Coddling Prosecutors

According to many witnesses, Michael Wearry was at a wedding reception in Baton Rouge, 40 miles away, on the night that a teenage boy was killed in Tangipahoa Parish, Louisiana. Notwithstanding Mr. Wearry's alibi, Louisiana prosecutors charged him with murdering the boy, based primarily on the testimony of two prison inmates who -- two years after the crime -- implicated Mr. Wearry in the murder. The first inmate, Sam Scott, claimed to have witnessed Mr. Wearry commit the murder, but Scott's story changed significantly every time he told it. The second inmate, Eric Brown, purported to corroborate Scott's story, saying that he saw Mr. Wearry with the victim in Tangipahoa Parish on the night of the murder. Based on this testimony, the jury convicted Mr. Wearry and sentenced him to death.

After his conviction, attorneys representing Mr. Wearry learned that prosecutors had secured his conviction by suppressing evidence that undermined the credibility of both of its key witnesses. The State knew, but never told the defense, that Scott had told another inmate that he wanted to "make sure that [Mr. Wearry] gets the needle because he jacked me over," that Scott had coached another inmate to lie about Mr. Wearry, and that parts of Scott's story were physically impossible. The State also knew, but never told the defense, that Brown had twice sought a deal to reduce his sentence in exchange for testifying against Mr. Wearry and that cops told Brown that, if he testified favorably, they would talk to the prosecutor about getting him out of prison early. More than simply not telling the defense about Brown's motive, the prosecution affirmatively told the jury that Brown hadn't asked for anything in exchange for his testimony and had come forward just because it was the right thing to do.

Despite these facts, the Louisiana Supreme Court found no reason to overturn Mr. Wearry's conviction or death sentence. Earlier this month, the U.S. Supreme Court granted review of the Louisiana Supreme Court's decision and summarily reversed it. In a decision styled Wearry v. Cain, the High Court held that the Lousiana court's denial of Mr. Wearry's challenge to his conviction violated "settled constitutional principles" of due process and threw out Mr. Wearry's conviction.

As a defense lawyer and opponent of the death penalty, I might be expected to cheer the Court's decision in Wearry.Butit's hard to celebrate when, rather than really cleaning up the mess,the Court occasionallydeigns toremove a few pieces of rubble from a constitutional disaster area. Our criminal justice system is plagued by an epidemic of prosecutorial misconduct, and until the Supreme Court gets serious about providing an effective remedy, that epidemic will continue to spread.

The Supreme Court Lets Prosecutors Hide Evidence -- So Long as They Don't Go Too Far.

In this area, the Supreme Court's original sin goes by the name of the "materiality requirement." Some background is helpful to understanding this deleterious doctrine.

The basic ethical rules of the legal profession say that prosecutors (charged with doing justice, rather than just obtaining convictions) are supposed to give the defense all evidence that favors the defendant. Rule 3.8 of the Louisiana Rules of Professional Conduct (based on the American Bar Association's Model Rule) provides an example:

The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows, or reasonably should know, either tends to negate the guilt of the accused or mitigates the offense . . . .

Standard 3-5.4 of the ABA's Criminal Justice Standards for the Prosecution Function is even more explicit:

(a) After charges are filed if not before, the prosecutor should diligently seek to identify all information in the possession of the prosecution or its agents that tends to negate the guilt of the accused, mitigate the offense charged, impeach the government’s witnesses or evidence, or reduce the likely punishment of the accused if convicted.

(b) The prosecutor should diligently advise other governmental agencies involved in the case of their continuing duty to identify, preserve, and disclose to the prosecutor information described in (a) above.

(c) Before trial of a criminal case, a prosecutor should make timely disclosure to the defense of information described in (a) above that is known to the prosecutor, regardless of whether the prosecutor believes it is likely to change the result of the proceeding, unless relieved of this responsibility by a court’s protective order. . . . A prosecutor should not intentionally attempt to obscure information disclosed pursuant to this standard by including it without identification within a larger volume of materials.

