What all my criminal defense attorney pals long believed to be true got some supportive press this week along with some empirical backing. Defense lawyers know the criminal system is broken largely because of prosecutorial misconduct and the failure of some courts to act as “the guardian of our constitutional rights.”
Indeed, as one of those defense lawyer friends who’s also a scholar writes, “Prosecutorial misconduct has infected every stage of the criminal process ranging from the initial charging decision through post-conviction proceedings.”
Moreover, in the words of a dissenting jurist, criminal defendants, especially the indigent, are treated like just another “fungible item to be shuffled along on a criminal-justice conveyor belt.”
Several days ago, Nina Morrison, a senior staff attorney at the Innocence Project in New York, wrote a scathing op-ed in The New York Times, “What Happens When Prosecutors Break the Law?”
“All too often,” she wrote, the justice system“falls silent when the culprit is a prosecutor, and the victim is an ordinary citizen accused of a crime.”
Relying on a recent case to make the point that misconduct by prosecutors too often goes unpunished, she discusses what happened when Suffolk County, NY homicide prosecutor Glenn Kurtzrock was caught violating Brady v. Maryland, 373 U.S. 83 (1963). This is the U.S. Supreme Court decision that requires prosecutors to turn over any materially exculpatory evidence in the government’s possession to defendants. Well, Kurtzrock was caught withholding exculpatory evidence in violation of Brady in multiple cases.
“So what happened to Mr. Kurtzrock?” Morrison asked.
Nothing.
Thirteen months after his public firing, and five murder cases overturned because of his illegal actions, Mr. Kurtzrock hasn’t been charged with a single crime. Not fraud, not tampering with government records, not contempt of court.
And he hasn’t even been suspended from practicing law, much less disbarred. He’s now working as a defense lawyer in private practice. That’s right: he’s making a living representing people accused of crimes, in the same courthouse from which he was (supposedly) banished a year ago. His law firm website even touts his experience as a “former homicide prosecutor.”
The law also makes it virtually impossible for Mr. Kurtzrock’s victims to sue him, with the Supreme Court having declared that individual prosecutors and their offices are “immune” from civil rights lawsuits in all but the rarest of cases.
Nina Morrison’s commentary should be widely read.
Verifiable support.
Empirically speaking, the current Houston Law Review as usefully summarized by the website, The Open File, at “TX: In Harris County Capital Cases, Prosecutors Get to Be the Judges,” discusses what they call a “thorough and definitive” essay, “The Problem of ‘Rubber-Stamping’ in State Capital Habeas Proceedings: A Harris County Case Study,” by Jordan Steiker, James Marcus, and Thea Posel.
It’s about “how Harris County criminal court judges act as little more than feckless vessels, used by prosecutors to sign off on whatever version of events the local prosecutors believe will be most helpful to their litigation interests.”
The researchers examined 199 Harris County capital post-conviction cases since 1995 to find that
Harris County post-conviction prosecutors have authored and proposed 21,275 separate findings of fact and conclusions of law and the Harris County courts have adopted 20,261 of the prosecutors’ proposed findings verbatim: an adoption rate of 95%. In fact, judges in Harris County have adopted all of the prosecutors’ findings verbatim in 183 out of 191 sets of findings, or 96%. In the vast majority (167) of those cases, the judges simply signed the state’s proposed document without changing the heading.
[The lawyers, policy advocates, law professors and students at The Open File were galvanized to write about prosecutorial misconduct and system failure by the 2011 U.S. Supreme Court case, Connick v. Thompson, a decision that also raised my hackles here.]
But what’s most concerning about the Harris County case study is what The Open File author opined, “More studies like this one ought to be undertaken to uncover these practices in other parts of the nation. It would not surprise us if the percentages of rubber-stamped recommendations in many death penalty jurisdictions rival the Harris County findings.”
And summing up, he declared, “Prosecutors do not need any more power than they already possess. Letting them act simultaneously as judge and prosecutor makes a mockery of due process and our criminal courts.”
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Credits: “washed sand on conveyor,” by Peter Cravens, Wikimedia Commons, creative commons attribution generic license; “justice,” morguefile.com.