct difficult to detect. An inkling of the problem comes from the National Registry of Exonerations, which concluded 43% of wrongful convictions are attributable to official misconduct.17

Legal experts have long painted a picture of secrecy, tactical short-cuts, even arrogance itself.18 The most telling critiques come from former prosecutors:

Joseph F. Lawless, author of a standard reference book on prosecutor ethics, wrote, “The concept of fairness, once thought to be fundamental in a free society, is generally no longer found in the prosecutor’s office.”19
• Former Ohio attorney general Jim Petro has noted, “While innocent human error can lead to wrongful convictions, we also now know that many abuses, misrepresentations, and improper tactics are often involved.”20
• Former New York City Assistant District Attorney Bennett Gersham worries the problem may be worsening: “The last 15 years are most notable for a vast accretion of power by prosecutors, increased deference by courts to prosecutorial prerogatives, and a general failure of courts and disciplinary bodies to impose meaningful sanctions on prosecutors for misconduct.”21

Other legal experts offer similar perspectives:

Harvard law professor Alan Dershowitz has opined that prosecutorial misconduct is “rampant.”22
American University professor AJ Davis refers to the problem as “pervasive.”23
• Regarding the unethical practice of over-charging, California defense attorney Benjamin Theule alleges the practice is now “common.”24
• Civil rights attorney Harvey Silverglate believes over-charging has reached the point of becoming “ingrained” into the process.25
• In Texas, defense attorney John Floyd asserts, “Prosecutorial misconduct has been endemic in the state’s criminal justice system over the past five decades.”26

The public is awakening to the existence of the problem, as well. According to a 2013 national survey:27

• 42.8% of respondents say prosecutor misconduct is widespread
• 71.8% believe new laws are needed to curb prosecutor misconduct

Reaching the Highest Levels

Prosecutor misconduct extends to the highest levels; indeed, the ethical state of affairs may be even more dire.

National District Attorneys Association

The National District Attorneys Association (NDAA) is the trade organization that represents the nearly 30,000 prosecutors and district attorneys across the country.

When it comes to proactively addressing the problem, the group is steadfastly non-committal. A search of the NDAA website using the search terms “prosecutorial misconduct” or “prosecutorial error” fails to identify a single office, program, or even publication that is devoted to rectifying this problem.

Some NDAA officials are working to narrow the scope of the definition of prosecutor misconduct to encompass “conduct that was known by a prosecutor to be improper and prejudicial but that the prosecutor nevertheless pursued with the intent to affect the outcome of the case.”28 Of course, establishing prior knowledge and intent is an exceedingly difficult standard to meet.

Relying upon this narrow definition, the National District Attorneys Association has concluded that prosecutorial misconduct is “exceedingly rare.” 29 Indeed, the NDAA passed a resolution in 2010 admonishing judges who decide to use the phrase “prosecutorial misconduct” in its broader and more widely used sense.30

Even when it comes to upholding the legal principle of equal treatment under law, the Association falls short. The NDAA sponsors a National Center for the Prosecution of Violence Against Women, but offers no parallel program regarding violence against men.31 This programmatic imbalance may have contributed to the fact that males have been found to be “consistently treated more severely at every stage of the prosecution process.”32

Department of Justice

The U.S. Department of Justice has been implicated in the problem, as well. Attorney Harvey Silverglate laments the fact that “too many ordinary, well-meaning, and innocent people get caught in the maw of the Department of Justice’s prosecutorial machinery.”33 Former U.S. Attorney Joseph Digenova has revealed, “the Department [of Justice] is in real trouble. This is serious business. These career prosecutors believe that nobody can touch them. Nobody!”34

The problem can be traced back to the early 1990s when the U.S. Department of Justice asserted its prosecutors were not bound by the ethical codes of the states in which cases were prosecuted. The stalemate was not resolved until 1999 when Congress passed the Federal Prosecutor Ethics Act.

But requiring prosecutors to abide by state ethical codes did not eliminate the Department’s ethical woes. In 2009 a federal judge set aside the conviction of former Senator Ted Stevens of Alaska. Announcing his decision, Judge Emmett Sullivan took the prosecutors involved in the case to the ethical woodshed: “In nearly 25 years on the bench, I've never seen anything approaching the mishandling and misconduct that I've seen in this case.”35

Ethical lapses continue to the present time. When internet activist Aaron Swartz illegally downloaded computer files, Department of Justice prosecutors filed 13 charges that carried the possibility of 35 years behind bars and up to a $1 million fine. Prosecutors then offered Swartz a deal to plead guilty to all charges and spend six months in jail.

Swartz’ subsequent tragic death led to this testy exchange between Senator John Cornyn of Texas and U.S. Attorney General Eric Holder:36

Cornyn: “Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines, and then offer him a three or four month prison sentence?”

