Jailhouse Informants
Chapter Introduction
The wrongfully convicted, like John Nolley, serve decades in prison for crimes they did not commit, sometimes because of unethical actions taken by justice professionals.
AP Images/Paul Moseley
Learning Objectives
1. Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges.
2. Explain the reasons why such misconduct occurs.
3. Describe some factors in wrongful convictions.
4. Discuss some proposals to improve the justice system and reduce ethical misconduct.
5. Describe the concepts associated with judicial activism or constructionism and how this issue relates to ethical misconduct.
Reading the cases described on the Innocence Project’s website or on the Exoneration Registry is difficult because it is truly disheartening to become aware of the blatant racism, laziness, tunnel vision, and/or ambition that leads criminal justice actors to commit actions that contribute to innocent people being incarcerated for decades. A few of the thousands of cases illustrate the pattern:
James Curtis Giles—Giles was exonerated of a gang rape after spending 10 years in prison and 14 years as a registered sex offender. There was no physical evidence linking him to rape and he had an alibi. Police investigators ignored the real perpetrator, a man also named James Giles, who was a crime partner of the other defendant, lived closer to the victim, and matched her description of the attacker (Garay, 2007).
Jeffrey Deskovic—Convicted of the murder of 15-year-old Angela Correa, Deskovic was a 16-year-old classmate. He was interrogated and given a polygraph exam without his parents or an attorney present. Deskovic’s mental health was suspect even before the onerous interrogation, and he was hospitalized as suicidal afterward. No physical evidence linked him to the murder, and seminal fluid found in the victim was never compared to sex offender DNA databases. After spending decades in prison, the DNA was finally compared and matched to another man, already serving time for another rape/murder (Snyder, McQuillan, Murphy, and Joselson, 2007).
Kevin Fox—Kevin Fox was convicted of the murder of his own 3-year-old girl. Her body was found about a mile away from his home. Despite searchers finding shoes with the true killer’s name, a police report of a burglary next door to the Fox home the night she disappeared, and a police officer who had talked to the killer after relatives had reported him as being extremely agitated the day after the child’s body was found, police focused on Fox and set out to prove him guilty. He was subjected to a long interrogation without food or water, and was offered involuntary manslaughter and release on bond if he would plead guilty. He confessed, but immediately retracted. Despite his confession being inconsistent with the medical examiner’s report of injuries, he was charged with first-degree murder. The prosecutor pursued the death penalty and made public statements that the child had been sexually abused during her lifetime, although there was no proof ever produced and her pediatrician said that was categorically false. When the DNA from the body was analyzed, it came back to an unknown profile. Charges against Fox were dropped but community members still believed he was guilty. Years later the case was reopened and the true killer was identified (Dardick, 2010).
While ethical misconduct on the part of legal professionals is not always the reason innocent people end up in prison, unfortunately in many cases it is.
10-1Ethical Misconduct
In the sections to follow, it is true that more attention is given to the misconduct of prosecutors and judges than defense attorneys. This is not to say that defense attorneys are more ethical than the other two groups; however, except for public defenders, defense attorneys are not public servants as are the other two groups of legal professionals. It is a legitimate argument that prosecutors and judges have higher duties than defense attorneys because they represent the body politic. They are the public servants referred to in Chapter 4 who have immense powers of discretion but also are held to higher standards of behavior in their public and private life.
10-1aDefense Attorney Misconduct
Ineffective Counsel
One of the most often cited reasons for false convictions (in addition to eyewitness testimony) is ineffective assistance of counsel. The legal standard for what constitutes ineffective counsel is set quite high—so high that in the case of Calvin Burdine, whose lawyer slept through parts of his trial, the state appellate court said that if a lawyer wasn’t sleeping during a crucial part of the trial, it wasn’t ineffective counsel. After the defense attorneys appealed in federal court, the 5th Circuit decided that due process required that Burdine deserved a new trial (Cockrell v. Burdine, 262 F.3d 336, 2002). Other behaviors reported of lawyers in capital and other cases include the following (Schehr and Sears, 2005):
· Attorneys’ use of heroin and cocaine during trial
· Attorneys letting the defendant wear the same clothes described by the victim
· Attorneys admitting that they didn’t know the law or facts of the case
· Attorneys not being able to name a single death penalty case holding
· Attorneys drinking heavily each day of the trial and being arrested for a 0.27 blood alcohol level
Cases identified by the Innocence Project or by the Exoneration Registry include many examples of criminal defense attorneys not bringing forward alibi evidence or other exculpatory evidence. Cases also include those where defense attorneys did not challenge the testimony of jailhouse informants, or, in other ways, provided such a poor defense that convictions occurred, even with little or no evidence against innocent defendants.
There are also cases where the attorney has crossed the line from zealous defense to breaking the law. In a few cases, defense attorneys go to extreme lengths to change the course of testimony, such as bribing witnesses or judges, allowing their client to intimidate a witness, or instructing their client to destroy physical evidence or to manufacture an alibi and then commit perjury. In San Antonio, a local attorney pled guilty to bribing a local judge for lenient sentences and other favors for his clients. In return, he paid for repairs on the judge’s car. The judge did not run for reelection and eventually also pled guilty (Perez, 2015). Most misconduct by defense attorneys probably falls into the realm of negligence, not criminal behavior, as was the case in the In the News box.
In the News
Criminal Defense
A Baltimore defense attorney was arrested and arraigned on charges of obstruction of justice and witness intimidation in May 2017. He and his investigator were allegedly recorded as telling a rape victim’s husband that she risked deportation if she came to court to testify against their client. They also offered her $3,000.00 to not appear to testify. Then they suggested that her husband just find their client and beat him up. Their client was charged with second-degree rape, third- and fourth-degree sex offenses, and second-degree assault.
Source: Fenton, 2017.
10-1bProsecutorial Misconduct
It is important to recall that the duty of prosecutors is to seek justice, not convictions. Even so, prosecutors want to win, and there are few checks or monitors on their behavior (Elliott and Weiser, 2004). When prosecutors forget that their mission is to protect due process, not merely win the case, misconduct can occur. The types of misconduct range from minor lapses of ethical rules to commission of criminal acts. The In the News box describes an extreme case of alleged criminal conduct.
In the News
Criminal Prosecution
Seth Williams is Philadelphia’s top prosecutor, heading an office of 300 prosecutors. In 2016, he was indicted on federal charges of bribery and obstruction. He was elected to the office in 2010 and, until his career burst into a flame of scandal, he had won accolades for innovations in the prosecutor’s office. Charging documents indicate he asked for thousands of dollars in bribes from individuals who faced legal charges. A 29-count indictment describes some of the exchanges. In return for intervening in one case, he accepted foreign trips, a used Jaguar convertible, and other gifts including a $205 Louis Vuitton necktie and a Burberry watch. He is also accused of stealing from his own mother, taking $20,000 of Social Security and pension income intended to pay for her nursing home. Despite a salary of over $175,000 a year, Williams was known for complaining about not having enough money to pay for his lifestyle. He had already been assessed a large fine by the Philadelphia Board of Ethics for failure to report more than $175,000 in gifts he had accepted, including a new roof, luxury vacations, Eagles sidelines passes, and use of a defense attorney’s home in Florida. The federal investigation evidently uncovered e-mails where he asked for a vacation trip and admonished the man to give him at least a week when he wanted his help in criminal matters.
He did not resign even when his trial started in June 2017; however, two weeks into the trial he abruptly sent a resignation letter to the mayor and pleaded guilty. The plea agreement with the federal prosecutor had him pleading guilty to one count in return for dropping all other charges. Williams faces up to five years in prison, $250,000 in restitution, a $62,000 fine that has already been assessed by the election board for mishandling campaign funds, and the loss of his pension.
Sources: Roebuck and Brennan, 2017; Roebuck, Gambacorta, and Brennan, 2017; Roebuck, 2017.
Most prosecutorial misconduct involves unethical or illegal means to obtain convictions, not pecuniary graft. There is no source that has an accurate accounting of the number of cases marred by prosecutorial misconduct in any jurisdiction. Various investigations have uncovered hundreds of instances where prosecutors either commit unethical acts or break the law. Prosecutorial misconduct includes concealing exculpatory evidence (both testimonial and physical), misleading the jurors as to the meaning of evidence, suppressing expert witness reports when they were exculpatory, and even withholding evidence that pointed to the culpability of their witness as the real killer instead of the person they were prosecuting (Armstrong and Possley, 2002; Kirchmeier, Greenwald, Reynolds, and Sussman, 2009). The Veritas Initiative reviewed more than 4,000 state and federal rulings between 1997 and 2009 in California and identified 707 cases where courts found prosecutorial misconduct. These cases are an undercounting of what probably occurs because they came from appeals. In 159 cases, appellate courts set aside the verdict or declared a mistrial. Only 10 prosecutors received any form of disciplinary action from the state bar (Ridolfi and Possley, 2010). An updated study found 102 more cases in 2010 where 130 instances of prosecutors’ misconduct were identified. In 26 of the cases, judges set aside convictions or sentences, declared a mistrial, or barred evidence specifically because of the misconduct. These studies identified 107 prosecutors who committed more than one case of misconduct, and a few were cited for misconduct four, five, and six times (Martinez, 2011).
The California District Attorneys Association (CDAA) and the Texas District & County Attorneys Association (TDCAA) published reports strongly critical of the methodology of the research into prosecutorial misconduct. These organizations reanalyzed the cases used in the California and Texas studies. Their findings indicate that prosecutorial misconduct is extremely rare and that prior studies incorrectly and unfairly conflated unintentional error with misconduct (CDAA, 2012; TDCAA, 2012).
