Common depictions of Lady Justice, her sword and scales in hand, also show her blindfolded. Neither station nor sex, class nor color should affect the decisions made in a court of law. The facts are what should tip the scales. This goes hand in hand with the right to a fair and speedy trial guaranteed to us by the Sixth Amendment. It’s a serious problem, then, when prosecutors, the agents entrusted with representing the public interest against those accused of a crime, engage in unscrupulous behavior such as prejudcing a jury, tampering with evidence, withholding evidence, and knowingly allowing witnesses to lie during testimony.
Take the recent mistrial awarded to five New Orleans police officers involved in the shooting of six Hurricane Katrina survivors, two of whom died. A guilty verdict that was once hailed as a landmark case in civil rights was overturned because prosecutors were found to have posted anonymous comments on the website of the New Orleans Times Picayune. These comments, according to Judge Engelhardt, were “grotesque” attacks directed at the defendants, the defense, and the defense’s evidence, and ensured that the defendants could not receive a fair trial. The case is pending re-trial with all of the accused now free.
Another defendant, two-time felon Tony Bennett, was convicted of murder and sentenced to 25-to-life. After serving 13 years, Bennett’s conviction was overturned and he was released. In this case, the prosecutor, Claude Stuart, withheld key evidence from the defense, thus undermining the defendant’s right to a fair trial. Upon release, however, Bennett changed his accounts of innocence. As reported by ProPublica, Bennett has stated, “He was wrapped up in a shower curtain in the corner of the bathroom, shivering and shaking… He was saying all this, 'Please, please, don't hurt me, don't shoot, I'm sorry, I'm sorry.' And I said, 'Yeah, I'm sorry, too.' And I did what I had to do.” A guilty man, a murderer, is now free.
It’s not always the case, however, that the guilty walk free — sometimes the innocent are imprisoned. Take the case of Jabbar Collins, who was sentenced to 34-years-to-life in prison for second-degree murder. The problem is that prosecutor Michael Vecchione of the New York State’s Attorney’s office intimidated witnesses into giving false testimony against Collins in order to get that conviction. Collins sat in prison, wrongfully accused, for 16 years before he was exonerated.
However, in focusing on the defendants, both the wrongfully imprisoned and the wrongfully released, it’s easy to forget about the prosecutors that made every one of these miscarriages of justice possible. Surely they too are subject to the edge of Lady Justice’s sword when they unfairly tip her scales? Disturbingly, it doesn’t seem like that’s the case.
Stuart, whose actions in the Bennett case were not his first prosecutorial indiscretion, faced no professional repercussions for his actions except for an official reprimand from a state disciplinary committee. In fairness, Stuart did eventually lose his job, his firing prompted by his lying to a judge about the location of a key defense witness in a murder trial. Vecchione is still employed by the Brooklyn district attorney’s office, though he is currently involved in a federal wrongful-conviction lawsuit characterized by a severe case of the “I don’t recall”s on Vecchione’s part.
These are not isolated incidents. A ProPublica investigation into over 10 years of federal rulings at both the state and federal levels found over two dozen cases of “harmful misconduct" on the part of prosecutors, all of which ultimately resulted in overturned convictions. In none of these cases except for one of Stuart’s were the offending prosecutors disbarred, suspended, or censured. Even more disturbing, the investigation also shows that many of these prosecutors actually received promotions or pay increases soon after being cited for their misconduct.
The problem is then a twofold one. Not only is the legal process being adulterated to the point where the innocent are wrongfully imprisoned and the guilty are awarded mistrials and early release, but those who make these injustices possible are not being held accountable. To be sure, most of the nation’s prosecutors are not systematically undermining the rule of law, and cases like these are a small percentage of total cases that reach trial (which are themselves a small percentage of cases brought to a district attorney).
Still, like Claude Stuart, many of the prosecutors who engage in serious prosecutorial misconduct are repeat offenders. What’s more, Washington University in St. Louis law professor Katherine Goldwasser has stated that most prosecutorial misconduct occurs outside of a courtroom, and is likely much more common in cases that don’t go to trial. Since most cases never reach trial, it seems that we may very well be underestimating the extent of the problem. The question then is whether district attorneys and their offices are either unable or unwilling to employ measures to ensure proper prosecutorial oversight and, when they do discover instances of misconduct, properly punish the offending prosecutor. In either case, this issue has a mix of both structural and individual determinants. It's not just a case of a few bad apples.
It’s really a lose, lose, lose scenario: The innocent are put behind bars, the guilty walk free, and the prosecutors that make it happen are often left unpunished and free to make it happen again. Sometimes they even get a raise. Clearly, justice is not being served in the courtroom or outside of it. Though Eleanor Roosevelt was likely referring to a fair trial when she said that “Justice cannot be for one side alone, but must be for both,” I think it prudent to ask whether justice is also being meted out to the prosecutors who are knowingly responsible for decidedly unjust outcomes.