Holder: “I think that’s a good use of prosecutorial discretion.”

Cornyn: “So you don’t consider this a case of prosecutorial overreach or misconduct?”

Holder: “No.”

ABA ethical Standard 3-3.9(f) requires, “The prosecutor should not bring or seek charges greater in number…than are necessary to fairly reflect the gravity of the offense.” The attorney general’s facile dismissal of the senator’s question raises the concern: Has over-charging become so routine that the Department of Justice director no longer regards the practice as unethical?

In addition, the Department of Justice has been less than forthcoming when it comes to disclosing its internal disciplinary procedures. When USA Today sought to learn how the DOJ handled 201 cases of misconduct by its prosecutors, the DOJ declined the request, offering this tendentious explanation: “The department will not reveal how many of those prosecutors were punished because, it said, doing so would violate their privacy rights.”37

One wonders which legal policy was instituted to afford privacy to a prosecutor who acts in an unethical manner, and how this rule serves the public interest.


Mistakes can happen. But if you don’t do anything to stop them from happening again, you can’t keep calling them mistakes. – Exoneree John Thompson

A number of ethical standards govern the practices of the prosecutorial profession. Most influential is the ABA Model Rule 3.8, Special Responsibilities of a Prosecutor,40 which is presented in Appendix A of this White Paper. ABA Model Rule 3.8 establishes the criteria by which to evaluate allegations of prosecutor misconduct, and has been implemented either verbatim or with minor modifications in virtually every state in the country.

Other relevant ethical standards include:

1. ABA Standards for Criminal Justice “The Prosecution Function” supplements the Model Rules. The prosecutorial Standards address General Standards, Organization of the Prosecution Function, Investigation for Prosecution Decision, Plea Discussions, Trial, and Sentencing.

2. The United States Attorneys’ Manual is an internal handbook which provides general policies and procedures relevant to the work of U.S. Attorneys' offices.

3. The National Prosecution Standards, developed by the National District Attorneys Association, are crafted as a detailed, yet purely aspirational guide.

A review of these standards reveals they are broad in scope and detailed in their exposition. So the problem cannot be blamed on a lack of ethical guidance.

So what happens when ethical codes are violated? Nine studies have analyzed the professional consequences of prosecutor misconduct. Collectively, these studies examined prosecutorial misconduct conducted at the both state and national levels from 1963 – 2013. Of the 3,625 instances of misconduct identified, these studies reveal that public sanctions are imposed in only 63 cases -- less than 2% of the time (Appendix B).

Often these sanctions represented only a proverbial “slap-of-the-wrist.” For example in the nearly 50 cases identified in the Center for Public Integrity analysis, the most common sanction was to assess the prosecutor with the costs of the disciplinary hearings, occurring in 24 cases. In only 14 instances was a prosecutor suspended or disbarred from practice.

Indeed, when a prosecutor violates ethical precepts, judges and appellate courts seemingly bend over backwards to excuse the conduct. Even in the most reprehensible cases, judges typically do not refer the case for disciplinary action and ethics boards fail to apply sanctions. Courts rely upon fault-absolving notions like “harmless error,”44 a doctrine that has been termed the “lie that the criminal justice system tells itself.”45

Reflecting on the current state of affairs, former ADA Robin Barton has bemoaned the “lack of outrage by other prosecutors, who should be condemning this conduct and calling for reforms to prevent similar behavior.”46


No one knows how much money is misspent each year as a result of prosecutor misconduct, which can involve an appeal, an appellate reversal, a retrial, investigational efforts to trace the real offender, possible civil lawsuits, and compensatory payments – as well as the emotional costs to victims who are forced to relive the tragedy.

In Texas, 45 wrongful convictions were estimated to cost taxpayers $8.6 million.47 One analysis of 85 exonerations in Illinois found the wrongful convictions had imprisoned innocent people for 926 years and cost $214 million.48

Housing Costs

The costs to house wrongfully convicted inmates can be staggering, as well. A Department of Justice-funded study of post-rape conviction DNA analyses in Virginia found in 15% of convictions, the DNA of the prisoner and perpetrator did not match.49

Nationwide, 160,800 prisoners who were convicted for rape or other sexual assault are currently under state jurisdiction.50 Extrapolating the Virginia false conviction figure to a national sample, we conclude that 24,120 current inmates were wrongfully convicted and imprisoned.51

The average state corrections expenditure per inmate is $28,323.52 This translates into an annual expenditure of $683 million.53 This is an underestimate because the number does not include defendants wrongfully detained in local jails or in military or federal prisons, as well as the many detained persons who are still awaiting trial.