Cox reexamined a sample of the California cases and all the Texas cases as a validity check against the Veritas and district attorney associations’ findings, finding that the district attorney’s analysis undercounted cases of misconduct by misclassifying them as error (T. Cox, 2016). She found the types of prosecutorial misconduct or errors most commonly noted included improper comments during closing arguments, eliciting improper testimony from a witness, and prejudicial statements made to the jury. Brady violations accounted for very few of the instance of misconduct (less than 6 percent). Only 20 percent of misconduct findings resulted in a conviction or sentence being overturned. Significant themes included the lack of consistent language used by judges to identify misconduct and error, the lack of judicial concern over whether the prosecutor had the intent to commit misconduct or simply made a mistake, the role that lack of prosecutor training and experience plays in the occurrence misconduct, and the lack of agreement between appellate cases and prosecutors themselves regarding the prevalence of Brady violations. She concluded that appellate decisions are not suitable sources of data for identifying and policing prosecutor misconduct because judges are often unclear regarding their findings of misconduct or error, or may not reach a decision regarding misconduct at all. Furthermore, harmless error analysis is used; therefore, the intent of the prosecutor is less important than the strength of the state’s case against a defendant in determining the consequences of misconduct. She also noted that the prosecutor culture may also contribute to the amount of misconduct and error that occurs and, although prosecutors considered Brady violations to be the most common types of misconduct, they appeared in less than 10 percent of the appellate case decisions in the study.
Kirchmeier et al. (2009) discuss four types of prosecutorial misconduct: withholding exculpatory evidence, misusing pretrial publicity, using false evidence in court, and using peremptory challenges to exclude jurors despite Batson v. Kentucky, 476 U.S. 79, 1986, which prohibited race discrimination in jury selection. When a prosecutor violates the Batson ruling and uses peremptory challenges in a racially discriminatory manner, there should be some sanction; however, the prosecutor must show only that he or she had some other reason for exclusion, and the legal standard is whether there is any explanation for the exclusion, even if implausible (Purkett v. Elem, 514 U.S. 765, 1995). Statistics from the Equal Justice Initiative, a legal advocacy group, indicate that black jurors are dismissed at a blatantly disproportionate rate compared to white jurors. In some jurisdictions, blacks were removed three times as often as whites and, in another jurisdiction, 80 percent of blacks were struck from capital cases by prosecutors (New York Times, 2010). There is really no way to know if a prosecutor uses a peremptory challenge because of the race of the potential juror, but in some cases, there are suspicious indications such as codes for racial appearance on the prosecutor’s notes. Some other types of misconduct are discussed next.
Improper Conduct, Improper Relationships
There are some examples in the news where it appears the prosecutors involved did not take their duty as public servants seriously. For instance, the Two-Ton Contest in Illinois has been written about by several authors. It occurred when prosecutors participated in a contest to see who could convict 4,000 pounds of flesh. In the attempt to win, they vied to handle cases of the most overweight defendants and, one assumes, let their prosecutorial judgment be affected by the size of the defendant (Medwed, 2009). In other instances, such as the one described in the In the News box, a prosecutor and police detective together subvert justice.
In the News
Prosecutorial Misconduct
Michael Vecchione was a top prosecutor in Brooklyn before his and a disgraced former police investigator’s actions led to an investigation of over 70 cases that might have resulted in wrongful convictions. Both men retired, leaving the office to reexamine scores of cases they worked on. One of the cases identified was Jabbar Collins who served 15 years in prison before he was released and settled his lawsuit against the city for $10 million. A court released him because of evidence that Assistant District Attorney Vecchione coerced false testimony. A federal judge called Assistant District Attorney Vecchione’s conduct “horrific” and said that he was “disturbed” and “puzzled” that the District Attorney did not punish him. A prosecution witness who has recanted said Vecchione threatened to hit him with a coffee table and make him stay in jail unless he testified for the prosecution. Vecchione was also accused of Brady violations, intimidating a second witness with jail, and promising a third witness that his probation violation would be cleared. There was also testimony that law enforcement officials from the Brooklyn District Attorney’s Office held witnesses in hotel rooms against their will and without legal justification, and prosecutors used forged, falsely “sworn” applications to obtain warrants to arrest and detain individuals who were merely prospective witnesses. The police investigator, Louis Scarcella, has been implicated in over 70 cases where there is evidence that innocent people have been convicted because of coerced confessions, intimidated witnesses, and/or perjured testimony. In at least five Scarcella cases, the individuals have been exonerated. Most of them date back to the 1980s and 1990s and observers note that the patterns do not point to simply one rogue detective, but, rather, the collusion of prosecutors and detectives to move cases through the system.
Sources: Clifford, 2014; Marzulli, 2015; Robles, 2013a, 2013b; Saul, 2014.
Suborning Perjury and Jailhouse Informants
Model Rule 3.3(a) forbids an attorney from knowingly allowing false evidence to be admitted; some argue that “knowingly” is too strict a standard because prosecutors have argued that they did not “know” that the evidence was false and that an objective negligence standard should be used instead (Zacharias and Green, 2009). Like a defense attorney’s quandary when a witness commits perjury, a prosecutor must also take steps to avoid allowing false testimony to stand. The prosecutor’s role is the easier one because there are no conflicting duties to protect a client; therefore, when a prosecution witness perjures himself or herself, the prosecutor has an affirmative duty to bring it to the attention of the court.
Recall from Chapters 5 and 7 that the prevalence of “testilying” by police officers is unknown, but many believe that it is widespread. Researchers, observers, and especially defense attorneys believe that testilying would not occur as much if not for the active or passive acceptance of the practice by prosecutors (L. Cunningham, 1999; S. Cunningham, 2016). In 1999, in the small Texas town of Tulia, many black defendants were convicted based on the perjured testimony of one police investigator. The prosecutor knew that the police officer on the stand had lied about his past, yet he did not disclose that information and allowed the perjury to stand. It was also revealed that the investigator lied about the defendants as well. After the intervention of the ACLU and, eventually, the governor of Texas commuting the sentences, the dozens of people convicted were finally released. The prosecutor was sanctioned by the Texas bar and almost lost his law license. Many believe he should have, considering his role in the convictions (Herbert, 2002, 2003).
Recall from Chapter 9 that the use of jailhouse informants has become increasingly subject to scrutiny as their role in wrongful convictions becomes apparent. Prosecutors who use jailhouse informants today are on notice that research shows there is a high probability that their testimony is false. Jailhouse informants have been implicated in many wrongful convictions.
Misconduct Involving Expert Witnesses
Misconduct also occurs when prosecutors intentionally use scientific evidence that they know to be false. There are proven instances where prosecutors put on the stand so-called experts that they knew were unqualified and/or their expertise was without merit (Gershman, 2003). Prosecutors may bolster a witness’s credentials or allow him or her to make gratuitous and unsupported claims on the witness stand, such as to state “unequivocally” that the fingerprint, hair, or lip print was the defendant’s.
Quote & Query
There are disturbing indications that a non-trivial number of prosecutors—and sometimes entire prosecutorial offices—engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.
Judge Alex Kozinski, 9th Circuit Court of Appeals—the judge who barred the entire office of prosecutors from Orange County, California, from appearing in his court.
Source: Ferner, 2016.
· Do you think the judge should have barred the entire office of prosecutors because of unethical behavior?
Prosecutors have had experts suppress information that was favorable to the defense and not put it in their report or not conduct tests that might be helpful to the defense. Sometimes expert reports are provided to the defense but delay is used to undercut the ability of the defense to use the information. In other cases, experts are asked not to write a report at all if their findings do not help the prosecution, or prosecutors have the report filed as inconclusive so that they do not have to provide it to the defense (Giannelli and McMunigal, 2007). In their closing arguments, prosecutors may overstate the expert’s testimony so “is consistent with” becomes “matched” (Gershman, 2003: 36). In some egregious cases, prosecutors have simply lied about physical evidence, such as stating that the red substance on a victim’s underpants was blood when, in fact, it was paint (Gershman, 2003; Miller v. Pate, 386 U.S. 1, 1967). The quote in Quote and Query indicates that at least some judges notice prosecutorial misconduct.
Brady Violations
The most common charge leveled against prosecutors, failure to disclose evidence, stems from a duty to reveal exculpatory evidence to the defense. In Chapter 9, the obligation to disclose exculpatory evidence established in Brady v. Maryland 373 U.S. 83, 1963 was discussed. Prosecutor Charles Sebesta was disbarred from the practice of law in the state of Texas for Brady violations and other misconduct during the Anthony Graves’ trial. The 1992 murder of six family members, include four children, traumatized a town. Police quickly arrested Robert Carter, the father of one of the children. He named Anthony Graves as the person who helped him commit the murders, although he later recanted. Anthony Graves was convicted despite having an alibi and no evidence that he even knew the people killed. The prosecutor used Carter’s testimony, and the testimony of five inmates and jailers who swore they heard Graves confess, even though it was later discovered they had committed perjury. Graves’ case was reopened when a journalism class found evidence that Sebesta never shared Carter’s recantation with Graves’ attorneys. Evidently Sebesta obtained an indictment against Carter’s wife and told Carter he would prosecute her if Carter did not testify against Graves. After Graves’ trial, the charges against Carter’s wife were dropped. The prosecutor who was brought in to retry the case found it highly unlikely that charges would be dropped against anyone who had participated in a multiple homicide. After she began evaluating the evidence, she came to realize that Graves was innocent and took steps to secure his release. After Graves’ exoneraton, in June 2015, a three-person panel of the Texas State Bar Association voted to strip Sebesta of his law license (Colloff, 2011).
