Monday, July 7, 2003

Letter to Center for Public Integrity

Here's my published response to a study on prosecutorial misconduct from the Center for Public Integrity.

Dear Center for Public Integrity:

The study entitled "Harmful Error" claims that prosecutorial misconduct is epidemic among the thousands of state and county prosecutors. The truth is that such misconduct is better described as episodic, those few cases being rare enough to merit considerable attention by both the courts and the media.

There is no question that given the critical role of gatekeeper the district attorney holds in our legal system the men and women who work as prosecutors should continue to be held to the highest standards of conduct. In the criminal justice system there is an elaborate system of checks and balances designed to protect both the innocent and the guilty. Alone among the legal profession, a prosecutor's sole allegiance is to the truth - even if that means torpedoing the prosecutor's own case.

When trial judges make mistakes appellate courts will reverse or remand those cases. We call these cases "judicial error." When defense attorneys fail to properly represent their clients, the accused's conviction is frequently set aside because of "inadequate assistance of counsel." Yet when a prosecutor makes an error it's called "prosecutorial misconduct," a term that summons up images of a district attorney hiding evidence, lying to a jury, or framing an innocent suspect. The reality is that overwhelming majority of prosecutorial errors are indeed "harmless" not "harmful," meaning that there was no malice on the part of the D.A. and that there was no unjust result. Keep in mind that only the defense has the right to appeal misconduct and therefore there is no judicial review of misconduct by a defense attorney.

How pervasive are instances of true misconduct by prosecutors? Because record keeping varies so much from one state to another it would be unwise to draw any sweeping conclusions across the country. The statistics on this website about my own state of Oregon show that in the last 33 years Oregon's appellate courts have raised issues of prosecutorial error 44 times but in only 8 of those instances the prosecutors conduct was found to be prejudicial. Comparing those numbers against the thousands of criminal appeals rendered during this same time provides a rate of prosecutorial misconduct of less than one tenth of one percent. It is even more instructive to look at what kind of misconduct was deemed "prejudicial"—in one of those eight cases it was the exasperated description of a professional defense witness in a drunk driving case as a "pimp." The prosecutor never should have made the comment, but it is hardly in the same class as concealing evidence.

The study implies that in those rare cases where prosecutors get caught little more than a slap on the wrist is given. The researchers missed no less than two cases in the past 10 years in Oregon where elected prosecutors were permanently disbarred for misconduct in office. I should know—I have been three times elected District Attorney of Clatsop County where I was originally appointed by the governor to replace the previous District Attorney who was indicted, convicted, jailed and disbarred.

Prosecutors continue to be subject to the harshest sanctions on those truly rare occasions where they violate their oaths. No human endeavor is error free and the only way to achieve even lower error rates is simply to avoid prosecutions altogether.

Editors' Note: The Center thanks District Attorney Joshua Marquis for his thoughtful response. We agree that prosecutorial misconduct is episodic, not epidemic. We never said—or meant to imply—otherwise. We also thank Mr. Marquis for pointing out that we did not cite two cases in Oregon of elected prosecutors who were permanently disbarred for misconduct in office. We have made the corrections in our database and posted them on our website.