If we were to identify a single riveting fact that encapsulates the excesses of our current criminal justice system, it would be this:

Nearly one in 100 adult Americans is currently serving time behind bars, by far the largest proportion of any nation in the world.54 By comparison, the United States has six times as many prisoners as Canada or China, even after total population is taken into account.55

This deplorable state of affairs is the product of many factors. Lawmakers have passed too many laws with poorly-defined offenses. Law enforcement officials have made too many arrests that lack probable cause. The Supreme Court has failed to uphold appellate decisions of official wrong-doing.

But as the most powerful stakeholder in the criminal justice system, the prosecutorial profession must shoulder a major portion of the responsibility, and work proactively to remedy the abuses.

Each year, thousands of Americans are victimized by prosecutors who overcharge, withhold key evidence, and engage in a myriad of other forms of professional misconduct. When these persons later seek redress, they encounter denial, resistance, and delays. More often than not, their efforts to receive even an apology end in futile exasperation.

Fundamental reform is long over-due, and corrective policies have been delineated.56 Prosecutors, lawmakers, concerned citizens, and others need to take action to restore the luster to Lady Justice.

Appendix A

ABA Rule 3.8: Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information;

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and

(2) if the conviction was obtained in the prosecutor’s jurisdiction,

(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and

(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

Appendix B

Analyses of Public Sanctions for Prosecutorial Misconduct




1 Robert Jackson, The Federal Prosecutor, Address to the Second Annual Conference of United States Attorneys (April 1, 1940), ... rosecutor/.
2 Eric Smith et al., State Court Processing of Domestic Violence Cases, 4, Table 6, U.S. Department of Justice (2008),
3 Brady v. Maryland. 373 U.S. 83, 87 (1963).
4 Edwin Bourchard, Convicting the Innocent, preface, p.v. (quoting an anonymous Worcester County, MA prosecutor) (1932).
5 National Registry of Exonerations, ... about.aspx (last visited Sept. 5, 2013).
6 Samuel R. Gross, Convicting the Innocent, University of Michigan Public Law Working Paper No. 103, Annual Review, (2007), ... id=1100011.
7 John Roman et al., Post-Conviction DNA Testing and Wrongful Conviction, Urban Institute, 6 (2012), ... iction.pdf Even in many cases in which a DNA match is present, the sexual encounter may have been consensual. So the 15% figure under-estimates the actual extent of wrongful convictions.
8 Interview on Frontline, What Jennifer Saw, WGBH Educational Foundation (1997), ... nterviews/.
9 Bill Moushey, Win at All Costs, Pittsburgh Post-Gazette (Nov. 22 - Dec. 13, 1998),
10 Ken Armstrong & Maurice Possley, Trial & Error: How Prosecutors Sacrifice Justice to Win, Chicago Tribune (Jan. 10-14, 1999).
11 Definition comes from National District Attorneys Association, National Prosecution Standards, Third Edition, ... entary.pdf.
12 Many cases of inadvertent errors are known to be avoidable. For example, many Brady violations may be inadvertent in nature, but these errors can be prevented by means of open-file discovery policies.
13 Innocence Project, Government Misconduct, ... onduct.php, (last visited Sept. 5, 2013).
14 Robert James, DA Seeks to Dismiss Murder Charge in Georgia Slaying, San Francisco Chronicle, (July 26, 2013).
16 Daniel Medwed, The Prosecutor as Minister of Justice: Preaching to the Unconverted from the Post-Conviction Pulpit, 84 Wash. L. Rev. 35, 36 (2009).
17 National Registry of Exonerations, UPDATE: 2012 National Registry of Exonerations, (April 3, 2013), ... _FINAL.pdf.
18 Albert Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Tex L. Rev. 629, 631 (1972).
19 Joseph F. Lawless, Prosecutorial Misconduct: Law, Procedure, Forms 5 (1985).
20 Jim Petro & Nancy Petro, False Justice: Eight Myths that Convict the Innocent 228 (2010).
21 Bennett Gershman, Prosecutorial Misconduct, preface to second edition (2d ed. 2008).
22 Id. (forward by Alan M. Dershowitz).
23 AJ Davis, The Legal Profession’s Failure to Discipline Unethical Prosecutors, 36 Hofstra L. Rev. 275, 278 (2007). ... s.36.2.pdf.