Prosecutors who engage in acts such as those described in the In the News box not only risk losing the immediate case, but also lose their credibility and undercut the trust and faith we place in the justice system.
In the News
Federal Prosecutor Misconduct
Ted Stevens was a senator from Alaska before his death in an airplane crash. A federal judge threw out his federal conviction for conflict of interest and bribery in 2009 after an FBI agent that had been an investigator on the case reported that prosecutors tried to hide a witness and did not share transcripts where Bill Allen, their star witness, made contradictory statements. Justice Department prosecutors used pending charges of sexual misconduct with underage girls as leverage for Allen’s testimony, a fact not shared with defense attorneys.
In another case involving federal prosecutors, Dr. Ali Shaygan was acquitted of 141 counts of illegal prescriptions of painkillers and federal prosecutors were admonished by a federal justice who suspected them of witness tampering and secretly taping conversations with Shaygan’s lawyers. U.S. District Court judge Alan Gold accused the federal prosecutors of knowingly and repeatedly violating ethical guidelines and acting in bad faith.
Sources: Hagan, 2012; Johnson, 2009; Linderman, 2013; Perksy, 2009.
10-1cJudicial Misconduct
Public exposés of judicial misconduct are rare. Operation Greylord, in Chicago, took place in the 1980s. Because of an FBI investigation, 92 people were indicted, including 17 judges, 48 lawyers, 10 deputy sheriffs, 8 police officers, 8 court officials, and a member of the Illinois legislature, and 31 attorneys and 8 judges were convicted of bribery. Judges accepted bribes to “fix” cases—to rule in favor of the attorney offering the bribe. Not unlike law enforcement’s “blue curtain of secrecy,” not one attorney came forward to expose this system of corruption, even though what was occurring was well known (Weber, 1987).
In the infamous “kids for cash” scandal in Pennsylvania, former judges Michael Conahan and Mark Ciavarella in Lucerne County were prosecuted for almost literally “selling” youthful offenders to a private correctional facility. They were charged with racketeering, money laundering, fraud, bribery, and federal tax violations for accepting millions of dollars in return for sending juveniles who appeared before them to a private correctional facility. Conahan had earlier shut down the county-run youth corrections center, so they would have to send the kids to the private facility. The judges conducted hearings without appointing lawyers for the juveniles and then sent them to the private facility for minor offenses. The scandal led to overturning hundreds of juvenile convictions and releasing many of the juvenile offenders sent to the facility. No one can explain why the scheme had not been exposed years before or why prosecutors, probation officers, or defense attorneys never questioned what was happening. But red flags were raised. A newspaper had done an exposé on harsh juvenile sentencing in 2004, and a defense attorney had filed a complaint with the state judicial disciplinary board in 2006, but the board failed to act until after the two judges had been indicted by the federal grand jury. The investigation began after another judge in the jurisdiction went to the FBI with his suspicions. Conahan pleaded guilty to a racketeering conspiracy charge and was sentenced to 17 years in prison. Ciavarella went to trial, was convicted of racketeering, was sentenced to 28 years in prison, and must pay $965,000 in restitution.
Biased Decisions
Most judges strive to fulfill their role with integrity and honesty, taking care to protect the appearance and reality of justice. Judicial canons require judges to avoid even the appearance of bias or impropriety. In Chapter 9, the rule against conflict of interests was discussed. Misconduct is alleged when judges do not recuse themselves and/or act in ways that give preferential treatment to individuals or groups.
There is a prohibition on attorneys and judges discussing a case outside the presence of the other attorney, this is called ex parte communication and is prohibited because it gives one side preference over the other. Because of working conditions, this is much more likely between prosecutors and judges than with defense attorneys. This rule applies to casual conversations as well as more formal interchanges or offerings of information. Ex parte communications create the perception (if not the reality) of bias and if a judge favors one side or the other, due process is imperiled; for instance, one Houston judge was investigated for sending text messages during the trial to the prosecutor suggesting a line of questioning to help bolster the prosecution’s case. There were allegations that it was not the first time she had done so (Horswell, 2013).
In Chapter 9, we discussed the expectation that judges maintain an unbiased position toward any issue that might come before him or her. In some cases, judges have been asked to recuse themselves because they have indicated to news media that they already had opinions on a case before it was concluded. In 2006, the late Justice Scalia, in a public speech, opined that giving full due-process rights to detainees in Guantanamo was “crazy” and made remarks referring to his son, who was serving in Iraq at the time. Several groups demanded that he recuse himself from the case of Hamdan v. Rumsfeld, 548 U.S. 557, 2006, because the case was about what, if any, due-process rights in American courts the detainees deserved. Justice Scalia did not recuse himself, and Hamdan did win his case, with the Supreme Court holding that detainees deserved some due process and that the military commissions that were created at the time were not sufficient. Scalia was in the dissent, however, so arguably one might conclude that he had already made up his mind before the case was decided (Lane, 2006).
Other Misconduct
Swisher (2009) lists and discusses various forms of judicial misconduct, including
· failing to inform defendants of their rights,
· coercing guilty pleas,
· exceeding sentencing authority,
· exceeding bail authority,
· denying full and fair hearings or trials,
· abusing the criminal contempt power,
· ignoring probable cause requirements,
· denying defendants’ rights, and
· penalizing defendants for exercising their rights.
In the News
Judicial Misconduct
Judge Joseph Boeckmann in Arkansas resigned before a disciplinary committee could fully investigate allegations from dozens of people that he had propositioned male defendants for nude photographs and sexual favors in return for leniency. Male defendants described how they were given community service and then asked to take off their shirts, and let the judge take photos of them bending over “to prove they had performed community service.” Sometimes he touched their buttocks. Some men agreed to let him take nude photos and some said they agreed to be spanked by the judge. The head of the Arkansas Judicial Discipline and Disability Commission called it “if not the worst, among the worst cases of judicial misconduct” in state history. Gossip and allegations had existed for 30 years about the judge. Only recently, however, did several victims file a lawsuit and submit charges to the Judicial Discipline board. The judge denied all charges but resigned. An investigation uncovered over 4,000 pictures of nude or semi-nude men on the judge’s computer; and records that showed defendants who had their charges dropped despite being repeat offenders. Some of them listed the judge as their employer or listed as their residence houses owned by the judge. Possibly at least 35 potential victims have or will come forward. The Judicial Commission’s investigation ended with the judge’s resignation but there might be a criminal investigation underway.
In another case, former Nashville Judge Casey Moreland was charged with five felony counts and arrested in March 2016. Allegations are that he offered leniency to at least two women in exchange for sex. There are also allegations that he attempted to get one of the women to recant her allegations against him, and when she refused, he developed a scheme to frame her by planting drugs in her car and then having her arrested. He also was alleged to have interfered in a traffic stop of his girlfriend by telling the police officer to not give her a ticket. He could face a maximum of 80 years in prison and a fine of $1.25 million.
Former Pennsylvania Supreme Court Justice Seamus P. McCaffery resigned in 2014 before an ethics investigation would have probably stripped him of his pension. McCaffery was accused of exchanging 234 e-mails containing pornographic materials, interfering in civil courts in cases involving individuals who paid referral fees or contributed to his campaign, and fixing a traffic ticket for his wife.
Federal District Court Judge Mark E. Fuller of the Middle District of Alabama was arrested and charged with battery in early August 2014 for beating his wife. Other allegations against the judge were that he had also beat his first wife, had an affair with his current wife who was his court bailiff at the time, refused to recuse himself from cases where the federal government was a party even though he received millions in federal money in his private business, and orchestrated the arrest and conviction of the former governor, refusing to recuse himself from that case even though there had been enmity between the two. He refused to step down until June of 2015 when the U.S. Judicial Conference, recommended impeachment. Fuller resigned to keep his federal pension.
Sources: Barchenger and Boucher, 2016; Blinder and Robertson, 2014; Friedman, 2015; Lauer, 2016; McCoy and Purcell, 2014.
Other forms of unethical behavior are less blatant. Judges have a duty to conclude judicial processing with reasonable punctuality. However, there are widespread delays in processing, partly because of the lack of energy with which some judges pursue their dockets. In the same jurisdiction, and with a balanced assignment of cases, one judge may have only a couple dozen pending cases and another judge may have literally hundreds. Some judges routinely allow numerous continuances, set trial dates far into the future, start the docket call at 10:00 a.m., conclude the day’s work at 3:00 p.m., and in other ways take a desultory approach to swift justice.
Pimentel (2009) notes that while egregious cases of judicial misconduct appear in the news (i.e., sexual misconduct or bribery), the more prevalent forms of misconduct may only be known to the attorneys who practice before the judge (i.e., favoritism, racial or gender bias, and arbitrary decision making). However, it is extremely rare for attorneys to file complaints against judges. In fact, Pimentel notes one case in which an attorney reported that his client bribed a judge, and, as a result, the attorney was disciplined by the bar association for revealing client confidences. Nothing happened to the judge.
We must be careful not to paint with too broad a brush. Only a few judges are involved in the most egregious examples of unethical behavior, such as taking bribes or trampling the due-process rights of defendants, just as only a small percentage of police officers, defense attorneys, and prosecutors commit extreme behaviors. Most judges are ethical and take great care to live up to the obligations of their role. However, as with the other criminal justice professionals, sometimes there are systemic biases and subtle ways in which the principles of justice and due process are subverted.
