Taking a case all the way to trial is usually a hard, expensive and exhausting process. Obtaining an audience in federal court is often more rigorous. Reaching the Supreme Court, which hears less than 1 percent of petitioners, is nearly impossible. So when a plaintiff or defendant appears in front of the Supreme Court three times, they are either the US Solicitor General or are routinely engaging in legally tenuous activities. In many cases, such as that of the Orleans Parish District Attorney’s office in New Orleans, Louisiana, the latter characterization is far too generous. Orleans Parish prosecutors have been summoned to the nation’s highest court three times over the last 16 years – all for egregious instances of prosecutorial misconduct. These abuses did not simply skirt the line between lawful prosecutions and heavy-handedness; in the words of Justice John Paul Stevens, they were “blatant and repeated”.
Stevens’ frank condemnation was directed squarely at the actions of Orleans Parish District Attorney Harry Connick. In the matter of Kyles v. Whitley, Connick’s attorneys withheld evidence that could have exonerated accused murderer Curtis Kyles. Throughout the trial, the district attorney’s office never revealed inconsistencies from eyewitnesses, important pieces of material evidence, or suspicious and self-incriminating statements from Kyles’ main accuser. In light of these revelations, the Court found New Orleans prosecutors to be guilty of violating the Brady Rule, which mandates that any evidence that favors the accused be divulged by the state and law enforcement.
Connick’s track record of Brady violations did not start or end with his conduct in Kyles v. Whitley. When The Innocence Project of New Orleans investigated murder charges from his thirty-year tenure, it found that “District Attorney Harry F. Connick’s office withheld evidence favorable to the defense in at least nine death row cases. Four death row convictions were overturned because of the misconduct.” These nine cases – out of 36 death sentences that were handed down from 1973-2002 – represent a one in four chance of giving an innocent man a lethal injection. By tolerating such a poor track record for wrongful, high-stakes convictions, the New Orleans District Attorney’s office took decades off the lives of an untold number of people. While only four have been exonerated so far, Connick’s tendency to bring innocent men to the brink of execution draws into doubt many of the lesser cases that passed through his jurisdiction; many of those convicted may still be languishing in prison.
While not personally involved in every case that came under his authority, District Attorney Connick facilitated the decline of prosecutorial standards by creating an institutional disregard for truth-seeking and fair trials. In the words of one of his cadres, Connick’s approach “was to be as restrictive as possible with Brady information. … The policy was ‘when in doubt, don’t give it up.’” This revealing statement was made by one of Connick’s former assistant district attorneys during a 2012 Supreme Court case, Smith v. Cain. The petitioner, who had been convicted of murder, repeatedly and unsuccessfully tried to get Louisiana’s state and federal courts to hear his appeal. With a resounding 8-1 decision favoring the accused, the Supreme Court admonished both Connick as well as the lower courts for neglecting the Brady principle. Once again, essential evidence had been unacceptably withheld.
Almost ten years after Connick’s departure, Smith v. Cain is not the only case to have spilled over from his malfeasance. Just a few months ago, in May of 2014, Reginald Adams was released after 34 years in prison. The catalyst for his wrongful imprisonment in 1980 was a false confession coerced by two New Orleans detectives. The District Attorney’s office went along with the detectives’ misconduct; it refused to turn over to the courts a supplementary police report that cast doubt on the details of the confession. As a result – with only a phony testimonial and no other evidence – Mr. Adams spent most of his life in a cell.
Unfortunately, the overzealous prosecutors who hurt people like Adams almost never receive a meaningful punishment. In a paper published by The Yale Law Journal, the authors observe that:
“[C]riminal sanctions for prosecutors who violate Brady are exceedingly rare. The 1999 Illinois trial of the so-called “DuPage Seven,” police officers and prosecutors accused of perjury and obstruction of justice for allegedly framing an innocent defendant in a capital murder case, appears to be the first time in American history that a felony prosecution of former prosecutors for misconduct reached the verdict stage. All of the defendants, however, were acquitted.”
Rachel Barkow of the New York University School of law notes that little has improved since the DuPage Seven. She writes that “[m]ost [prosecutorial misconduct] violations never come to light, and when they do, individual actors responsible for the misconduct rarely face any consequences.” This is true despite the fact that “[p]rosecutorial misconduct, whether intentional or negligent, is not an infrequent occurrence.”
The numbers to which Rachel Barkow refers are stark. According to the Center for Prosecutor Integrity, although there have been thousands of identified instances of prosecutorial misconduct since 1963, “public sanctions [have been] imposed … less than 2% of the time”. These sanctions are often superficial, temporary, and meaningless, as rogue prosecutors never have to experience the prolonged incarceration through which they put others. Perhaps the most poignant example of this overly forgiving system is Pottawattamie County v. McGhee. In 2009, the Supreme Court considered the case of two prosecutors who had fabricated evidence, causing two men to spend decades in prison. With the backing of some state attorneys general, Deputy Solicitor General Neal Katyal defended the two prosecutors by boldly claiming that there is no “free-standing due process right not to be framed”.
Pottawattamie was settled out of court before the justices could rule, but the defense’s nonsensical argument typifies the immunity that reckless or abusive district attorneys enjoy. State bar associations and other oversight bodies rarely give them anything beyond a slap on the wrist. Even Connick will get off without substantial reprisal: In 2010, the Supreme Court heard Connick v. Thompson, which pitted the former district attorney against one of the many men his department had incorrectly prosecuted. Ruling 5-4 along ideological lines, the Court found that Connick could not be personally held accountable for failing to train his deputies to comply with Brady standards. Apparently, the numerous cases of misconduct emanating from the Orleans Parish District Attorney’s office did not constitute a sufficient pattern. The justices thereby reversed a $14 million judgment that a lower court had given to Thompson, and although they condemned the former DA’s actions, Connick bore no responsibility for the behavior that he had ingrained in his subordinates.
Brady violations are an endemic problem that is worthy of comprehensive redress. It is time that the nation’s regulatory bodies, law enforcement, and judiciary stop treating incidents of prosecutorial misconduct as anomalies. By allowing abusive district attorneys to knowingly or negligently put innocent people behind bars, America’s institutions are destroying lives and harming the credibility of the criminal justice system. Instead of a mere slap on the wrist, those guilty of prosecutorial misconduct should have their misdeeds brought to light and tried in front of an unsympathetic court. Only by punishing those who fail to comply with Brady standards will we see this pattern of “blatant and repeated” misconduct finally come to an end.