But violations of these rules are rampant, and the Supreme Court deserves a good deal of the blame.

In a series of decisions running from Brady v. Maryland, 373 U.S. 83 (1963), toUnited States v. Bagley, 473 U.S. 667 (1985), the Supreme Court considered whether, and to what extent, to constitutionalize the rule that prosecutors must disclose all favorable evidence to the defense. Rather than adopting the concrete rule that prosecutors have to disclose exculpatory evidence, the Court watered down that principle with the squishy concept of materiality. Hiding exculpatory evidence, the Court said, is A-OK up to a point; it only violates due process if the suppressed evidence really important, i.e., if it has a "reasonable probability" of changing the outcome of the case.

Justice Marshall, joined by Justice Brennan, wrote a prescient dissent from the Court's adoption of the materiality requirement. The due process clause, he contended,

give[s] the criminal defendant the right to receive from the prosecutor, and the prosecutor the affirmative duty to turn over to the defendant, all information known to the government that might reasonably be considered favorable to the defendant's case.

To dilute this rule as the majority did, he warned, was to invite mischief. While Justice Marshall's rule would give prosecutors clear guidance (they "must divulge all evidence that reasonably appears favorable to the defendant"), the majority's rule was indeterminate, if not incoherent (prosecutors must disclose evidence if they think there is a reasonable probability that it will change the outcome of a trial that hasn't happened yet):

At best, [the materiality] standard places on the prosecutor a responsibility to speculate, at times without foundation, since the prosecutor will not normally know what strategy the defense will pursue or what evidence the defense will find useful. At worst, the standard invites a prosecutor, whose interests are conflicting, to gamble, to play the odds, and to take a chance that evidence will later turn out not to have been potentially dispositive.

In support of this latter warning, Justice Marshall cited a court of appeals decision observing a tendency for prosecutors to withhold exculpatory evidence because, "[i]f and when the evidence emerges after trial, the prosecutor can always argue, with the benefit of hindsight, that it was not material." (This gamble is all the more sensible because, as Justice Ginsburg has rightly noted, most of the time suppressed evidence stays suppressed.)

Prosecutors' biases, Justice Marshall explained, make the problem worse:

The prosecutor, convinced of the guilt of the defendant and of the truthfulness of his witnesses, may all too easily view as irrelevant or unpersuasive evidence that draws his own judgments into question. Accordingly he will decide the evidence need not be disclosed. But the ideally neutral trier of fact, who approaches the case from a wholly different perspective, is by the prosecutor's decision denied the opportunity to consider the evidence.

Justice Marshall predicted that the materiality requirement would not sufficiently protect against the conviction of innocent defendants. Despite decades of experience validating that prediction, the Court has chosen not to revisit the issue.

Prosecutors Who Hide Material, Exculpatory Evidence Can't Be Sued.

In the wake of these decisions, the Court faced the question of whether the wrongfully convicted could sue for compensation after being released from a prolonged imprisonment caused by a prosecutor's malicious suppression of exculpatory evidence.

Paul Imbler spent nearly a decade unjustly imprisoned because a Los Angeles District Attorney convicted him through knowingly presenting perjured testimony and suppressing exculpatory evidence. After his release, Mr. Imbler sued. The case, Imbler v. Pachtman,reached the Supreme Court on the question of whether a prosecutor could ever be sued for violating a defendant's constitutional rights. The Court answered, "no."

The Court refused to allow the suit despite the fact that a federal statute, 42 U.S.C. § 1983, specifically says that state officials can be sued for damages for violating constitutional rights (and contains no exception for prosecutors). Acknowledging that the "literal sweep" of § 1983 (a.k.a. what the law says) indicates that prosecutors can be sued, the Court disregarded the law's text because, basically, it didn't think allowing prosecutors to be sued was a good idea. In its wisdom, the Court decided that the best policy was to make all prosecutors "absolutely immune" from lawsuits.

