No Comment — December 29, 2010, 10:31 am

How Prosecutorial Misconduct Helps Criminals Get Off

The USA Today series on the systematic misconduct of federal prosecutors continues today, with an examination of the consequences that prosecutorial misconduct has for criminal defendants. It considers the case of James Strode:

James Strode hid his face with a scarf the evening he walked behind a counter in a Seattle Rite Aid pharmacy, grabbed a clerk by the throat and threatened to stab her or other workers who heard her call for help on an intercom.
“Give me all the money,” he barked. “Somebody better give me some money or someone is going to get stabbed.” The November 2006 robbery, detailed in a police report, was one of the most menacing episodes in a criminal career that spanned two decades and four states. Strode’s record includes convictions for at least three burglaries, one robbery, a theft, an attack on a public safety officer and a bank robbery tried in federal court.

Strode might well have been in federal prison at the time of the Rite Aid robbery. But the bank robbery conviction and sentence that could have kept him there were wiped out in 2000, when an appeals court concluded that the federal prosecutor in charge of Strode’s trial had “crossed the line” by making improper arguments to the jury. So instead of keeping Strode behind bars for a decade, the U.S. Justice Department agreed he could be released in less than half that time. About 13 months after he got out, Strode held up the Seattle pharmacy.

One possible outcome of prosecutorial misconduct, by far the most likely, is the conviction of innocent persons. Another possible outcome is that a person who is clearly guilty may have his sentence shaved, sometimes severely. Neither result reflects a reasonable administration of justice, but there is little at risk for misbehaving prosecutors. As USA Today noted in its December 8 installment, the internal disciplining function at Justice is broken.

The Justice Department’s push-back against this article reveals the depths of its denial:

Once again, USA TODAY misleads readers by providing a statistically inaccurate representation of the hard work done by federal prosecutors daily in courtrooms across the country by cherry-picking a handful of examples dating back to the 1990s and confusing cases where attorneys made mistakes with cases where actual prosecutorial misconduct was involved. An internal review conducted by the department last year found prosecutorial misconduct in a small fraction of the 90,000 cases brought annually. When mistakes occur, the department corrects them as quickly and transparently as possible.

It is certainly the case that prosecutorial misconduct of the sort specified in the USA Today series is only a small part of the total number of criminal cases. Heavy use of the plea-bargain system by federal prosecutors ensures that only a relatively small portion of cases go to trial to start with. However, the raw database assembled by USA Today suggests that the number of cases in which misconduct has been fully exposed is disturbingly high, and it’s safe to assume that for every case exposed there are several that are kept covered up. The Department’s claim that it acts and transparently corrects mistakes when they occur is also simply dishonest. On this score, the statistical record is strong, and it shows precisely the opposite of what the Department spokesmen claim. This is why the ABA Journal labeled the Department’s professional responsibility system the “roach motel”: the cases go in, but no serious sanctions result.

Can the Department muster the fortitude to reverse a process of internal decay? This week, Holder appointed career prosecutor Robin C. Ashton to serve as head of the Department’s Office of Professional Responsibility. Justice will also be getting a new inspector general soon, as the highly regarded Glenn Fine steps down next month. While reshuffling the deck of key officers, Holder has so far shown no commitment to make serious changes in the ethics environment at the Department. If he wanted to do so, the move would be obvious: he should simply shut down the Office of Professional Responsibility, which has become an embarrassment to the Department, and fold its functions into the portfolio of the inspector general. Under Glenn Fine, the inspector general’s office demonstrated well-honed investigative skills coupled with perceptive analysis. The inspector general was, however, often blocked or slowed in its quest due to internal turf warfare, particularly with the moribund ethics office. A reinvigorated inspector general would be the best answer to the current dilemma.

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