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Rogue Wave

How Worried Should We Be About Rogue Prosecutors?

Another month, another GOP attorney scandal. Let's look at the latest, shall we? Back in 2005, federal prosecutors threw corruption charges at Don Siegelman, the popular Democratic ex-governor of Alabama, just as he was running to reclaim the governor's seat. Not surprisingly, he lost his primary race, and was later sentenced to seven years in prison. Now, it turns out, according to a recent Time report, that a key witness in the case, lobbyist Lanny Young, had originally told investigators that he had bribed not just Siegelman, but several key Alabama Republicans as well, including now-Senator Jeff Sessions. Yet the prosecutors--Republicans one and all--only went after Siegelman. How curious.

More recently, one Republican lawyer told Congress that Karl Rove had chatted with the Justice Department about "pursuing" Siegelman, which, if true, might make this an especially gruesome instance of the White House bending the rule of law for partisan gain. But, in many ways, it's also a story about the oft-unchecked power of prosecutors themselves. Yes, prosecutors always get leeway to decide which cases to charge. But how do we know when that power's being misused? Did the U.S. Attorney's office in Alabama lay off Sessions because there wasn't enough evidence or because several of the investigating attorneys had once worked for him? And do similar abuses occur elsewhere in the legal system, away from the media spotlight?

Some of those same questions came up at a Brookings panel last week on "Prosecutorial Misconduct and Abuses." The pretext here was the now-infamous Duke rape case, in which district attorney Mike Nifong tried to frame three lacrosse players for a crime that did not occur, while withholding exculpatory evidence. (Nifong has since been disbarred, booted from office, and is now the subject of a multimillion-dollar lawsuit.) One panelist, Stuart Taylor, Jr., a National Journal columnist who has written a book on the case, argued that, while Nifong was an extreme example, prosecutorial abuses do occur "in enough cases that we need to think about reform." Indeed, a variety of studies and newspaper reports over the years have suggested as much--but they've usually been ignored. Now, though, between the Duke case and the Bush attorney scandals, is prosecutorial power finally going to get the closer scrutiny it deserves?

Interestingly, at the Brookings event, all of the panelists gave widely varying estimates as to how common prosecutorial misconduct actually was. Steve Benjamin, a defense lawyer, thought Taylor was too "optimistic" and suggested that Nifong-type abuses were "so pervasive that they are the reality of virtually every criminal prosecution in this country." Meanwhile, James Comey, the former deputy attorney general who defied President Bush over the wiretapping program--and who, by all accounts, was a model of probity as a federal prosecutor--had a more sanguine take: "I think the Nifong case is an outlier. It doesn't teach me much."

So, let's roll out the studies. In 2003, the Center for Public Integrity (CPI) found that, since 1970, judges and court panels have dismissed charges, reversed convictions, or reduced sentences in at least 2,012 cases because of prosecutorial misconduct--withholding or tampering with evidence, coaching witnesses, making inflammatory remarks to the jury, and so on. And that's probably a radical undercount, since not all appellate court decisions are published, and CPI could only study cases that actually went to trial. (About 95 percent of cases are settled by guilty pleas to lesser charges--an area where prosecutors have immense power over the outcome, and little oversight.) No doubt a vast majority of the country's 30,000 do their jobs honestly, but that still leaves a fair bit of misbehavior.

Newspaper investigations have found much the same thing. In 1998, Ken Armstrong and Maurice Possley of the Chicago Tribune rifled through 11,000 cases since 1963 and found that--as happened at Duke and in Alabama--prosecutors routinely failed to turn over evidence favorable to the defendant's case, despite being constitutionally required to do so. Likewise, in 1996, Bill Moushey of the Pittsburgh Post-Gazette studied 1,500 complaints about prosecutor misconduct and found hundreds of cases where exculpatory evidence was withheld; yet the courts only overturned verdicts in the most egregious instances. Neither investigation had much trouble finding innocent people sent to jail by a prosecutor bending the rules.

