Why prosecutors misbehave

Since , he has been a partner at the large international law firm Reed Smith, where he heads up its division on white-collar crime. Silverglate says that's a common career track for federal prosecutors. And these are extremely lucrative positions -- 1 to 2 million dollar salaries. And they aren't being hired to litigate. The skills it takes to be a good prosecutor don't transfer to criminal defense. They're being hired to negotiate plea bargains with the friends they still have in the U.

It's a huge racket. Bernard Avenue, a rough, working-class neighborhood near the Treme. That man [Dubelier] tried to have me killed. They had evidence of my innocence, they covered it up, and they tried to kill me anyway. He gets up from his desk, paces, and his voice begins to rise again.

I don't know how you call it anything else. And now he makes millions of dollars at one of the most powerful law firms in America. He paces back to his desk and sits down. Knowingly withholding exculpatory evidence is unquestionably a breach of ethics. But many of the recent stories to inspire public anger at the criminal justice system involve conduct that most state bar associations don't even consider unethical. While there were separate allegations of Brady violations in the Aaron Swartz case, for example, much of the backlash has been over what many saw as an unreasonably harsh battery of charges brought against the young activist.

The prosecutors didn't have evidence for many of the charges, and they knew they didn't, the argument goes, so the charge stacking was really just an effort to bully Swartz into pleading guilty rather than go to trial and risk the possibility of a long prison sentence.

When asked about the appropriateness of the charges in the Swartz case, Attorney General Eric Holder told Congress he thought they were "a good use of prosecutorial discretion. Yes, the prosecutors tried to force a plea deal by scaring the defendant with arguments that he would be locked away for a long time if he was convicted at trial. Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But it is not particularly surprising for federal prosecutors to use those tactics.

In fact, this kind of charge stacking is quite common, and considered a negotiating tactic in the plea bargain process. The American Bar Association's Model Rules of Professional Conduct are the template by which state bar associations formulate their own ethical guidelines.

As the Yale Law Journal article notes, "the Model Rule nowhere explains how prosecutors should conduct themselves in plea negotiations," and, "the ethics rules do not prohibit a prosecutor who wishes to gain leverage in plea negotiations from filing a charge that he has no intention of bringing to trial.

But it isn't just that charge stacking itself isn't considered unethical, it's that piling on charges is a tactic often used to encourage plea bargaining. And plea bargaining also tends to whitewash prosecutorial misconduct.

Over 90 percent of criminal cases are resolved with plea bargains PDF before they ever get to trial. The defendants who accept these agreements are less likely to appeal, so the vast majority of criminal cases are never screened for prosecutorial misconduct.

To be fair, the primary reason most of the people charged with crimes plead out is that most of them are actually guilty. But it also isn't difficult to see how charge stacking could persuade an innocent person to accept, say, probation, instead of fighting in court and risking a prison sentence.

After the drug arrest scandals in Tulia and Hearne, Texas, in the late s, for example, dozens of people later found to be innocent pleaded guilty to minor drug felonies after they were threatened with more serious charges if they insisted on going to trial.

In some cases, even plea bargains can come about because of prosecutorial misconduct. It also isn't necessarily unethical for a prosecutor to introduce evidence he isn't certain is truthful.

During a federal drug conspiracy trial against a Church Point, La. Attorney Brett Grayson put on a parade of jailhouse informants, each of whom claimed to have sold drugs to a woman named Ann Colomb and her sons.

If you added up the amount of drugs the informants claimed to have sold to them, the Colombs -- who lived in a modest ranch home in a lower-middle-class neighborhood -- would have been among the biggest drug kingpins in the South. It was later revealed that some inmates in a federal prison had somehow gotten a hold of a prosecutor file on the Colombs and were trading and selling the information.

After memorizing the file, they'd then offer to testify in exchange for time off their own sentences. The case so outraged the federal district court judge, that he dropped all charges against the family and called for an investigation. More than once during the Colomb trial, Grayson said it didn't matter if he believed the evidence he was putting on was truthful, it only mattered what the jury believed. According to several experts in legal ethics consulted for this article, Grayson was probably correct.

