Prosecutorial Reform—70,000 Prosecutors Can Aspire to Be 70,000 Robert Jacksons

University of Wisconsin-Madison Innocence Project
Above are the proven-innocent-after-conviction; wrongful
convictions rarely draw a rush to find out what's wrong. Ask
the innocent Penny Brummer who remains incarcerated.
Ms. Brummer's real offense—Brummer is a lesbian
and victim of the Dane County Sheriff's Department
and a case study in Confirmation Bias, and was
convicted in 1994 on circumstantial evidence only.

Phil Locke calculates that in the United States there are some 70,000 prosecutors. (Wrongful Convictions)

Defense attorneys, civil libertarians and other advocates for those Americans unfortunate enough to enter into the American criminal justice system as defendants witness the dedication of prosecutors to make defendants and those forced into convictions—risk your life and go broke or plead (charge stacking)—spend as much time incarcerated as possible during and after adjudication, with the assistance of the odious Court Services systems around the country.

Some jurisdictions are much better than others, especially now that mass incarceration (Bravin, Wall Street Journal) and police and prosecutorial misconduct are coming to the fore thanks to the work of jurists and reformists such as Mark Godsey, Sidney Powell, Jeff Scott Olson, the Center for Constitutional Rights) and Chief Judge Alex Kozinski (U.S. Court of Appeals for the Ninth Circuit) and Richard Posner (U.S. Court of Appeals for the Seventh Circuit) and the various Innocence Projects around the country, for example.

The denial of liberty is a foundation of the land of the free, and for reasons surpassing understanding the objective of the many prosecutors is to incarcerate, period.

Writes Locke, Science and Technology Advisor for the Ohio Innocence Project and Duke Law Wrongful Convictions Clinic, "I have been doing innocence work for only 7 years, but just in that time, I have seen case after case in which prosecutors withhold evidence, badger or threaten witnesses, make deals with snitches, stack charges to coerce a plea deal, refuse to allow DNA testing, and refuse to allow post-conviction access to evidence. And once the litigation has moved into post-conviction, prosecutors will, without exception, vigorously defend every conviction, no matter how wrongful they might be. I’ve worked 63 cases in eight different states and two foreign countries, and, on top of that, have knowledge of probably 100 other cases; and I find it’s the same all over. Have I seen some exceptions to this 'rule?' Of course, but they’re not common. My belief is that this characterizes the preponderance of prosecutorial behaviors. I can only report what I observe, and clearly there is cause for change."

Dane County District Attorney Ismael Ozanne running for Wisconsin Attorney General last year wrote, "I have worked with lawyers from the Innocence Project, and will do so in the future. ... The ultimate goal of the system is not simply to secure convictions, it is to do justice." (Mal Contends)

In the Democratic Primary election Wisconsin voters chose Ozanne's opponent, Susan Happ, who rode a Harley in a frequently run campaign TV spot featuring Happ looking like an extra for Sons of Anarchy (Sutter, FX Productions, Art Linson Productions and Fox 21), despite Happ's sterling CV.

Prosecutors dedicated to truth don't carry much electoral appeal.

Locke has several suggestions, one of the most compelling is: "Let’s have all trial counsel, prosecutors and defense attorneys, sworn in at the beginning of each trial," sworn in to tell the truth.

Here's another, from Mal:

Each prosecutor before assuming office must read the disquisitions on prosecutorial discretion of Robert Jackson.

If at the end of trial the prosecutor determines the quantum of evidence is circumstantial or suffers defects that a reasonable jurist would determine is less the beyond-a-reasonable-doubt standard, then she must drop all charges.

Police and the Myth of Honor

Dane County Deputy Sheriff Andrew P. Steele
(ret), the face of Justice in Dane County

Update III: See Wisconsin: The Worst State for African Americans (Brown, The Progressive). For Wisconsin police forces steeped in anti-intellectualism, Brown writes "The first step to addressing racial inequality is recognizing that it exists." But you will not find many social justice activists in the self-selecting members of law enforcement, nor too many intellectuals.