And outright misconduct hardly exhausts the issue. In her recent book, Arbitrary Justice, Angela Davis argues that prosecutors' vast discretionary power--they decide, after all, when to charge, what charges to bring, and when to accept a plea--can create problems even when there's no outright wrongdoing. As an example, Davis notes that prosecutors are often far more likely to pursue charges when the victim of a crime is well-to-do, since he or she is more likely to show up in court (and complain if the charges are dropped). That's a reasonable impulse, but over time, small biases like that can lead to larger racial and income disparities in the legal system. And whereas judges often come under fire for showing leniency toward some defendants and not others, prosecutors rarely get the same type of scrutiny. Local elections tend to be an imperfect check on their power, since voters usually want a district attorney who's "tough on crime," without fretting too much about the details.

An investigation published last month by the Atlanta Journal-Constitution made this all rather vivid. The newspaper looked at 1,315 murder cases in Georgia over the past decade, and found that prosecutors only sought the death penalty in a quarter of the cases. But there was absolutely no rhyme or reason as to when, exactly, death would be pursued: It wasn't necessarily the grisliest cases, or the cases that were easiest to win. A local district attorney explained it this way: "You know it when you see it." In fact, only one clear pattern emerged: Prosecutors were twice as likely to seek death when the victim was white. As Davis argues, whether or not overt racism is at work, individual biases can pile up and create inequities that undermine faith in the fairness of the justice system.

The list goes on: Prosecutors often "overcharge"--tacking on additional charges to give themselves more leverage in plea bargaining or, if the case goes to trial, a better chance of securing a conviction. (A jury, after all, is more likely to think a defendant "must be" guilty if there's a long list of charges, and often will compromise by settling on a few--something that could plausibly have happened with Siegelman, who was acquitted on 25 counts and convicted on seven.) And prosecutors have seen their power greatly enhanced by mandatory-minimum sentencing laws, which make it harder for a defendant to turn down a plea offer, since he won't be able to rely on a judge's discretion if found guilty in court. Prosecutors also have increasingly substantial power to reduce sentences for defendants who cooperate against other suspects--a useful power that can, in the absence of oversight, lend itself to abuse (or give informants incentives to lie). A decent case can be made for many of these powers; it's the lack of checks on overreach that can cause things to go awry.

To be sure, prosecutorial excess isn't the only kink in the U.S. justice system. Between 2002 and 2005, the San Jose Mercury News examined 727 cases in Santa Clara County that had been appealed. Sure enough, nearly 100 featured prosecutors engaging in questionable conduct, such as withholding evidence or misleading juries. "Too often," the paper noted of the ethos inside many district attorneys' offices, "it's all about winning rather than ethics and fairness." But, in another 100 cases, the paper found defense attorneys, both public and private, who had failed to do even basic groundwork for their cases--interviewing witnesses, say, or objecting to inadmissible evidence. And, in 160 cases, judges failed to oversee trials impartially, often allowing improper evidence or unduly favoring the prosecution. Still, prosecutor power is one of the least-scrutinized aspects of the justice system (perhaps because shows like Law and Order have given prosecutors such a sterling public reputation.)

Plus, it's not like anyone has come up with a surefire way to change things. As Davis points out, a well-functioning legal system has to give prosecutors a great deal of discretion, and while smaller reforms--public information campaigns, say, or independent review boards--could help, a radical overhaul is probably unfeasible. At the Brookings event, Comey stressed the need for prosecutors to question their own cases more often--a noble sentiment, but one that's hard to enforce. More concretely, Davis has called on judges to impose harsher sanctions for foul play, a cultural shift that's likely to be slow in coming: As CPI found, across the country prosecutors have faced disciplinary proceedings in only 44 cases since 1963. No easy answers here. All the same, one would hope that the Alabama and Duke cases might, at the very least, raise a few hard questions.

Bradford Plumer is an assistant editor at The New Republic.