While several said they personally felt a prosecutor should believe his own evidence, there's no professional requirement for such belief -- a prosecutor is only required to believe he has enough evidence to convict the defendant beyond a reasonable doubt.

If an eyewitness says something that's probably not true but benefits the state's case, a prosecutor can always find some subjective reason to explain why the witness could be believable and get the witness in front of a jury. Requiring a prosecutor to have full faith in the evidence he puts on at trial would mean requiring him to do some investigating into the veracity of witnesses, the reliability of forensic evidence and so on.

And that could potentially move him out from under the absolute immunity he enjoys as a prosecutor. It takes Sam Dalton a while to get to the door. On this June morning, the sky has opened up over his modest office in the Metairie area of New Orleans. He opens the door to reveal a welcome mat that reads, "Come Back With a Warrant.

Dalton is fascinating character. He's alternately warm and accommodating, then irascible and prickly. He's sharp and incisive, but gets visibly frustrated when his age slows down his thoughts. And he's a civil rights icon who can be startlingly politically incorrect. Mostly, though, Dalton is a legal institution unto himself in southern Louisiana. He has defended over capital cases, sparing 16 men from execution. He started a public defender system for indigent defendants that became a template for similar systems around the country.

And it's probably safe to say he's the only person in history to have received a birthday card signed by 29 death row inmates. In September, Dalton will begin his 60th year practicing law in Louisiana, which means he's one of only a few attorneys left who also practiced before the Supreme Court's Brady decision in So they'd actually hide it from their bosses when they'd turn over favorable evidence to us. Dalton is at the heart of a current effort by some in the state's defense bar to impose some accountability on prosecutors in the wake of the Supreme Court decision in John Thompson's case.

Now that the possibility of civil liability has been all but removed, there's a new urgency to either prod the state's Office of Disciplinary Counsel ODC to address misconduct, or to expose its ineffectiveness if it doesn't. He was too competent not to know what was happening.

And it has gotten only marginally better since. In Louisiana, ethics complaints against practicing attorneys are first considered by the ODC. If the office finds clear and convincing evidence of misconduct, it forwards its findings to an independent hearing committee made up of two lawyers and one non-lawyer, all of whom are volunteers.

That committee must then sign off on the misconduct finding for the charge to go forward. Ultimately, the Louisiana Supreme Court makes the final decision on whether or not the charge has merit, and if so, on how to discipline the offending lawyer.

Current ODC chief counsel Charles Plattsmier admits there are major obstacles preventing his office from imposing any real accountability on wayward prosecutors. In his 17 years on the job, he can only recall three occasions in which a prosecutor has been disciplined for misconduct.

Plattsmier wouldn't talk about specific cases, but from public records, it's clear one of those disciplinary actions came against Roger Jordan, the prosecutor who convicted Shareef Cousin. For suppressing evidence in that case, the Louisiana Supreme Court in suspended Jordan from practicing law for three months, but then suspended that penalty.

As long as Jordan isn't found to have committed misconduct again, he'll never have to serve the suspension. The court noted that it was the first time it had ever disciplined a prosecutor for misconduct. Another occasion was the action taken against Mike Riehlmann, the attorney who heard the deathbed confession about the blood evidence in Thompson's case.

Riehlmann played no part in the actual prosecution of Thompson, and he eventually worked with Thompson's attorneys to help set Thompson free.

Yet he was the only attorney involved in the entire affair to face any discipline. Because Riehlmann did not disclose the confession for five years, Connick filed an ethics complaint against him. Riehlmann was once a prosecutor, but not under Connick, and not at the time Connick filed the complaint.

Connick's complaint was upheld, and Riehlmann's law license was suspended for six months. Dalton attended the hearing where the Louisiana Supreme Court suspended Riehlmann's law license. But Riehlmann's sanction illustrates what may be the biggest barrier to self-regulation: Lawyers do not want to report other lawyers for ethical violations. And some of them had found that prosecutors had withheld evidence in that same case, in violation of Brady.

I wanted to ask them, why didn't you file a complaint? It's a good question. According to Plattsmier, Louisiana judges are bound by a code of judicial conduct that supersedes the bar's code of ethics.

