The Daily Beast’s series of articles on prosecutors this summer was alarming. This summary gives a taste of the content:
“American prosecutors are powerful officials. They have the power to deprive people of their liberty, destroy their reputations, and even take away their lives. They have virtually unlimited discretion in how they exercise their powers.
And yet, they are essentially exempt from any outside supervision, oversight, or accountability. As a result, they can abuse their powers with impunity. And prosecutors do just that, with devastating consequences both for individual defendants (especially people of color and for the system as a whole.”

The system of electing prosecutors restricts their intake and makes it very difficult for ‘bad apples’ to be removed:
“Incumbent prosecutors win re-election 95 percent of the time* …for the simple reason that they frequently run unopposed… It is easy to see why: challengers come from the same local pool of criminal attorneys. About 20 percent of challengers in contested elections for district attorney work in the prosecutor’s office and run against their boss. Most of the other challengers are local criminal defense lawyers who have to cooperate with the district attorney in plea bargaining or face him or her in court. In either case the costs of losing a race against a prosecutor are high.”

Prosecutors seeking re-election become more aggressive in court, abandoning fairness in favor of convictions. Voters tend to hear about little other than the prosecutor’s rate of convictions (easily manipulated by dropping charges or settling cases through plea bargaining); they do not learn whether the prosecutor is committed to justice. For instance, how many people are concerned about the misconduct of the prosecutors in Jeff’s case (Joe Deters, Mark Piepmeier and Rick Gibson)? Their misconduct is detailed by federal Judge Karen Moore in 2012:

“The prosecution withheld Brady evidence, seemingly suborned perjury, improperly vouched for the credibility of state witnesses, Wheeler and Deedrick, improperly denigrated defense counsel, improperly inflamed the jury with speculative commentary about the victim, improperly confronted and commented personally on [Wogenstahl], and improperly observed that the defense had failed to call witnesses. Moreover,… the prosecutor’s penalty-phase closing argument was riddled with improper comments regarding the nature and circumstances of the offense.”

Misconduct on this scale begs the question, “Was there more?” It seems very likely that there was. The jurors in Jeff’s case heard the inaccurate testimony of an FBI hair expert who not only professed to have found a pubic hair on the underwear, but also conclusively linked the ‘hair’ to Jeff (a link which the FBI has admitted should not have been made). The miraculous ‘discovery’ of the hair, the most damning physical ‘evidence’ that linked Jeff to the victim, occurred suspiciously soon after the hair expert conversed with the prosecutors. With known prosecutor misconduct so abundant in Jeff’s case, it seems highly likely that the prosecutors were involved in this deceit as well.

Shocking though the behavior of Jeff’s prosecutors is, the staggering truth is that they are far from alone. Judge Alex Kozinski has caused controversy by referring to an “epidemic” of prosecutors withholding evidence from the defense; but little has changed. And, as the Daily Beast points out,
“…prosecutors are hardly ever punished, even for egregious misconduct, like getting witnesses to lie, using fraudulent evidence, and hiding exculpatory evidence, because prosecutors are immune from being sued civilly.”

It is time for this to change.

*See P. 592.