Prosecutorial misconduct, and what might be done about it

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After Carmen Marino retired after 30 years as a Cleveland-area prosecutor, the Cuyahoga County District Attorney’s office created an annual award in his name to a prosecutor with “integrity and professionalism in the pursuit of justice.”

Six years later, the office stripped Marino’s name from the award after a series of cases unraveled amidst evidence that Marino had repeatedly engaged in misconduct. As a judge ordered a new trial in 2015 for three men who had spent two decades in custody, based on evidence Marino had withheld a trove of exculpatory evidence, the judge wrote: “Marino is infamous in Cuyahoga County for his vindictive, unprofessional and outrageous misconduct in criminal cases.”

Yet not only had his name been put on an award for prosecutor integrity within the district attorney’s office; Marino’s name remains unblemished in state bar records, which never took disciplinary action even as the number of misconduct cases continue to mount.

Marino is Exhibit A in an article by Thomas P. Sullivan and Maurice Possley, included in a new issue of the Journal of Criminal Law and Criminology that Injustice Watch is highlighting this week,

The authors certainly know their subject matter: Sullivan, former U.S. attorney for the Northern District of Illinois, and now a senior partner at Jenner & Block, has focused on flaws in criminal justice for years;  Maurice Possley is a Pulitzer Prize winning author who has devoted much of his career to exposing flaws in the criminal justice system.

They note the heavy cost of prosecutorial misconduct: A Chicago Tribune study of 11,000 criminal cases between 1963 and 1999 uncovered 381 homicide convictions that were vacated because prosecutors hid exculpatory evidence or allowed witnesses to lie.

Yet the conduct often goes unpunished, even as it is witnessed by fellow prosecutors, by defense attorneys and by judges. “Courts and ethics bodies rarely sanction prosecutors, and the rare disciplinary measures tend to be mere slaps on the wrist,” they write.

After surveying the problem, Sullivan and Possley propose a series of steps to address the problem. They call on trial judges to take action when they spot apparent misconduct by prosecutors in their courtrooms. They call on appellate judges, when egregious conduct is evident on appeal, to do more than chastise the conduct in their opinions, and to name the names of prosecutors who engaged in the misconduct. They call on defense lawyers to do more to ensure that evidence is not withheld, and call on prosecutors’s offices themselves to create internal systems to review allegations of troublesome conduct.  They call on legislative bodies to alter the law to ensure that prosecutors who act unethically in pursuit of convictions may have liability for their actions. And Sullivan and Possley call on the disciplinary systems to take more aggressive measures to curb misconduct when it appears.

Even as they emphasize their belief that the vast majority of prosecutors are ethical, Sullivan and Possley write, “We cannot fathom why so many withhold exculpatory information, tamper with witnesses and evidence, engage in improper courtroom conduct, and the like,” and then minimize the importance of such acts.

Even if the misconduct does not cause a conviction to be overturned, they write, “the consequence is palpable—it is a stain on the reputation of the entire legal profession.”

NOTE: Injustice Watch has been highlighting this week articles in the Journal of Criminal Law and Criminology issue devoted to a symposium on the Center on Wrongful Conviction. The articles were spurred by the retirement from the Center co-founder and longtime director Rob Warden, about whom Center director Karen Daniel wrote, “There is not a single person more responsible” for the end of the death penalty in Illinois and a series of reforms to guard against wrongful convictions.

Warden has since co-founded and is co-director of Injustice Watch. Sullivan, co-author of the article highlighted today, is president of the Injustice Watch board of directors.