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.
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