Paywalled Washington Post article available here, but the gist of it is that former Dallas prosecutor Richard Jackson has been disbarred after it being clearly established that he withheld a ton of exculpatory evidence from the defense of two men (Dennis Allen and Stanley Mozee) convicted in a murder case from 2000. Only after serving FOURTEEN YEARS in prison and tireless work by the Innocence Project were Allen and Mozee released.
What infuriates me is that the article says that the disbarment is a, “rare example of severe punishment for misconduct in a wrongful conviction case.” No, disbarment of an already-retired attorney is not “severe punishment.” Jackson serving the remaining term of the exonerated men would be a severe – and appropriate – punishment for his gross violation the justice process. The article doesn’t even mention to possibility of charges for Jackson, which boggles my mind.
Find a statute he has violated which carries with it a sentence of incarceration, for which you believe you could obtain a conviction. If you can’t do that, that’s probably the reason he has not been charged with a crime and thus why there is little chance he ends up in jail.
One of the few things more rare than successfully prosecuting a cop is successfully prosecuting a prosecutor. While there have been cases of prosecutors such as this one, losing his license to practice law and his job, actually linking the acts to specific criminal statutes is difficult. Generally we have not criminalized “being a bad lawyer” [Caveat: in most circumstances, there are some cases of professional misconduct that would constitute crimes], nor have we criminalized ministerial “mistakes” or failures of duty [Caveat: in most extant situations, with a few exceptions] such as the sharing of exculpatory evidence.
We do have crimes against a saying knowingly false things in court, fraud etc, and sometimes a misbehaving prosecutor has crossed over into committing those crimes. But depending on the very specific elements of the case, it can be extremely difficult to prove that beyond a reasonable doubt. For example a prosecutor in his defense can say he didn’t share exculpatory evidence due to forgetfulness, not realizing it was exculpatory, plain incompetence or etc. Only if he deliberately withheld it to deceive the court and you have proof beyond a reasonable doubt, can you start to search out a statute to punish him with.
In the infamous Duke LaCrosse case, in which the prosecutor Mike Nifong did a number of things (including withholding of exculpatory evidence) that violated professional standards he was both disbarred and charged and convicted of a crime. But the only criminal charge pursued against him was criminal contempt for lying to a judge. It is very likely in Nifong’s case charges of fraud and perjury could have been sustained, but it appeared there was no appetite in pursuing the more serious charges–Nifong spent 24 hours in jail as his sentence.
No, it would not. It is incredibly difficult to get any prosecutor anywhere to admit that he might have prosecuted an innocent person. They seemingly have the mindset that to admit any mistake nullifies their entire reason for existence.
I wonder if it’s different in places where ‘prosecutor’ is not an elected official?
Or if the nature of the job, where you spend your time arguing against people who are arguing that someone is not guilty, just locks you into that mindset?
Sure, but that just takes the question back a step. Why shouldn’t there be a jailable crime for this level of malfeasance?
You can say it’s because lawyers protect their own. But then the question becomes: should we try to pass laws that would be more punitive for such actions?
I think there should be criminal liability for deliberately railroading someone into prison.
I do think whatever law you craft would have to be carefully crafted, I’m not a lawyer by any means. But I wouldn’t want to see a law that criminalized genuine prosecutorial mistakes, there’s lots of prosecutor’s departments at the local level where the front line prosecutors make a true pittance wage (for attorneys), and I wouldn’t want to make the job less attractive.
It’s the nature of human beings. We are all guilty of it. We tend to be highly biased towards “our tribe” and against “the other”. A prosecutor’s tribe ends up (rightly or wrongly) including law enforcement and that includes the LEO’s who have decided there is evidence sufficient to charge someone. Plus we all like to win and wins tend to be rewarded even if undeservedly Plus IME prosecution can tend to be a home for RWA personalities who don’t like society’s out groups; and/or a home for those who want to “Fight Crime!” and hope to silence the lambs. And I think there is a strong human tendency to lock oneself into a mindset as one works up arguments to support it - like the way anti-vaxxers become more not less anti-vax when you point out the fallacies in their position.
As to their conscience, IME the first step is that LEO’s and prosecutors become convinced they are fighting the good fight and that they have charged the right person. It then follows that unethical actions are seen to be justified because, overall, the right result will be achieved. So for example they become convinced - maybe even correctly - that someone is guilty of a crime, but they realize that certain evidence may produce a “reasonable doubt” that will result in a not guilty finding. So they withhold it, convinced that otherwise the bad guy will get away.
The theory behind the Common law adversarial court system is that it supposedly recognizes this human failing and pits the respective parties’ biases against one another, with an unbiased arbiter presiding to produce an unbiased outcome. It’s a good theory but it struggles to work when one party has far more resources.
The problem as Martin has said is that we tend (rightly in my view) to criminalize outcomes driven by intent not negligence. And while some cases may cross the line, many more would be caused by negligence and under-resourcing etc. and proving otherwise would be very hard.
Mistakes that can be described as gross malpractice, that indicate a depraved indifference to the people you are putting in prison for years to decades, those deserve to be criminalized.
Is there scope for the wrongly convicted suing the prosecutor (maybe even just for negligence), in order to win damages to (at least in some way) recompense for the time they were wrongly held in jail?
(Way out of my depth here, but I think in the UK the standard of proof required would not be as high as for a criminal prosecution.)
In a lot of cases government officials are immune from personal civil liability related to actions taken in their jobs. When misconduct and extreme negligence are involved, sometimes that protection no longer applies. I don’t know enough about the specific laws to know how it would relate to this prosecutor.
Right, but the question is, should they be able to hide behind that immunity?
Every effort should be made in our justice system to prevent such mistakes from occurring, if it can be shown that due diligence was not taken, then they should face some severe consequences.
If that means that we end up with prosecutors who are more concerned about ensuring that justice is fair than making sure that they get a conviction, that’s a feature, not a bug, IMO.