10-2Factors in Wrongful Conviction
Recall from Chapters 3 and 8 that wrongful convictions are increasingly appearing in the news. The factors that seem to be correlated with wrongful convictions clearly indicate that legal professionals must take responsibility for reducing the possibility of such gross miscarriages of justice. It should be recognized that while sometimes prosecutors are implicated as pivotal in a wrongful conviction (e.g., Ken Anderson in the Michael Morton case), in other cases, prosecutors have been pivotal in helping to free someone.
When wrongful convictions were compared with cases where a factually innocent defendant was indicted but the prosecution was dropped or didn’t result in a conviction, researchers found that these factors influenced the likelihood of a wrongful conviction: state punitiveness, a weak case, error during forensic testimony, age and prior criminal history of the defendant, honest mistaken identity by an eyewitness, and poor representation by a defense attorney (Gould et al., 2014; see also, Gould, Carrano, Leo, and Young, 2012). Other factors (perjury by informants, police and prosecutorial misconduct, false confessions, “junk science,” ineffective assistance of counsel) have been discussed previously.
10-2aMistaken Eyewitness Testimony
Mistaken eyewitness testimony is the most frequently identified factor in wrongful convictions. We know more today about the vagaries of eyewitness memory today than we have in previous years. Research shows that memory is not as accurate as some people (including jurors) believe. Mistaken eyewitness testimony may not involve any wrongdoing on the part of police or prosecutors; however, in some cases, improper police or prosecutor behavior influenced witnesses to identify the wrong person. For instance, police officers may repeatedly ask victims if they were sure that the suspect was not the person, or using “show-ups” that present only one person to the witness instead of a lineup. Research shows that people are woefully poor witnesses and, more dangerous, are convinced they are right about the identification by the time of trial.
10-2bFalse Confessions
False confessions are another important factor in wrongful convictions. Chapter 6 covered how police behavior can induce a person to confess by coercive and/or deceptive interrogations, but prosecutors are also complicit in participating in or using false confessions. False confessions are so powerful that juries have convicted individuals even when there is exculpatory DNA evidence introduced at trial. Prosecutors explain away the DNA by saying in rape cases that the victim may have had consensual sex with someone else before the rape by the defendant, and, in murder cases, that explanations exist for the presence of unknown persons, for example, someone came along after the murder and had sex with the corpse was used as an explanation in one case! Garrett (2011), in his review of wrongful convictions, identified 40 cases of false confessions; over half were given by juveniles or mentally challenged suspects.
Eddie Lowery spent 10 years in prison for a rape he didn’t commit. His confession included elements of the crime that only the perpetrator would have known. He confessed because police told him he failed a lie detector test and he believed that they wouldn’t let up until he confessed. How did his confession include details of the crime scene? Because they coached him, said Lowery, correcting him on every element of his confession until he got it right. Lowery received $7.5 million in a suit against the police department in Riley County, Kansas (Garrett, 2011).
The “Norfolk Four” were four sailors who were convicted of rape and murder in 1997. They allege that they falsely confessed to the crime because of the coercive interrogation tactics of a police investigator. He told them that if they didn’t confess, they would die. There was no other evidence to link them to the crime. Before they were brought to trial, another man, who knew the victim, confessed, admitting he did it alone, and his DNA was found at the crime scene, yet the prosecutors continued with their case against the Norfolk Four. One of the Norfolk Four served eight years before being released, but the other three were still in prison until being pardoned by Virginia’s governor in August 2009. The pardon was conditional and the men were released on parole, but had to register as sex offenders. In 2017, they finally received a full pardon by the current governor who referred to additional evidence of innocence. For instance, Robert Glenn Ford, the police detective who interrogated them, was later found guilty of extortion and lying to the FBI and sentenced to 12-and-a-half years in prison (Boghani, 2017).
10-2cRacial Bias
10-2dConfirmatory Bias
Confirmatory bias is when someone ignores evidence that is contrary to what they believe. Confirmatory bias may lead to wrongful convictions because prosecutors ignore evidence that tends to refute their theory of the case. It might even lead to the noble-cause corruption discussed in Chapter 5. Just as police may commit misconduct when they think they have the guilty party, so, too, may prosecutors bend and even break the rules when they are sure the defendant is guilty. For instance, some prosecutors may not disclose evidence to the defense because they perceive that as possibly endangering their ability to get a murderer off the street. Alternatively, these individuals may be affected by confirmatory bias in that they truly cannot see the exculpatory nature of the evidence because they believe so strongly that the defendant is guilty.
10-3Explanations for Misconduct
The ideal, or vision, of our justice system is that it is fair, unbiased, and, through the application of due process, arrives at the truth before finding guilt and assessing punishment. The reality is that the law is administered by humans with human failings and that errors and misconduct result in innocent people being convicted, incarcerated, and sometimes executed. In this section, prosecutors get a disproportionate amount of attention because they are public servants and owe special duties to the public.
Prosecutors have similar powers of discretion as police officers, and they seem to also have a subculture that creates pressure to cut corners to gain a conviction. In the Quote and Query, a prosecutor explains how the mission of justice becomes subverted.
Quote & Query
… In 1984, I was 33 years old. I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning. To borrow a phrase from Al Pacino in the movie And Justice for All, “Winning became everything.” … After the death verdict in the Ford trial, I went out with others and celebrated with a few rounds of drinks. That’s sick. I had been entrusted with the duty to seek the death of a fellow human being, a very solemn task that certainly did not warrant any “celebration.”
10-3aExplanations of Prosecutor Misconduct
In response to a question about why prosecutors commit the various forms of misconduct described earlier, one commentator explained succinctly, “Because they can.” The office of the prosecutor is one of the least scrutinized in the criminal justice system and has not experienced the intense analysis directed to law enforcement or the courts. Hidden from public view are the decisions as to whom to prosecute and what charges to file. Furthermore, when wrongdoing is exposed, there is little chance of serious sanctions.
Prosecutors are immune from Section 1983 liability for their decision to prosecute or actions taken in preparation for or during trial (Imbler v. Pachtman, 424 U.S. 409, 1976). The Supreme Court has also ruled that prosecutors cannot be subject to civil suits against them, even in cases of egregious rule breaking, if it concerns their adversarial function or prosecutorial decisions (Connick v. Thompson, 563 U.S. 51, 2011). Prosecutors have limited immunity for actions taken during the investigative phase of a case and for administrative activities. Thus, lying for a warrant, coercing confessions, or making false statements to the press could expose them to liability, but rarely does (Kirchmeier et al., 2009; Zacharias and Green, 2009). Prosecutors have limited immunity when giving legal advice to police officers (T. Cox, 2016; Cox, Cunningham and Pollock, 2017).
When Mike Nifong was sued by the lacrosse players for statements made to the press and other misconduct, the city refused to indemnify him and he declared bankruptcy. Thomas Lee Goldstein was more successful in obtaining damages. He was wrongfully convicted in Los Angeles County partially due to the prosecutor’s misconduct. In this case, the prosecutor used a jailhouse informant who testified that Goldstein confessed, but the informant lied on the stand that he had never been an informant in the past. In fact, he had and had received money for previous testimony in another case. The prosecutor allowed the perjury to stand. Goldstein had his case overturned and was exonerated and sued on a theory of misconduct during the administrative functions of the prosecutor role. A lower court barred his suit holding that the prosecutor’s actions fell under his immunity protections and he appealed that decision; however, he ended up settling with the city for $7.95 million (Cathcart, 2010; Zacharias and Green, 2009).
At this point, the Supreme Court has shown no inclination to take away prosecutors’ immunity. In Pottawattamie County v. McGhee and Harrington, 556 U.S. 1198, 2009, the parties settled before the Supreme Court reached an opinion. However, during oral arguments, the justices seemed concerned that reducing the immunity of prosecutors would make them more hesitant to aggressively prosecute crime and subject them to frivolous lawsuits. The case involved two men who were wrongfully convicted when they were teens and served almost 30 years in prison because a prosecutor helped assemble and present false testimony against them and hid evidence that implicated the relative of a city official. They settled for $12 million with the county before the Supreme Court made any decision whether the immunity of prosecutors extends to the acts of preparing false testimony to be used in court. In another case, the Supreme Court reaffirmed prosecutorial immunity even when the prosecutor violated Brady rules by not disclosing exculpatory information about a jailhouse informant to the defense (Van De Kamp v. Goldstein, 555 U.S. 335, 2009).
In 2011, John Thompson’s favorable verdict by a federal trial court awarding him $14 million for prosecutorial misconduct by the New Orleans prosecutors’ office was overturned by the Supreme Court. Thompson was convicted of robbery and murder when New Orleans prosecutors withheld exculpatory test results of blood found at the crime scene that was not his. He spent 18 years in prison for a crime he did not commit. After he was exonerated, he filed a Section 1983 suit against the district attorney’s office, arguing there was deliberate indifference in allowing prosecutors to violate Brady rules (to turn over exculpatory evidence to the defense). The Supreme Court ruled 5–4 that District Attorney Harry Connick, Sr. could not be held liable for a single Brady violation (Connick v. Thompson, 131 S. Ct. 1350, 2011). In Truvia v. Connick, No. 14-708, 5th Cir., 2014, several individuals who had been exonerated sued District Attorney Connick again. There was ample evidence that withholding exculpatory evidence occurred in many cases in the Orleans Parish District Attorney and there was a lack of training. Twelve additional exonerations since 1990 were detailed. The Fifth Circuit Court of Appeals, however, held that there was not sufficient evidence to prove that the Orleans Parish District Attorney’s office had a custom or policy of withholding exculpatory evidence and the Supreme Court denied certiorari.
