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Prosecutors Gone Wild: How Many Wrongful Convictions Will the Public Stand for?

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Even casual samplers of the media now come across colossal injustices and failures in the U.S. justice criminal system every two weeks or so. Yet these stories, everyone a heart-breaking recitation of how willful prosecution misconduct has ruined a life or a family, with no consequences at all to whoever has abused his great powers as a prosecutor, seem never to elicit any particular public response or gain any traction for review or reform.

It is an achievement just to pierce the eagerness of most of the media to be a stentorian Hallelujah chorus for law and order paranoia.

The latest such incident is the lamentable affair in Texas in which Michael Morton was accused and convicted of murdering his wife, spent 25 years in prison, has been exonerated because of DNA evidence that was withheld from the trial by prosecutors, and another suspect has now been arrested and charged. Mistakes happen, are not rare, and provide one of the strongest arguments against the death penalty.

What makes this more worrisome than a sad story of a no-fault miscarriage of justice, are strong allegations that the prosecutors, Ken Anderson, now a state judge, and Mike Davis, deliberately sandbagged Morton by unlawfully withholding evidence.

It is alleged that Anderson withheld police notes that someone else committed the murder, did not provide the full police report, including evidence of activity on Mrs. Morton's credit card after Mr. Morton had been taken into custody; and that Anderson advised his successor as prosecutor "to oppose all of Mr. Morton's post-conviction motions for DNA testing."

Morton and his counsel have been assisted by the Innocence Foundation, which specializes in using DNA evidence to seek the exoneration of convicts. It and like-minded groups have sometimes been harassed by prosecutors and threatened with charges of obstructing justice. Innocence and Morton's own counsel claim that in this case Anderson disobeyed "a direct order from the trial court to produce the exculpatory police reports from the lead investigator," (a claim the investigator himself corroborates). Morton and his counsel have asked for a "court of inquiry" to determine whether Anderson and Davis should be charged criminally for abetting what they knew to be a false conviction.

For the purposes of determining wrongdoing, the Texas attorney general became the special prosecutor, and the spokesman for the attorney general declined to reply to questions about a possible conflict of interest. Anderson and Davis at first refused to give depositions or answer subpoenas, but when overwhelmed by decisions validating Morton's right to know more, Anderson said he felt "sick" about what had happened, but explained, as if it mitigated responsibility or the gravity of what occurred, that "prosecutors are under a lot of pressure to convict." Davis claimed to be only an "innocent bystander" between Morton and Anderson, an unusual posture for a prosecutor in his own case.

The issue is whether prosecutors are under any requirement at all to comply with defendants' constitutional rights to due process and a fair trial, or if there is no sanction at all for their violation of those rights. In a well-publicized Arkansas case last year, three men who had been in prison for 17 years, one on death row, for a murder for which they were ultimately exonerated, could only negotiate themselves to freedom by pleading guilty to a lesser offense for which they were released for time served. But by pre-arrangement, they recounted to the court that it was a false plea, that they were not guilty of anything, and that they were only going through this charade to restart their lives as free men as quickly as possible. The episode was reported almost without comment even in the liberal national media.

Prosecutors have practically untrammeled discretion in deciding what to charge, how many counts to allege, and a very wide latitude in sentences sought. Grand juries are just a rubber stamp for prosecutors, and contrary to the spirit of the Fifth Amendment, provide absolutely no assurance against capricious prosecution. But complicity in or direct causation of the lengthy incarceration of falsely accused and convicted people, not to be confused with honest error and misplaced zeal, is a terribly serious offense and is so treated in every other serious jurisdiction except the U.S.

The Brady Rule, enunciated by the U.S. Supreme Court in 1963, requires prosecutors to disclose evidence favorable to defendants. But failure to do so is rarely discovered and almost never punished when it is unearthed. In the infamous case of Senator Ted Stevens of Alaska, it was revealed that the prosecutors had withheld evidence that they knew to be exculpatory, causing the senator's conviction and narrow electoral defeat, before the whole case was blown up as unjust.

Yet the court-appointed inquiry did not recommend criminal proceedings against the prosecutors for professional misconduct because the trial judge had not told the prosecutors that they had to obey the law. This is utterly spurious, of course, but especially so as the transcript reveals that the prosecutors responded to a request from senator Stevens' defense team for a motion so ordering them, that it was unnecessary because they would of course not break the law. (The report expressed no opinion about charging the prosecutors with obstruction of justice.)

The legal profession in the United States is a professional cartel where legislating lawyers and regulators produce thousands of new enforceable laws and regulations every year; judges, prosecutors, and private sector counsel lock arms to ensure that legal invoices, (which total almost 10 per cent of GDP -- almost $1.4 trillion annually), are paid as a priority surpassed only by the claims of government.

Unlimited incidences of what other legally serious countries would consider frivolous or vexatious litigation clog the civil courts, and prosecutors enjoy a stacked evidentiary and procedural deck which gives them a success rate in prosecutions of over 90 per cent. (The corresponding figure in Canada is about 65 per cent, and only about 40 per cent of those receive custodial sentences.)

The United States has just five per cent of the world's population, 25 per cent of its incarcerated people, and 50 per cent of its lawyers. The U.S. Supreme Court is unvaryingly proud to try law and not fact, and is thus ostentatiously uninterested in a just result as such, in the unutterably irritating and desiccated way of people who profess indifference to the control they exercise over the fate of real people.

Last year, in the case of John Thompson, a man who spent 14 years on death row for a crime of which he was eventually exonerated, after a shocking sequence of prosecution acts of deceit, the Supreme Court conferred what amounted to an absolute immunity for prosecutors from civil recourse for their actions. Justice Thomas, for the court majority, explained that the "attorney (including a prosecutor) who violates his or her ethical (obligations) is subject to professional discipline, including sanctions, suspension, and disbarment." The justice knows what a fatuous bit of dissembling this is, as the legal cartel locks arms to assist its members to escape responsibility for all but the most egregious crimes. (Justice Ginsburg's opinion for the dissenters was very cogent.)

In any other legally serious country, the Morton-like cases would incite public outrage. In the Morton case, Judge Sid Harle, in releasing Morton after 25 years of wrongful imprisonment caused by prosecution dishonesty, expressed his "sympathies" for Morton, but said his release proved that the United States "has the best justice system in the world."

In fact, it is a frequently evil and generally defective system that thrives on complacency. Republicans have even delayed Senator Jim Webb's proposal to establish a blue ribbon commission to review stratospheric American incarceration rates.

In the United States, even the staggering 48 million people with a "record" seem not to care. The media, in their lust to amplify the publicization of crime and incite paranoia, have brain-washed from public memory the ragged bourgeois, constitutional, heirloom of the presumption of innocence.

Next to the electoral accountability of government officials, the two greatest pillars of democratic civilization are the rule of law and a free press. By giving the press, in theNew York Times and Sullivan, an almost absolute immunity against defamation actions, and the prosecution service an almost absolute immunity from responsibility for its own lawlessness, the Supreme Court has detonated high explosives under the foundations of American civilization.

Needless to add, the justices enjoy life sinecures in their August offices, and have generally avoided the well-earned public contempt that now largely attaches to the Congress and most of the administration. The law is a very spavined ass, and the sooner the public realizes this and determines that something must be done about it, the better it will be for everyone.

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