Fabricated Evidence in Criminal Cases

Although I offer this in no way as a defense of prosecutorial or police misconduct, it remains my impression that most police officers and prosecutors who engage in misconduct in order to convict a defendant do so under the belief that the defendant is guilty. (That can be a pretty low internal standard - I've met prosecutors for whom there is no meaningful distinction between "charged" and "guilty", under the rationalization "We wouldn't charge somebody who was innocent.") No matter how sincere the belief, though, it's unacceptable conduct. The point of the prosecution and trial is to prove that the evidence is sufficient - if it's not, the prosecutor should be trying to figure out how to find more bona fide evidence or how to build a better case.

Whatever the motive, there are degrees of police prosecutorial misconduct - planting evidence, intentionally "losing" evidence, tampering with evidence, coercing witnesses, rewarding witnesses, suppressing exculpatory evidence or information.... I cannot place them in an order of "least serious to most serious" as each act can potentially have a dramatically different impact depending upon the full facts of the case.

When I've encountered prosecutorial misconduct, my thoughts have ranged from, "Were you that desperate for a conviction," to "You knew that and you still thought the defendant should be tried for this offense". But in reading about supposed bite mark specialist Michael West, it is difficult for me to imagine that many of the prosecutors who utilized his service, and as his "reputation" grew, perhaps most, had a pretty good idea that they could count on him to fabricate evidence to convict people against whom they had no viable case. And we're talking about life sentences, even death sentences, resulting from West's fraud and fabrication.

When a medical examiner performs and documents an autopsy and finds no evidence of a bite mark, and the prosecutor brings in a "specialist" who not only manages to find bite marks but finds obvious marks that are not present in prior photographs and video, it's difficult for me to imagine that everybody in the prosecution doesn't know exactly what's going on.

Prosecutorial Misconduct

Well, at least Alaska got a different Senator....

But there's a real story here, and not just about Ted Stevens. It's exceptional for a defendant to have the type of resources that Ted Stevens could muster against a U.S. Attorney's Office. But for the transition to the Obama Administration, I doubt that the Department of Justice would be admitting the extent and gravity of the misconduct or dropping the charges - just as before, it would be "all that matters is winning, full speed ahead".

There are a couple of things that make the Stevens case unusual. First, a U.S. Attorneys Office has such phenomenal resources, it's a bit surprising that the involved prosecutors felt the need to do this. Second, given the resources possessed by the defense, it's amazing that they thought they could get away with such extraordinary misconduct. I suspect, unfortunately, this is an example of rot that set in at the highest levels of the Bush Administration - rot beginning at the Oval Office - politicizing everything, focusing on results over means, throwing away any sense of obligation to observe ethical standards or even follow the law, putting loyalty above competence....

But the thing is, it's not particularly unusual for a police officer or prosecutor to decide that a defendant is guilty, and to "help along" the prosecution by playing games with the evidence, influencing witnesses, lying on the witness stand.... "He's guilty, right? So it's not really wrong to make sure he's convicted." In many cases the defense may have strong grounds to suspect misconduct, but won't be able to prove it. While some prosecutors have a very strong sense of ethics and commitment to doing justice, there are some whose primary goal is to get as many convictions as possible no matter what the facts. And there are some who have internalized the notion that everybody they prosecute is guilty - and obviously so - because they don't charge innocent people. When you're convinced you're advancing justice, it can become all too easy to turn a blind eye.

Stevens was convicted. You can say "He belongs in jail." You can attempt to justify the perversion of justice by the prosecutors and officers involved in the misconduct. But if you think he's guilty, think about this: It's that misconduct that is keeping him out of prison. That's not normally the way it works - normally, this type of misconduct is vastly more likely to land an innocent person in prison than to keep a guilty person out.