Insider`s Guide: Getting Relief After Exposing Prosecutorial Misconduct
We hear about errors by prosecutors all the time that are labeled “prosecutorial misconduct,” but what exactly is prosecutorial misconduct? In other words, when is a prosecutor`s error so bad that it rises to the level of prosecutorial misconduct that relief is warranted? Let`s dive into the cesspool of prosecutorial errors and take a look at what prosecutorial misconduct means.
Prosecutorial Misconduct Defined
Prosecutorial misconduct occurs when a prosecutor, during his role in prosecuting a criminal case, violated the constitution, laws, or established ethics governing a prosecutor`s actions. It`s a very broad term that includes lots of errors, and the U.S. Supreme Court`s nearly century-old definition of prosecutorial misconduct doesn`t do much to narrow what it means:
[Prosecutorial misconduct is when a] prosecuting attorney overstep[s] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense. Berger v. United States, 295 U.S. 78, 84 (1935).
Nobody ever accused the Supreme Court of being abundantly clear on everything it says. But I do like the way the Court described the role of a prosecutor: “He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.”
Prosecutorial Misconduct is a Constitutional Problem
The problem with prosecutorial misconduct is that it almost always violates a defendant`s constitutional due process rights under the Fifth Amendment (and Fourteenth Amendment, as it applies to the states). In the textbook prosecutorial misconduct case, Brady v. Maryland, 373 U.S. 83 (1963), where the prosecutor withheld crucial evidence from the defense that would have helped disprove guilty, the Supreme Court held that prosecutorial misconduct doesn`t require a showing that the prosecutor acted in bad faith in committing the error.
This means that even an honest mistake by a prosecutor could still amount to “prosecutorial misconduct.” This is important because, though there`s a temptation to spotlight how the prosecutor messed up, it cannot be the focus of a prosecutorial misconduct claim. It`s not about the prosecutor`s actions, as disgraceful as they may be. It`s all about how those actions affected the outcome of the case.
Prosecutorial Misconduct Hinges on the Outcome
The Supreme Court set the standard for prosecutorial misconduct claims this way: The prosecutor`s misconduct must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Daren v. Wainwright, 477 U.S. 168, 181 (1986). That`s the overall goal with a prosecutorial-misconduct claim. The way you show the error affected the outcome will depend on the type of error by the prosecutor.
Let`s say the prosecutor withheld valuable evidence that would`ve helped prove you`re not guilty of the offense charged. In Brady, the Court put the burden on you, the defendant, to show that the evidence withheld by the government was “material” to your case. That means not any old evidence withheld would do, but instead it must tie directly to the question of your guilt or innocence. I`ve seen lots of Brady errors die simply because the defendant couldn`t show the evidence was material.
Let`s say the evidence withheld by the prosecutor was material to your case, a classic Brady error. You`re not done yet. You still have to show it would have affected the outcome of your case. That`s straight-forward if you went to trial: Just show how the evidence would have swayed the jury.
But what if you pled guilty? With nearly 98% of federal convictions by way of a guilty plea (and about 05% of state convictions), this is a hugely important question. How would you show a difference in the outcome, had you known about that withheld evidence, if you stood before the court and admitted under oath that you were guilty?
It`s not so cut-and-dried with guilty pleas. People plead guilty all the time to avoid the harsh penalties that result with going to trial, even when they didn`t commit the crime charged. This is a topic for another discussion, but its prevalence in the world of “criminal justice” is well-known. To show a difference in the outcome after a guilty plea that`s infected by a constitutional violation, the Supreme Court held in Hill v. Lockhart, 474 U.S. 52 (1985), that a person must allege (and show) that he would have gone to trial and not pled guilty, had he known of the error.
Prosecutorial Misconduct Claims Can Be Raised on Direct Appeal and Habeas Corpus
A Prosecutorial misconduct claim is common in a federal habeas corpus challenging a guilty plea as unconstitutional. But prosecutorial misconduct claims aren`t confined to habeas. A prosecutorial misconduct claim on direct appeal, which was properly preserved for appeal, typically falls under the “harmless error” rule articulated by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619 (1993). This requires showing the “error had substantial and injurious effect” on the case. In other words, a difference in the outcome.
Note that a prosecutorial misconduct claim on direct appeal must focus on errors that happened during the pretrial, trial and conviction, or appeal stages of a case. That`s because an appeal is limited to only errors in the criminal record. A habeas challenge, however, allows you to develop the record with external evidence commonly found in prosecutorial misconduct cases. But then you`d have to get around the procedural-default bar for not raising it on appeal earlier. It can become a confusing mess real fast.
Pile on top of all that the Supreme Court`s admonishment to the lowers courts that they should not set “guilty” people free simply to punish prosecutors for their errors. United States v. Hasting, 461 U.S. 499 (1983).
How the Prosecutor is Supposed to Act
Contrary to the way it may seem, the role of the prosecutor is not to secure a win, whatever the cost may be. The Supreme Court in Brady put it like this:
Society wins not when the guilty are convicted but when criminal trials are fair, our system of the administration of justice suffers when any accused is treated unfairly.
But I like the way Judge Hill put it in his dissent in Rozier v. United States, 701 F.3d 681, 690 (11th Cir. 2012):
As is inscribed in the office rotunda of the Attorney General of the United States, `The United States wins its point whenever justice is done its citizens in the courts.` Some in the Department of Justice seem to believe that the inscription reads, `Justice is done when the United States wins.`
Wrapping this up, prosecutorial misconduct isn`t about the prosecutor`s conduct, but the effect it had on someone`s criminal case. Of the multitudes of prosecutorial misconduct errors that have led to the wrongful incarceration of innocent people, hardly any of those prosecutors have been held accountable for their acts. Focusing on the prosecutor`s misconduct is a dead end. If you want to overturn your conviction, focus on how the prosecutor`s misconduct negatively affected the outcome of your case.
Dale Chappell is the author of hundreds of articles and several books on federal post-conviction relief, including Attacking the Guilty Plea: An Insider`s Guide.