Raeder (2007) argues that one of the reasons for prosecutorial misconduct is that the Model Rules and Standards do not cover many of the activities described as misconduct, or they refer to them obliquely with no clear guidance. Furthermore, there are few complaints against prosecutors, except in high-profile cases. Gershman (1991) writes that prosecutors misbehave because it works and they can get away with it. Because misconduct is scrutinized only when the defense attorney makes an objection and then files an appeal (and even then the appellate court may rule that it was a harmless error), there is a great deal of incentive to use improper tactics in the courtroom. The simple fact is that most prosecutors who commit wrongdoing are not disbarred or punished in any way and, in fact, some go on to be judges and politicians (Armstrong and Possley, 2002).
In a review of nine years of cases in New York City by Propublica, a liberal civil rights advocacy group, only one prosecutor was found to have been seriously punished for cases that were later overturned because of prosecutorial misconduct, such as Brady violations, coaching witnesses, hiding witnesses, or lying to the judge. Their review of cases found that even serial offenders received raises and commendations and apparently experienced no consequences for misconduct, even in cases where appellate judges rebuked the prosecutor. If there are grievances against prosecutors investigated by the state bar’s disciplinary committee, such proceedings are usually done in secret with no public access to their findings (Sapien and Hernandez, 2013).
In the discussion of wrongful convictions earlier, confirmatory bias was described as related to noble-cause corruption in that once there is a determination that the defendant is guilty (by police and prosecutors), this perception may lead to misconduct to make sure a conviction is obtained. Grometstein (2007) also applies the concept of noble-cause corruption to prosecutors, arguing that they adopt a utilitarian ethic of using bad means to get a conviction, like police officers. Aronson and McMurtrie (2007), in their discussion of prosecutorial misconduct, identify the issue as “tunnel vision,” arguing that prosecutors work under a bias that defendants are guilty; therefore, they ignore exculpatory evidence. Like the problems this causes with police investigators, these authors discuss several psychological processes that contribute to misconduct:
· The presence of confirmatory bias (human tendency to seek to confirm rather than disconfirm)
· Selective information processing (only recognizing evidence to fit one’s theory)
· Belief perseverance (believing one’s original theory of the case despite evidence to the contrary)
· Avoidance of cognitive dissonance (adjusting beliefs to maintain existing self-perceptions)
Acker and Redlich (2011) also describe tunnel vision, expectancy theory, and confirmation bias as reasons for false convictions. Medwed (2009) discusses the prosecutor’s “conviction psychology” and noted the fact that prosecutors work closely with police officers and victims and their families, and the emotional connections make it difficult to maintain professional objectivity in cases. Grometstein (2007) emphasizes the relationship between the prosecutor and the victim, arguing that the prosecutor spends even more time with the victim than do police officers, leading to pressure to convict.
Cummings (2010) used Bandura’s moral disengagement theory to explain intentional prosecutorial misconduct, concentrating on three types most relevant to prosecutors:
· Reconstructing conduct as morally justified
· Obscuring personal agency
· Blaming or dehumanizing defendants
The first type refers to “noble-cause corruption,” prosecutors (like police) feel they are on the side of the righteous, and so what they do can be justified. The second relates to office policies that have “batting averages” and pressure to convict that make it difficult for a prosecutor to express anything other than a strong conviction orientation. The final idea is, again, like police in that the culture of some prosecutors’ offices includes an orientation toward defendants that dehumanizes them by using “scum,” “slime,” and similar words. In one study, it was found that there were 34 different words—all negative—that were used to refer to defendants (Cummings, 2010).
10-3bExplanations for Misconduct of Judges
The immunity of judges insulates them from the effects of their decisions, although their decisions are public and can create storms of controversy. Their case holdings can be scrutinized and their courtroom behavior may be grounds for an appeal. Even so, it is difficult for attorneys to challenge judges’ actions or testify against them in disciplinary proceedings (Swisher, 2009). Thus, some judges evidently believe they are invulnerable and use the office as a personal throne. In the Pennsylvania case where two judges received kickbacks for sending kids to a private prison, employees and lawyers explained that anyone who criticized the judges, even slightly, found themselves facing retaliation. Judges have immense power and, as the saying goes, “power corrupts.” Attorneys tend to keep their head down and their opinions to themselves even when judges are clearly in the wrong. State judicial commissions rarely sanction judges, and voters tend to be oblivious to the reputation of judges, often voting along strict party lines, thus “bad” judges keep getting reelected.
10-4Responding to Misconduct
Voters have some control over who become a prosecutor and judge, but once in office, most stay in the good graces of a voting public unless there is a major scandal or an energetic competitor. A range of potential responses to prosecutorial misconduct have been offered or implemented. Many of these have weaknesses that prevent their effectiveness. It should be noted also that prosecutors’ associations believe that major changes in responses are unnecessary because they argue that prosecutorial misconduct is extremely rare. The In the News box describes how legislators in California are responding to prosecutorial misconduct.
In the News
Misconduct or Crime?
Governor Jerry Brown of California signed a new law in 2016 that will make it a felony for prosecutors to tamper with evidence or hide exculpatory material from the defense. Previously these acts were misdemeanors. They could be punished by 16 months, two or three years in prison, depending on the severity of the violation. The CDAA initially had opposed the bill but switched to a neutral position. The law was written in response to the jailhouse informant scandal involving the prosecutor’s office in Orange County discussed in the last chapter. Some described the law as “disincentivizing” prosecutorial misconduct.
Sources: Ferner, 2016; Goffard, 2016.
10-4aProfessional and Judicial Sanctions
To enforce rules of ethics, the American Bar Association (ABA) has a standing committee on ethical responsibility to offer formal and informal opinions when charges of impropriety have been made. Also, each state bar association has the power to sanction offending attorneys by private or public censure or to recommend a court suspend their privilege to practice law. Thus, the rules enforced by the state bar have essentially the power of law behind them. The bar associations also have the power to grant entry into the profession because one must belong to the bar association of a state to practice law there. Bar associations judge competence by testing the applicant’s knowledge, and they also judge moral worthiness by background checks of individuals. The purpose of these restrictive admission procedures is to protect the public image of the legal profession by rejecting unscrupulous or dishonest individuals or those unfit to practice for other reasons. However, many believe that if bar associations were serious about protecting the profession, they would also continue to monitor the behavior and moral standing of current members with the same care they seem to take in the initial decision regarding entry.
Disciplinary committees investigate a practicing attorney only when a complaint is lodged against him or her. The investigative bodies have been described as decentralized, informal, and secret. They do little for dissatisfied clients because most client complaints involve incompetence and/or lack of attention and these charges are vague and ill-defined (Marks, Raymond, and Cathcart, 1986). Many bar disciplinary committees are hopelessly understaffed and overburdened with complaints. Complaints may take years to investigate, and in the meantime, if prospective clients call, they will be told only that the attorney is in good standing and has no substantiated complaints. A study of attorney discipline by an organization for legal reform reported that only 3 percent of investigations by state disciplinary committees result in public sanctions and only 1 percent end in disbarment (San Antonio Express News, 2002). A more recent study looked at a small sample of complaints submitted to the Florida bar association and found that variables that were associated with cases being sent forward for further review included being a solo practitioner, and the complainant being a legal professional; and the only factor that was significantly associated with a sustained finding and discipline imposed was being a solo practitioner (Piquero et al., 2016).
While individuals with complaints against their lawyers in the civil arena receive little satisfaction, criminal defendants are arguably even less likely to have anyone care or rectify incompetence or unethical behavior on the part of their attorney. One of the most common complaints against attorneys is that they allow deadlines to pass or miss court dates. Criminal defense attorneys could face civil suits for their incompetence or poor work performance, sanctions from their bar association, and even be cited by courts for contempt, but such events are rare. Recall from Chapter 8 that 80 percent of criminal defendants resort to publicly funded attorneys (either public defenders or court-appointed) and these systems are woefully underfunded. Thus, it is possible that the poor legal representation received by many is due to overworked and under-resourced attorneys.
It seems that prosecutors may be even less likely to be the target of bar discipline committees than criminal defense attorneys. Such information is hard to access because disciplinary proceedings may be secret, but the numbers of prosecutors investigated, much less sanctioned, seem to be very small, maybe as low as 2 percent of all complaints filed result in discipline (Sullivan and Possley, 2016).
Zacharias and Green (2009) proposed that Model Rule 1.1 requiring all attorneys to display a level of competency could be used against prosecutors who use evidence that they should know is false or withhold evidence from the prosecution. The advantage of using the competency rule rather than the rule prohibiting the use of false testimony is that the “knowing” standard is difficult to meet (the prosecutor must “know” the evidence is false), but competency would be an easier standard to meet. For example, prosecutors who use jailhouse informants that are extremely questionable or otherwise engage in acts that they should know have the potential to result in innocent people being convicted could be disciplined without having to prove they knew they were changing the course of the trial.
Misconduct in the courtroom is sometimes orally sanctioned by trial judges, but prosecutors are rarely directly mentioned in appellate holdings even when case decisions are overturned. Many times, when there is clear misconduct, the court rules it is harmless error and does not even overturn the conviction. Recently, some states, through legislation, have created more stringent responses to prosecutorial misconduct and will require overturning cases even if there is no way to prove that such misconduct affected the outcome of the case (T. Cox, 2016; Kirchmeier et al., 2009; Sullivan and Possley, 2016).
