It’s Time to Confront the Problem of Prosecutorial Misconduct

For Americans across the political spectrum, there’s common ground here

In 1995, Fred Steese was wrongly convicted of murdering Gerard Soules, a former circus star who lived and worked in Las Vegas. He spent over 20 years in prison.

Last year, Vanity Fair published a detailed piece on Steese’s story by ProPublica investigative reporter Megan Rose explaining how Steese, a wayward drifter who grew up in foster care, came into contact with Soules, enjoyed a brief fling with him, and was then later accused of murdering him in his Las Vegas trailer. It also explains how the two prosecutors responsible for convicting Steese — William Kephart and Doug Herndon — withheld exculpatory evidence from the defense. The evidence would have confirmed that Steese wasn’t even in Las Vegas at the time Soules was murdered.

Neither Kephart nor Herndon faced any legal consequences for their behavior during Steese’s trial. The Nevada State Bar held a hearing to review the prosecutors’ conduct, but nothing came of it. Clark County District Attorney Stewart Bell came to Kephart and Herndon’s aid during the hearing and spoke in their defense. Consequently, the two men managed to escape punishment.

In 2012, a judge formally declared that Steese was innocent, but prosecutors wouldn’t let it go at that. To win back his freedom and avoid a possible retrial, Steese would have to accept a plea deal. The deal, called an Alford Plea, meant that Steese could finally leave prison, but that he would still have the original murder conviction on his record. It also meant that Steese would forfeit his right to sue, and that the case would still count as a victory for prosecutors.

It is impossible to overstate how hard it is to hold prosecutors responsible for official misconduct. In a 2013 white paper, the Center for Prosecutor Integrity in Maryland reviewed nine different studies. In more than 3,600 cases of verified prosecutorial misconduct that occurred between 1963 and 2013, prosecutors were sanctioned less than 2 percent of the time.

One of the reasons for that remarkably low number is that even when they are found to have committed misconduct and the cries for accountability become deafening, prosecutors have at their disposal a bevy of tools which they can use to shield themselves from any meaningful consequences. One of those tools — the plea deal — is frequently used to avoid long and expensive criminal trials when the defendant’s guilt is all but certain. However, the plea deal is also a tool that can be easily exploited to help law enforcement officials, including prosecutors, evade justice. That’s how William Kephart and Douglas Herndon — both of whom currently serve as district court judges in Nevada — managed to escape punishment for their misconduct in Fred Steese’s case.

A similar outcome occurred in an especially heartbreaking case involving an intellectually disabled teenager named Corey Williams. When Williams was 16, he was wrongly convicted of the 1998 murder of pizza delivery man Jarvis Griffin. As Jessica Pishko explained in a recent piece for The Nation, Williams, who still sucked his thumb and could not use the toilet independently, initially told police that several other boys were responsible for the killing. He also told officers that the alleged shooter, Gabriel Logan, had threatened to kill him if he refused to confess to the murder.

But after being interrogated for an exhausting dozen hours, Williams ultimately confessed to the crime. He later withdrew that confession but he was still found guilty of first-degree murder and sentenced to death. That sentence was later downgraded to life in prison due to Williams’ disability.

About three years ago, tapes of witness interviews that the prosecution never turned over to the defense were unearthed by Williams’ attorneys. On one of the tapes, a detective can be heard expressing his belief that Williams was being set up by the other boys involved in the shooting. In another recording, one of the witnesses indicated that 20-year-old Chris Moore — the owner of the firearm used to kill Griffin and the man who would later serve as the prosecution’s star witness in Williams’ trial — was most likely responsible for the murder. Without those tapes, though, Williams’ original defense team had to rely on summaries of the witness interviews; summaries which, according to Williams’ lawyers, appear to have been altered to incriminate him.

After spending 20 years in prison for a crime he almost certainly didn’t commit, Williams is now a free man. Earlier this year, as the Supreme Court was reviewing Williams’ case, Caddo Parish District Attorney James Stewart unexpectedly offered Williams a deal: plead guilty to manslaughter and obstruction of justice, and we’ll give you back your freedom. Williams took the deal, and his murder conviction was vacated shortly thereafter.

The Williams case is precisely the kind that ought to keep you up at night. Caddo Parish prosecutors sought to end the life of a disabled teenager whom they knew was probably innocent of the charges against him, as evidenced by the interview tapes they hid from defense attorneys. Where I come from, we call that attempted murder.

Unfortunately, as per the conditions of his plea deal, Corey Williams will never be able to seek financial compensation, and none of the people responsible for his conviction will face any legal consequences for their actions. That he had a terrible plea deal thrust upon him by prosecutors who knew he wouldn’t be able to turn it down just makes the matter all the more infuriating.

Apologists for rogue prosecutors point out that in many wrongful conviction cases, including those involving prosecutorial misconduct, the defendants already had impressive criminal records. The implication is that the defendants in those cases deserved to be punished even if they weren’t guilty of the specific charges that landed them in prison, and that this somehow excuses, or at least mitigates, the misconduct of the prosecutors who put those innocent people behind bars.

However, many of the wrongly convicted defendants never did anything to warrant the sentences they received. Fred Steese, for instance, had the kind of criminal record you might expect from a wrong-side-of-the-tracks drifter. But you can’t argue that he “had it coming,” or that his imprisonment was some sort of cosmic justice that was visited upon him for his past misdeeds.

He was never convicted of murder, rape, or any other violent crime that might justify the life sentence he was incorrectly given for the killing of Gerard Soules. He did not invite his fate upon himself. Prosecutors did that for him, and they should have been held accountable.

