Emily Bazelon is a staff writer at The New York Times Magazine and is the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She recently published an exhaustive article about prosecutorial misconduct in the Times Magazine. This article focused on Shelby County, Tennessee’s District Attorney Amy Weirich and a murder case she prosecuted as an assistant district attorney.
According to Ms. Bazelon, in June 2005, Weirich was a 40-year-old “rising star” in the Memphis district attorney’s office when she was assigned to prosecute 18-year-old Noura Jackson who had been charged with the murder of her wealthy mother. Weirich was the first female deputy district attorney in Shelby County and had earned her reputation as “a highly skilled trial lawyer” while chief of the gang-and-narcotics unit in the DA’s office.
Win at All Cost Ambition, Prosecutorial Misconduct
But like many successful prosecutors, Weirich had garnered her success through a ruthless win-at-all-costs ambition. She withheld evidence, lied about missing evidence, and routinely engaged in unethical behavior that got her appointed as Shelby County’s top prosecutor in 2011 when the former district attorney resigned to join the governor’s administration. Weirich, a Republican, would go on to handily win elections in 2012 and 2014 as district attorney and there was talk that her eyes were set on the Governor’s Mansion.
Egregious, Flagrant Misconduct: Conviction Reversed, Career Unravels
Bazelon said it was the guilty verdict and 20-year-and-nine-month sentence Weirich secured in 2009 against Noura Jackson that placed her on the fast track to the DA’s appointment. But a mere five years later Weirich’s professional career began to unravel when the Tennessee Supreme Court reversed Jackson’s murder conviction because of egregious misconduct the prosecutor had engaged in to secure that conviction. The court described Weirich’s misconduct as a “flagrant violation” of Jackson’s constitutional right to a fair trial.
The Brady Rule had been in place 46 years when Weirich chose to withhold crucial evidence in the Jackson case. She had been elected district attorney only one year when the director of her criminal trial prosecutors was publicly censured by the Tennessee Board of Professional Responsibility because he had “purposely” misled defense attorneys about a witness and had withheld evidence in two death penalty cases. Weirich not only kept the prosecutor on her staff but defended his misconduct.
Misconduct Spreads Through the Ranks
Telling the local media that the prosecutor’s professional lapses were nothing more than “human error,” she added: “It’s hard enough on him personally and professionally. There was no reason for me to do anything else.”
“It’s disturbing when a prosecutor with a history of failing to disclose evidence has the job of overseeing the next generation of lawyers,” Bazelon quoted Wake Forest law professor Ronald Wright as saying.
DA’s Prefer “Errors” to “Misconduct”
Bazelon reported that in 2010 the National District Attorneys Association somehow convinced the American Bar Association to impress upon courts to stop using the term “prosecutorial misconduct” in Brady violation cases. The DAs prefer the term “errors” to misconduct because that term, Oregon District Attorney Joshua Marquis says, “feeds the narrative that prosecutors are corrupt, which is poisonous.”
Marquis sponsored the resolution adopted by the ABA.
Regardless of what Marquis believes, or the NDAA prefers, or the ABA recommends, prosecutors who withhold critical evidence, who suppress exculpatory evidence, who suborn perjury, who manufacture evidence, and who lie to the court and jury have engaged in “prosecutorial misconduct” that is both unethical, deserving disbarment, and criminal, warranting indictment.
Marquis told Bazelon that “police say there’s a war on cops. Many of us career prosecutors feel there’s something of a war on prosecutors.”
Let us educate DA Marquis: criminal defense attorneys know, beyond any measure of doubt, that many career “tough on crime” prosecutors, like former Harris County DAs Johnny Holmes, Charles Rosenthal, and Kelly Siegler, have waged, and continue to wage, a war on justice and fairness. Former “prosecutor of the year” Ken Anderson knowingly suppressed evidence that sent an innocent man, Michael Morton, to a Texas prison for 24 years and former “prosecutor of the year” John Bradley did everything he could to conceal Anderson’s misconduct and keep Morton in prison.
Most Common Misconduct is Withholding Favorable Evidence
The National Registry of Exonerations reported this past March that 70 of the 166 exonerations established in 2016 involved some form of official misconduct—a record number. The Registry found that the “most common misconduct documented” involved “police or prosecutors (or both) concealing exculpatory evidence.”
Concealing exculpatory evidence, either to send an innocent, or even a guilty, defendant to prison, is “prosecutorial misconduct” in even the slightest degree and should be a crime in the worst degree. It diminishes the public’s respect and trust in the criminal justice system, deprives the defendant of life and liberty and disrespects the very spirit of our Constitution.
New Breed of District Attorneys Champion Reform
However, we agree with Bazelon’s observations that some district attorneys are now working to eradicate prosecutorial misconduct from the criminal trial process. She pointed to newly elected district attorneys in Houston, Corpus Christi, Chicago, Kanas City, and Orlando who are “pushing for accountability” in their offices.
“The results of withholding evidence have been so tragic and unfair,” Houston district attorney Kim Ogg was quoted as saying by Bazelon.
Rogue Prosecutors Who Pervert Justice, Shatter Lives
In a July 13, 2017 report on the “rates of prosecutorial misconduct,” Harvard University “Fair Punishment Project” (“Project”) pointed to Weirich, New Orleans District Attorney Leon Cannizzaro, Orange County, California District Attorney Tony Rackauckas, and St. Louis prosecutor Jennifer Joyce as prime examples of prosecutors who have engaged in egregious misconduct that had “devastating results on people’s lives.”
The Project examined state appellate court opinions in four states – Louisiana, Tennessee, California, and Missouri – between January 1, 2010 and December 31, 2015 to determine the level of misconduct in the district attorney offices in New Orleans, Orange County, St. Louis, and Memphis. The Project concluded:
“What we found is noteworthy – these four prosecutors, and the people who work for them, have repeatedly violated their constitutional and ethical duties, shattering the lives of the defendants and their families. This report examines some of this misconduct and compares the rate at which it occurred in other jurisdictions in these states. We measured the total number of misconduct findings for each jurisdiction in these four states, the total number of reversals, the total number of misconduct finding per capita, and the total number of reversals per capita. All of these jurisdictions ranked first in their respective states on at least one of these four metrics, and all of them ranked in the top five for at least two out of four of the metrics, making them distinct outliers in their states.”
The efforts of district attorneys like Kim Ogg and others notwithstanding, prosecutorial misconduct some five decades after the Brady Rule was pronounced by the Supreme Court remains an unethical blight on our criminal trial process. Prosecutors like the four examined by the Project have repeatedly violated the public trust and have made winning at all costs more important than their duty to seek justice.
We will always call it what it is: prosecutorial misconduct.