Failing to Punish Prosecutorial Misconduct Only Invites More

February 24, 2010
By John F. Terzano at The Justice Project.

On the last day of 2009, federal district court judge Ricardo Urbina dismissed homicide charges against five former Blackwater security guards involved in a shooting that killed fourteen Iraqi civilians in 2007. Judge Urbina’s decision cites egregious prosecutorial misconduct by the federal prosecutors handling the case as the reason for the dismissal. The dismissal comes at the end of a year that saw at least a dozen cases of federal prosecutorial misconduct, including the well known Ted Stevens fiasco. These cases and others reinforce an emerging consensus that we must do more to ensure that our prosecutors live up to the standards of professionalism and fairness on which our system depends.

This is also reflective of what goes on at the state level. The war on drugs and the incentives given to legislators to pass harsher laws to ensure large numbers are incarcerated have fueled this departure from science and ethics in prosecuting cases. When you have this kind of atmosphere with those at the top encouraging prosecution and conviction at any cost, those with shakey ethics with do the wrong things to get ahead. Those who have strong ethics will be run out of the system and all that is left is the rotting core of unprofessional, unethical prosecutors who only care about their own careers and getting a name for themselves. Truth and justice have no place in many of the cases tried in court rooms today. The only time this corrupt system is revealed is when those who have the resources to hire the best defense expose the malfeasance. Those who can’t afford to hire good attorneys end up with public defenders who through under-funding and incompetence are unable to function on a professionally adequate level. They threaten defendants, lie to them, and help put people behind bars who should get lighter sentences or who are clearly innocent. They are essentially a branch of the attorney general’s office(Department of Law in Alaska). The public defender agency does not bring up prosecutorial misconduct, in fact they help facilitate it and certainly do nothing to stop it. The public defenders offer no objections, no filings about it, no complaints to the bar, no complaints to the DOJ, just threats, paper pushing, lack of preparation, and lies to get clients to take a plea(but there is never a deal, not unless the prosecutor wants that client to testify against someone). I even had a public defender in the face of clear prosecutorial misconduct(standing in a court room and lying) tell me how fabulous the prosecutor was(It was so strange I assumed she was sleeping with him).

Like the Ted Stevens case, the Blackwater case has received considerable media attention. A recent Washington Post article examined in detail the actions of the experienced and well-respected lead prosecutor Kenneth Kohl. The Post reported that despite documented warnings of a consulting prosecutor about the inadmissibility of statements made by the defendants, Kohl utilized the statements to obtain search warrants of the defendant’s homes and referred to them during grand jury proceedings. Because the case was mishandled from the start, Judge Urbina was forced to dismiss the charges before a trial could take place to determine the guilt or innocence of the Blackwater guards and bring finality and justice to a sensitive and tragic case.

The federal cases generally have attorneys who are more capable than the ones prosecuting cases on the state level. If the federal level has had all these cases dismissed because they went ahead and did something they knew was unethical, think what is going on at the state level where there is less oversight, especially in states where a governor is clearly controlling the attorney general(Talis Colberg and Sarah Palin). How many have been harmed by the actions of prosecutors who have no one overseeing what they are doing?

In my case I had a prosecutor tell a grand jury that I had been stealing drugs from the hospital for 20 months, which in and of itself would be impossible to do without someone noticing, but he also convinced them I was selling them in the community by dropping hints to the jurors. Now, this prosecutor never got a warrant to search my home. If it had been done when I was not home the neighbors would have told me about it. If indeed he believed what he told the grand jury it makes no logical sense that he would not search my home, in fact not searching my home is complete and utter incompetence if the accusations had even a grain of plausibility, but they didn’t which is why the warrant was never requested. Now, they may have questioned people in the community to see if they could find someone to testify that I sold them drugs. Since this never happened they should not have been able to find anyone to testify I sold them drugs, but many prosecutors have in many cases promised someone a light sentence to get them to give false testimony against people. I would imagine considering what else went on he tried to do this, most likely with native people since they arrest large numbers of them in Nome. The fact that none of them agreed to lie about me is testimony to their strengths and ethics as a people(How many people know native people are less likely to steal than white people? This is a part of their culture.). They did try to get some girls to sell me some prescription drugs which did not work out too well for them as I automatically told them they were going to get into trouble and they should flush them down the toilet. I said this out of concern that they would get themselves arrested, but when I walked away from them I realized that had to be a set up. When I brought this scenario up in court Mr. Earthman shrugged his shoulders like he did not know what I was talking about. I believe it was just another act of deception on his part because it is well know this sort of gotcha` operation is done in Nome all the time. Guess I wasn’t what the two serial bullies at the hospital told the prosecutor I was, how frustrating that must have been for all of them.

The prosecutorial misconduct in the Blackwater case goes to the heart of a nationwide problem described in The Justice Project’s policy review, Improving Prosecutorial Accountability. In the face of enormous pressure to obtain convictions, prosecutors at the state and federal level all too often abuse their power and deliberately violate their obligations with impunity. Prosecutors’ offices regularly fail to provide prosecutors with clear guidelines on the appropriate use of their broad discretionary powers, judges seldom report acts of misconduct, and when reports are made, sanctions are rarely, if ever, imposed. As a result, prosecutors face almost no incentive to uphold their legal and ethical duties when seeking convictions. Nowhere is this “convict at all costs” culture more apparent than in the actions of the federal prosecutors responsible for the Blackwater case.

Where is responsibility for individual ethics? Why is it soldiers torture inmates, prosecutors commit professional misconduct, legislators take bribes, and others standby and do nothing while their coworker is workplace bullied? I just do not understand any of it because I would be refusing to participate and speaking up about it. I guess that is one reason I was workplace bullied to begin with.

