Saturday, August 13, 2016

GateHouse: Prosecuting prosecutors for intentional misconduct

Matthew T. Mangino
GateHouse Media
August 12, 2016

Prosecutors are the most powerful figures in the criminal justice system. The proliferation of criminal statutes along with sentence enhancements and mandatory minimum sentencing have constricted the discretion and authority of judges and expanded the power of prosecutors. The shift in power is no more evident than in the transition from a trial-dominated system to one dependent on the negotiated plea.

The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from 8 percent in 1976. That is fewer than one in 40 felony cases — 35 years ago the ratio was about 1-in-12. The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than 4-to-1; by 2012, it was almost 32-to-1.

For instance, how do prosecutors influence the plea-bargaining process? Take a defendant arrested near a school with a sizable amount of heroin and a gun. With mandatory sentencing for a large about of heroin, enhancements for having a gun and being near a school, the defendant could theoretically face up to 12 years in prison. The defendant is offered a plea of five years or the option of trial with12 years on the line. The judge has little leverage as she is bound by law to impose the mandatory penalties as well as the enhancements. “We now have an incredible concentration of power in the hands of prosecutors,” Richard E. Myers II, a former assistant U.S. attorney and a professor at the University of North Carolina told the New York Times. He reported that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

As a check and balance on the growing authority of prosecutors some states are looking at criminalizing intentional conduct by prosecutors that leads to wrongful convictions. A proposal in California would result in a felony charge against prosecutors who intentionally withhold or falsify evidence.

A 2010 study by Santa Clara University School of Law looked at prosecutorial misconduct in California and concluded, according to the Orange County Register, “Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it ...The problem is critical.”

The study noted that just six out of 600 prosecutors accused of misconduct in California between 1997 and 2009 were punished by the state Bar.

The law would boost penalties to between 16 months and three years for prosecutors who violate the law. Current statutes make it a misdemeanor for anyone to withhold or falsify evidence, while law enforcement officers can be charged with a felony, reported the Register.

The bill is supported by Orange County District Attorney Tony Rackauckas, who suggests the law should apply to all attorneys.

Such efforts do not necessarily suggest that the growing prosecutorial authority is in the wrong hands. No other individual is better positioned to wield appropriate discretion than a prosecutor. A prosecutor is keenly aware of the strengths and weaknesses of the state’s case. The prosecutor has interviewed witnesses and thoroughly examined evidence. No figure in the justice system is in a better position to evaluate a case and decide what is fair.

However, the political aspect of the office — getting elected and re-elected — and the “win at all cost” mentality that comes with it, may at times distort the line between what is right and what is wrong. A statutory scheme of accountability may be the right remedy for the occasional prosecutor who crosses the line.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.

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