Prosecutorial Misconduct; Does immunity invite injustice?

It has long been recognized that a prosecutor’s duty is to seek justice. In Berger v. United States, 295 U.S. 78 (1935) our Supreme Court declared this mandate recognizing that prosecutors should “prosecute with eagerness and vigor” but may not use “improper methods calculated to produce a wrongful conviction.” If a prosecutor’s misconduct “so reflects the trial with unfairness as to make the resulting conviction a denial of due process” then the conviction might be vacated – but only if the Court finds that the prosecutor’s actions constituted “egregious misconduct.” Darden v. Wainwright, 477 U.S. 168 (1987)

In other words, as long as the reviewing court determines, based upon their own post-conviction subjective interpretation, that the evidence notwithstanding the alleged misconduct is sufficient to support the conviction, a prosecutor’s deliberate misconduct is judicially tolerated, and the conviction cannot be vacated. This is generally called the “harmless error” rule … if the reviewing court determines that the person is probably guilty anyway. Then the “error” of a deliberate prosecutorial misconduct is deemed “harmless.” See, e.g. Cargle v. Mullin, 317 F. 3d 1196 (10th Cir. 2003) (“ A prosecutor’s misconduct will require reversal of a conviction only where the misconduct sufficiently infected the trial so as to make it fundamentally unfair.”); Mason v. Mitchell, 320 F. 3d 604 (6th Cir. 2003) (“The misconduct must be so pronounced and persistent that it permeates the entire atmosphere of the trial”)

Imagine a world where traffic laws said that you must stop at a red light, but another rule is then established by the courts that says that even if you do deliberately run that red light, as long as you don’t hit anyone it’s “harmless error.” What if we change the laws prohibiting drunk driving – but only if you actually hit and kill someone? No harm, no foul … that’s simple enough.

The problem with this perverted logic is that the true harm is not in the result of the deliberate misconduct – but in the misconduct itself. Our constitutional democracy works because we have become a nation of laws that evolve as necessary to protect the rights of all citizens. If we create a system that effectively absolves deliberate prosecutorial misconduct based upon subjective interpretation of actual harm inflicted and not the act of misconduct itself, do we not invite and even encourage prosecution misconduct?

As a civilized society we embrace the concept of law and order. Without laws there can be no “order” as one cannot exist without the other. Now imagine a world where every individual is subject to accountability – except those empowered by the government to enforce those laws. In today’s system with an epidemic of wrongful convictions increasingly undermining confidence in the system as a whole, prosecutional misconduct has become the leading cause of miscarriages of justice.

Even with this epidemic of prosecutional misconduct victimizing innocent men and women with wrongful incarceration and even condemning them to death, prosecutors enjoy “absolute immunity” from judicial accountability. In Imbler v. Pachtman, 424 U.S. 409 (1976) the Supreme Court concluded that prosecutors – even when they deliberately fabricate evidence, present false evidence, and knowingly use perjured testimony, even when they deliberately prosecute someone they know is innocent – are entitled to “absolute immunity” and cannot be held judicially accountable. The Supreme Court concluded, “The ultimate fairness of the system could be weakened” if prosecutors were held accountable in court for even deliberate misconduct.

The majority of prosecutors do exercise self-constraint and do act in good faith. But borrowing from an old adage, it only takes a few bad apples to spoil the whole bunch. Add to that the political consequences that make admitting error, the equivalent of career suicide, and a culture that promotes those who will win at any cost; where the most “successful” prosecutors are those who practice the philosophy that “the ends justify the means” and you have a system that invites injustice, and becomes by its very nature inherently corrupt from within.

The most extreme injustice conceivable is that of an innocent man or woman being wrongfully convicted and condemned to death. Florida by far leads the country in the number of wrongful capital convictions in which innocent men and women were condemned to death only later to be judicially exonerated. But why does Florida wrongfully convict and even condemn so many innocent people?

For one thing, Florida remains the exception to most other states in establishing a means of statutory compensation for those found to have been wrongfully convicted. Most states provide compensation to those found to have been wrongfully convicted … but not Florida Common sense tells you that if the state has to pay substantial amounts of money to compensate those victimized by the system, then inevitably there will be a call to hold those responsible for inflicting the injustice accountable. In Florida at least 24 men and women have been judicially exonerated after being wrongfully convicted and condemned to death – yet not even once has the prosecutor found to have engaged in deliberate misconduct been held accountable.

How can we deny that the absence of accountability is itself an invitation to injustice? If our system can identify the small numbers of specific prosecutors who have reportedly engaged in deliberate misconduct then is there not a moral responsibility to at the very least ensure that these few corrupt individuals never practice law again? If we identify a doctor that has deliberately engaged in malpractice causing injury to his or her patient, do we not take action to strip them of their license to practice? Why would we demand anything less of a person entrusted to represent “We, the people” in a court of law? Is not the deliberate violation or that most sacred test at least as equally contemptible – and intolerable – as a physician deliberately engaging in acts of malpractice that victimizes his patients?

