Wisconsin State Journal

Consequences are devastating when prosecutors cheat
September 28, 2007

Most states have ethics rules designed to make prosecutors in the American criminal-justice system act as "ministers of justice," seeking the truth and just punishment for offenders.

Prosecutors wield immense power to authorize arrests, bring charges, dismiss charges, recommend punishment, help prisoners win early release or work to keep them behind bars.

When prosecutors cheat, the consequences can be devastating. Earlier this year when Durham County, N.C., prosecutor Ray Nifong withheld DNA evidence, three Duke University lacrosse players faced possible long prison terms on false charges of raping an exotic dancer. After the cheating was revealed, Nifong resigned, was disbarred and briefly jailed.

"Prosecutors in our system have enormous power — a frightening amount of power," said Hal Harlowe, a Madison criminal-defense attorney who was Dane County's elected district attorney from 1983 to 1989. "They have the power to cost people thousands of dollars and ... they can destroy people with just an accusation."

Prosecutors are called on to assess what the law requires and what's reasonable and fair while weighing the rights of the accused, of victims and of society to be protected from its worst elements.

Despite their lofty calling, prosecutors in the United States have suppressed evidence that points to a suspect's innocence, knowingly used false testimony, fabricated evidence, coerced witnesses and made false statements to juries, said Peter Joy, a Washington University law professor who studies prosecutor misconduct.

1 license revoked
In Wisconsin, prosecutors have been disciplined for behavior ranging from bribery, forging documents and providing false information to police to making misrepresentations to the court, drug use and meeting with defendants without their attorneys' permission. The punishments ranged from private reprimands to temporary loss of their law licenses. Only one prosecutor's law license has been revoked.

Experts disagree about whether it's a widespread problem, or relatively unusual.

Even when prosecutors are caught cheating, they rarely face sanctions, Joy said in an article published last year in the Wisconsin Law Review.

"With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious cases," Joy wrote. "They do it to win. They do it because they won't get punished."

In a 2003 study, the Washington, D.C.-based Center for Public Integrity found that local prosecutors nationwide have "stretched, bent or broken rules to win convictions."

Keith Sellen, executive director of the state Office of Lawyer Regulation, which handles misconduct complaints against lawyers, declined to say how many complaints against prosecutors his agency has received, citing the confidentiality of the lawyer-discipline system.

Sellen said his office investigates all allegations, and rarely finds merit in the complaints, which often are filed by convicts and their lawyers. He added that regulators recognize that to do their jobs, prosecutors must have great discretion.

Notorious case
In one notorious Wisconsin case, former Winnebago County District Attorney Joseph Paulus was convicted in 2004 of taking bribes to fix 22 cases and sentenced to nearly five years in federal prison. Paulus also will serve a two-year state term for the offenses.

Despite several complaints filed against Paulus, state regulators never disciplined the errant prosecutor until after he was federally convicted in the scheme. Sellen said that's because it took the FBI to root out evidence.

"In general, prosecutor discipline is quite rare," said Ellen Yaroshefsky, a clinical professor and director of the Cardozo Law School's Jacob Burns Ethics Center in New York City.

However, she believes there's increasing awareness among attorneys and the public that prosecutor misconduct is a problem.

Reluctant to complain
One check on misconduct is defense attorneys who spar with prosecutors. Under Wisconsin Supreme Court rules, lawyers are required to report ethical violations by other lawyers.

Practically speaking, however, defense attorneys rarely complain about prosecutors, Yaroshefsky said, because they must deal with prosecutors on every case, bargaining with them to get the best deal for their clients.

"No defense lawyer wants to alienate the decision-maker over what (punishment) their client will get," Yaroshefsky said.

Dane County Prosecutor Brian Blanchard said he's aware of only a few complaints filed against his staff since he took office in January 2001. None has made it as far as the Supreme Court — except a complaint against Paul Humphrey.

Joy believes top prosecutors can play a key role by "setting clearer guidelines within their offices, and disciplining those prosecutors who do not live up to their obligations."

Yaroshefsky said cheating by prosecutors will remain unless unethical behavior is met with more serious and frequent consequences.

Blanchard said he believes prosecutor misconduct is rare in Wisconsin, in part because prosecutors want to maintain good reputations with defense lawyers. Still, mistakes can happen.

"In a higher volume system, there's more potential for mistakes in the sense that things are coming fast," Blanchard said. "Everybody's overburdened — defense lawyers, judges, prosecutors."

By the numbers
Elected district attorneys, assistant district attorneys and municipal attorneys disciplined for unethical and illegal conduct among the 1,420 attorneys who've been disciplined by the Wisconsin Supreme Court since 1985.

Cases where prosecutor misconduct was a factor in dismissals, reversed convictions or reduced sentences in the U.S. since from 1970 to 2002

Cases nationally in that time in which judges cited misconduct but called it harmless

Wisconsin cases appealed on allegation of prosecutorial cheating or error from 1970 to 2003

Wisconsin cases where a judge reversed or remanded convictions, sentences or charges because of prosecutor misconduct during that time

Percent of Wisconsin attorneys who've been disciplined since 1985.

Percent of the state's elected district attorneys, assistant district attorneys and municipal attorneys sanctioned by the Wisconsin Supreme Court for misconduct since 1985.

Police/Prosecutor Misconduct
Truth in Justice