Monday, September 27, 2010

Prosecutorial Misconduct

USA Today's article entitled "Prosecutors' Conduct Can Tip Justice Scales" makes for upsetting reading. The paper launched an investigation of "201 criminal cases ... in which judges determined that Justice Department prosecutors ... violated laws or ethics rules." The high-profile Duke lacrosse case demonstrated that prosecutors can badly overstep and misstep, but the USA Today investigation shows that the same abuses are rampant in the federal system. The consequences have been serious--"the abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions." One of my colleagues at Pace Law School, Professor Bennett L. Gershman, was interviewed for the USA Today story. He is a former prosecutor himself, having worked for the prestigious Manhattan District Attorney's Office for six years. Professor Gershman has written extensively about prosecutorial misconduct on both the federal and state level, and many of his law review articles are available by hypertext link from his faculty page (linked to above). According to Professor Gershman, the abuses detailed in the article are the "'tip of the iceberg' because many more cases are tainted by misconduct than are found. In many cases, misconduct is exposed only because of vigilant scrutiny by defense attorneys and judges." The article is accompanied by a compelling videotape that focuses on the case of Nino Lyons, who was incarcerated for nearly three years after a prosecutor failed to disclose exculpatory evidence; he was eventually declared innocent and released, but his life will never be the same. The prosecutor, Bruce Hinshelwood, was ordered to pay $1,111.80 in costs and to attend an ethics workshop, but stayed on the job until 2008 and has since opened his own practice. He was never punished by the Department of Justice or by the Florida Bar.

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