Apparently having someone arrested on false charges even when local law enforcement has investigated and said there is no evidence the person committed a crime is condoned in Alaska. This is exactly what happened to me when I moved away from Nome and lived in Homer. I guess an ADA giving false information to judges in two different courts is ok too. I guess having that person wrongfully imprisoned and tortured is just fine with the powers that be in Alaska, including the legislators. They did nothing about the situation when it happened, while I was wrongfully imprisoned, my cat was starved and tortured, and my property was stolen. They have not even returned my emails, letters, or phone calls about it after all this time. The public defender agency refuses to give me a copy of my file. I recently received a threat from the probation department due to my firm disagreement about the utterly falsified restitution I was ordered to pay by Judge Esch. There is nothing else they could come up with to threaten me about, nor would there ever be, so that is what they had to resort to. Maybe they should deduct it from what they should be paying for the property that was stolen from me. They caused it to happen and they knew when it was happening. The ombudsman told me she was confused as to what to do about my complaints. I imagine this is because her ass would be grass if she did anything at all about them.

Rick Svobodney told me that the DOJ would never do anything about the prosecutorial misconduct in my case even though he is listed on the DOL website as the person to contact if you have a complaint about your prosecutor, that is f***ing unbelievable. I guess they only do something for those who have the ability to pay for the amount of justice they want, like Ted Stevens or employees of Blackwater-Xe-Paravant-XPG-Greystone-Raven-Constellation-US Training Center-GSD Manufacturing-Presidential Airlines and probably many more front companies.

It is critical for the Department of Justice to respond with a prompt investigation by the department’s Office of Professional Responsibility (OPR) and appropriate sanctions for the offending prosecutors. Only through enacting an effective system of accountability can the Department of Justice—or any prosecutor’s office in the nation—hope to ensure prosecutors uphold their legal and ethical obligations. In spite of promises OPR made nearly one year ago to investigate the misconduct in the Ted Stevens case and possibly impose sanctions against the prosecutors at fault, none of the prosecutors involved in that case have faced any sanctions, nor have the results of any investigation been released.

Does anyone expect anything to happen? I don’t. They don’t investigate the prosecutorial misconduct in the cases of regular people, only senators and people who work for the military-industrial complex and murder Iraqis. You know there would have never been a ruling that there was prosecutorial misconduct unless there was some reason they wanted particular people to go free and unpunished. They have been allowing prosecutors to commit misconduct for a very long time. Unless they let everyone who had prosecutorial misconduct in their cases go free it is clear something is wrong with this picture. Those who are unable to hire an expensive team of lawyers are forced to have prosecutors lie, withhold evidence, and all those other tricks they pull and not have any recourse because we are not given any defense by the public defender agencies, the Judicial Counsels, legislators who write the laws, the attorney general offices, or the Department of Justice.

To their credit, DOJ has recently taken some measures to prevent prosecutorial misconduct through increased training and oversight of prosecutors. For example, DOJ released several memos earlier this year providing more direction to prosecutors on their obligations to disclose evidence during the discovery process. Inadvertent misconduct can be significantly curtailed through this kind of increased guidance and training at the front end of criminal cases. However, holding prosecutors accountable for the kind of intentional violations of legal and ethical obligations apparent in the Stevens and Blackwater cases can only be achieved through meaningful sanctions and effective disciplinary mechanisms.

They should all be fired. Some of them should be prosecuted for professional malfeasance and defendants should certainly be able to file civil suits against them. Those hired for prosecutorial positions should only be the most ethically, detail oriented, science minded, legal scholars we have. Instead of seeking truth and justice they are simply prosecuting citizens of this country as if they have some kind of quota they have to meet and just like used care salesmen they lie to con people. But, those on the receiving end don’t just get a car that is a lemon, there are dire consequences to their actions sometimes resulting in people being placed on death row for many years when they are innocent of the crime they were convicted of.

Prosecutors are the most powerful actors in the criminal justice system; they have enormous control and discretion over the course and outcome of criminal cases. The Blackwater case reveals the far-reaching consequences that the actions of just one prosecutor can have on the fair and accurate administration of justice. In order to prevent cases like this from occurring in the future, the Department of Justice must take more steps to improve prosecutorial accountability by investigating and imposing meaningful sanctions on the prosecutors responsible for the breakdown of this important case. Failing to do so only invites more misconduct by overzealous prosecutors.

Sometimes I wonder if they are doing this on purpose so these cases can be dropped, but really the main problem is incompetence and lack of ethics which in many cases is criminal. Alaska used to have a law that prosecutors who maliciously got someone convicted could be sued, they repealed it. The government has promoted the system to be corrupt, if they wanted truth and justice they would have done things differently now wouldn’t they?

*Emphasis entirely from me.

1 comment:

Anonymous said...

Instead of focusing on this country's questionably broken down health care system, why isn't somebody doing something about the court system which is unquestionably broken? Tort reform by itself could save countless $millions, if not $billions, on health care. If I go to the emergency room with a pain in my right arm, and they treat my left arm by mistake, do I deserve to collect $millions for their negligence? I’m retired and I’ve never had medical insurance and I know loads of people who’ve never had medical insurance. We didn’t let the government terrorize us by convincing us that we ABSOLUTELY had to have medical insurance and we’re fine.

How about the court’s bleeding hearts for those poor prisoners in California who are living in overcrowded jails, and receiving inadequate health care. Boo Hoo! In my home state of Massachusetts prisoners in the maximum security prison in Walpole had hi- definition televisions on which to watch the Super Bowl. Isn’t that special? In the meantime countless thousands of veterans who were willing to give their lives for our country couldn’t watch the game because they’re homeless.

What in the world has happened to our country? I no longer recognize it.

A Patriot from Plympton, MA