The hypocrisy that presently exists is perpetuated by the system itself. The Florida Supreme Court has repeatedly admonished prosecutors for deliberate misconduct in capital cases, promising that disciplinary actions would follow if that behavior continues, yet not even once has the Court actually taken action. This judicial rhetoric is readily found in case law … In Ruiz v. State, 743 So. 2d 1 (Fla. 1999) the Florida Supreme Court stated that, “ we warned of the dire consequences of such ‘inexcusable prosecutorial overkill.’” citing, Hill v. State, 477 So. 2d 553 (Fla. 1985) “… yet in spite of our admonishment in Hill and despite subsequent warnings that prosecutorial misconduct will be subject to disciplinary proceedings by the Florida Bar, we never-the-less continue to encounter this problem with unacceptable frequency.”

Both Ruiz and Hill were capital cases in which the victimized defendant was sentenced to death; but they’re certainly not the only capital (death sentence) cases in which the Court rhetorically admonished prosecutors for acts of deliberate misconduct. See, e.g. Garcia v, State, 622 So. 2d 1325 (Fla. 1993) (“Once again, we are compelled to reiterate the need for propriety, particularly where the death penalty is involved.”); Nowitzke v. State, 572 So. 2d 1346 (Fla. 1990) (“We are distressed over the lack of propriety and restraint exhibited in the overzealous prosecution of capital cases.”); Garron v. State, 528 So. 2d 353 (Fla. 1988) (“Such violations of the prosecutor’s duty to seek justice and not merely ‘win’ a death case cannot be condoned by this Court.”); andBertolotti v. State, 476 So. 2d 130 (Fla.1985) (“we have recently addressed incidents of prosecutional misconduct, in the face of repeated admonitions against such overreaching, to be grounds for appropriate disciplinary proceedings.”)

All of these cases in which the Florida Supreme Court explicitly recognized acts of prosecutorial misconduct share several things in common … each of these cases the defendant was sentenced to death (several of these defendants have since even been executed) and in each of these cases no actual disciplinary action was taken against the prosecutor found to have engaged in such misconduct.

Two distinct forms of prosecutorial misconduct have accounted for the majority of cases in Florida in which a wrongfully convicted and condemned person was subsequently exonerated by the Courts and released from death row. The first form are acts of prosecutional misconduct in which a prosecutor is subsequently found to have knowingly withheld material evidence of an exculpatory nature from the defense – In many cases evidence that would have proven the person innocent. The second form are acts of overzealous prosecution in which a prosecutor has a wholly circumstantial case of specious nature, yet proceeds to prosecute by simply manipulating the jury into believing the evidence proves guilt beyond reasonable doubt even though the evidence is legally insufficient to support guilt.

The most recent exoneration released from Florida’s death row after almost six years of incarceration is John Ballard. After being convicted and condemned to death without any eyewitnesses, no physical or forensic evidence, and no confession; the Florida Supreme Court concluded that the erroneous conviction was the product of overzealous prosecution; that the prosecutor (Deputy Assistant State Attorney Randall McGruther) improperly stacked circumstantial inference upon inference to convince the jury of Ballard’s guilt even though no credible evidence actually supported guilt. See, Ballard v. State, 923 So 2d 475 (Fla. 2006)

This same prosecutor, Randall McGruther, has a history of unethical overzealous prosecution, especially in wholly circumstantial capital cases – Mr. McGruther was the prosecutor in my own case in which the evidence now shows that the entire wholly circumstantial case of alleged premeditated murder was deliberately fabricated with an intent to have me wrongfully convicted and condemned to death. See, “Southern Injustice: Condemning an Innocent Man.”

Has any disciplinary action ever been pursued against Mr. McGruther? No. In fact, Mr. McGruther is now the top prosecutor in the Twentieth Judicial Circuit States Attorney’s Office, handpicked as “Deputy Assistant State Attorney” by the elected State Attorney Steve Russell himself.

Additionally, that particular state attorney’s office, although comprised of the mostly rural farming counties of Southwest Florida and relatively small in population, has the highest rate of wrongful convictions in capital cases in the entire county. At least five men have been judicially exonerated since 1980 after being wrongfully convicted and condemned to death by that office itself, (Dilbert Tibbs, James Richardson, Bradley Scott, John Landry, and John Ballard), yet to date there has never been an investigation into why that office accounts for such as abnormally high number of wrongful convictions in capital cases.

Capital cases may only reflect a small minority of the collective number of criminal cases prosecuted in this country; but it is these cases that society is asked to impose and extract the most extreme measure of justice. If these examples of injustice, resulting from acts of prosecutorial misconduct, can be found to be what amounts to deliberate policy and practice; then does it not stand to reason that this cancerous corruption of our judicial system exists at an even greater scale in cases that are not subjected to such thorough judicial scrutiny?

Prosecutorial misconduct is a corruption that acts as a cancer upon the very integrity of our judicial system as a whole. This corruption exists only because the judicial system itself is allowing it to exist. When a small group of prosecutors engage in repeated acts of deliberate misconduct resulting in convicting and condemning innocent men and women to death, then those few individual prosecutors become nothing less than state sanctioned killers and it is societies responsibility to insist that these prosecutors who have been found to have engaged in deliberate misconduct never practice law again. If we are not willing to hold them accountable, then we invite the injustice that inevitably results.