Pottawattamie County v. McGhee Amicus Brief: Prosecutors Spread Familiar Lies
September 10, 2009
[Editor: In Pottawattamie County v. McGhee, the most interesting Section 1983 case this Term, the Supreme Court will determine whether a prosecutor who manufactured evidence should be held liable for money damages. An amicus brief, filed on behalf of state and federal prosecutors, is unpersuasive. In three separate posts, we'll examine why. Below is the first post. Click her for the second; here for the third.]
[T]he remedy sought by respondents in this case necessary to deter prosecutorial misconduct. To the contrary, prosecutors who engage in misconduct are already subject to discipline by a variety of institutions, including the prosecutors' offices themselves, state bar associations, and the judges before whom they appear. In the most extreme cases, prosecutors may face criminal sanctions for their misconduct.
Kalina's certification contained two inaccurate factual statements. After noting that respondent's fingerprints had been found on a glass partition in the school [that had been burglarized, Kalina] stated that [the defendant] had "never been associated with the school in any manner and did not have permission to enter the school or to take any property." In fact, he had installed partitions on the premises and was authorized to enter the school. She also stated that an employee of an electronics store had identified respondent "from a photo montage" as the person who had asked for an appraisal of a computer stolen from the school. In fact, the employee did not identify respondent.
Because District Attorney Offices typically do not keep statistics on the number of prosecutorial misconduct complaints filed against their office, we surveyed all California Court of Appeal decisions (published and unpublished) to determine the nature of prosecutorial misconduct problems and which jurisdictions were most affected. Appendix D contains a full report of those cases.
Research identified 347 of the prosecutors and 30 of them were found to have committed misconduct more than once. Two of them actually did it three times. So what happened to them? In only one case was there a sanction - the prosecutor was disciplined by the State Bar.
Drexel also raised hackles in the law enforcement community by going after several well-known prosecutors for misconduct, including Santa Clara County prosecutor Benjamin Field. Accused of offenses including withholding exculpatory evidence, which Field's supporters were quick to point out involved cases more than a decade old, Field ended up having his license suspended for four years.