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.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 167 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

December 2017

Dear Rose

= Subscribers only.
Sign in here.
Subscribe here.

The Year of The Frog

= Subscribers only.
Sign in here.
Subscribe here.

Dead Ball Situation

= Subscribers only.
Sign in here.
Subscribe here.

Document of Barbarism

= Subscribers only.
Sign in here.
Subscribe here.

Destroyer of Worlds

= Subscribers only.
Sign in here.
Subscribe here.

Crossing Guards

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Destroyer of Worlds·

= Subscribers only.
Sign in here.
Subscribe here.

In February 1947, Harper’s Magazine published Henry L. Stimson’s “The Decision to Use the Atomic Bomb.” As secretary of war, Stimson had served as the chief military adviser to President Truman, and recommended the attacks on Hiroshima and Nagasaki. The terms of his unrepentant apologia, an excerpt of which appears on page 35, are now familiar to us: the risk of a dud made a demonstration too risky; the human cost of a land invasion would be too high; nothing short of the bomb’s awesome lethality would compel Japan to surrender. The bomb was the only option. Seventy years later, we find his reasoning unconvincing. Entirely aside from the destruction of the blasts themselves, the decision thrust the world irrevocably into a high-stakes arms race — in which, as Stimson took care to warn, the technology would proliferate, evolve, and quite possibly lead to the end of modern civilization. The first half of that forecast has long since come to pass, and the second feels as plausible as ever. Increasingly, the atmosphere seems to reflect the anxious days of the Cold War, albeit with more juvenile insults and more colorful threats. Terms once consigned to the history books — “madman theory,” “brinkmanship” — have returned to the news cycle with frightening regularity. In the pages that follow, seven writers and experts survey the current nuclear landscape. Our hope is to call attention to the bomb’s ever-present menace and point our way toward a world in which it finally ceases to exist.

Illustration by Darrel Rees. Source photographs: Kim Jong-un © ITAR-TASS Photo Agency/Alamy Stock Photo; Donald Trump © Yuri Gripas/Reuters/Newscom
Article
Crossing Guards·

= Subscribers only.
Sign in here.
Subscribe here.

The Ambassador Bridge arcs over the Detroit River, connecting Detroit to Windsor, Ontario, the southernmost city in Canada. Driving in from the Canadian side, where I grew up, is like viewing a panorama of the Motor City’s rise and fall, visible on either side of the bridge’s turquoise steel stanchions. On the right are the tubular glass towers of the Renaissance Center, headquarters of General Motors, and Michigan Central Station, the rail terminal that closed in 1988. On the left is a rusted industrial corridor — fuel tanks, docks, abandoned warehouses. I have taken this route all my life, but one morning this spring, I crossed for the first time in a truck.

Illustration by Richard Mia
Article
“I am Here Only for Working”·

= Subscribers only.
Sign in here.
Subscribe here.

But the exercise of labor is the worker’s own life-activity, the manifestation of his own life. . . . He works in order to live. He does not even reckon labor as part of his life, it is rather a sacrifice of his life.

— Karl Marx

Photograph from the United Arab Emirates by the author. This page: Ruwais Mall
Article
The Year of The Frog·

= Subscribers only.
Sign in here.
Subscribe here.

To look at him, Sweet Macho was a beautiful horse, lean and strong with muscles that twitched beneath his shining black coat. A former racehorse, he carried himself with ceremony, prancing the field behind our house as though it were the winner’s circle. When he approached us that day at the edge of the yard, his eyes shone with what might’ve looked like intelligence but was actually a form of insanity. Not that there was any telling our mother’s boyfriend this — he fancied himself a cowboy.

“Horse 1,” by Nine Francois. Courtesy the artist and AgavePrint, Austin, Texas
Article
Dead Ball Situation·

= Subscribers only.
Sign in here.
Subscribe here.

What We Think About When We Think About Soccer, by Simon Critchley. Penguin Books. 224 pages. $20.

Begin, as Wallace Stevens didn’t quite say, with the idea of it. I so like the idea of Simon Critchley, whose books offer philosophical takes on a variety of subjects: Stevens, David Bowie, suicide, humor, and now football — or soccer, as the US edition has it. (As a matter of principle I shall refer to this sport throughout as football.) “All of us are mysteriously affected by our names,” decides one of Milan Kundera’s characters in Immortality, and I like Critchley because his name would seem to have put him at a vocational disadvantage compared with Martin Heidegger, Søren Kierkegaard, or even, in the Anglophone world, A. J. Ayer or Richard Rorty. (How different philosophy might look today if someone called Nobby Stiles had been appointed as the Wykeham Professor of Logic.)

Tostão, No. 9, and Pelé, No. 10, celebrate Carlos Alberto’s final goal for Brazil in the World Cup final against Italy on June 21, 1970, Mexico City © Heidtmann/picture-alliance/dpa/AP Images

Factor by which single Americans who use emoji are more likely than other single Americans to be sexually active:

1.85

Brontosaurus was restored as a genus, and cannibalism was reported in tyrannosaurine dinosaurs.

Moore said he did not “generally” date teenage girls, and it was reported that in the 1970s Moore had been banned from his local mall and YMCA for bothering teenage girls.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Report — From the June 2013 issue

How to Make Your Own AR-15

= Subscribers only.
Sign in here.
Subscribe here.

By

"Gun owners have long been the hypochondriacs of American politics. Over the past twenty years, the gun-rights movement has won just about every battle it has fought; states have passed at least a hundred laws loosening gun restrictions since President Obama took office. Yet the National Rifle Association has continued to insist that government confiscation of privately owned firearms is nigh. The NRA’s alarmism helped maintain an active membership, but the strategy was risky: sooner or later, gun guys might have realized that they’d been had. Then came the shootings at a movie theater in Aurora, Colorado, and at Sandy Hook Elementary School in Newtown, Connecticut, followed swiftly by the nightmare the NRA had been promising for decades: a dedicated push at every level of government for new gun laws. The gun-rights movement was now that most insufferable of species: a hypochondriac taken suddenly, seriously ill."

Subscribe Today