THE BLOG
11/18/2015 12:03 pm ET Updated Nov 18, 2016

Prosecutorial Misconduct and the Public's Perception of Criminal Defense

One of the most recognizable lines in television history is the introduction to NBC's Law & Order:

In the criminal justice system, the people are represented by two separate yet equally important groups: the police who investigate crime and the district attorneys who prosecute the offenders. These are their stories.

A colleague recently questioned that intro, asking, "Where are the criminal defense lawyers?"

It is a valid question; there can't be true justice without the ability to defend oneself. But many times, public perception perches a white hat firmly atop the heads of prosecutors while painting defense attorneys as black-hatted villains.

However, we don't live in a world where police and prosecutors always pick the right suspect. We can't say they always protect defendants' rights. We know that everyone makes mistakes. If every prosecutor was only focused on justice, rather than seeking a conviction, there might be no need for defense attorneys.

You see, it is not the defense attorney's job to help criminals get away with breaking the law. It is not our job to keep "the bad guys" from paying the price for their actions. Our job is to make sure prosecutors do theirs.

Recently in Oklahoma City's federal courthouse, a former missionary was convicted of multiple sex crimes against seven children at a Kenyan orphanage. Matthew Lane Durham, now 21, was 18 when he was accused of sexually assaulting six girls and one boy at the Upendo Children's Home.

The young man was convicted, in part, based on testimony of a Kenyan doctor who said that five of the six girls he examined had internal injuries.

However, a federal prosecutor in the case is now being investigated for possible misconduct after it was discovered he withheld medical evidence that would contradict the Kenyan doctor's findings. A local doctor told prosecutors that it would be virtually impossible for the girls to sustain the described internal injuries without the use of some form of instrument in the assault--which was never alleged.

Furthermore, the local pediatrician stated, even if there were internal injuries, they would not have been present six weeks after the alleged assaults (when the girls were examined). If nothing else, the contradicting physicians' testimony seems sufficient to provide a reasonable doubt as to guilt.

But it's not just about reasonable doubt. In some cases, the prosecution very definitively gets it wrong--like in the case of Glenn Ford, who spent 30 years on Louisiana's death row and came within a week of his execution date before another inmate--an early suspect in the case--admitted to killing the victim.

The district attorney who prosecuted Ford said he felt sick when he found out he sent an innocent man to death row. He admits that he failed to investigate other suspects, and that he was instrumental in getting a jury stacked with all white jurors against Ford, who is black.

Although that specific prosecutor certainly seems remorseful, not all prosecutors feel that way. In fact, the acting District Attorney where Ford was convicted says justice was served, because Ford isn't on death row now, despite having spent three decades there for a crime he didn't commit.

Caddo Parish D.A. Dale Cox said, "I don't know what it is he's apologizing for. I think he's wrong in that the system did not fail Mr. Ford." He does not think that serving half of one's life on death row is a failure of the system. He says, "It's better than dying there and it's better than being executed."

As if "better than" being executed for a crime one didn't commit is a measure of justice or the success of a system. Sounds like his "white hat" might be a little dirty.

So what happens when an attorney is guilty of misconduct in a criminal case? Sadly, it seems to depend upon whether the attorney is a prosecutor or a defense lawyer.

Case in point: the Oklahoma Supreme Court recently issued its disciplinary decision in the case of two prosecutors accused of misleading and withholding evidence from a defense attorney. The two Assistant District Attorneys were prosecuting a murder in which the defendant claimed self defense, and the location of the stabbing was critical. If the defendant stabbed the victim in the driveway, it would lend credence to the self defense theory; if the defendant pursued the victim down the street before stabbing him, it would ruin the self-defense claim.

The prosecutors in question interviewed a witness to the scene who told them the stabbing took place in the driveway--contrary to his initial statements to police that the stabbing occurred down the street. The prosecution determined that the witness was unreliable. They did not call him to testify, but more importantly, they did not tell the defense lawyer that the witness gave new testimony which supported the self-defense theory.

The Oklahoma Supreme Court's penalty for intentionally misleading the defense?

Both prosecutors were ordered to be "publicly censured." A man's life was on the line, and all the prosecution's conduct resulted in was a public reprimand. Compare that to the case of an Oklahoma defense attorney accused of suborning perjury.

After a witness was found to by lying when she said that a drug defendant was with her in Mexico on the day of a 2007 drug deal, attorney Mark Clayborne was accused of knowing the witness was lying and knowing she had altered the date on a video to make it appear that she and the defendant were together in Mexico on the date of the alleged offense.

Clayborne contested the witness's statement that he told her to lie, saying he did not knowingly permit perjury. However, he was convicted of one count of perjury by subornation and one count of false preparation of exhibits as evidence. He was disbarred and criminally sentenced to six years in prison.

When prosecutors hide real mitigation evidence in an attempt to aid their case, they are merely reprimanded and face no criminal charges. When defense attorneys present fabricated mitigation evidence in an attempt to aid their case, they are disbarred and sent to prison.

Our government is built on a system of checks and balances, and the criminal justice system is no different. Defense attorney are not trying to help the "bad guys"--they are trying to protect us all from the "bad guys," no matter if they are the clients they defend or the prosecutors and law enforcement agents they hold in check.