NO ACCOUNTABILITY IN MASSACHUSETTS PROSECUTOR’S OFFICES

The same attorneys who are charged with holding people accused of a crime in Massachusetts legally accountable for their actions, are not being held accountable for their own illegal actions.

Over 150 convictions in Massachusetts have been overturned for prosecutorial misconduct since the 1990’s. These are convictions which were overturned because the prosecutor engaged in fraud or other misconduct that wasn’t discovered until after that prosecutor secured the conviction.

Most of these convictions were overturned because of “Brady Rule” violations. The “Brady” violation came about from a ruling in 1963. In Brady v. Maryland, Air Force veteran John Leo Brady, who was on death row for murder, had his conviction overturned because a prosecutor failed to disclose to Brady’s Lawyers that a co-defendant had confessed to the murder for which Brady was convicted. That decision made it a rule that all prosecutors must disclose to defense counsel any evidence that is “favorable” to the defendant if it is “material either to guilt or to punishment.”

The Brady decision was a major win for defense attorneys throughout the United States. It forced prosecutors to hand over material that was favorable to the defense. But, there was one problem with that ruling; it was left up to the prosecutors to decide what was “material” to guilt or punishment.

In the 1990’s when defense attorneys started to appeal convictions which were based in part on DNA results, they found evidence of other “Brady” violations in the mandatory discovery which was supposed to have been turned over to the defense attorneys prior to trial. There was evidence favorable to a defendant that was not being turned over to their defense attorneys. How are defense attorneys able to claim a “Brady” violation when they don’t know when one exists?

Most Brady violations are only discovered after a defendant has been convicted and sentenced and is serving a sentence. It is when their appellate attorney begins to request files under the Freedom of Information Act, that such abuses are generally discovered. By then, many of these inmates have served years, if not decades, behind bars.

Prosecutors act on an honor system. Defense counsel must trust that they are being provided with everything favorable to the defendant that is material to either guilt or punishment.

The National Registry of Exonerations, however, found that out of the 166 exonerations in 2016, seventy (70) involved misconduct by the prosecuting attorney. The majority of those exonerations were based on the withholding of material evidence.

Instead of prosecutors immediately ceasing this practice of withholding such evidence, they tried to minimize or even excuse it. In 2010, The National District Attorneys’ Association asked the very powerful American Bar Association to pass a resolution to ban the courts from calling “Brady” violations “prosecutorial misconduct” because they were mere excusable errors.

On Monday, June 26, 2007 Judge Richard J. Carey released his 166-page decision involving 7 defendants. He dismissed all their cases on the grounds that two ex-prosecutors intentionally misled the court, withheld critical evidence, in an effort to cover up a huge scandal at a state drug lab in Amherst. His decision focused on former Assistant Attorneys General Kris Foster and Anne Kaczmarek. Judge Carey accused them of committing a “fraud upon the court.”

Judge Carey stated that Foster and Kaczmarek made several “calculated misrepresentations” and concealed both physical evidence and documents. He stated that they ” … violated their oaths as assistant attorneys general and officers of the court.”

The Massachusetts Board of Bar Overseers was established by the Mass. Supreme Judicial Court in 1974 as an ” … independent administrative body to investigate complaints against lawyers and to act as an administrative tribunal to consider disciplinary charges brought by the Bar Counsel.” Where was the Board on those 150 cases that were overturned since the 1990’s you may ask? Not one of those prosecutors was ever brought before the Board in any of those cases. Those prosecutors were allowed to avoid any charges of misconduct by the very Board that the Massachusetts Supreme Judicial Court established to investigate such violations as prosecutorial misconduct.

The message the Board of Bar Overseers is sending is very clear. They will not hold prosecutors accountable for their intentional acts which constitute prosecutorial misconduct.
When the “Brady” rule was established, it relied on prosecutors doing what was already required of them, both professionally and ethically. However, if a prosecutor doesn’t have to worry about being punished for his or her misconduct, what good is the “Brady Rule”? Prosecutors can continue to fail to disclose evidence to defense counsel with no absolutely repercussions to their own license to practice law, their careers, or their reputations. If and when the misconduct is discovered, many of these prosecutors have long moved on to other employment or even other careers.

Most prosecutors only worry only about the number of wins (convictions) they rack up in court, not whether justice is being done. They use rules like the Brady Rule as a guideline or a suggestion, not as a legal and ethical requirement. Who can blame them? The governing Board is not punishing prosecutors who break the rules.

The Board of Bar Overseers has a new case now that they can investigate. They have the opportunity to address the intentional fraud perpetrated upon the court in the Amherst cases, and show the public that such conduct will no longer be tolerated in Massachusetts. If they engage in such conduct, they will be punished for it. Let’s hold both the prosecutors and the Board of Bar Oversees accountable.

By: Padraig Collins