10-4bRethinking Prosecutorial Immunity
Some have argued that the evidence of prosecutorial misconduct supports rethinking prosecutorial immunity, and perhaps employing criminal sanctions against prosecutors (Raeder, 2007). For instance, the Texas Judiciary and Civil Jurisprudence Committee has considered a bill that would establish liability for prosecutors in cases of extreme misconduct, giving them only qualified immunity (like police officers), rather than absolute immunity. Supreme Court Justice John Paul Stevens has also spoken out on removing the judge-made absolute immunity enjoyed by prosecutors, arguing that Congress never intended prosecutors to be immune from Section 1983 liability. Change would have to come from state legislatures and Congress (for the federal system) and then the new legislation would no doubt be challenged by prosecutors.
10-4cBetter Training, Better Supervision
There is some argument that prosecutors do not get sufficient training on Brady obligations that then lead to some of the Brady violations that appear in wrongful convictions. Prosecutors’ associations advocate enhanced training on Brady obligations to reduce violations. Some argue that requiring prosecutors to work with Innocence Commissions to counteract the psychology of conviction at all costs would be helpful. It has also been suggested that prosecutors’ offices should have ethics officers and sanction employees who cross over the line. There should also be clear and public policies in each prosecutor’s office concerning the use of jailhouse informants and turning over exculpatory material (Kirchmeier et al., 2009; TDCAA, 2012).
Scheck (2010), one of the founders of the Innocence Project, explains that the criminal justice process could learn from quality assurance programs in medicine. He proposes that many of the mistakes of prosecutors are due to being overworked and careless. In other words, it isn’t that they intend to suppress evidence from the defense, it is that they forget to disclose it; similarly, other mistakes occur because of a lack of quality control in the process. The medical establishment underwent a fundamental improvement in the quality of care when checklists were begun in operating rooms. Error rates plunged to near zero in the same hospitals that had been experiencing unacceptably high rates. Scheck says this same approach should be used in prosecutors’ offices to uncover Brady material and make sure it gets to the defense. Other procedures should be an internal discipline review system that would undertake a systematic review of mistakes made and identify the prosecutors involved. Responses would depend on the reason for the mistake. If prosecutors erred because of overwork, then resources should be allocated to reduce those errors; if a prosecutor was ignorant of his or her duties under the law, then training was necessary. However, if the prosecutor intentionally violated the law or ethical obligation, then discipline was necessary.
10-4dConviction Integrity Units
While the number of Innocence Project affiliates is growing and the groups have been successful in identifying cases and prevailing in court, they can’t be the only solution to the problem of false convictions. Craig Watkins, former district attorney of Dallas County, instituted the first conviction integrity unit in his office in 2007. The unit reviews DNA cases that have been identified by the Innocence Project of Texas and all cases where DNA evidence has identified unknown suspects in addition to the defendant. By 2014, the office had freed 33 people, was investigating 30 cases, and had a backlog of 200 cases (Barber, 2014). Watkins lost a reelection campaign in 2014, ironically because of ethical scandals (including possible misuse of asset forfeiture funds) and political missteps, but his Republican successor promised to continue the work of the unit.
By 2014, over a dozen cities or counties had similar units, including San Francisco, Chicago, San Jose, Brooklyn, Detroit, Denver, Philadelphia, and Cleveland. By 2017, the Registry of Exonerations reports that there are 29 such units in the 2,300 prosecutors’ offices across the country. These units have been responsible for exonerating 225 individuals up to 2016 (National Registry of Exonerations, 2017). Recall from Chapter 8 that the ABA added two sections to Rule 3.8 for prosecutors that concerned their ethical duty to investigate and remedy when there is a chance that an innocent person has been convicted. Even though most states have not adopted those changes, these units pursue the spirit of the rule changes.
Sometimes a similar body is formed at the state level. The North Carolina Innocence Inquiry Commission was created in 2007 by N.C.G.S. §§ 15A-1461 through 15A-1470. The commission has the power to order a formal inquiry by a three-judge panel appointed by the Chief Justice of the North Carolina Supreme Court. Since 2007, the commission received 2,035 cases and 1,985 had been reviewed and closed by March 2017. Ten people have been exonerated. The remaining cases are under review (North Carolina Innocence Commission, 2017).
10-4eMandatory DNA Testing
As mentioned earlier, DNA has been the vehicle by which many innocent prisoners have obtained their release from prison. Even after many years, a small amount of preserved DNA evidence could exclude someone or help to identify the real perpetrator of a crime. Some states have mandated DNA testing of old cases when the inmate requests it. Still other offices, however, actively oppose retesting of DNA. In District Attorney v. Osborne, 557 U.S. 52, 2009, the Supreme Court, in a 5–4 decision led by the conservative majority, ruled that defendants had no constitutional right to DNA evidence, even if it was still held by the state and even if they were willing to pay for its testing. In this case, the prisoner argued that the testing done in his trial matched him only to 1 in 6 black men and more advanced tests available today could determine more accurately that he was not the rapist. Alaska argued that such a right would jeopardize the finality of case decisions when the trial was otherwise fair. One wonders, however, how a trial could be thought of as fair if an innocent person was convicted. One also wonders why the Supreme Court would not consider access to such evidence a part of due process. Contrary to this decision, many states are taking steps to make mandatory the preservation of biological evidence in criminal cases and creating a state right to postconviction DNA testing, even though such testing is prohibitively expensive and evidence must be kept in conditions sufficient to allow for later testing.
10-4fPrivate Crime Labs and Enhanced Due-Process Procedures
Because of the pro-prosecution bias that is said to exist in state or local police crime labs, there have been calls for private labs to test evidence. More than half of all labs in the country report directly to a law enforcement organization. Sometimes the bias is direct, but more often it is subtle and examiners may not even be aware of how they slant findings to the prosecution (cognitive bias). While there is an argument that private labs would not be subject to the same cognitive bias as employees of law enforcement agencies, a contrary argument is that examiners would still feel pressure because their continued contract would be the incentive to produce favorable results. A hybrid suggestion is that most testing would continue at state crime labs but periodically evidence would be sent to private labs for verification. Private labs could also be sued more easily than governmental entities, giving them the incentive to follow proper procedures (Balko, 2011b).
Procedures can also ensure that obtaining confessions occurs in a manner designed to minimize the potential for false confessions. While the legal standard is whether coercion was present and the bar is set very high, some suggestions to deal with false confessions have emerged. One suggestion is to videotape all interrogations (not just the confession) (Garrett, 2011). More generally, suggestions include the requirement that all confessions have corroborating evidence, that lawyers be required to be present, and that stricter exclusionary rule applications be applied when there is evidence of coercion. As mentioned previously some locales have either eliminated or dramatically constrained the use of jailhouse informants because of the high probability that they are lying to gain some benefit.
There is new attention to and interest in addressing the weaknesses of the justice system to reduce the number of wrongfully convicted. It is important to note, however, that the new rules, sanctions, and guidelines that address jailhouse informants, confessions, eyewitness identifications, and other factors that have been identified as contributing to wrongful convictions will be effective only if there are ethical legal professionals who are committed to ensuring that there truly is justice for all.
Unfortunately, there is little reason for the prosecutor who sees injustice occur to come forward. In Garcetti v. Ceballos, 547 U.S. 410, 2006, the Supreme Court ruled against a prosecutor who was retaliated against for trying to rectify what he saw as a violation of due process. In this case, Richard Ceballos was an attorney for the Los Angeles County District Attorney’s office. He submitted a memorandum to his superiors detailing his findings that a search warrant obtained by law enforcement officers had serious flaws and recommended the case be dismissed. Instead, his supervisor continued the prosecution. Ceballos, against orders, provided the defense with a copy of his memorandum and was called as a defense witness. He was subsequently passed over for promotions and sanctioned in other ways, and filed a Section 1983 claim arguing that his First Amendment rights were violated. The Supreme Court, in a 5–4 decision, held that the First Amendment did not apply to public servants during their public duties. Sadly, this decision may act as a barrier to public officials who attempt to challenge what they believe to be miscarriages of justice. However, the Court revised this ruling in Lane v. Franks, 573 U.S. 13, 2014, holding that the First Amendment does protect public employees who provide truthful sworn testimony, under a subpoena, in a hearing that is outside of ordinary job duties, even if the testimony addresses information learned at work. Writing the opinion, Justice Sotomayor claimed that the act of testifying in court “sets it apart from speech made purely in the capacity of an employee” (p. 9). Moreover, she wrote, “It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials—speech by public employees regarding information learned through their employment—may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs” (p. 11).
In fact, some argue that it is the attorneys and other professionals who work in the courtroom that are responsible for prosecutorial misconduct if they don’t report it. Defense attorneys, clerks, judges, and others all have the duty to report any action that threatens the integrity of the court. Sullivan and Possley (2016) in a wide-ranging discussion of prosecutorial misconduct and how to address it argue that the way to reduce misconduct includes these five approaches:
1. instituting an open-file pretrial discovery requirement on prosecutors (similar to the Morton Act in Texas) that could even substitute for the Brady rule;
2. abandoning the harmless error test for reversing convictions; even if there is sufficient evidence of guilt, serious prosecutorial misconduct should be met with reversal;
3. identifying errant prosecutors by name in trial and appellate opinions;
4. stripping prosecutors of full immunity and giving them qualified immunity instead as protection from civil damages for misconduct; and
5. authorizing the Department of Justice’s Office of Inspector General to handle investigations of alleged misconduct by federal prosecutors.