The Court acknowledged that its absolute-immunity rule "does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty." But, the Court explained, that's a price worth (other people) paying to make sure that prosecutors don't have to worry about getting sued.

Subsequently, the Court decided, in Van de Kamp v. Goldstein, that government administrators (so long as they are prosecutors!) are absolutely immune from suit when their failures of training and management result in the violation of constitutional rights.

Most recently, in Connick v. Thompson, the Court seemed to endorse the "one-bite rule" in suits against local governments for causing a wrongful conviction by their deliberate indifference to prosecutors' constitutional duties to disclose exculpatory evidence. No matter how indifferent a prosecutor's office is to the need to train its employees in their constitutional obligations, the Court said, that government office can't be liable until a "pattern of similar constitutional violations" has developed. The Court also held (perhaps endorsing a five-bite rule?) that a single office having four convictions reversed over a ten-year period for failure to disclose exculpatory evidence was not enough to put the office on notice that better training was needed.

In short, the Court has made sure that neither the prospect of getting convictions reversed nor liability for money damages will deter prosecutorial misconduct.

The Disciplinary Dodge.

As it coddles prosecutors in legal proceedings, the Supreme Court loves to say that prosecutors are subject to professional discipline. As the Court put it in Malley v. Briggs: "The organized bar's development and enforcement of professional standards for prosecutors . . . lessen the danger that absolute immunity will become a shield for prosecutorial misconduct." This is a disingenuous dodge. The Justices know (or should) that prosecutors rarely suffer any professional consequences for prosecutorial misconduct. As a white paper by the Center for Prosecutor Integrity explains

Nine studies have analyzed the professional consequences of prosecutor misconduct. Collectively, these studies examined prosecutorial misconduct conducted at the both state and national levels from 1963 – 2013. Of the 3,625 instances of misconduct identified, these studies reveal that public sanctions are imposed in only 63 cases -- less than 2% of the time. Often these sanctions represented only a proverbial “slap-of-the-wrist.” For example[,] in the nearly 50 cases identified in the Center for Public Integrity analysis, the most common sanction was to assess the prosecutor with the costs of the disciplinary hearings, occurring in 24 cases.

Many attorney disciplinary proceedings are initiated when a court forwards a copy of an opinion or order recounting attorney misconduct to state authorities responsible for attorney discipline. Federal courts can, and sometimes do, indirectly initiate disciplinary proceedings this way. But they almost never forward cases of prosecutorial misconduct to disciplinary authorities.

Here again, the Supreme Court is partly to blame. The High Court doesn't just make legal precedents, it also shapes judicial norms. In other words, lower courts follow its lead not just on matters of law but also on matters of propriety. So far as I know, the Supreme Court has never notified a disciplinary authority of any of the cases in which it found prosecutorial misconduct. Indeed, the Court's typical practice is to avoid naming the prosecutor guilty of misconduct in its opinion. In Wearry v. Cain, the offending prosecutor is anonymous. Presumably, the Court wanted to spare him/her any embarrassment.

* * *

The Supreme Court intermittently intervenes to correct prosecutorial abuses, but it usually only does so in cases like Michael Wearry's -- capital cases where the Court has real concerns that a State may put an innocent person to death. That's better than nothing. But it shouldn't be mistaken for a serious commitment to stamping out prosecutorial misconduct. Decades of its cases show the Supreme Court isn't committed to doing that.

Mr. Wearry spent almost 15 years on death row for a crime that (based on the Supreme Court's description of the evidence) he probably didn't commit. If he's exonerated, neither the people nor the institution that caused his unjust imprisonment by violating his constitutional rights will be required to make him whole. The particular prosecutors involved will likely never see any professional consequences for their misconduct in Mr. Wearry's case. And he's one of the lucky ones.

The views expressed by Mr. Lee are purely his own and do not necessarily represent the views of the Federal Public Defenders Office or any of his clients.