24 Benjamin Theule, Prosecutorial Tactics: the Practice of Overcharging Defendants, Benjamin Theule Criminal Defense (June 11, 2012), ... efendants/.
25 Radley Balko, The Untouchables: America’s Misbehaving Prosecutors, and the System that Protects Them, Huffington Post, (Aug. 1, 2013), ... 29891.html.
26 John Floyd & Billy Sinclair, Fairness in Disclosure of Evidence Act Seeks to Address Growing Concern over Prosecutorial Misconduct and Wrongful Convictions, John T. Floyd Law Firm (July 18, 2012), ... rosecutors.
27 Press Release, Center for Prosecutor Integrity, Most Americans Doubt Fairness of Criminal Justice System, Reveals Center for Prosecutor Integrity (June 11, 2013).
28 Mathias Heck, ABA Update On August 2008 Meeting (2008),
29 Scott Burns, Comment to The ‘Pinstriped Wall of Silence,’ The Crime Report (August 29, 2013), ... of-silence.
30 Resolution Urging Courts to Use “Error” Instead of “Prosecutorial Misconduct,” National District Attorneys Association Board of Directors (April 10, 2010), ... _final.pdf.
31 Letter to the National District Attorneys Association (January 2, 2013) ... DAALtr.pdf.
32 Stan Shernock & Brenda Russell, Gender and Racial/Ethnic Differences in Criminal Justice Decision-Making in Intimate Partner Violence Cases, Partner Abuse Vol. 3, No. 4 (2012).
33 Harvey A. Silverglate, Three Felonies a Day: How the Feds Target the Innocent 268 (2011).
34 Prosecutorial Misconduct, Public Broadcasting System Religion and Ethics Newsweekly (July 13, 2012), ... uct/11821/.
35Sen. Ted Stevens’ Conviction Set Aside, CNN (April 7, 2009), ... index.html.
36 Bridget Johnson, DOJ ‘Elevated Its Charges’ Against Swartz Because Internet Community Rallied on His Behalf, PJ Media (Aug. 12, 2013) ... is-behalf/.
37 Brad Heath & Kevin McCoy, Prosecutors' Conduct Can Tip Justice Scales, USA Today, (Sept. 23, 2010) ...
40 Model Rules of Prof’l Conduct R. 3.8 (2008), ... cutor.html.
44 Joaquin Sapien & Sergio Hernandez, Who Polices Prosecutors Who Abuse Their Authority? Usually Nobody, ProPublica (April 3, 2013), ... lly-nobody.
45 Jim Dwyer et al., Actual Innocence: When Justice Goes Wrong and How to Make it Right 225 (2003).
46 Robin Barton, The ‘Pinstriped Wall of Silence,’ The Crime Report (August 28, 2013) ... of-silence.
47 Jennifer Emily & Steve McConigle, Dallas County District Attorney Wants Unethical Prosecutors Punished, Dallas Morning News, (May 4, 2008)
48 John Conroy & Rob Warden, A Tale of Lives Lost, Tax Dollars Wasted, and Justice Denied (June 18, 2011), ... ons_1.aspx.
49 Supra note 7.
50 E. Ann Carson and William J. Sabol, Prisoners in 2011, Bureau of Justice Statistics, 9, Table 9 (2012),
51 160,800 prisoners x 0.15 false conviction rate = 24,120 prisoners wrongfully convicted.
52 Tracey Kyckelhahn, State Corrections Expenditures, FY 1982-2010, Bureau of Justice Statistics, 4, Table 2 (December 10, 2012),
53 24,120 persons x $28,323 annual inmate expenses = $683,150,760.
54 Pew Center on the States, One in 100; Behind Bars in America 2008, (2008), ... in_100.pdf.
55 Albert Hunt, A Country of Inmates, N.Y. Times, (Nov. 20, 2011) ... d=all&_r=0.
56 Center for Prosecutor Integrity, Roadmap for Prosecutor Reform (2013). ... Reform.pdf
57 Maurice Possley & Ken Armstrong, The Verdict: Dishonor, Chicago Tribune (Jan. 1999), ... ory?page=1
58 Neil Gordon, Misconduct and Punishment: State Disciplinary Authorities Investigate Prosecutors
Accused of Misconduct (2007), ... punishment.
59 Brad Heath & Kevin McCoy, Prosecutors' Conduct Can Tip Justice Scales, USA Today (Sept. 23, 2010). ...
60 Veritas Initiative. Prosecutorial Oversight Forum. Court Findings of Prosecutorial Error and Misconduct in Arizona (2012). ... -2004-2008
61 Michael Kiefer. Prosecutors Under Scrutiny are Seldom Disciplined. Arizona Republic (Oct. 28, 2013). ... day-2.html
62 Kathleen M. Ridolfi, Maurice Possley, Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009 (2010), ... t=ncippubs.
63 Veritas Initiative. Prosecutorial Oversight Forum. Court Findings of Prosecutorial Error and Misconduct in New York State (2012). ... -2004-2008
64 Veritas Initiative. Prosecutorial Oversight Forum. Court Findings of Prosecutorial Error and Misconduct in Pennsylvania (2012). ... -2004-2008
65 Veritas Initiative. Prosecutorial Oversight Forum. Court Findings of Prosecutorial Error and Misconduct in Texas (2012). ... -2004-2008
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