Ethical misconduct by prosecutors is expensive and threatens the very legitimacy of our legal system. When prosecutors have been found to have engaged in a Brady violation, put a questionable jailhouse informant on the stand, or winked at police perjury, anyone convicted can argue that the same misconduct occurred in his case. As more of these cases come to light, more suspicion is cast on all prosecutors whenever there are allegations of misconduct. Conviction integrity units are expensive to operate and take needed resources away from prosecuting current criminals. Unfortunately, guilty perpetrators may go free when police and prosecutors don’t do their job legally and ethically. In one case where prosecutorial misconduct led to a conviction being overturned, Troy Bennett pleaded guilty to a lesser charge, was released, and then confessed to the murder he was originally charged with, effectively getting a free pass because of prosecutorial misconduct (Sapien and Hernandez, 2013). The problem is that when there is no confidence in justice system actors, then every case needs to be relitigated. The cost to the system of misconduct is incalculable. Thus, any utilitarian arguments prosecutors who are inclined to commit misconduct may make are weak and unpersuasive considering the costs at stake.
It is important to remember that legions of police, lab examiners, prosecutors, and judges engage in the honorable profession of pursuing justice for victims of crimes without committing any of the acts described in these chapters. Just as suspects should not be deprived of due process and be the victims of “noble-cause” corruption because of a belief that they are guilty, neither should prosecutors (or police officers) be presumed guilty because they are charged with misconduct. Just because there is an allegation in an appeal that prosecutors engaged in misconduct, does not make it so. Individuals on the side of defending the wrongfully convicted may be subject to confirmation bias as well and have their own ethical blinders on regarding what is legal and ethical when they believe that they are advocating for an innocent person in prison. It is also important to remember that in many of the cases where someone has been exonerated, the original conviction took place in the 1980s when large cities were struggling with incredibly large caseloads related to drugs and crime. The crime rate is, in some categories, far less than half of what it was in the 1980s; prosecutors’ offices today have more resources to devote to each case and some also have the desire to reevaluate old cases to make sure they were prosecuted correctly. Our Walking the Walk box describes one prosecutor who believed it was his duty to do so.
Walking the Walk
Kenneth Thompson was Brooklyn’s District Attorney for a short three years. By all accounts, his life, while short, was well-lived and he represented the very best of professional advocacy. Thompson won the election from his predecessor, Charles Hynes, who left under a cloud of scandal. Mr. Thompson became Brooklyn’s first black district attorney. His mother was one of the first female police officers in New York City. He was a federal prosecutor before starting his own firm specializing in civil rights.
After he took office, he expanded the conviction integrity unit to ten lawyers from two, and added three detective investigators. He also added a review panel of lawyers and a law professor consultant. The conviction integrity unit has been instrumental in releasing Jeffrey Deskovic and over 20 others. Thompson also established a policy to avoid prosecuting most low-level marijuana arrests. He instituted an amnesty program called “Begin Again” that allowed people to expunge old warrants. The idea was that years of zero-tolerance policing led to tens of thousands of low-level offense warrants; Brooklyn alone had over 250,000 open warrants, some dating back to the 1970s. If people showed up, waited in line, and filled out some paperwork, and, assuming they didn’t have serious charges, they could leave with a clean record. At the first event in June of 2016, 1,000 people showed up and Thompson worked the lines himself to increase trust. Many people evidently thought it was a trap and they would be arrested.
It’s difficult to balance the rights of all groups and he was criticized for prosecuting New York City police officer Peter Liang who accidentally killed a resident in a housing project stairwell; but also criticized by the other side for recommending probation for the officer. Others might see his position as balancing justice and mercy. He was arguably just getting started on criminal justice reform when he was diagnosed with cancer. He died in October 2016 at the age of 50. According to the Editorial Board of the New York Times, “His intimacy with the perspectives of both law enforcement and minority communities made him unusually well positioned to balance a respect for the justice system even as he fought to fix it from the inside.” His legacy continued as those who ran for the office after his death vowed to continue his work and the changes he had put in place.
Sources: Baker, 2015b; Editorial Board, 2016; Feuer, 2017a.
10-5Judicial Independence and the Constitution
Before we leave this set of chapters on legal professionals, it is helpful to revisit some basic perspectives of law and how one’s perspective or paradigm colors how we view judicial decisions or applications of the law. One view of law is that it is neutral and objective and that formal and absolute rules of law are used in decision making. However, the reality is that lawmakers, law enforcers, and lawgivers are invested with a great deal of discretion in making and interpreting the law. Professionals in law enforcement, the courts, and corrections use their discretion wisely and ethically, or, alternatively, they may use their discretion unethically. Far from being absolute or objective, the law is a dynamic, ever-changing symbol of political will. In this text, we address the ethical issues in the implementation, rather than the creation, of law. As you learned in political science or government classes, the creation of law is political. Laws are written by federal and state representatives who supposedly enact the public will. One might think that once a law is created, its implementation would be straightforward, but it should be clear by now that this is not the case. An appellate court can change over time and be influenced by political shifts in power. Far from being static, the implementation of law reflects political realities, in direct contrast to the ideal of judicial independence that is the cornerstone of our system of government.
If the judiciary is not independent of political powers, this calls into question the very existence of the checks and balances upon which this country’s government is constructed. For instance, many Democrats suspected that the political composition of the Supreme Court had a great deal to do with its decision in the case challenging the Florida vote after the Bush–Gore presidential election in 2000. Whether the allegations are true, it should be obvious that the strength of the justice system rests on the independence of its judiciary.
The system of federal prosecutors and the federal law enforcement agencies, which include the Federal Bureau of Investigation (FBI) as well as many others, is also supposed to be removed from political influence. If we do not trust that a true separation of powers exists, then we have no trust in our government. The reason why there was such a political uproar over the firings of eight federal prosecutors on a so-called “hit list” in 2007 by the Bush administration was because they were evidently fired for not carrying out the wishes of the administration. While it is true that there is usually a widespread replacement of U.S. attorneys at the beginning of a new administration, it is quite another thing when U.S. attorneys are targeted for not doing the administration’s bidding in terms of what prosecutions they pursue (Carr and Herman, 2007; Johanek, 2008). The reason why the Obama administration’s IRS scandal stuck a deep chord in individuals on both sides was because of the allegations that governmental power was used against enemies. Now, questions exist about the Trump administration’s attempts to influence the justice system (through firings of at least one U.S. attorney as described in the In the News box) or attempts to influence federal law enforcement (by firing James Comey). It is probably very tempting as a sitting president to use the great resources available to protect friends and punish enemies. However, the greatest strength of our system of government is the separation of powers.
In the News
Separation of Powers
No one contests the right of a new president to request the resignations of U.S. Attorneys. It is a right that is exercised routinely by most elected presidents. What is not acceptable, however, is any hint of influence from a sitting president or any employee on the prosecutor’s discretion to investigate, charge, or prosecute individuals. Therefore, President Bush’s firing of U.S. attorneys mid-term received a scathing critique by the Justice Department because it had more than a hint of political influence over prosecution. After President Trump’s inauguration, he asked for the resignation of Preet Bharara, the U.S. attorney in Manhattan. Bharara was extremely well known and widely respected as a fierce prosecutor. He prosecuted insider trading and hedge fund fraud cases, a case against J.P. Morgan bank, the Times Square bomb plotter Faisal Shahzad, and Al Qaeda terrorist Khalid Al-Fawwaz for the bombings of U.S. embassies in Kenya and Tanzania. He was not afraid to go after the politically well-connected, such as a former aide to New York Governor Andrew Cuomo. The reason several news stories focused on the firing was because President Trump had earlier asked Bharara to stay. The other reason was that, according to Bharara, there was a series of troubling phone calls from President-elect Trump, and then President Trump to Bharara. While he took the first two calls before the election, Bharara chose not to return a call from President Trump after he became president and contacted President Trump’s chief of staff, suggesting that the president should be counseled about contacting a United States attorney directly. He believed that, especially considering his jurisdiction, it was not wise to have private conversations. The next day Mr. Bharara saw that he was on a list of 48 attorneys who were asked to tender their resignations. Since he had been called to a personal meeting and asked to stay on, he believed it was a mistake. It wasn’t and he was fired.
Sources: Bright, 2017.
The U.S. Supreme Court, as the ultimate authority of law in this country, decides constitutionality, and these interpretations are far from neutral, despite the myth of objective decision making. This is the reason that the selection of Supreme Court justices (as well as all federal judges) is such a hard-fought political contest. Ideological positions do make a difference, and no one is fooled that a black robe removes bias. The confirmations of John Roberts as Chief Justice (during the Bush administration) and Sonia Sotomayor and Elena Kagan (during the Obama administration) illustrate this. When Justice Scalia died in 2016, President Obama nominated Merrick Garland to replace him. Senate Republicans refused to even hold a confirmation hearing for Garland spurring bitter criticism from Democrats. Then when President Trump nominated Neil Gorsuch, Democrats vowed to filibuster against his nomination. Republicans employed the “nuclear option,” meaning that Gorsuch was confirmed on a simple majority. Neither side opposed the two men on academic or judicial qualifications. Both, by all accounts, were well qualified. The fight is about political ideology and the intent to place on the bench those who will make decisions in conformance with one’s ideology. What is interesting is that so-called liberal justices have been appointed by Republican presidents: Justices John Paul Stevens (appointed by Gerald Ford), David Souter (appointed by George H.W. Bush), and Sandra Day O’Connor (appointed by Ronald Reagan) were not considered activist or liberal when they were appointed but moved in that direction compared to the justices who have been appointed since then (Greenhouse, 2007). Today, some say Justice Kennedy is the most important man in America because he is often the swing vote that shifts the decision from four to five or five to four. Justices Roberts, Alito, and Thomas typically return conservative decisions (e.g., pro-business and anti-criminal defendant), and Justice Gorsuch is expected to vote with this group. Justices Ginsburg, Kagan, Sotomayor, and Breyer return liberal verdicts (although this is a generalization). The fate of the most important social questions in this country being at the discretion of one individual should be deeply concerning to Americans.
