Mar 232015
 

On Friday, I posted part one of this two-part blog entry about recent developments in the area of prosecutorial and law enforcement misconduct. One development was a bit of a step backward; you can read about it here. However, we’re going to start off this week with a positive note, a step forward in addressing this important issue.

FIXING PROSECUTORIAL MISCONDUCT

Okay, admittedly, if I had the answer to how to solve the problem of prosecutorial misconduct, it’d be headline news; I don’t, of course. But I do think that a recent development helps shed further light on the problem and represents a real step forward.

First, please understand that in my experience, most defense attorneys believe the vast majority of prosecutors to be well-intentioned individuals. We have disagreements (sometimes quite heatedly), but we respect our prosecutorial opponents. It would be hypocritical for me to assume the worst about prosecutors while I extend the benefit of the doubt to so many other people. While I know prosecutorial misconduct happens with more regularity than people acknowledge, and I’ve encountered it directly in my practice, I do not think that prosecutors who commit misconduct do so because they are fundamentally flawed or ‘bad’ people who set out to do harm. What’s more, thinking that misconduct happens because “rogue” prosecutors who are seeking to do harm go undetected would prevent us from addressing the real cause of this extremely serious problem.

To that end, please, take time to read this extraordinary letter. In it, Mr. A.M. “Marty” Stroud III writes with candid eloquence about his role in prosecuting an innocent man, Mr. Glenn Ford, and sending Mr. Ford to death row. Mr. Stroud was moved to write his op-ed letter because he was disgusted that the state of Louisiana is currently fighting to avoid giving any financial compensation to Mr. Ford, who is now free after thirty years of wrongful imprisonment. Mr. Stroud takes responsibility for his failings without equivocation, but also provides real insight into how good intentions can be subsumed under pressures that are common in many prosecutor’s offices. He talks about the false confidence and arrogance which can pervade a prosecutor’s thinking:

… I was not going to commit resources to investigate what I considered to be bogus claims that we had the wrong man.

My mindset was wrong and blinded me to my purpose of seeking justice, rather than obtaining a conviction of a person who I believed to be guilty. I did not hide evidence, I simply did not seriously consider that sufficient information may have been out there that could have led to a different conclusion.

There’s a difference between knowing that a prosecution is wrong and choosing to go forward anyway (which maybe never happens), and failing to even consider the possibility that the prosecution team might be wrongThe latter sort of mindset is, as Mr. Stroud attests, equally dangerous, and far more insidious. Sadly, it is not isolated to Louisiana. 

I will never forget one fairly young prosecutor telling me with unflappable confidence (he was aghast that I didn’t accept his position, in fact) that if someone is accused of a crime by the police, it’s because the person is guilty. If I hadn’t had a colleague standing right next to me at the time, I’d almost be able to convince myself that I remember that conversation incorrectly. Recently, a scandal broke in the Southwest District (of which the Torrance Courthouse is part) when reports surfaced that a former prosecutor, who had recently been elected judge, had told a whole group of prospective jurors that nobody who is prosecuted for crimes is innocent; the prosecution always accuses the right people.  

There can also be a failure, no doubt attributable to larger cultural forces within a prosecutor’s office, to be vigilant about speaking up in the face of clear errors in the system. As Mr. Stroud says of his own experience, “[M]y silence at trial undoubtedly contributed to the wrong-headed result.” He speaks of his failure to point out that defense counsel was clearly unqualified to handle Mr. Ford’s defense. He speaks of failing to address obvious potential racial bias in the jury pool because he knew the law was weak enough to make the repeated exclusion of African-American jurors unassailable. Prosecutors who are focused too heavily on winning do not feel obligated to vigilantly protect the fairness of the system. And if you think that problem is isolated to Louisiana, well…

Mr. Stroud’s statement is incredibly powerful, and his pain cuts right through the screen. He has my full sympathy, and I say that as a jaded, sometimes cynical defense attorney. But all of that said– this letter is a positive step toward fixing the problem of prosecutorial misconduct. Its honesty is so bracing that it forces the reader to confront the systemic causes of this most-serious problem. Prosecutorial misconduct is not a “rogue prosecutor” problem, a “few bad apples” acting on their own, outside the context and culture of their office and their training. Rather, I suspect that it is what happens when decent people trying to do a difficult job well are let down, and ultimately led astray, by the institutions they strive to serve.

 Posted by at 1:00 pm

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