Update II: Capitol protest draws 1,500 in Tony Robinson killing. (Wisconsin State Journal)

Updated - Testilying is the common practice of police testifying in court after prosecutors typically overcharge and put decades of a criminal defendant's life in the hands of easily persuadable juries.

That police in America routinely commit perjury is not a fact widely known outside of the principals of the bastardization of the criminal justice system.

That police routinely cook police reports is another fact.

That police will harass individuals fighting even a civil citation is another fact not widely known, corrupting a system with no apparent shame.

Most judges look to hang onto their six-figure, taxpayer-financed job, a good gig if you can get it; justice is not their objective.

What's the check on this system? There isn't any currently, and the conveyor belt of the police and the criminal judicial system moves on carrying as many victims as can be held.

In Madison, Police Chief Michael C. Koval ought to consider these issues at his next listening sessions, though the corrupt and insidious practice is widespread enough now (and has been for decades) that contemplation before action is not needed.

We need a Conviction Integrity Unit in Dane County, and it ought to be publicly funded. The Dane County Board of Supervisors has the responsibility on this for authoring and implementing this system.

Why isn't there a widespread call that former Dane County deputy sheriff Andrew Steele's work all be called into question after he murdered two people while still receiving public monies for medical leave?

Every case in which Steele's work was central should be suspect.

Tony Robinson, Killed by Madison, Wisconsin Police March 2015

But truth and justice are not the objectives of the criminal justice system and digging up old cases is a hassle.

Steele pleaded insanity late last month to two charges of First-Degree Intentional Homicide, a fitting plea for an insane criminal justice system by a deputy sheriff whom Dane County Sheriff Dave Mahoney called an "exemplary employee" last year.

In the meantime, the young among us are pointing the way forward, see Stocker, The Capital Times as they grieve the killing of 19-year-old Tony Robinson by Madison Police.

Will the killings of young, black men ever stop?

Will incarcerating more and more innocent Americans ever stop?

I guarantee a result if the people do nothing, and retreat into passive compliance and lethargy.

Prosecutors Getting Away with Disgrace, Insult to Humanity

The Divine Right of Kings

Update: When prosecutors do their job and hold corrupt public officials accountable, like the detestable Kelly Rindfleisch, Scott Walker trusted aide and felon, we ought consider giving prosecutors kudos. Hey, Kelly, are you saying you're innocent now?
---
JUDGE HAYWOOD: Herr Janning, it 'came to that' the first time you sentenced a man to death you knew to be innocent.
- Judgment at Nuremberg (Kramer. 1961)

A telling glimpse at the American political culture is seen in the reaction to the January 2014 legal opinion of Richard Posner, judge on the Court of Appeals for the Seventh Circuit.

The case, Fields v. Wharrie and Kelley (No. 13-1195) (740 F.3d 1107; 2014 U.S. App. LEXIS 1333), drew a few notices in legal journals and blogs, even though Posner blasted corrupt prosecutors for their mendacious, "breathtaking injustice" that landed an innocent man in prison for 17 years.

Beyond that, the silence out was deafening.

"If the old Lord Acton axiom is true — that power corrupts, and absolute power corrupts absolutely — enormous power with no accountability can be enormously destructive," opines Radley Balko on the case. (Washington Post)

This is precisely what happened, as Posner notes of Mr. Fields who "until he was acquitted in a retrial; he later received a certificate of innocence from the court in which he had been tried," was the victim of "coerced witnesses to give testimony that the defendants (prosecutors) as well as the witnesses) knew to be false."

Much good may come from Posner's decision demanding accountability, affirming the right of the innocent and wrongfully convicted to sue for damages against deceitful prosecutors.

Absolute immunity for prosecutors, what former federal prosecutor Sidney Powell correctly notes is prosecutors' License to Lie, may go the way of the divine right of kings.

What I can guarantee you is that the speeches of Robert Jackson will not populate the campaign webpages of most candidate for District Attorney and Attorneys General across the nation. Jackson's words should. Said Jackson in a famous address in 1940:

Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.

