Prosecutorial Misconduct Deserves Bipartisan Scrutiny

Shortly after his acquittal, Kyle Rittenhouse went on the Tucker Carlson show and said: “I believe there needs to be change. I believe there’s a lot of prosecutorial misconduct—not just in my case, but in other cases.” Rittenhouse continued to say, “… it’s just amazing to see how much a prosecutor can take advantage of somebody. If they did this to me, imagine what they could have done to a person of color who doesn’t maybe have the resources I do or isn’t widely publicized, like my case.”

Right-wing pundits widely criticized tactics in the Rittenhouse case as prosecutorial misconduct, which occurs when a prosecutor breaks the law or violates the code of ethics. This would arguably encompass commenting on Rittenhouse’s post-arrest right to silence and using a heavily pixelated and questionable photograph as evidence against Rittenhouse. 

Critics of Rittenhouse doubted his sincerity. Sincere or not, his words pointed to some uncomfortable truths. Prosecutorial misconduct is a consistent problem in the American legal system—and racial minorities are disproportionately subject to it in murder and drug cases.

A 2020 study by the National Registry of Exonerations looked at all known exonerations in the United States from 1989-2019 and found that among all African-American exonerees sentenced to death after a murder conviction, 78% were victims of official misconduct compared to 64% of white murder exonerees. For drug crimes, 47% of black exonerees were victims of official misconduct—more than twice that of white exonerees (22%).

Several prosecutorial tactics that were criticized mirrored those used in misconduct cases involving ethnic minority defendants. The prosector’s attempt to connect first-person shooter games such as Call of Duty to Rittenhouse’s actions in Kenosha was widely ridiculed due to the disproven causal link between real-world violence and video game violence. Yet in another case San Diego prosecutors successfully charged rapper “Tiny Doo” and his co-defendant, Aaron Harvey, with nine counts of conspiracy to commit murder with reasoning partly based on the lyrics of Tiny Doo’s music. 

This is far from an unfamiliar occurrence, as Vonte Skinner had spent six years in prison before the New Jersey Supreme Court ruled that an extensive reading of Skinner’s violent rap lyrics unfairly prejudiced the jury. 

Prosecutors also went after Aaron Harvey for wearing a partly green shirt (a gang color of course!) and charged fourteen others despite no apparent evidence that any of the “suspects” had anything to do with the murders and that the prosecutors knew they had no connection. Eventually, the case was dropped, but not before the men spent months in jail and their lives were upended.                    

Radley Balko reported about Carol Chambers, a Colorado District Attorney who offered cash bonuses to prosecutors who hit conviction quotas, paid informants (including giving a witness a district attorney’s office car and giving others gift cards) to testify against a defendant in a death penalty case when there was no evidence of wrongdoing by the defendant, and allegedly threatened a judge who had ruled against her.  

In 2005, a Houston man, Dewayne Brown, was convicted of murdering a store clerk and police officer. Brown was sentenced to death, despite his protests of innocence. In 2019, fourteen years after his initial conviction, Brown was found innocent after it came to light that the prosecutor in his case threatened a key witness, who then knowingly lied under oath about Brown’s whereabouts during the murders. Brown’s case is just one of the stories featured in the Netflix series The Innocence Files. 

Misconduct also arises out of an official’s inaction. The most infamous recent case was the district attorneys allegedly choosing not to pursue charges against the men who murdered Ahmaud Arbery. The district attorneys are now potentially facing an investigation by Georgia’s Attorney General. 

There are many more of these cases that just don’t receive high-profile attention. Virtually every day there are new accusations of prosecutorial misconduct in the news. A key issue is that prosecutors face little to no consequences for corruption. In the face of entrapment, bad faith charges, prejudicing the jury, improper plea bargaining, tampering with evidence, withholding evidence, propagating false witness testimony, presenting false evidence, and giving misleading narratives, few bad prosecutors are ever disciplined and bar associations have never seemed willing to help. 

Over time, prosecutors have been made bulletproof. Since a 1976 SCOTUS case, Imbler v. Pachtman, prosecutors enjoy “absolute [immunity] for the knowing or reckless presentation of false testimony.” This goes well beyond the qualified immunity (shield from personal liability in lawsuits) prosecutors were given in the federal legal code. 

Frederic Block, a federal district judge for the Eastern District of New York, summarized the issue, “Because of [this] present status of the law, the prosecutors responsible for the wrongful convictions have neither been held criminally nor civilly responsible for their shameful conduct.” Block continued, “We wisely do not give our law enforcement officers, or even the President, carte blanche to do as they please; bad prosecutors should similarly be accountable.”

What has this legal status given us? In a groundbreaking report, albeit now an older account, the Northern California Innocence Project cites 707 cases in California where there was confirmed prosecutorial misconduct by state courts during a twelve-year period, while only six prosecutors were disciplined. Over those 707 unfair trials, “the courts upheld 80% of the convictions in spite of the improprieties.”

A well-crafted reform, elaborated on by New Orleans defense attorney Mike Fawer, would be to remove, by statute, prosecutorial immunity. It is time that those individuals responsible for gross misconduct be held accountable for their actions. When prosecutors break the rules, especially knowingly, there should be resolution.

In terms of media rhetoric, criticisms of misconduct in the Rittenhouse case have come primarily from the right—although criticisms from the left are not unheard of. In an interview about the case with Slate, Lara Smith, an attorney and spokesperson for the Liberal Gun Club, said, “They’re lucky there wasn’t a mistrial in the case. From what I was watching, I feel like the prosecutor didn’t believe in their case. The prosecution was doing a prosecution on moral values instead of law. That was a problem.” 

But those criticisms from the left are few and far between. Criticizing the Rittenhouse prosecutor’s handling of the case can and should be completely distinct from defending Rittenhouse’s views, character, and actions which brought him to the scene of that shooting in Kenosha. As reported by the Washington Post, several legal experts have given their non-partisan and nuanced critiques of the case—with a former Wisconsin Supreme Court Justice saying, “I think he’s cutting corners as close as he can to get his evidence in front of the jury.”  

At the same time, many right-wingers outside of libertarian circles, who are vocal in criticizing the Rittenhouse prosecutor, are unlikely to extend their criticism to the same cases presented in this article. As Jamil Smith writing for Vox argues, many of these supporters “believe the country needs defending from people who aren’t white and don’t believe in defending Black lives,” regardless of Rittenhouse’s own professed sympathy for the Black Lives Matter movement and the racial minorities who have been victims of misconduct.

Opposition to prosecutorial misconduct should not be a function of one’s partisan leanings. A fair trial is an immutable American principle enshrined in the Bill of Rights. There is no room for unchecked prosecutorial power in a system dedicated to the paramount importance of human rights. Finding a remedy for these significant miscarriages of justice should be a top priority for the whole political spectrum, left, right, and middle.

Denny Han is a public policy researcher based in Oakland, CA. He is a political science graduate of the University of California, Berkeley. Opinions expressed in this article are solely his own.