Policing the Prosectors
July 14th, 2020
After years of looking the other way at police abuses large and small, the legal establishment has finally been made to face a truth well understood by communities of color and others who were simply paying attention: that for many years law enforcement has been short on law and very long on heavy-handed and violent enforcement. What made us suddenly recognize the problem? We had no choice – we could either accept the reality that was on our cell phones or become “murder deniers.” Our own eyes, watching something even more graphic than the Rodney King tape and even more shocking than the Ahmaud Arbery stalking and shooting, finally persuaded us that we should believe what we see. But if our own eyes have led us to the necessity of police accountability, why haven’t they led us to the same conclusion about prosecutor accountability?
Less than a month ago, the Pennsylvania Supreme Court, in the case of Commonwealth v. Kareem Johnson, barred Mr. Johnson’s retrial after he spent nine years on death row based on the prosecutor’s “unimaginable” mistake of reading a DNA report incorrectly – and there was a pretty compelling argument that the misreading wasn’t an accident. The Court found that the assistant district attorney acted with a “reckless disregard for consequences and for the very real possibility of harm stemming from the lack of thoroughness in preparing for a first-degree murder trial.” That’s a pretty “unimaginable” situation, and yet we can read about it with our own eyes. But the Johnson case is far from the worst.
Walter Ogrod recently walked off death row after spending 23 years there, in part because handwritten notes found in the prosecutor’s file – notes that might crucially have staved off the injustice – were never turned over to his defense attorney. Of course, the law requires that this information (any evidence favorable to an accused relevant to his guilt or his punishment) must be provided to the defense; but what happens when it isn’t? If you’re lucky, you get a new trial; and if you’re really lucky, you get to go home after being near state execution for 23 years. There is no one standing at the prison gate giving you back your years.
Now that we’ve finally initiated a conversation about police accountability, remedies being discussed include national databases for violent officers, firing violators and barring their rehiring, and of course prosecution of police in cases that merit it. A serious conversation about reshaping police departments to reflect more community involvement and less community occupation has emerged from the rubble of outrageous digital imagery. Is it time to start a similar dialogue about prosecutorial misconduct?
When Larry Krasner became the Philadelphia District Attorney, he fired 31 assistants, a number completely in keeping with the percentages fired by some of his predecessors. He took over an office that had been previously run by a District Attorney who went on to the Pennsylvania Supreme Court and was reprimanded by the United States Supreme Court for acting as a prosecutor and a judge in the same case; followed by another who enjoyed the anachronistic nickname of the “Deadliest DA;” and finally a third, who went to prison. This was an office that had seen close to 100 death sentences reversed, an unseemly amount of them due to prosecutorial misconduct. In other words, the Ogrods and the Johnsons were just the tip of the iceberg. One might think that an attempt to change the culture of an office like that would be welcomed. Hardly.
Here’s some language from a previous ACCR blog: Local news characterized Krasner’s action as one of the most “shocking and drastic shakeups that anyone could recall.” “The purge was on full display,” said Dann Cuellar of Action News, while long-time assistant DA’s left the office with boxes in hand. Vernon Odom declared that Krasner had fired “hundreds of years of prosecutorial experience.” The Inquirer quoted unnamed sources who attributed the firings to vendettas or “run-ins with Krasner’s one-time peers in the defense bar” or his wife, then-Common Pleas Judge Lisa Rau. Even the venerable Jim Gardner joined the fray, noting that Krasner has a problem with mass incarceration but apparently no problem with “mass firings.” One ex-prosecutor claimed that Krasner had done lasting damage to the office: “They [the fired prosecutors] won their cases. They prevailed. They achieved justice for their victims. That’s what they did, they did their job.”
But a prosecutor’s job is no more to win his case than a police officer’s job is to rough up a perpetrator; and a prosecutor’s hiding evidence that puts someone on death row is not all that different from putting a knee to your neck for nine minutes. Berger v. United States, a Supreme Court case from 1935, made it clear that a prosecutor’s job is not to win a case, but “that justice shall be done.” So when is the conversation going to begin about policing prosecutorial misconduct? Do we actually need to see the hiding of the evidence on our cell phones, or might reading the cases and watching the prison gates belatedly open up finally be enough?