海角大神

Cliven Bundy wanted to walk out of the courtroom in his jail jumpsuit and ankle shackles. Deputy marshals blocked him from doing that. But if it hadn鈥檛 been for 鈥渇lagrant misconduct鈥� committed by federal prosecutors and investigators in the case, the Nevada cattleman may not have been walking out at all.

US District Judge Gloria Navarro dismissed the case, which related to an April 2014 standoff with federal officers seeking to impound Mr. Bundy鈥檚 cattle, 鈥渨ith prejudice鈥� this week 鈥� meaning prosecutors cannot retry the case on the same charges. 鈥淭he court has found that a universal sense of justice has been violated鈥� by prosecutors who withheld and misrepresented vast quantities of evidence, she .听

The case is a dramatic example of prosecutorial misconduct, which some legal experts see as a cultural flaw in the criminal justice system. Prosecutors are arguably the most powerful actors in the system, in part because they are the gatekeepers for most evidence in a case. Having to provide evidence to a defendant while also seeking to beat them in court understandably can lead to temptation, legal experts say.

鈥淚t鈥檚 like making your own calls in a basketball game: 鈥楾hat wasn鈥檛 a foul on me,鈥� 鈥� says John Raphling, a senior researcher at Human Rights Watch who spent more than two decades as a criminal defense lawyer in California.

鈥淚 don鈥檛 want to say it鈥檚 human nature, but it鈥檚 a natural tendency to see things your own way,鈥� he adds, 鈥渆specially when you鈥檙e wrapped up in the competitive world of trying cases.鈥�

Prosecutors are also rarely formally punished for misconduct. As technological advances continue to expand the government鈥檚 investigative resources, some experts fear prosecutorial misconduct could become more prevalent and harder to catch. But the question of how often it occurs now is open to debate 鈥� with a former US attorney calling incidences like the Bundy mistrial a 鈥渞are event鈥� and a former federal judge calling it an 鈥渆pidemic.鈥�

Flawed prosecutions

There are the high-profile examples, such as Bundy and the flawed prosecutions of former and members of the Duke University lacrosse team. Beyond that, 42 percent of the 166 exonerations in 2016 were a result of official misconduct, according to the .

Since the United States Supreme Court decided Brady v. Maryland in 1963, prosecutors have been required to turn over any evidence that points in the direction of innocence to the defendant. Evidence gathered in an unconstitutional fashion, such as an illegal search or self-incriminating statements elicited prior to Miranda rights being read, are also not permissible in court. Prosecutors can also commit misconduct during a trial by making misrepresentations to the jury or referring to evidence that has been ruled out-of-bounds.

In , former US 9^th Circuit Judge Alex Kozinski, who retired last month amid sexual harassment allegations, declared 鈥渁n epidemic of Brady violations.鈥� But others say it is difficult to know how often prosecutorial misconduct occurs.

If a prosecutor is unsure whether a piece of evidence is permissible or important to the defense, they can give it to a judge to make a ruling. Through their close work with law enforcement, they often hold most of the evidence in a case. Whether they choose to disclose it 鈥� either straight to the defendant, or to a judge 鈥� is entirely up to them.

Reconciling their position as both the opponent of the defense and perhaps their most important source of information can be difficult, particularly over the course of a long case, says Paul Charlton, who spent 10 years as a US attorney in Arizona.

鈥淵ou become familiar with the facts and embrace a certain narrative,鈥� he adds. When 鈥測ou are weighing whether you should turn over that evidence, the risk is you鈥檙e making that decision in some way to protect the case as opposed to providing the defendant with the opportunity to put on the best defense.鈥�

Defense attorneys can appeal to the judge for the prosecutor to release certain information, and the longer a case goes on the more evidence they are likely to gain access to. With more than 90 percent of court cases in the US , however, cases tainted by misconduct could be settled before misconduct is unearthed.

'Parallel construction'

Contributing to concerns is the increasing sophistication of investigative techniques and technologies, experts say. This allows law enforcement and prosecutors to gather more evidence 鈥� but also obscure how that evidence was collected.

One practice is for investigators to conceal their methods for identifying a suspect or finding evidence, then going through the motions of discovering it in a different way.

Reuters first reported the practice, which some call 鈥減arallel construction,鈥� in detail in 聽into a secretive US Drug Enforcement Administration unit that funneled information from its own surveillance activities to law enforcement agencies around the country. Those agencies then concealed how they came by the information.

Similar to prosecutorial misconduct generally, it is difficult to know exactly how often parallel construction occurs 鈥� although a says that needs to be investigated further. The most concrete examples in the report come from the Reuters report and from instances where law enforcement agents admitted to using a pretextual traffic stop to uncover information that had been passed to them from another source. The Supreme Court has declared to be legal.

鈥淲e don鈥檛 have proof besides the pretextual traffic stops, but I think there is enough to ask questions,鈥� says Sarah St. Vincent, the report鈥檚 author. She suggests that defense attorneys be more aggressive in asking for information and evidence from investigations to be disclosed, and that judges be more skeptical of claims of where information and evidence came from.

The report suggests that parallel construction may be being employed to conceal information gathered through legally questionable methods. Whether it is obtained unlawfully or not is beside the point, according to Nancy Gertner, a Harvard Law School lecturer who served as a federal judge from 1994 to 2011, since the practice transfers the decision of what information gets disclosed to defendants from judges to law enforcement and prosecutors.

鈥淵ou can envision a situation where they think they鈥檙e doing something legal but they鈥檙e not sure, so they use parallel construction,鈥� she adds. 鈥淭he problem is we don鈥檛 have a system that should rest on the judgment of the police officer.鈥�

鈥淏efore the internet, before digital information and GPS devices, I could tell when someone broke into my house. Now it鈥檚 more difficult,鈥� she adds. 鈥淧arallel construction then makes it even more difficult to determine how evidence was obtained, and therefore if it was legally obtained.鈥�

'An aberrant event' or a hidden problem?

Mr. Charlton says he鈥檇 never heard the term 鈥減arallel construction鈥� before reading the Human Rights Watch report. 鈥淚鈥檓 not convinced,鈥� he adds, 鈥渢hat the issue they鈥檝e identified is as significant as the [report] will have led you to believe.鈥澛�

If law enforcement and prosecutors do use parallel construction to conceal unlawfully obtained information 鈥渋t鈥檚 an aberrant event,鈥� he continues, 鈥渁nd if it鈥檚 an aberrant event I would say it鈥檚 a solution looking for a problem.鈥�

Critics say prosecutors should be more rigorous in vetting what evidence is available and where it came from.

鈥淲e find overwhelmingly it鈥檚 the cops not the prosecutors [committing misconduct], but the culture is the prosecution is not probing either,鈥� says Ron Kaye, a criminal defense attorney in Los Angeles, who specializes in wrongful imprisonment cases.

A key reason for that may be that prosecutors rarely receive severe formal discipline for misconduct. Courts punished prosecutorial misconduct in less than 2 percent of cases where it occurred over a 50-year period, according to .

鈥淚t鈥檚 important that we have protections for prosecutors [from spurious misconduct claims] to be able to do their jobs effectively, without fear of a chilling effect on their performance,鈥� says Kami Chavis, director of the Criminal Justice Program at the Wake Forest University School of Law in Winston-Salem, N.C., and a former US attorney.

鈥淏ut at the same time,鈥� she adds, 鈥渢hat does create again this issue of how do we then even uncover prosecutorial misconduct, and what do we do to deter it?鈥