People accused of crimes have many worries, but they might not realize that incompetence can be a prosecutor's most dangerous weapon.
Advocates pushing for reform of the justice system say that many U.S. states need to fix their laws to prevent prosecutorial misconduct, so that mistakes by district attorneys don’t send innocent people to prison.
Misconduct often occurs when prosecutors fail to turn over evidence to the defense that could prove the suspect’s innocence. This can be merely accidental, with prosecutors failing to recognize the significance of certain evidence that the police and their own office have gathered in the case.
“Nobody knows for sure how many wrongfully convicted people there have been,” said Everett Bartlett, president of the Center for Prosecutor Integrity, a nonprofit group pushing for change.
“But estimates [suggest that] 3 to 5 percent of those convictions are wrongful,” he said. “So when you look at how many convictions occur each year, we’re really talking about tens of thousands of people who are wrongfully convicted.”
Those wrongful convictions affect young African-American males more often than other groups, Bartlett said. And only about 2 percent of prosecutors ever face consequences for prosecutorial misconduct, he said.
Bartlett’s organization recommends allowing defense attorneys to have access to all of the prosecution’s evidence, instead of relying on prosecutors to decide what information might help clear the suspect of guilt. Bartlett said several states have already adopted the so-called open-file policy.
“It simply means that all of the files, all of the witness statements, all of the evidence is made available to the defense attorney to review,” Bartlett said. This kind of procedure, he said, is the best way to avoid the most common kinds of prosecutorial misconduct.
“It is common sense. It really is hard to understand why this is not the norm,” he said.
Henry Garza, president of the National District Attorneys Association and district attorney for Bell County, Texas, near Austin, said he supports open-file measures but disagrees with estimates of the amount of prosecutorial misconduct in the U.S. He said recent studies have merely looked at cases where misconduct — imprecisely defined — may have occurred but whose presence was not proved.
Garza said that state laws vary, but emphasized that in Texas, defense attorneys and prosecutors already have access to all of the same information provided by law enforcement. This averts the problem of relying on a prosecutor to decide what the defense gets to see, Garza said, and eliminates accidental failure to turn over exculpatory evidence.
“In Texas we provide full discovery, so that includes the witness statements, the officer report, the forensic reports, any videos or audio, photographs,” he said. “It’s an extremely broad delivery of information to our defense attorneys.”
Garza said that legal practices are trending toward open file, but the burden still falls on prosecutors to let the defense know if they find out the convict was actually innocent, even years after a court hands down a verdict.
“You still have a duty to provide that information,” Garza said.
Sometimes the source of the error is simple disorganization, which can have tragic consequences for the accused.
David A. Moran is a clinical professor of law at the University of Michigan and the director of the school’s Innocence Clinic, which helps inmates appeal convictions. He cited a case in which Michigan prosecutors convicted an innocent man, Dwayne Provience, for murder, then years later convicted another man for the same crime.
The prosecutors had no idea they had made such a grievous mistake, Moran said.
“I believe that their record-keeping practices were so haphazard, they didn’t know that a different group of prosecutors had already convicted a different person,” Moran said.
Freed at the age of 36, Provience spent almost 10 years in prison for a crime he didn't commit. Law students at the Innocence Clinic were able to get him a new trial, but most wrongfully convicted people don't get a second chance.
Moran said a minute fraction of prosecutorial misconduct cases represent an intentional attempt to convict an innocent person. In most cases, the cause is human error, driven by a desire to prove to a jury that ultimately discounts contradictory evidence.
“There’s tunnel vision,” Moran said. “Prosecutors are human.”
“They look at the evidence, but because they’re so focused on the belief that the defendant is guilty, they don’t see that this document points away from the defendant’s guilt. It’s a form of cognitive bias.”
Moran described one 2005 case involving a wrongly convicted man, Claude McCollum, who spent years in jail for raping and strangling a 60-year-old teacher at a community college in Lansing, Michigan. Police were able to extract a false confession from McCollum, a homeless and learning-disabled student at the school who also often slept there.
The prosecutor in the case discounted video evidence of McCollum sleeping in the school’s library at the time of the crime because he assumed the time stamp on the tape didn’t reflect daylight savings.
Matthew Macon, a convicted serial rapist, confessed to killing the teacher in 2007. Having served a year in prison already, McCollum was freed and then in 2010 received a $2 million settlement from the county. Macon, the real killer, allegedly committed other violent crimes before prosecutors realized the mistake, Moran said.
The prosecutor, Stuart Dunnings, apologized to McCollum in 2010.
"I'm sorry that people believe that we knew you were not guilty and prosecuted you anyway. I can assure you that's not the case," Dunnings said, according to the Lansing State Journal.
How can defendants dodge prosecutorial misconduct? Bartlett, the reform advocate, said the answer lies in economics: Many cannot afford a robust defense team.
“My best advice is to make sure that you have a competent and aggressive attorney representing you.”