Democracy Dies in Darkness

Opinion: Why prosecutors get away with misconduct

By Radley Balko
Columnist

Yesterday at 8:00 a.m. EST

Lara Bazelon would love to tell you all about the complaints she has filed against prosecutors for misconduct. The University of
San Francisco law professor has filed eight complaints, mostly in California, but also in Georgia and Minnesota. In every case,
an appeals court found significant misconduct that resulted in an overturned conviction.

But Bazelon can’t say much more than that. While prosecutors often hold news conferences or orchestrate “perp walks” when
indicting people for crimes, when prosecutors themselves are accused of wrongdoing, state bars and other authorities make
sure you never hear about it. “I can’t say more because it could subject me to a complaint myself,” Bazelon says.

What she can say is that none of the complaints have resulted in significant disciplinary action. In a couple instances, she been
waiting more than a year to get any response at all.

There is one prosecutor she can talk about, because the misconduct is public record. In 2010, former San Francisco assistant
district attorney Linda Allen won a murder conviction against Jamal Trulove on the basis of a single eyewitness. In her closing
argument, Allen praised the witness for coming forward despite explicit threats to her and her family by Trulove and his
associates. Allen told the jury the threats both demonstrated Trulove’s consciousness of guilt and attested to the credibility of
the witness, who risked her life to come forward.

Except none of it was true. The witness herself later admitted as much. In 2014, a California appellate court overturned
Trulove’s conviction. The court found Allen had committed “highly prejudicial misconduct,” adding, “The People did not
present a scintilla of evidence . . . that defendant’s friends and family would try to kill [the witness] if she testified against him . .
. This yarn was made out of whole cloth.”

The federal courts have virtually eliminated all civil liability for prosecutors, even for egregious misconduct that puts innocent
people in prison. That includes even illegal conduct, such as locking up alibi witnesses on fake charges so they can’t testify at
trial. In the 2011 case Connick v. Thompson, the Supreme Court ruled that an innocent man convicted because of misconduct
couldn’t sue Orleans Parish, despite the long, ignominious record of misconduct by then-District Attorney Harry Connick and
his subordinates.

The court suggested state bar associations are better equipped to hold prosecutors accountable. But that plainly isn’t true.

The first hurdle is reporting the misconduct. The people most likely to be aware of bad prosecutors are defense lawyers, and
they have zero incentive to report it. A public defender typically faces off with the same prosecutors every day. Reporting one to
the bar could turn an entire district attorney’s office against you, jeopardizing your ability to effectively represent your other
clients. The more prudent strategy is to leverage the misconduct for leniency.

Thus, the misconduct goes unpunished. This is why legal academics such as Bazelon have felt compelled to step forward. They
have little to lose by angering prosecutors.

But they also haven’t had much success. After the decision in the Connick case, Louisiana defense attorney Sam Dalton tested
Take suggestion
the court’s a look atbyyour
filing FREE historical
several complaints paper
against See
prosecutors my birthday
throughout thepaper
state. It took two years for Dalton to even
get confirmation of receipt. The bar ultimately took no action. Despite Louisiana’s alarming history of misconduct and wrongful
get co at o o ece pt. e ba u t ate y too o act o . esp te ou s a a s a a g sto y o sco duct a d w o g u
convictions, the state has disciplined only two prosecutors, and none in the last 15 years.

In 2014, the Arkansas Times went looking for instances in which a prosecutor in that state had been sanctioned and couldn’t
find a single example. Study after study, from New York to California, has found that only a tiny number of bad prosecutors ever
face discipline. It’s typically less than 1 percent — not of all prosecutors, but less than 1 percent of prosecutors already found by
a court to have committed misconduct.

At the federal level, the Justice Department office charged with disciplining misbehaving prosecutors is so notoriously opaque,
it’s been called “the black hole" — complaints go in, but nothing comes out.

The California bar declined to discipline Allen. The bar cited a 5-year statute of limitations on reporting misconduct, an
ambiguous rule the organization has waived in the past. (Bazelon also argues that the statute is only supposed to apply to
complaints from parties directly involved in the case.)

Between 1997 and 2009, California appellate courts found prosecutor misconduct in more than 600 cases. The state bar
disciplined just 10, compared with 4,700 non-prosecutors sanctioned over the same period. Bazelon and other activists and
academics who track the issue know of just five additional sanctions since 2009. This, in a state where federal judges have said
such misconduct is “rampant.”

And those who report misconduct, such as Bazelon, face backlash themselves — or worse. Recently, a group of law professors
filed complaints against prosecutors in Queens whose misconduct had contributed to wrongful convictions, but who had yet to
be held accountable. But these professors also posted and tracked their complaints on a website, ostensibly to demonstrate the
futility of the process.

This modicum of transparency provoked an angry reaction from prosecutors and city officials. A city spokesman said he was
“concerned” that the professors had “misused” the grievance process. The city has since threatened legal sanctions against the
professors. If only the law’s ethical gatekeepers were as angry about prosecutorial misconduct as they are about the people who
expose it.

POPULAR OPINIONS ARTICLES HAND CURATED

Liz Cheney should consider alternatives Paul Gosar killed his colleague in a Video made police injustice visible. Now
to the GOP cartoon. Kevin McCarthy is killing that visibility is trickling up to the courts.
Opinion • November 17, 2021 democracy in real life. Opinion • November 17, 2021
Opinion • November 17, 2021

ViewTake a stories
3 more look at your FREE historical paper See my birthday paper
Take a look at your FREE historical paper See my birthday paper