Ezekiel Edwards

Prosecuting Prosecutors?

In 1992, Shih-Wei Su was convicted of attempted murder and sentenced to between 16 and 50 years in prison. After serving 12 years, his conviction was overturned by a federal court on the grounds of prosecutorial misconduct, specifically that the prosecutor elicited false testimony against Su and misled the jury. Prosecutors are usually the most vocal proponents of the mantra that "people must be held responsible for their actions." In Mr. Su's case, what responsibility should the prosecutor bear for the injustice perpetrated on Mr. Su? How, if at all, should the prosecutor be punished?

In reality, prosecutors are rarely held accountable for their intentional acts that strip years of freedom off someone's life. It is almost as if a court's eventual overturning of the conviction years later, and the occasional successful civil lawsuit against the city, are remedies enough, even though the individual culprit --- the assistant district attorney --- escapes unpunished (instead, they are promoted, or perhaps move on to earn more money in the private sector). In a profession in which upward mobility is often made possible through successful trial experience (the number of trials you have done and the number you have won), in which winning (obtaining convictions) is a greater goal than playing fair, and in which lawyers are often adept at being able to rationalize unethical behavior after-the-fact, what incentive does a prosecutor have NOT to withhold evidence potentially harmful to her case (other than an oh-so-elusive moral obligation)?

Many times, the answer is very little. As a result, prosecutorial misconduct is not as unusual as it should be. In 2003, attorney Joel Rudin filed a successful lawsuit against the Bronx District Attorney's Office (which settled for $5 million) alleging a pattern and practice of prosecutorial misconduct in Bronx County; specifically, he cited 62 cases reversed at least in part because of prosecutorial misconduct (yet which resulted in the disciplining of only one prosecutor).

Mr. Rudin has now set his sights on the Queens District Attorney's Office in the name of Mr. Su. Through Mr. Rudin, Su is filing a lawsuit alleging that the Queens Office has obtained numerous convictions --- including 84 that were reversed by higher courts --- through the widespread repetition of misconduct, including withholding evidence, putting forth false testimony (particularly regarding testimony by witnesses receiving leniency in exchange for their cooperation), and otherwise misleading juries. Again, not one prosecutor has been held accountable for the above conduct.

The point here is not that every prosecutor is unethical. In fact, many of the prosecutors I encounter are fair, reasonable, and as forthright as the circumstances permit. Often, their misguided actions emerge not from malice, but from their overzealous belief in a defendant's guilt. In addition, prosecutors, like defense lawyers, judges, police officers, doctors, etc., will make many good faith errors in their careers, errors for which they should not be punished, no matter how dire the consequences (lest we are content to stop prosecuting, defending, judging, arresting, or operating on people). As a society, we want our public servants to do their jobs energetically and creatively, without being in constant fear that one honest mistake, be it an erroneous legal decision, the enactment of a misguided law, an arrest later deemed unconstitutional, or the prosecution of an innocent man, will subject them to a disciplinary committee, loss of employment, or a flood of lawsuits.

Some prosecutors, however, are gripped by a competitive determination to prevail without regard for what is appropriate or just. In an inherently adversarial system, trials become more about winning and losing, ego, competition, and promotions, not about guilt, innocence, or fairness. When someone's freedom hangs in the balance, a prosecutor cannot allow his confidence, career, or competitiveness to interfere with his obligations under the law.

Mr. Rudin's lawsuits demonstrate that while prosecutorial misconduct may not be a once-in-a-blue-moon occurrence, holding specific assistant district attorneys responsible is. The point of punishing prosecutors whose intentional misconduct causes such devastating consequences for people like Mr. Wu is not to intimidate or deter other assistant district attorneys from aggressively prosecuting their cases --- after all, they should be able to do so without relying on dirty tactics. Rather, it is to (1) put in place more rigorous ethical oversight by the District Attorney's Office to ensure that its employees are playing by the rules; (2) hold the culpable lawyer accountable for the consequences of overstepping professional bounds; and (3) set an example to other assistant district attorneys that when someone's liberty is at stake, they must adhere strictly to an ethical code of conduct.

No civil or criminal penalty can restore the years Mr. Su, or dozens like him, has lost to unwarranted incarceration. However, in cases where the prosecutorial misconduct is deliberate and premeditated --- in most instances, prosecutors know whether or not their actions are permissible --- the District Attorney's Office must be held responsible. In particularly egregious cases, the offending attorney should pay a personal price as well, whether it means stepping down as a prosecutor, suspension of her law license, performing many hours of community service, or paying a sum of restitution. Just as prosecutors seek sanctions against individuals who may have committed crimes, so too should aggrieved individuals seek penalties against prosecutors (or their office) whose intentional wrongdoing have sent them to prison.

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Posted at 7:00 AM, Feb 21, 2006 in Criminal Justice
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