As difficult and exhausting as the fight for greater accountability has been, some progress has been made in recent years. A welcome development in that struggle occurred last year in Tennessee, where the state’s Board of Professional Responsibility issued a formal opinion that the state’s ethics rules require prosecutors to share any and all evidence that might be helpful to the defendant with the defendant’s lawyers.

Responsibility for determining whether a piece of exculpatory evidence is “material” to a defendant’s case — in other words, if it’s likely to impact the outcome of the case or factor into a defendant’s sentence — normally falls on the prosecutor, who must then share that evidence with defense attorneys. That requirement was established in the Supreme Court case Brady v. Maryland in 1963.

The problem, however, is that corrupt prosecutors will sometimes decide that a specific piece of exculpatory evidence isn’t “material” to a defendant’s case even when it quite clearly is, which in turn can lead to the kinds of false convictions that landed Free Steese and Corey Williams in prison. When that happens, prosecutors can then argue that their misconduct wasn’t a malicious act, but rather an error in judgment, and that they should therefore not be subjected to meaningful sanctions. The opinion issued by the Tennessee Office of Professional Responsibility wisely guards against that scenario with a simple, sensible, and straightforward policy that goes further than Brady.

Not surprisingly, federal and state prosecutors in Tennessee do not agree, and made their opposition to the board’s opinion quite clear.

That opposition underscores one of the most glaring contradictions within a system designed to hold lawbreakers accountable for their actions. Prosecutors who are willing to go around the law to win their cases often get promotions and judgeships, while those who actually get caught in the act either go unpunished or receive a tender slap on the wrist.

When reformers attempt to ensure greater fairness for defendants and greater accountability for prosecutors, those very same prosecutors — the people to whom we have entrusted the power to imprison American citizens and, in some cases, even send them to their deaths — are the most resistant to those reforms. How can Americans be expected to maintain faith in a system that rewards some of the very same behaviors it’s supposed to police?

There’s no good reason for state and federal legislators to refrain from taking drastic action on this issue. To the contrary, prosecutorial misconduct is one of the very few issues on which the interests and goals of virtually every major political demographic in America converge.

For conservatives and libertarians who routinely preach about the virtues of accountability and limited government — and, more specifically, for Trump supporters who really do want to “drain the swamp” — finding ways to punish for rogue prosecutors ought to be a high priority.

Fiscal conservatives should also take note of the financial toll prosecutorial misconduct has taken on taxpayers’ wallets. The aforementioned Corey Williams spent 20 years in prison. Fred Steese, 21 years. That’s 41 years of housing, food, clothing, and health care — all paid for with taxpayer dollars.

According to a 2016 article in the Austin American-Statesman, Texas alone has shelled out about $65 million to exonerated individuals since 1992. One of those exonerees is Michael Morton, who has collected nearly $2 million since his release in 2011. Morton spent almost 25 years in prison before DNA evidence cleared him of the murder of his wife.

The prosecutor in Morton’s case, Ken Anderson, withheld exculpatory evidence in Morton’s original trial. In one of the rare cases of a prosecutor being held accountable for misconduct, Anderson was found guilty of contempt of court. He was disbarred and sentenced to 10 days in jail. He was also ordered to pay a $500 fine and perform 500 hours of community service.

For liberals and progressives, the incentives to take action are at least as obvious, if not more so, especially for those who take a keen interest in the cause of social justice. Black Americans account for a disproportionate percentage of wrongfully convicted citizens. According to a 2017 review by the National Registry of Exonerations, prosecutorial misconduct may be one of the reasons for that disparity.

Based on 1,900 wrongful convictions between 1989 and October of last year, the analysis found that about half of defendants wrongly convicted of murder were black, but only about 40 percent of convicted murderers were black. White Americans accounted for roughly 36 percent of wrongful murder convictions.

The analysis also found that official misconduct occurred in at least 70 percent of murder convictions that ultimately resulted in exonerations. The most common type of misconduct was the one that landed Corey Williams in prison: concealment of exculpatory evidence. The important takeaway here is that left-wing proponents of criminal justice reform who seek to eliminate racial disparities within the system must aggressively confront the problem of prosecutorial misconduct.

Judging by polls, neither Republican nor Democratic politicians have much to lose should they take a more proactive approach to this issue. In December 2017, the ACLU released the results of a public opinion poll on prosecutorial reform showing that 91 percent of likely voters “believe it is important for a prosecutor to prioritize reducing unequal treatment of individuals because of race, including 90 percent of white voters, 90 percent of Latino voters, and 95 percent of Black voters.”

On the broader issue of criminal justice reform, Americans across all demographics are strongly supportive of efforts to improve the system. And at the state and local levels, those efforts are already underway. In November, Floridians voted to restore voting rights for over a million convicted felons. In Colorado, voters recently decided to abolish unpaid prison labor, while Louisiana approved a measure to eliminate a law that had allowed juries to issue non-unanimous felony convictions. The latter measure was endorsed by both the Republican and Democratic Parties of Louisiana.

As these examples indicate, a new nationwide trend is emerging, one that promises to bring about a fairer, more practical, and more honest justice system. A concerted national effort to inject real accountability via stronger penalties for corrupt prosecutors and tighter rules regarding evidence disclosure would fit neatly into that trend. And with large numbers of Republicans, Democrats, and Independents hopping aboard the reform bandwagon, the time to make that push has finally arrived.