Malicious prosecution

Why Prosecutorial Misconduct and Abuses Are Taking Place So Brazenly

Prosecutorial misconduct and abuses are taking place in the United States with little fear by the prosecutors of being held accountable for their wrongdoing. The reasons for this are understandable, but take some explanation. Here is what seems to be happening:

The first thing to realize is that the tool of prosecutors is the grand jury, which operates in secret. Actually, as you may know, the grand jury doesn't operate much at all, and is usually no more than a room filled with dozing, disinterested persons (called grand jurors) who go in and out of their room almost at will, waiting for one or more prosecutors to "present" their cases to the grand jury for their rubber-stamp approval, called an "indictment".
Generally, all of the grand jurors are not present when evidence is offered by the prosecutor to the grand jury, and one grand juror more than 50% constitutes a quorum.

The grand jury does not get to see all of the evidence obtained by the prosecutor. Instead, the prosecutor selects what evidence he believes, as an advocate, is enough to justify asking for (and almost always getting) an indictment.
If the prosecutor has exculpatory evidence showing that the accused did not commit the crime, the prosecutor generally does not tell the grand jury about such evidence.

The prosecutor is an officer of the courts, as with any attorney, and theoretically the prosecutor is responsible to the courts for what he/she does.
In our adversary legal system, the judges generally do nothing unless requested to act by one of the adversaries, but with a grand jury investigation there is no adversary for much of what takes place. The defendant may not even be aware there is a grand jury proceeding, and even if he/she does know about it, the activities of the prosecution in issuing grand jury subpoenas, interviewing prospective witnesses, reviewing subpoenaed documents are usually done without anyone's knowledge except the prosecutor and the witness being subpoenaed. [So much for an adversary system in the criminal area.]
The prosecutor's interest in the prosecution is to win, and for the unscrupulous, unethical prosecutor to win regardless of the guilt or innocence of the accused. [See the article describing specific abuses by some prosecutors.] The prosecutor's career path could be injured by failing to win, showing the lack of skill as a prosecutor for a lost criminal case, or poor professional judgment in obtaining an indictment which later was dismissed.
The prosecutor's career path is enhanced by being, and being known as as "winner", which enables the prosecutor to get more visible cases, and to obtain higher position and compensation in the prosecutor's office. Also, the career path for the successful prosecutor, as we have seen from the past, can go right up to the White House or to the position as Attorney General or as a federal judge at any of the 3 levels (District Court, Circuit Court of Appeals and the Supreme Court).

The loss of a criminal case once commenced through obtaining an indictment can cause a major reversal in a prosecutor's planned career, and with such pressure to succeed, what difference (the prosecutor argues to himself) does it make if the prosecutor cuts a few corners here and there. The defendant is probably guilty, of something, if not the crime for which he/she has been indicted.
In an economy which is becoming more concentrated, with big business and government becoming larger all the time, the economic opportunities for the prosecutor may appear to be dwindling in the private sector, whereas with government growth his/her prospects are steadily increasing, as long as the prosecutor wins.

A prosecutor wants publicity, and so does the prosecutor's superiors and political masters. If one of the major news media target someone for criminal prosecution, the prosecutor's superior will jump at the chance, because there is a guarantee of publicity at least by the news medium which indicated its desire to have the person indicted and convicted for whatever reasons the medium put together for sale as soft news to the public.
When the prosecutor responds to the announced wishes of the major media, the prosecutor is rewarded with favorable publicity. But when the prosecutor fails to do the medium's bidding, the prosecutor can expect to receive little or no publicity, which will put the prosecutor's career in a terminal, downward tailspin.

Judges are there to protect the public from oppression, but the prosecutorial oppression occurs without any adversary, and any efforts to expose combat prosecutorial oppression can be expected to result in even more oppression, more prejudicial, illegal activity, a greater chance for conviction, and a longer sentence.

Judges often favor prosecutors because many judges were prosecutors and were appointed judges for that reason. Prosecutors in effect are judges-to-be, or judicial descendants, and treated as such by current judges, to the extreme prejudice of defendants who are being prosecuted through unlawful, unconstitutional and oppressive tactics.

It must be pointed out that not all prosecutors fall within the bad category, and obviously that most judges would not even see that the decisions they make enforcing prosecutorial misconduct were bad decisions. After all, many people working in the criminal justice system "know" that a person is not indicted unless he/she is guilty, especially when reading the reports from the media which caused the indictment in the first place.
It's something similar to reading a judge's decision for anyone except the involved parties and their attorneys. Almost every decision is written in a way to convince persons unfamiliar with the case that the decision is a just one. Accordingly, when a judge says something such as "there is absolutely no evidence at all in favor of the plaintiff", a person not familiar with the affidavits, testimony, exhibits and other documents in the case would probably assume that the decision is accurate, and not realize that the decision is using the language required to be used to dismiss a case.
Anyway, judges are not immune from societal pressures. Judges would like to be appointed to higher courts; they would like to be appointed as CIA or FBI director; they would like to continue their friendships with the persons who appointed them as judges in the first place. Also, most importantly, they want to have a family life, something which they could never have if they did not dismiss most cases assigned to them.
Our political system has deliberately created a shortage of judges by not appointing enough judges and building enough courts to solve the meritorious civil and criminal disputes produced by the most vibrant economy in the world. Thus, the judges are not given enough time to render justice and are forced into dismissing cases which they might otherwise not dismiss if they had a lower caseload.Judges are human and victims as well. They sign on as judges to render justice and learn, sooner or later, that it is not as easy to accomplish as one might expect looking in from the outside.

When a defendant complains about prosecutorial misconduct, it is just one more matter for the judge to handle. If the complaint is dismissed immediately, there is less work to be done on the matter; but if the complaint of prosecutorial misconduct is handled with a view to even-handed justice, there might be hearings to schedule and conduct, discovery to review, and decisions to write - all time-consuming matters which would take the judge away from the other pressures of his/her caseload. What we have is little effective restraint against prosecutorial misconduct. It is conducted in secret against victims (even as to those who are in fact guilty of the indictment charges) who are reluctant to antagonize the prosecutor, in a non-adversary environment with little interest or opportunity for the judiciary to oversee.


Copyright © 1998 by Carl E. Person

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