Today, police, prosecutors and judges all too often engage in careerism and are laden with defects of character, imprisoning millions of Americans in creating what Glenn C. Loury in the Boston Review terms "a leviathan unmatched in human history." I know of Dane County (Wisconsin) police who have intentionally corrupted the judicial process for civil traffic violations.

This must change.

Face it. We live in a society so putative that innocents are routinely sent to prison, and killed.

You may see a case covered in the 'news' once every three or four years like Cameron Todd Willingham in Texas, but innocents suffering in the American leviathan face perpetrators and bystanders.

The words of Posner in Fields do bring some comfort:

A prosecutor cannot retroactively immunize himself from conduct by perfecting his wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity. That would create a 'license to lawless conduct,' which the Supreme Court has said that qualified immunity is not to do. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). [Prosecutor] Wharrie's interpretation of our decision in Buckley would place that decision in conflict with the Supreme Court's Buckley decision, by giving absolute immunity to prosecutor-investigators who having fabricated evidence make sure that the evidence is used to convict the innocent victim of the fabrication. (emphasis mine)

The criminal justice system is a horror show and prosecutors are a big part of the problem.

Here's Sidney Powell's latest commentary, and as Powell knows the ethical violations by prosecutors are committed by local district attorneys' offices as often as by the federal DoJ:

By Sidney Powell

The Project On Government Oversight published an extensive report yesterday revealing that Department of Justice has been concealing hundreds of ethical violations by its prosecutors.  Adding to this injustice, the Department refuses to identify the offending prosecutors or to inform defendants who have been affected by their misconduct.

In the majority of the matters—more than 400—OPR (Office of Professional Responsibility) categorized the violations as being at the more severe end of the scale: recklessness or intentional misconduct, as distinct from error or poor judgment.
The information the Justice Department has disclosed is only part of the story. No less significant is what as a matter of policy it keeps from the public.
As a general practice, the Justice Department does not make public the names of attorneys who acted improperly or the defendants whose cases were affected. The result: the Department, its lawyers, and the internal watchdog office itself are insulated from meaningful public scrutiny and accountability.

We can say from our own experiences with the Department’s “Office of Professional Responsibility” that it is ineffective if not complicit. Legitimate grievances go ignored. Their primary expertise lies in circling the wagons and protecting the offenders. This report makes it all the more clear. There is no transparency, and consequently, the Department of Justice can be given no credibility. It is way overdue for a  major clean-up, and as Judge Kozinski, and the Washington Post and others have said recently, it is time for a national discussion of these issues crucial to the administration of justice–if there is to be any justice at all.
#
For my part, I know of a district attorney in northern Wisconsin who should he attempt to maliciously prosecute an innocent again, I will dedicate myself to making him the most famous DA in Wisconsin history.

Policing Prosecutors

Some resources below for a needed reform: Policing the prosecutor.

Prosecutors tend to forget such notions as public interest, justice and prosecutorial discretion, instead focusing on political careers and an unthinking, rabid utilization of the power of their offices.

From the Justice Project:

Prosecutors decide which charges to bring, what plea bargain to offer, and what sentence to request. Their decisions have far-reaching consequences on defendants, victims, their respective families, and the general public. Given the special duties of prosecutors, and the broad power they exercise in the criminal justice system, it is critical that prosecutors discharge their duties responsibly and ethically.

See Prosecutorial Accountability, The Justice Project and Improving Prosecutorial Accountability: A Policy Review.

The Justice Project’s Recommendations to Ensure Prosecutorial Accountability

- States should require that prosecutors’ offices adopt and enforce clearly defined official policies and procedures.
- States should require open-file discovery in criminal cases.
- States should require that prosecutors document all agreements with witnesses and jailhouse informants concerning conferment of benefits of any kind.
- States should require trial and appellate judges to report all cases of prosecutorial misconduct, including cases where the misconduct is ruled to be harmless error.
- States should establish a prosecutor review board with the power to investigate allegations of misconduct and impose sanctions.
- States should require that prosecutors participate in training and continuing education programs.