But that doesn't get them off the hook. The code "instructs judges to report and assist in misconduct investigations. But the word it uses is should , not shall ," Plattsmier says. Discipline of judges is handled by other judges. They run in the same social circles. They attend the same Christmas parties. Since his release, Thompson has given public talks, spoken on panels and participated in forums on how best to address prosecutor misconduct.

He knows all about the Christmas party problem. They'll say, 'I've known Jack all my life. My kids go to school with his kids. He came to my Christmas party last year. How could I file a complaint against him? How could I discipline him, or take away his law license, when that's how he feeds and takes care of his family? I know Jenny and the kids. I can't do something that's going to put them out of their home.

But then what can we do about that? Who is going to file these complaints? From a jail cell? He continues: "I just come back to the fact that they wanted me dead.

I understand that maybe, in your heart of hearts, you really believed this guy was guilty. But at some point you started to find evidence that he wasn't. And instead of exposing that evidence, you hid it. Once you did that, you became a conspirator in my murder. If you're a prosecutor, your job is to prosecute murderers. To protect innocent people from being murdered.

I was an innocent guy that the people in that office conspired to murder. And now you're saying you, Mr. Prosecutor, you can't protect me from these men who tried to kill me, because their wives and kids go to your Christmas party? You should be trying to put them in jail! But you can't even file an ethics complaint against him. No way. I understand what they're saying. But it just isn't an excuse.

It isn't just other prosecutors who shy away from reporting misconduct. According to Plattsmier, his office receives around 3, complaints per year.

Family law gets more complaints than any other area of practice. You can imagine why that might be. Everyone who gets convicted, whether it's of murder or a parking ticket, they tend to blame their lawyer.

According to Plattsmier, in his time at ODC, complaints against prosecutors have been almost nonexistent. That also seems to be true elsewhere. In , Illinois considered over 4, complaints against attorneys licensed in the state.

Of those, 99 alleged prosecutorial misconduct. Just one of those reached the stage of a formal hearing. After a forum on wrongful convictions last year at Tulane University, Plattsmier asked the Innocence Project of New Orleans for a list of cases in which an innocent person had been convicted due to prosecutor misconduct. Even I was surprised when we found that none of them had. No one had filed a complaint.

Though defense attorneys may seem most likely to file those complaints, few of them do -- and there are some good reasons why not. For one, ethics complaints usually aren't considered until criminal and civil trials are settled. That way, if a state supreme court makes a finding of ethical misconduct, it will have no impact on a client's criminal appeal or his lawsuit.

More important, Plattsmier says, defense attorneys are reluctant to file complaints because of the damage a complaint could do to the working relationships they have with prosecutors. A complaint could make an aggrieved prosecutor and his colleagues less likely to cut deals or to ask judges for leniency for an attorney's other clients.

There's also the problem Harvey Silverglate described: When a defense attorney does find evidence of misconduct, it can be a bargaining chip, explicitly or implied, to negotiate a better plea bargain -- with the understanding that the misconduct not be made public.

So while mass reporting of misconduct by criminal defense attorneys as a whole would likely be of enormous benefit to the criminal justice system and to defendants and general, there's little incentive for an individual attorney to report an individual prosecutor. It can ruin you professionally. You can't get a plea. You risk having them take it out on your clients. What Dalton has done is set an example. For a man of his stature, it means something.

Cohen recently filed his own ethics complaints alleging misconduct in the case of Jamaal Tucker, a client who in October was convicted of killing a man outside a public housing project in New Orleans. Assistant District Attorney Eusi Phillips's first two attempts to convict Tucker ended in mistrials, one after Judge Julian Parker found that prosecutors had violated his order to turn over exculpatory evidence.

Parker even threatened to convene a grand jury to investigate the misconduct. One witness testified in Tucker's second trial that he was recanting his prior statements, and could no longer recall witnessing the shooting. Prosecutors then threatened him with perjury charges. The same witness then testified again at Tucker's third trial, perjury charges still hanging, and was once again able to recall what he thought he had seen.

Two other witnesses had cut deals with prosecutors, yet were still permitted to tell the jury otherwise. One of them, Morris Greene, told the jury that he was testifying against Tucker "out of the goodness of my heart. That letter wasn't turned over to Tucker's defense.

