Examples of Misconduct

It is expected that examples of misconduct in the court system are relatively low considering the amount of time spent covering ethical matters in law schools. However, lawyers are prime targets for the public’s mistrust. Although defense attorneys typically have worse reputations, prosecutors are not exempt from unethical behavior. Gershman (2003) writes about prosecutors who misuse forensic evidence by suppressing the evidence, by calling on incompetent or biased experts, by rejecting exculpatory reports, or by overstating findings. “Some prosecutors lied out of personal ambition, some out of zeal to protect society, but most lied because they had gotten caught up in the competition to win” (Wishman, 1981). Complaints against prosecutors are rare; when they occur, it is typically very scandalous. One example is shown as follows:

Allegations that prosecutors failed to disclose exculpatory evidence to the defense, including a videotaped statement by an alleged eyewitness to the crime that conflicted with that witness’s trial testimony, cast doubt on that witness’s credibility, and severely undermined the state’s case. (http://www. prosecutorialaccountability.com/accountability/sample-complaints/)

Politics, community, and media influence contribute to potential misconduct. Rampant media attention causes the public to focus on, and to question, the judicial system. The examples that follow will shed some light on unethical prosecutors.

Duke Lacrosse Case, 2006

Michael Nifong was the elected official who charged three Duke Lacrosse players of raping a young woman (Associated Press, 2007; Wilson, 2007b; Wilson and Barstow, 2007). The prosecutor was up for reelection that year, so he thrived on the media attention. There were many public appearances and statements made regarding the suspects and the alleged evidence. The evidence Nifong discussed in statements was actually false. The three suspects were Caucasian, and the accuser was African American; at first, people believed it was a case of racism. The men tried to prove their innocence by voluntarily providing DNA samples for testing. Families of the young men felt not only that they were hostages of the situation but also that the prosecutor chose to believe the lies of a young woman to advance his political career.

So what happened? A forensic expert for the prosecution admitted that he and the district attorney had DNA evidence that could exonerate the defendants but did not report it. Dr. Brian Meehan was hired by Nifong to conduct DNA testing. His results showed that the DNA on the rape kit matched four unidentified men, none of whom were the lacrosse players. Although a report was issued, potentially exculpatory information was left out. This was a blatant violation of professional standards that launched investigations into the company for which Meehan worked. At a hearing, Meehan testified that he and Nifong agreed to limit the report to the evidence that matched the lacrosse players or three of the accuser’s friends. He did provide his results to Nifong before the report was issued but also said that Nifong did not specifically request exclusion or inclusion of the information. The district attorney is required by law to disclose information to the defense regarding evidence.

In this case, Nifong did not disclose all information until he was court ordered to do so approximately six months after receiving the information from Meehan. In addition, Nifong told the court that he was “not aware of any additional information” that could have been exculpatory. The district attorney believed, and stated, that he was part of the solution not the problem because he discussed the evidence (even though Nifong mentioned it after Meehan testified regarding the existence of such evidences). Upon admitting that he was aware of the findings, Nifong stated that the nondisclosure was simply an oversight.

Even though the initial rape allegations were dropped, the case was transferred from county to state jurisdiction. In April 2007, the attorney general of North Carolina, Roy Cooper, dropped all charges against the men for lack of evidence (and because the evidence that did exist was exculpatory) (Wilson, 2007a). Nifong was later highly criticized in the media and underwent an investigation by the North Carolina State Bar for dishonesty, fraud, and deceit. More specifically, the bar directed the investigation toward Nifong’s suspected participation in prejudicial actions and for supposedly conducting the investigation with dishonesty, fraud, deceit, or misrepresentation.

What were the major issues? First, Nifong used the case as a means to an end; reelection was his personal gain. Second, he showed bias, as he called the men children of privilege and made the crime about race. Third, there was an abuse of power demonstrated by Nifong’s unjustified arrest and zealous prosecution. Next, he was deceitful in having hidden facts about the DNA evidence that could have exonerated the men. Due to the hidden evidence and information, Nifong denied the lacrosse players due process. In addition, his media appearances could be considered highly prejudicial. Finally, in denying the men due process, Nifong neglected his duties as a prosecutor and as an elected official. In addition to the prior reasons, Nifong never reviewed the evidence, nor did he ever personally interview the victim. The prosecution of the men continued even after the evidence disappeared. In June 2007, Nifong resigned and was then disbarred by North Carolina (Setrakian, 2007).

Joseph Buffy, 2016

At what point should prosecutors be required to present evidence to defendants? Historically, exculpatory evidence is presented during the discovery phase before the case goes to trial. In 2015, the West Virginia Supreme Court set a new precedent: West Virginia prosecutors are now required to present evidence to defendants during the plea bargain process, where 90% of criminal cases are settled. This decision is a direct result of prosecutor misconduct in the Joseph Buffy case (White, 2016).

Joseph Buffy pleaded guilty to rape and robbery in 2001 based on the advice of his court-appointed lawyer, who assured him that he would be granted leniency. Though he quickly recanted his confession, Buffy remained in prison for nearly 15 years. In 2008, the Innocence Project got involved with the case, and in 2011, DNA testing was conducted that excluded Buffy from the crime. Despite the outcome of the DNA testing, the evidence and confession linking Buffy to a burglary and robbery was exchanged for the dismissal of the erroneous sexual assault charges and a new statutory rape charge through an Alford plea. This plea allowed him to apply his time served, prevent future sex-offender registration, and put the situation behind him.

Joseph Buffy’s rights were violated because DNA results were not disclosed prior to the plea, despite the prosecutions knowledge of the test results and the defense’s repeated requests for the results. The defendant was incorrectly informed regarding the DNA testing and the plea bargain was a limited-time offer. The defendant did not receive the full degree of justice as the State failed to present exculpatory DNA evidence. Wrongful convictions and prosecutorial misconduct can be linked to “coercive plea-bargaining, excessive sentencing schemes, ineffective lawyers or false confessions, or a combination of these factors” (Valente, 2016). In this case, the goal of getting a conviction outweighed their obligation for justice.

Joseph Buffy is now a free man, prosecutors must now present evidence to defendants prior to plea hearings, and justice has been served to the victim, her family, and the correct assailant. But has it? Please review the chapter activities for further discussion on this case.

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