09/09/2014 03:35 pm ET Updated Nov 08, 2014

Prosecutorial Misconduct and the "P" word

Henry McCollum and Leon Brown spent three decades behind bars for a 1983 rape and murder they did not commit. As chronicled this week in the New York Times, those "two convictions were obtained on the basis of inconsistent, soon recanted, confessions from two mentally impaired teenagers who said they had been coerced to sign statements written by interrogators, and testimony by an informer who previously did not implicate the two. They were overturned last week, and Mr. McCollum and Mr. Brown were exonerated and set free. Their release concluded a judicial horror story in which the two men were sent to death row though no physical evidence linked them to the murder. At the same time, a serial sex offender who lived less than 100 yards from the crime scene -- and who, a few weeks after that murder, would kill a teenage girl nearby in strikingly similar circumstances -- was never pursued as a suspect."

This story would be bad enough -- two innocent men sent to death row, the most likely actual killer kills again while false confessions were obtained from men with mental retardation -- but worse yet is the attitude exemplified by the former prosecutor who got the convictions by committing prosecutorial misconduct (he asked the jury to simulate the death of the victim by holding their breath -- and there is a lot of law that says such an argument is improper.)

Also distressing were the prosecutorial violations of the Brady v. Maryland rule which became the law nearly fifty years ago, which says that the prosecution is required to turn over to the defense any evidence which might prove a defendant innocent, guilty of a lesser offense or serving of a lesser penalty. As I have written before, violations of this rule are endemic, and unfortunately seldom punished. In this case, the other suspect's DNA was found on a cigarette near the scene and an exculpatory test of fingerprints was not turned over. Indeed the police denied there was any physical evidence for years to test and then this DNA on the cigarette was discovered.

This District Attorney Joe Freeman Britt of Robeson County, who came to be known as America's "Deadliest D.A." and who earned a spot in "Guinness World Records" and a 60 Minutes profile for his prowess in sending people to death row. He is retired now, and the current district attorney, has said that his predecessor could be tyrannical.

As the New York Times reported:

"He is a bully, and that's the way he ran this office," he said. "People were afraid of him. Lawyers were afraid of him. They were intimidated by his tactics. And he didn't mind doing it that way." He added: "You treat people with dignity, and you can get a whole lot more done that way than you can by trying to run over people. And that's part of his legacy, that he ran over people."

In a subsequent interview, Joe Freeman Britt made it clear that Johnson Britt was not his kind of prosecutor, either.

"Well, let's say, if I was a bully, he is a pussy. How about that?" the elder Mr. Britt said. "I think Johnson Britt has been hanging around too much with the wine and cheese crowd."

Yes, you heard it right. Being fair, turning over exculpatory evidence, being concerned with doing what is right -- which is what we should laud the current prosecutor for doing, earned him the ultimate epithet used to describe someone considered weak. A "pussy." In other words, "weak as a woman" who is then reduced to the slang for her vagina.

Prosecution is a difficult endeavor -- made even more difficult by the warring internal desire to win with what may be less personally satisfying, doing the right thing. Doing what is right takes strength of character. That is what we should want and demand of those who represent us all in the pursuit of justice.

Calling someone who has the courage to do what is right weak, especially in this way reveals what should be obvious to anyone; "America's Deadliest D.A." had to cheat to win. And bad sport that he is, cannot admit to an error, or to any responsibility for essentially allowing another young woman to be murdered by taking the easy way out with confessions from the mentally retarded.

Using what you consider to be the ultimate pejorative word to describe someone critical of your work, Mr. Former D.A., is unethical, sexist, selfish and weak. Like most bullies are.