Cohen knew of the charges against Greene, and sent an investigator to sit on the proceedings in Lafayette, about miles west of New Orleans. According to Cohen, a prosecutor in Lafayette Parish told the court that he had just received a phone call from Cannizzaro, and that he would be allowing Greene to withdraw his guilty plea in the armed robbery case. Greene was released. The judge in Tucker's case then subpoenaed Cannizzaro to explain the mysterious phone call. Instead, on the day Cannizzaro was scheduled to testify, his office conceded and Tucker was granted a new trial.

Even if there wasn't a deal, Greene's letter shows that he asked for and was expecting one, and that's what was driving his testimony. The letter was never disclosed, and he was allowed to testify that he was expecting nothing.

Shortly before publication, Cohen was informed that his appeal of the ruling was successful, and that his complaint against Phillips would be reinstated. Plattsmier says he sympathizes. You hear about these overturned convictions, and then you hear that only three prosecutors have been disciplined in 20 years, and the natural reaction is, 'So what's wrong with the system? Beyond a reluctance to report misconduct, Plattsmier points to other possible explanations for the discrepancy between appeals court findings of misconduct and so few disciplinary actions against prosecutors.

First, he says, because disciplinary boards usually only start investigating a case after it has been resolved both criminally and civilly, time can be a factor. You're then going back to piece together events from long ago. That can be a challenge. The prosecutor you're investigating may not even be a prosecutor anymore, so there may no longer be a file.

That's not an excuse. It's just a reality. Plattsmier also emphasizes that a finding of "misconduct" by an appeals court isn't necessarily a breach of ethics. To constitute an ethical violation, the misconduct must be willful.

For example, if defense attorneys discover after conviction that a police officer withheld information favorable to the defendant, an appeals court would likely classify that failure to disclose as prosecutorial misconduct. But it wouldn't be an ethical violation on the part of the prosecutor. One way a prosecutor could protect himself from accusations of failing to turn over exculpatory evidence gathered by police, then, is to make a habit of not asking the police for such evidence.

That can create an unhealthy culture in which prosecutors take a don't-ask-questions approach to police misconduct. In September , for example, Cannizzaro dropped drug charges against Eddie Triplett, who had already served 12 years in prison for cocaine possession. In , two New Orleans police officers had detained another man on the street under suspicion of drug possession.

For reasons that aren't entirely clear, they also detained Triplett. Police attributed the cocaine they found on the first man to Triplett, then testified against him at trial. Triplett was released after his attorneys found the long-suppressed police report which described what had actually happened.

The two officers involved are still on the force in New Orleans. And though Cannizzaro was somewhat critical of the police department after freeing Triplett, one of his assistants publicly defended the officers.

While it's probably unfair to point the finger at prosecutors when police withhold evidence, it's also important to at least acknowledge that not holding prosecutors accountable can encourage a willful blindness to police misconduct. In the Triplett case, a prosecutor more skeptical of the police, or at least more vigilant about reviewing police reports and case files, could have prevented an unjust conviction.

That sort of push and pull of incentives for prosecutors can complicate efforts to improve the system. But there appear to be more functional problems at work in Orleans Parish, even since the Supreme Court's Thompson decision.

Sam Dalton began his personal campaign for prosecutor accountability nearly two years ago by going after six prosecutors for alleged misconduct during the murder trial of Michael Anderson. Nothing has happened since. Anderson was convicted in of gunning down five men in an S. He was sentenced to death. It was the first capital case won by Cannizzaro, who at the time was new to his job as district attorney.

Anderson was awarded a new trial in when a judge found that prosecutors had failed to turn over exculpatory evidence. That evidence included a recorded interview in which the state's main eyewitness made statements that undermined both her story and her credibility, and a deal the state had cut with a jailhouse informant who claimed Anderson had confessed to him. The informant, Ronnie Morgan, was facing his own charges for several armed robberies.

Prosecutors let him testify in Anderson's trial that he was getting no favors for his testimony, even though he was later allowed to plead to charges in what another judge would call "the deal of the century. Dalton filed eight complaints with the ODC in October By the following March, he had yet to even hear confirmation that the ODC had received his complaints.

