Prosecutorial Misconduct

A Washington Post article today points out that in many cases over the past several decades, federal prosecutors knew that the evidence against a defendant was flawed because the science upon which the conviction had relied was not reliable – yet the prosecutors failed to notify the defendants or their attorneys of the problems.

The article notes that the forensic evidence – including hair identification evidence, which is now regarded as generally unreliable — led to hundreds of convictions of defendants, nationwide, for crimes they may well not have committed. In these cases, the convicts are entitled at the very least to a DNA test, which would in most cases determine their guilt or innocence. In one case, a man was executed in Texas even after the Justice Department began its review of convictions based on evidence that was not supported on solid scientific grounds.

All told, the Post found that the Department disclosed the results of these reviews to the defendants or their attorneys in fewer than half of the more than 250 cases in which questions had arisen about the forensic evidence.

It is truly unfortunate that it took an investigative reporting effort by a newspaper to uncover these clear failures by prosecutors to do justice, which is the first obligation of any government lawyer.

Looking at this, the Ted Stevens case, and other recent prosecutorial problems, it’s hard to avoid the conclusion that the Justice Department isn’t going to admit its errors or revisit its acknowledged problems unless its feet are put to the fire.

Journalists, bloggers, defense lawyers, whistle-blowers, and others all need to be aware of the department’s tendencies to make only the most perfunctory self-evaluations and to insist that it is right and just, even when it is not.