Sad truth is our prosecutors don’t always wear white hats

In the ongoing federal trial of six persons accused of trafficking methamphetamines, U.S. District Court Judge Leslie Kobayashi recently ruled that despite Assistant U.S. Attorney Jonathan Loo’s repeated failures to disclose evidence to the defense that he was legally and ethically obligated to disclose, she will not dismiss the case against the defendants.

Kobayashi’s remedy for this serious prosecutor misconduct amounts to little more than a soft slap on the wrist. She is allowing a few witnesses to be recalled and the jury to be told about the prosecutor’s misconduct, and she is referring Loo to the Department of Justice’s office of professional responsibility which, truth be told, seldom does anything to hold wayward prosecutors accountable.

One month ago, Alex Kozinski, chief judge of the United States Court of Appeals for the Ninth Circuit (which includes Hawaii), issued a stinging indictment of prosecutors’ failure to play fair when he observed that "there is an epidemic" of violations in America of the kind committed by prosecutor Loo.

And hiding evidence from the defense is far from the only form of prosecutor misconduct.

As noted in a recent white paper by the Center for Prosecutor Integrity, American prosecutors frequently:

» Charge suspects with more offenses than is warranted;

» Deliberately mishandle, mistreat or destroy evidence;

» Allow witnesses they know or should know are not truthful to testify;

» Pressure defense witnesses not to testify;

» Rely on fraudulent forensic experts;

» Overstate the strength of evidence during plea negotiations;

» Make statements to the media designed to arouse public prejudice;

» Make misleading and improper statements to the jury;

» Fail to report prosecutor misconduct when it is discovered.

No one knows the precise extent of prosecutor misconduct because most prosecutorial activities take place behind closed doors. But the available evidence reveals that prosecutor misconduct occurs with egregious regularity.

For example, the National Registry of Exonerations has identified 1,283 wrongful convictions in America since 1989, and 43 percent of them — the most serious mistakes a criminal justice system can make — are attributable to official misconduct. Similarly, Joseph Lawless, author of an important text on prosecutor ethics, laments that "the concept of fairness, once thought to be fundamental in a free society, is generally no longer found in the prosecutor’s office."

At their best, prosecutors can be one of the most beneficent forces in society. But when they act from malice or other base motives — such as the desire to win a case rather than do justice — they are one of the worst because the values at stake in the criminal process — life, liberty, property and reputation — are fundamental.

Prosecutor misconduct is partly caused by powerful incentives that reward their overzealous advocacy, from the gratitude of victims and favorable media coverage to career promotions and appointment to judgeships. But the most insidious incentive is a culture of prosecutorial infallibility which assumes that because prosecutors wear "white hats" as representatives of victims and "law and order" in the public imagination, whatever they do is right. This belief is as terrible as it is tautological.

A national survey conducted in 2013 found that 43 percent of respondents believe prosecutor misconduct is widespread in the United States, and 72 percent believe new laws are needed to curb it. I am not sanguine about the possibility of "new laws" being enacted to hold prosecutors accountable for how they exercise their vast powers, because most lawmakers in Hawaii and other states lack the political courage to challenge the widespread assumption that prosecutors wear white hats.

This is why the failure of Judge Kobayashi and her colleagues on benches around the country is so troubling. Only judges can put a stop to rampant prosecutorial misconduct. Turning blind eyes and slapping wrists only allow the problem to worsen.