Tennessee law professor and Instapundit Glenn Reynolds takes on prosecutor misconduct in a column for USA Today. He begins with a case from California in which Kern County prosecutor Robert Murray appended a confession to a suspect’s statement without the suspect’s knowledge.
Incredibly, the State of California, via Attorney General Kamala Harris, decided to appeal the case. The state’s key argument: That putting a fake confession in the transcript wasn’t “outrageous” because it didn’t involve physical brutality, like chaining someone to a radiator and beating him with a hose.
Well, no. It just involved an officer of the court knowingly producing a fraudulent document in order to secure an illicit advantage. If Harris really thinks that knowingly producing a fraudulent document to secure an illicit advantage isn’t “outrageous,” then perhaps she slept through her legal ethics courses.
The California Court of Appeal for the Fifth Appellate District didn’t buy Harris’s argument, and upheld the dismissal of charges. That means the defendant went free.
On one level, that’s fair: The prosecution should pay a price when it engages in outrageous misconduct. On the other hand, it’s entirely possible that the defendant was actually guilty (sure, Murray was trying to railroad him, but you can railroad a guilty man) and now the charges against him have been dropped. If he’s guilty, taxpayers are at risk for future crimes.
Meanwhile, Murray suffered no actual punishment for his wrongdoing. As a report in the New York Observer notes: “For reasons beyond comprehension, he still works for the District Attorney Lisa Green in Kern County, Calif.” Murray does face the possibility of discipline from the California bar, but even disbarment would be a light punishment for knowingly producing a false document in a criminal proceeding.
Our criminal justice system depends on honesty. It’s also based on the principle that people who do wrong should be punished. Prosecutors, however, often avoid any consequences for their misbehavior, even when it is repeated.
Worse yet, prosecutors are also immune from civil suit, under a Supreme Court-created doctrine called “absolute immunity” that is one of the greatest, though least discussed, examples of judicial activism in history. So prosecutors won’t punish prosecutors, and victims of prosecutors’ wrongdoing can’t even sue them for damages.
That leaves courts without much else to do besides throwing out charges in cases of outrageous misconduct. But if we care about seeing the law enforced fairly and honestly, we need more accountability.
I’d add that disbarment isn’t likely, either. State bars are notoriously lax at disciplining prosecutors, even after egregious misconduct.
Reynolds’s point is amplified by the the fact that this occurred in Kern County, a jurisdiction with a long and unfortunate history of putting the wrong people in prison. This was ground zero for the ritual sex abuse panic of the 1980s and 1990s. At least two dozen people in Kern County alone were exonerated after spending years in prison for crimes they didn’t commit. In some cases, these were parents wrongly accused of sexually abusing their own children. The longtime DA who oversaw those cases, Ed Jagels, continued to get reelected. When he retired a few years ago, he was widely praised for his public service. The head of the state’s District Attorneys Association called him “a prosecutor’s prosecutor,” and he was asked to be a criminal justice consultant for various political candidates.
If a couple dozen wrongful convictions aren’t enough to even get a prosecutor criticized, much less removed from office or punished, I suppose we shouldn’t be surprised if fabricating a confession gets no more punishment than some admonishment from an appeals court. And it isn’t just Kern County. If you read The Watch regularly, you already know about the ongoing scandals in the DA offices in Orange and Santa Clara counties. And in fact, the previous link is the second misconduct scandal in Santa Clara county in the past five years. And of course, these problems aren’t just limited to California, either.
Meanwhile, over at the blog A Public Defender, here’s a post looking at possible solutions to misconduct, and some analysis of the viability of those solutions.