WSJ: It's Rare for Prosecutors to Get the Book Thrown Back at Them

It's Rare for Prosecutors to Get the Book Thrown Back at Them
The Wall Street Journal by AMIR EFRATI - April 16, 2009

The Justice Department recently got a black eye when its corruption case against Sen. Ted Stevens of Alaska collapsed amid allegations of misconduct by federal prosecutors. Now, the prosecutors are facing a criminal probe, and the government's procedures on handing over certain evidence to defendants, as required by law, are under renewed scrutiny. The Stevens case marks a rare example where prosecutors have been targeted for a type of misconduct that some legal experts say is widespread. The problem, they say, is that the rules governing evidence disclosure are subject to interpretation, and that even when questionable practices are discovered, the revelation can come too late to change the outcome of a case. On Tuesday, Attorney General Eric Holder announced that the Justice Department would begin supplemental training for federal prosecutors on disclosure obligations. But many experts believe the problem could be better remedied by taking disclosure decisions out of prosecutors' hands. While the Supreme Court ruled decades ago, in Brady v. Maryland, that prosecutors generally must give defendants evidence that might raise doubts about their guilt by the start of the trial, prosecutors have few incentives to do so. They often don't get caught if they fail to turn over what is known as material exculpatory evidence. What's more, if the omission is discovered, prosecutors don't have much to fear. Prosecutorial misconduct often goes unpunished, and prosecutors have immunity from lawsuits by wrongly convicted defendants.

Defense attorneys routinely claim that prosecutors violate the rules, but judges dismiss the vast majority of complaints as baseless. Nonetheless, the growing number of overturned convictions in recent years, many of them aided by DNA testing, has put a spotlight on prosecutors' tactics. A New York State Bar Association report published earlier this month said that out of 53 state prosecutions between 1971 and 2004 in which defendants were wrongly convicted, misconduct by prosecutors or police possibly led to convictions in more than half of the cases. The Brady decision asks prosecutors to bring all relevant evidence to light, even if that means sabotaging their own case. But prosecutors are often judged by one standard: winning cases. "Prosecutors can't police themselves," says Stephanos Bibas, a law professor at the University of Pennsylvania and a former federal prosecutor. To be sure, some former prosecutors don't buy that argument. "The number of Brady rule violations is very, very small," says Scott Burns, executive director of the National District Attorneys Association and a former prosecutor in Utah. "You don't cheat, especially when someone's liberty is on the line."

While some omissions are deliberate, disclosure violations by prosecutors often aren't intentional. They might not recognize certain evidence as being potentially helpful to the defense, and other times police officers don't give prosecutors all the evidence in their files. In the trial of Mr. Stevens -- who was convicted on corruption charges last fall, shortly before he was defeated for re-election, and who had his conviction tossed out earlier this month -- U.S. District Judge Emmet Sullivan cited multiple instances in which prosecutors concealed evidence potentially helpful to Mr. Stevens. Lawyers say punishment is most likely to come in high-profile cases, where public scrutiny is brought to bear. Michael Nifong, a district attorney in Durham County, N.C., in 2006 prosecuted three male Duke University athletes for alleged rape, but failed to disclose evidence that helped clear them of wrongdoing. Mr. Nifong was disbarred and received a day in jail as punishment. An attorney for Mr. Nifong declined to comment. Still, most disclosure violations aren't uncovered until after a conviction, when prosecutors turn over their files to defendants for appeals. Judges can't overturn the conviction unless they determine that the evidence probably would have led to acquittal.

Research indicates that many prosecutors evade punishment for serious mistakes. The state-sponsored California Commission on the Fair Administration of Justice found that between 1997 and 2007, 54 felony convictions in California were reversed by courts due to prosecutorial misconduct, which in many cases meant disclosure violations. But the study found no examples of prosecutors being referred to the state bar association for possible disciplinary action, in part because judges were unfamiliar with such reporting procedures. Reform-minded legal experts say something needs to be done. One answer: make it easier on prosecutors to do the right thing. While a number of states or local offices, either by law or custom, have what is known as open files, which allow defense attorneys access to material gathered during an investigation, it is by no means universal. Open files can reduce the potential for inadvertent disclosure errors, says Jerold Israel, law professor emeritus at the University of Michigan, though they don't stop deliberate tampering. In addition, advocates for change say judges should be encouraged not to shrug off disclosure violations by prosecutors. The New York State Bar Association study said state judges need to be better instructed that they have a duty to report reckless or intentional disclosure violations to their courts' disciplinary committees, which can mete out warnings or punishment. Write to Amir Efrati at amir.efrati@wsj.com