Why prosecutors get away with misconduct

Why prosecutors get away with misconduct

By Radley Balko

Columnist

November 18, 2021 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.

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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.

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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.

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But they also haven’t had much success. After the decision in the Connick case, Louisiana defense attorney Sam Dalton tested the court’s suggestion by filing several complaints against prosecutors throughout the 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 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.

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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.