Jan 22, 2016

Why Prosecutors Go after Innocent People

Penny Brummer v. Wisconsin is test case of the integrity of Wisconsin's criminal justice system

"John Pfaff is a professor of law at the Fordham University School of Law in New York City. His research focuses on explaining the causes of mass incarceration, especially the central role prosecutors have played in the process," as noted in the Washington Post.

In one of Professor Pfaff's academic essays on empirical evidence at trial, Pfaff notes of the adversarial character of the trial process in American criminal law, "the US Supreme Court said in Tehan v United States, 383 US 406, 416 (1966), '[t]he basic purpose of a trial is the determination of truth,'" (Phaff, PrawfsBlawg).

This stated purpose is ironic to the 1,000s of wrongfully convicted Americans.

As it stands now, the purpose of the trial, the distribution of resources, and the culture of the prosecutor is to obtain as many convictions as possible, and for those charged and wrongfully convicted with decades-long sentence, well, that would be a Your Problem.

There are careers at stake, so innocents spending their lives incarcerated is not of the moment.

Exonerations, wrongful convictions, rampant Brady violations are met with anti-intellectualism among smug bureaucratic careerists and the Sovereign, the state as embodied in the American prosecutor, even as calls ring out across the country for "humility" and reform. And prosecutors are licensed to lie.

Professor Pfaff has a piece in the Post this week discussing why prosecutors go after innocent people, a phenomenon that does not trouble the body politic much unless the accused or investigated happens to be backed by the Koch brothers and other moneyed interests, Wisconsin's Scott Walker, for instance.

In Wisconsin even an investigation or audit is met with askance at best from the quasi-fascist Party now holding power.

In this week's Post, Praff writes:

Clearly, prosecutors do file charges against innocent defendants. The instances that receive media attention tend to be intentionally wrongful, those where the evidence of innocence is overwhelming but prosecutors storm ahead anyway, out of malice or blind ambition.

But I bet most wrongful convictions aren’t the product of such decisions. Prosecutors generally deal with ambiguous cases. What incentives do they face, when acting in good faith, to err on the side of 'safety' and file the charges vs. erring on the side of 'caution' and dropping the case? Locally elected prosecutors surely do think about innocence, and not just because they don’t want a wrongful conviction scandal to derail a reelection campaign, but there aren’t many restrictions keeping them from filing charges beyond increasingly weakened trial protections and personal ethics.

Prosecution in the United States is a highly local affair. Almost all criminal cases are handled by one of the nation’s approximately 2,400 prosecutor offices, and in 46 states these prosecutors are elected in county-level elections. While prosecutors almost always win their reelection campaigns and often run unopposed, electoral victory isn’t guaranteed. Data indicate that prosecutors running for reelection win 95 percent of the time, but only 69 percent of the time when facing opposition (although that rate rises to almost 80% in larger districts). And several people have reminded me that prosecutors are political creatures, and thus they are sensitive to electoral pressures even when victory seems assured.

So who applies this pressure?

Only a small group: Not very many people vote in these elections. In 2013, for example, a bitterly contested primary battle in Kings County, N.Y., resulted in barely 20 percent voter turnout. And in the 2012 general election in Cuyahoga County, Ohio, 34 percent of those who voted simply skipped voting for prosecutor altogether, despite being in the polling booth already.

Moreover, those who do vote tend to be wealthier, whiter and more suburban, while those who are prosecuted are disproportionately poor, minority and urban. Most cities, for example, are parts of bigger counties that include rings of wealthier suburbs. And these suburbs, as legal scholar William Stuntz has pointed out, tend to wield disproportionate power when it comes to prosecutor elections, even though crime is concentrated in the cities.

Thus the costs of wrongful convictions are disproportionately borne by the group with less political power, or at least a weaker political voice. (Urban minorities are also the biggest beneficiaries of effective crime-fighting by prosecutors, which makes their reduced political voice all the more troubling.)

In Wisconsin, an anthology of most everything that is wrong with the police-prosecutor state, this April 5 Election Day will likely see a 50-some percent turn-out for the open Wisconsin Supreme Court seat but this is because the Court election will be on the same ballot as the Presidential Preference Primary election.

Typically, the top appellate court in Wisconsin election will bring out 20-some percent of voters with candidates presenting their police and sheriffs' endorsements as credentials critical to impartial judicial scholarship on the bench in their political ads, as open corruption is now SOP on the Court.

At some point, when the Sovereign surpasses a tipping point, when a politically ambitious district attorney like Brian Blanchard (2001-2010) files a criminal charge against an eminent University of Wisconsin-Madison historian, Stanley Kutler (1934-2015), the slow-reacting political system will begin to ask what the hell is going on.

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