November 23, 2009
By John F. Terzano

All too often, prosecutors’ offices fall prey to a culture of conviction-seeking at all costs. Prosecutors who become singularly focused on conviction rates often neglect their ethical duty to protect the innocent and guard the rights of the accused. The Kern County District Attorney’s Office in California provides a clear example of this pitfall, boasting that under District Attorney Ed Jagels’ supervision, the office “has had the highest per capita prison commitment rate of any major California County.” What the office fails to highlight is the startling twenty five wrongful convictions that the office has accrued during Jagels tenure as District Attorney. Jagels recently announced his retirement, and despite his appalling record, he hopes to personally select his successor.

There has to be misconduct and knowledge that is held back for this to happen.

The troubling culture apparent in the Kern County office is not the exception. Due in large part to the public pressure to convict and the widespread failure of state bars and disciplinary agencies to hold prosecutors accountable for ethical violations, this culture of “convict at all costs” is a nationwide problem.

With the unique role as both advocates and ministers of justice, prosecutors are the most powerful actors in our justice system. Prosecutors have sole responsibility for decisions regarding what charges to bring against an individual, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. Yet despite their power, they are rarely held accountable for violating their ethical obligations. This lack of accountability promotes the problematic culture that plagues prosecutors’ offices and contributes to wrongful convictions.

This is the same situation we have in Alaska with probably more malicious prosecution here. It is made worse by a legislature that fails to give the Public Defender Agency the funds to assure all defendants get a good defense. It also is made worse when the public defender agency is incompetent and treats people as if they are working for the other side, the Department of Law.

The pervasive culture of conviction-seeking in prosecutors’ offices must be tempered by an overriding goal of justice. The Justice Project’s policy review, Improving Prosecutorial Accountability outlines suggested reforms that can help create a culture that values fairness and accuracy over high conviction rates. For example, prosecutor’s offices should establish training programs and official office policies on the prosecutor’s duty to disclose evidence to the defense and the proper use of prosecutorial discretion. Furthermore, prosecutors who intentionally abuse their power to secure a wrongful conviction must be investigated and disciplined for their actions. The Justice Project also recommends that jurisdictions recognize the unique role of prosecutors through the establishment of prosecutorial review boards with the power to investigate and sanction prosecutors who perpetrate acts of misconduct. Enacting these reforms will foster a more ethical culture in prosecutors’ offices and increase transparency in prosecutorial decision-making.

Alaskans used to be able to sue prosecutors for malicious prosecutions, but they took that law off the books to protect them. In other words, they condone the behavior.

Creating a culture of accountability in prosecutors’ offices is critical to ensuring the fairness and accuracy of our justice system. Establishing training manuals and office procedures as well as implementing disciplinary measures provide the means of achieving such a culture. These measures will encourage prosecutors to better fulfill their simultaneous and critical roles of convicting the guilty and protecting the innocent.

I had an assistant DA from Texas and a public defender who had just moved here from Texas and had been a prosecutor there for one of my hearings. The result was predictable. When I complained to the DOJ employee in Alaska who was suppose to deal with  the misconduct of prosecutors, Rick Svobodney about ADA Earthman's unethical and downright criminal conduct in my case he told me no one would ever do anything about it, called me a liar and hung up on me. This guy was the acting AG in Alaska for a while. The only way that could have happened under Sarah Palin is if he shared her ideology. I did not know what motivated their thinking then, but I sure do now. I was bewildered then how they could twist the legal system, but I'm not bewildered now, I know just what they are. Justice is coming back to our country.

AS 11.56.850. Official Misconduct.

(a) A public servant commits the crime of official misconduct if, with intent to obtain a benefit or to injure or deprive another person of a benefit, the public servant
(1) performs an act relating to the public servant's office but constituting an unauthorized exercise of the public servant's official functions, knowing that that act is unauthorized; or
(2) knowingly refrains from performing a duty which is imposed upon the public servant by law or is clearly inherent in the nature of the public servant's office.
(b) Official misconduct is a class A misdemeanor.


Anonymous said...

We will never have justice until prosecutors are held accountable for their misconduct. Most people who have not had intimate experience with our "justice" system, don't care what's happening to innocent people; because they believe that anyone who is arrested is guilty and/or only the actually guilty are ever convicted.

Prosecutors hide evidence and lie--they threaten people's employment and they threaten poor and young people with other charges, in order to get witnesses or plea bargains--anything to get another conviction( to prove they are tough on crime, so they can run for judge).

The only way this will change is for those who care, those who have been unlawfully convicted/punished by the system, to get organized and march on the state capital. Large numbers of people need to talk to lawmakers. Show them the injustices and urge them make changes.

Here are the problems: Those who haven't been affected by the system don't care. Those who have been affected are frightened that they will be picked up again on some trumped-up charge and sent back to prison. When people leave the prison system, most don't want to ever have anything to do with it again.

Religious people would be the naturals to pursue this justice. The scripture is pretty clear: Jesus said that we are to visit those in prison. In Hebrews 13:3, we read:"Don't forget about those in prison; suffer with them as if you were there yourself; share the sorry of those being mistreated as if you feel the pain in your own self. However, most people who call themselves "Christian" have never even read this portion of scripture.

As long as we keep electing attorney's to be our lawmakers, the laws will continue to favor ways for attorneys to make more money. In the end, it's all about the money. It's all about getting elected judge.

Surely this is not what our forefathers had in mind when they left the old world to seek justice.

Celia Harrison said...

Annonymous that was a great comment. When I came to Alaska if I had known there was a problem with the justice system here I would not have been very concerned because I would have never thought I would come in contact with them. It is true most people think those who are accused of a crime must be guilty even though that is directly opposed to what our country was founded on. The media turns defendants into monsters assuring their conviction even before the trial starts.
The prosecutor in my case believed the lies of two serial bullies who lie about everything. I was prevented from due process. I found out the public defender agency does not do what they are suppose to do. The DOC lies about giving prisoners health care violating the 8th amendment and their own policy and the mentally ill are treated horribly. I was shocked by all of this and my eyes have been opened.
I agree with you that those who have been wrongfully convicted/arrested should rise up and start protesting. I do live my own life in fear of being again arrested on trumped up charges. I was even afraid to take my medication for the PTSD because in the prison system they abruptly stop it.
I have done a lot of research and found that there are stories so horrendously worse than mine that I can barely stand to read about their cases. There are people on death row who are clearly innocent and were railroaded. Our founding fathers are all rolling over in their graves.