10-5aJudicial Activism
Our law derives from the Constitution. Two basic philosophies regarding how to apply constitutional principles are at work in the legal arena. The first group might be called strict constructionists because they argue that the Constitution should be implemented as written, and if any changes are to take place in rights, responsibilities, or liberties, the changes should take place through the political system (Congress).
The extreme view of this position is that if a right isn’t in the Constitution, it doesn’t exist. So, for instance, the right to be free from state interference in the decision to abort one’s fetus does not exist in the Constitution; therefore, it doesn’t exist and cannot be created except through the actions of duly elected representatives. Strict constructionists argue that just because something should be a right doesn’t mean that one can decide the framers meant for it to be a right. Judges should not create law.
Interpretationists (or activists) have a looser reading of the Constitution and read into it rights that the framers might have recognized or that should be recognized because of “evolving standards.” They argue that the Constitution is meant to be a living document and that the language of the framers was intentionally written as to accommodate interpretation based on changing times and circumstances. Concepts such as due process, for instance, from the Fifth and Fourteenth Amendments, are flexible so they can be used to address new questions and new concerns. Interpretationists place less emphasis on precedent, minimize procedural obstacles (such as standing, ripeness, and federalism), and offer less deference to other political decision makers (e.g., they use the strict scrutiny test rather than the rational relationship test when evaluating governmental actions). The debate as to whether the Constitution should be strictly construed or liberally interpreted is an old one, as the Quote and Query box indicates.
Critics of judicial activism point out that just because judicial activists have been promoters of civil liberties and socially progressive causes, such as integration and free speech, there is no absolute necessity that activism would always champion such individual rights. Activism could, for instance, be just as likely to recognize greater rights of the state to restrict individual liberties (Wolfe, 1991), or invalidate congressional acts by an interpretation of the Constitution that favored restricting laws obtained through the democratic process (some say this is the case with the Citizens United v. Federal Elections Commission, 558 U.S. 50, 2010, a decision that invalidated a law putting limits on corporate campaign spending).
Proponents of activism argue that the federal government itself has not been content to stay within the boundaries of its enumerated powers as specified in the Constitution, and that proliferation of the federal government’s reach into all areas of criminal and civil law through the expansive interpretation of the Commerce Clause requires greater judicial checks. Furthermore, there are limits to judicial power, including impeachment, confirmation, congressional definition of appellate powers, and the power to override a Supreme Court opinion through a constitutional amendment (Wolfe, 1991).
Quote & Query
When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.
Sources: Oliver Wendell Holmes Jr., Supreme Court Justice, 1902–1932, as quoted in Wolfe, 1991: 36.
· Does this quote by Holmes indicate he was a strict constructionist or an interpretationist?
When the Court was in its most activist phase during the Warren Court (1953–1969), it delivered broad opinions that have had dramatic effects on the political and legal landscape. The Warren Court was called activist or liberal because it recognized a whole range of civil liberties and due-process rights for groups that had been historically disenfranchised. The source of such rights was found in an expansive reading of the Constitution and based on the idea of “fundamental liberties”—those freedoms and protections that the framers would have recognized if they had been asked. Central to this view is the idea of natural rights . Recall that the natural law ethical system holds that there are natural laws of ethics that humans may or may not discover. Several of the authors of the Bill of Rights were natural law theorists; thus, taken out of the context of their time, they would probably recognize that humans have the following rights:
· To be free
· To be treated equal to other groups
· To be able to make decisions about personal matters without governmental interference
· To be free from torture and punishments that degrade the human spirit
· To have some protections against state power
In addition, there may be recognition that humans also have rights:
· To basic survival needs
· To avail themselves of opportunities to better themselves
The first set of rights leads to less government; the second set leads to more government. That is why the political terms conservative and liberal are not strictly comparable to “strict constructionist” and “interpretationist” and why there is such confusion when these terms are being used to describe judicial and political appointees and elected officials. “Liberals” argue that if the Warren Court hadn’t interpreted the Constitution to recognize civil rights, blacks would still be eating at separate lunch counters. Constructionists argue that if interpretationists had their way, the courts would be involved in every decision from birth to death.
The Supreme Court’s constructionist justices: John Roberts, Samuel Alito, Clarence Thomas, and Antonin Scalia have been instrumental in restricting the coverage of the Miranda warnings, upholding federal antiabortion laws, cutting free-speech rights of public school students, strictly enforcing procedural requirements for bringing and appealing cases, limiting the ability to use racially conscious measures to achieve or preserve integration, invalidating public corruption laws and campaign finance laws, and generally supporting law enforcement powers, with some exceptions. On the other hand, the Supreme Court has also recognized unconstitutionality in capital punishment and life without parole for juveniles and ruled against the government’s secret program to store electronic communication data of all Americans. Recent case decisions have recognized religious liberty rights for Muslims to grow beards in prison (Holt v. Hobbs, 574 U.S. ___, 135 Sup. Ct. 853, 2015), the requirement to obtain a warrant before searching a cellphone (Riley v. California, 573 U.S. ___, 134 Sup. Ct. 2473, 2014), and the rejection of the so-called provocation rule that removed immunity from police if they created the situation where they felt in danger of their lives (Los Angeles County v. Mendez, No. 16-369, U.S. Supreme Court, May 30, 2017).
10-6aConclusion
One might expect that the public’s respect and trust for legal professionals, as guardians of the justice system, would be high, but that is not the case. Part of the reason is the ability to take either side in a controversy. We should not forget, however, that attorneys and judges protect the bedrock of our structure of laws.
In criminal justice, it is crucial that legal professionals remember and believe in the basic tenets of due process and be ever vigilant against the influence of prejudice or bias in the application of law toward the pursuit of justice. Unfortunately, there are cases where defense attorneys, prosecutors, and judges do not uphold the ethical standards of their profession and instead engage in various forms of misconduct. Although the types of misconduct vary depending on one’s role in the system, each can be explained by individual enrichment (money, status, or time), or by ends/means thinking due to confirmatory bias (like noble-cause corruption for police officers).
There is a need to improve the ethics of the system, as evidenced by the Innocence Project’s exonerations of hundreds of people who ended up in prison because of the failings of the system and system actors. Just as important is to make sure the same “rush to judgment” isn’t directed to system actors when allegations of misconduct arise. Despite those who advocate strict constructionism, applying the law can never be truly objective or formulistic. Every decision is made through a reasoned and, one hopes, ethical interpretation of the law rather than by a robotic response. If the law is a living entity, legal professionals are its life’s blood.
10-6bChapter Review
1. Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges.
Misconduct by defense attorneys includes ignoring cases, incompetence, and going over the line when defending clients, including presenting false evidence. The types of prosecutorial misconduct include withholding exculpatory evidence, misusing pretrial publicity, using peremptory challenges to exclude jurors, and using false evidence in court. Misconduct by judges includes allowing bias (including bribery) to influence their decision making and acting arbitrarily and otherwise abusing their power.
2. Explain the reasons why such misconduct occurs.
Misconduct occurs because the disciplinary functions carried out by the state bar associations rarely result in serious sanctions. Prosecutors experience very little oversight and seldom suffer from sanctions when violating the ethical rules in their zeal to obtain a conviction. Courts often rule such misconduct as harmless error. Judges are feared by employees and lawyers who hesitate to file complaints against them. Also, prosecutors, like police, may be prone to confirmatory bias or what we have called noble-cause corruption in prior chapters.
3. Describe some factors in wrongful convictions.
The most commonly noted factor in wrongful convictions seems to be an error in eyewitness identification. Other factors include Brady violations, coerced interrogations that lead to false confessions, jailhouse informants, poor representation by defense attorneys, police and prosecutorial misconduct, false confessions, and faulty or perjured forensic testimony.
4. Discuss some proposals to improve the justice system and reduce ethical misconduct.
Suggestions to improve the system have been to institute official Innocence Projects or conviction integrity units. Suggestions also include more training and ethics officers. Also, some have suggested reevaluating prosecutorial immunity and using civil and criminal sanctions against prosecutors who create and use false evidence and engage in other forms of misconduct to obtain convictions. Other proposals more specifically to reduce the possibility of wrongful convictions include using videotape confessions, restricting the use of jailhouse informants, and using sequential and double-blind identifications to avoid improper influence over witnesses.
5. Understand the concepts associated with judicial activism or constructionism and how this issue relates to ethical misconduct.
An activist judge is one who believes such concepts as due-process and liberty rights are evolving and the founding fathers did not mean for the rights enumerated in the Constitution to remain static throughout time. Constructionists argue that legislators should make law, not judges. One’s opinion regarding this—and one’s values, opinions, and biases in general—affect decision making, so judges’ opinions on cases can be predicted ahead of time in many cases. This calls into question judicial neutrality and reminds us that, in the end, our system of laws is a system of people who enforce the law, and thus it is only as good or bad as the people in the system.