The Center for Public Integrity

A physician who botches an operation or an attorney in private practice whose incompetence costs his client a small fortune can both be sued for malpractice. A prosecutor who convicts a defendant of a crime he didn't commit, on the other hand, enjoys immunity from civil suits. That immunity was almost absolute, but a series of court rulings in the last decade have begun to whittle away at the protections for prosecutors who break rules in gaining convictions.

In 1976, the U.S. Supreme Court ruled in Imbler v. Pachtman that prosecutors should be protected by absolute immunity from civil lawsuits, reasoning that the threat of litigation from defendants might interfere with a prosecutor's job. The justices also assumed that supervisors and bar disciplinary boards would offer punishment enough to deter prosecutors from breaking rules. Research conducted since the Imbler decision suggests that in most prosecutors' offices and at most state disciplinary agencies, the justices' expectations are not being met: prosecutors are rarely disciplined for misconduct in the courtroom. The justices have not overridden the 1976 ruling.

In a separate opinion in the Imbler ruling, Justice Byron White concurred with the majority but wondered about the wisdom of extending absolute immunity to prosecutors who withheld evidence suggesting that a defendant was innocent. Prosecutors ought to live in fear that failure to disclose such evidence could lead to civil liability, White insisted. But twenty-seven years later, prosecutors have pretty much absolute immunity from civil lawsuits as long as they are acting as government advocates "intimately associated with the judicial phase of the criminal process."

In January 1999, the Chicago Tribune published a five-part series of articles that found, in the paper's own words, "nearly 400 cases where prosecutors obtained homicide convictions by committing the most unforgivable kinds of deception. They hid evidence that could have set defendants free. They allowed witnesses to lie. All in defiance of the law. Prosecutors swear to seek the truth but instead many pursue convictions at any cost. The premium is on winning, not justice."

The series, reported and written by Maurice Possley and Ken Armstrong, documented 381 cases, going back to 1963, in which courts reversed murder convictions because prosecutors presented evidence they apparently knew to be false, or concealed evidence suggesting innocence, or both.

Then, in November 1999, the Tribune published another in-depth series by Armstrong and reporter Steve Mills that examined murder cases in which Illinois prosecutors, mostly in Cook County (Chicago), had charged a defendant with a capital crime and asked for the death penalty. The journalists identified 326 reversals attributed in whole or part to the conduct of the prosecutors.

As in the first series, the reporters named names—of prosecutors, incompetent or corrupt defense attorneys, police officers, forensic scientists, judges and others within the criminal justice system. They wrote about how prosecutors used confessions extracted through police torture, used perjured testimony of jailhouse informants seeking rewards, or used unreliable analyses from law enforcement forensic laboratories.

When Larry Johnson walked out of a Missouri prison during the summer of 2002, exonerated by DNA testing from a wrongful rape conviction after avowing his innocence for 18 years, St. Louis legal community insiders nodded knowingly as word trickled out who had led the prosecution back in 1984—Nels C. Moss Jr.

Moss, assistant circuit attorney for the city of St. Louis and later a trial prosecutor in neighboring St. Charles County, earned a well-deserved reputation as an aggressive, effective trial prosecutor. During his 33 years of trying cases for the people, however, he simultaneously was a recidivist breaker of the rules by which prosecutors are supposed to operate.

After joining the St. Louis city prosecutor's office in 1968, Moss found his conduct formally challenged in at least 24 cases. In seven of those, judges reversed the conviction, declared a mistrial or issued some other ruling adverse to the prosecution.

Over the course of his career as a prosecutor, Moss reneged during trial on a pre-trial stipulation with the defense; called the jury's attention to the defendant's failure to testify, thereby compromising the Fifth Amendment rights of the accused; alluded to the defendant's uncharged criminal conduct, a violation of the rules of evidence; attacked the character of the defendant with information not in the court record; used inadmissible material from a separate trial of an accomplice; promised during jury selection or opening argument to present testimony never offered; attacked the truthfulness of defense counsel; cast aspersions on the integrity of an insanity defense; and inflamed jurors' passions during closing argument.

When one appellate panel reversed a conviction in a case won by Moss, a judge writing a concurring opinion emphasized that the blame lay with the prosecutor and not with the courts:

District Attorney. State's Attorney. Commonwealth's Attorney. County Attorney. Local prosecutors' job titles may differ from state to state, but they all share one basic function: to act as the public's advocate in the resolution of criminal cases.

Prosecutors wield tremendous power. After a suspect is arrested, they act as de facto judge and jury, deciding whether to charge the suspect with a crime, whether to offer a pre-trial deal, and, if so, the terms of the deal. In most jurisdictions, at least 95 percent of the cases that pour in from the police every day never reach a jury. The only trial those defendants receive takes place in the prosecutor's office.

The National District Attorneys Association estimates there are 27,000 local prosecutors in the United States today, spread throughout 2,341 jurisdictions. In many of these, especially the less populous ones, local prosecutors sometimes receive advice, guidance and even courtroom assistance from lawyers in the state attorney general's office. In three states—Delaware, Alaska and Rhode Island— the attorney general is the local prosecutor. When a conviction is appealed, the attorney general's office typically gets involved as a matter of course. So, it is common to hear defense lawyers praise or criticize assistant attorneys general much as they do district attorneys. See the National Association of Attorneys General Web site.

In May 1999, Robert Wasser's life was turned upside down when Walworth County, Wis., Assistant District Attorney Diane Resch charged him with fourth-degree sexual assault. The charge stemmed from a complaint filed by Wasser's then 20-year-old adopted daughter Samantha (not her real name).

Wasser and his wife Bonnie had dedicated their adult lives to helping abused and neglected children. Over the years, the couple had adopted 22 children and were on the state's list of parents who take in special needs kids. The state would sometimes use them for emergency placement when children had nowhere else to go. When the Wassers adopted 14-year-old Samantha, they knew the risks. Her previous foster father had sexually assaulted her, and she would need special care. But they had had success raising similar adopted children and were confident they could help her.

Wasser's troubles began one weekend when Samantha was home from Wisconsin Lutheran College, a four-year, coed liberal arts school in Milwaukee. Wasser found a handwritten note from Samantha to her boyfriend, a man she would later marry, about dropping out of college and leaving Wisconsin together. Wasser confronted Samantha about the note. Later, he drove her back to college.

The drive to Milwaukee was tense—but still, the conflict with Samantha seemed minor to Wasser, considering her painful past. All that changed, however, a few months later, when an overzealous prosecutor with a history of misconduct and a series of mistruths and outright lies turned a minor dispute into a major crisis. While the charges against him were eventually dismissed, he lost his job, his reputation was damaged, and he incurred the expense of a court battle. The woman who prosecuted him, and misled the court in the process, still has her job.