He sent another letter. He still received no response. In August of last year, he sent a colleague to the ODC office to at least make sure the complaints had been delivered. She was told that they hadn't.

Dalton's colleague then produced the name of the ODC staffer who had signed for the FedEx package containing the complaints. At that point, the office conceded that it had in fact received the complaints, but was still researching them, and would notify Dalton by the end of the month. When he had received no response by the middle of September -- nearly a year after his initial filing -- Dalton sent yet another letter. As of this writing, he still has yet to hear back from the ODC.

As of this writing, she too has yet to hear back from the office. Plattsmier says that while he can't talk about specific cases, he would be "very surprised" if his office had taken months to confirm receipt of a complaint. I would encourage anyone who has filed a complaint and not heard anything back at all to contact me directly," he says.

Dalton emphasized that Plattsmier is an excellent attorney and an honorable man whom he holds in high regard. Lee said research has shown that prosecutors too easily succumb to the lure of favorable media coverage, career advancement and public pressure. The problem is further complicated by the reluctance of public defenders and judges to call out the misbehavior of prosecutors, she wrote. In one figure suggesting how deep the problem goes, Lee pointed to National Registry of Exonerations statistics showing that nearly 71 percent of exonerations of wrongfully convicted were due at least in part to misconduct.

Lee said efforts to address the problem of prosecutorial overreach date to the Brady v. Maryland Supreme Court ruling, in which an inmate convicted of murder and sentenced to death discovered that the prosecutor withheld a statement from his accomplice in the crime admitting to the actual homicide.

Since then, the so-called Brady Rule has established that withholding exculpatory evidence is a violation of constitutional protections of due process. Although some states such as New York have enacted tough new discovery laws imposing sanctions for violations of Brady rules, most have yet to follow suit.

Prosecutors are also afforded unique legal protections. They have immunity from civil liability — you can't sue them — and it's almost unheard of for a prosecutor to face criminal penalties for something he or she did in court, like knowingly putting a lying witness on the stand or withholding evidence that points away from a defendant's guilt. They do have to follow the same professional code of conduct as other lawyers, and if they don't — this is where the bar association or ethics panel comes in — they can be reprimanded, suspended or disbarred.

But the disciplinary code is vague. It broadly requires attorneys to practice competently, ethically and lawfully. Like the Center for Public Integrity, Lebowitz found that the number of prosecutors disciplined is far smaller than the number of convictions overturned for prosecutorial misconduct. It wasn't sufficient deterrence in the case of Curtis Flowers, who was convicted of murdering four people at Tardy Furniture in The Mississippi Supreme Court reversed Flowers' first and second convictions due to misbehavior by Evans, including arguing facts that weren't in evidence.

Yet when Evans tried Flowers a third time, the high court found that he engaged in misconduct again. In overturning Flowers' third conviction, the justices ruled that the prosecution had struck prospective jurors based on their race — what's known as a Batson violation, named after the U. Supreme Court ruling that banned the practice. In their ruling, the state Supreme Court justices wrote that Flowers' case "presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge.

Despite those rulings, Evans went on to prosecute Flowers three more times. He has never received any public discipline from The Mississippi Bar. Kilgore, of The Mississippi Bar, said that a lawyer who's found to have engaged in intentional and unconstitutional racial discrimination in jury selection — a Batson violation — would not necessarily face any form of professional discipline. I think the only automatic triggers out there would probably exist along the lines of if a lawyer is convicted of a felony," Kilgore said.

Kilgore described the bar's work as mostly policing lawyers' conduct outside of the courtroom, often involving bad business practices.

In his 14 years as the bar's general counsel, he can't remember seeing any complaints filed in connection with a Batson violation. Kilgore said the bar typically doesn't get involved in what he broadly called bad trial strategy. And so, concerns like [Batson] would probably fall back on the court," he said.

The Mississippi Bar isn't alone in this approach to Batson violations. None of the 15 disciplinary agencies that replied to APM Reports' survey had any record of a Batson violation leading to a bar complaint. The remedy is supposed to be an appeals court reversing the conviction. But even a conviction reversal isn't guaranteed in cases where prosecutorial misconduct is found. The misconduct must be so egregious that it affected the outcome of the trial.