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Prosecutorial Accountability: The Epidemic of Prosecutorial Misconduct in America

Loyola University Chicago, School of Law: LAW eCommons

Public Interest Law Reporter 
Volume 24 Issue 2 Article 6 
2019 
Prosecutorial Accountability: The Epidemic of Prosecutorial 
Misconduct in America 
Brei'a Womack 
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Recommended Citation 
Brei'a Womack, Prosecutorial Accountability: The Epidemic of Prosecutorial Misconduct in America, 24 
Pub. Interest L. Rptr. 161 (2019). 
Available at: https://lawecommons.luc.edu/pilr/vol24/iss2/6 
This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in 
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No. 2 * Spring 2019
Prosecutorial Accountability: The Epidemic of
Prosecutorial Misconduct in America
Brei'a Womack
Society has placed a great amount of trust in the prosecutorial system to
pursue criminal charges against offenders, and keep citizens safe.' Prosecutors
have been entrusted with this great deal of power and are able to work directly
with the police to gather evidence to build a case, take the case to court, and
are tasked with the job of convincing a jury of the defendant's guilt. 2 Ironi-
cally, prosecutors, who have a duty to uphold justice, have often violated a law
or a code of professional ethics in the course of prosecuting offenders.' Over
time, prosecutors have been allowed to disregard ethical and legal boundaries
in the course of prosecution, sometimes subjecting innocent defendants to un-
deserved sentences, collateral consequences, and loss of freedom.4
ROLE OF PROSECUTORS
Prosecutorial misconduct occurs when a prosecutor breaks a law or a code
of professional ethics in the course of prosecution.5 For a full understanding of
how prosecutorial misconduct occurs, citizens should know that a prosecutor
must both seek justice and present the judge and jury with facts and legal
arguments that result in the conviction of the guilty defendant.' Since prosecu-
tors are charged with presenting the truth, the prosecution is obligated to turn
over all exculpatory evidence to the defense.7 If prosecutors do not disclose
potentially important evidence to defense lawyers, tolerate false testimony or
commit other abuse, innocent defendants can be convicted.'
Some prosecutors may commit misconduct by making arguments or state-
ments which draw attention to irrelevant issues with the intent of confusing
1 Barney & Hourihane, LLP, Establishing Prosecutorial Misconduct in Illinois, BARNEY &
HOURIHANE, LLP (May 6, 2016), http://www.barneyhourihane.com/blog/establishing-prosecu
torial-misconduct-in-illinois.
2 Prosecutorial Misconduct, CALIFORNIA INNOCENCE PROJECT, https://californiainnocence
project.org/issues-we-face/prosecutorial-misconduct/.
3 Id.
4 Id.
5 Id.
6 Id.
7 Why Prosecutors Don't Face Consequences for Being Overly Aggressive, WOLF & STEC
(March 1, 2019), https://www.wolfeandstec.com/prosecutors-consequences/.
8 Id.
161
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the jury, appealing to emotion rather than logic, misstating expert testimony
or improperly questioning an expert's reputation, failing to examine whether
they charged the correct culprit, even if there is new information pointing to
innocence, falsely accusing defense counsel or trying to confuse the jury or
acting unethically.9 These tactics that violate laws or professional codes of con-
duct are grounds for seeking appeal of a conviction. 10 If a case can be appealed
on grounds of prosecutorial misconduct, one would think that a prosecutor
could be penalized for committing such heinous acts, but prosecutors are
seldomly prosecuted for their abuse of authority.
A former prosecutor turned criminal defense attorney, Valerie Schramm,
offered anecdotal evidence of this unfortunate truth in an interview for this
paper. Ms. Schramm explained that she had a case in which she believed that
the state's attorney should have dismissed the case against her client, but the
prosecutor did not do so because there was animosity between her and the
prosecutor.1 Additionally, regarding the same case, Ms. Schramm stated that
"the state's attorney had interviewed a witness that the state planned to call at
trial, and the state's attorney, the day of trial, gave me a summary of what the
witness was expected to testify."1 3 Ms. Schramm further explained that al-
though she could have asked the presiding judge for a continuance to review
the new testimony with her client, she did not because she already knew what
the witness was going to testify on the day of trial.1 Although this information
may have not been material to the defendant's outcome, the prosecutor with-
held information until the day of trial.1 5 Prosecutors have the duty to uphold
justice and the obligation to disclose potentially important evidence to defense
lawyers.1 " If they do not, innocent victims can be convicted.1 7 In this particu-
lar case, the defendant was found guilty.1 " Prosecutors should be held account-
able throughout every phase of the criminal justice system, or innocent
individuals' due process rights will continued to be violated.
9 Id.
10 Id
11 Barney & Hourihane, LLP, supra note 1.
12 Telephone Interview with Valerie Schramm Former Prosecutor & Current Criminal De-
fense Attorney, Law Offices of Valerie Schramm (April 3, 2019).
13 Id.
14 Id.
15 Id.
16 Why Prosecutors Don't Face Consequences for Being Overly Aggressive, supra note 7.
17 Id
18 Schramm Interview, supra note 12.
2
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No. 2 * Spring 2019
BRADY VIOLATION
Prosecutorial misconduct occurs everywhere in America.19 In the wake of
this reality, The Innocence Project has played a major role in overturning
wrongful convictions.20 A study found that appellate courts examining mis-
conduct allegations do not overturn convictions as they believe that the mis-
conduct did not decide the outcome of the case. 2 1 This practice allows
prosecutorial misconduct to worsen and has a negative effect on the entire
criminal system, which is in fact against the law.2 2
Prosecutors are required to prove the guilt of a defendant beyond a reason-
able doubt in order to secure a conviction, but there are limits on how far they
23can go to prove a case. In the case of Brady v. Maryland, 373 U.S. 83 (1963),
the United State Supreme Court held that the suppression of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution. 24 This is known as the Brady rule, and it means prose-
cutors must disclose any evidence that is material to either the guilt of the
defendant or the severity of the alleged crime, including information that is
favorable to the defendant. 25 Unfortunately, sometimes prosecutors do not ad-
here to this standard.2 6
CODE OF PROFESSIONAL RESPONSIBILITY
The various codes of professional responsibility aptly put prosecutors on
notice of the permissible boundaries of conduct. 2 7 The most comprehensive
promulgation relating to prosecutorial courtroom conduct is the American Bar
Association's Criminal Justice Standards. 2 8 In addition, the American Bar As-
sociation's Model Rules of Professional Conduct provide a source of ethical
19 Prosecutorial Misconduct, supra note 3.
20 Id.
21 Why Prosecutors Don't Face Consequences for Being Overly Aggressive, supra note 7.
22 Id.
23 Id.
24 Id.
25 Id.
26 Id.
27 Edward Genson and Marc Martin, The Epidemic ofProsecutorial Courtroom Misconduct in
Illinois: Is it Time to start Prosecuting the Prosecutors?, 39, 41(1987), https://lawecommons.luc
.edu/cgi/viewcontent.cgi?article=1822&context=luclj.
28 Id.
163
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Loyola Public Interest Law Reporter
guidelines for prosecutors.2 9 Finally, the Illinois Code of Professional Respon-
sibility, modeled after the American Bar Association's Code of Professional
Responsibility, provides binding ethical guidelines for Illinois prosecutors.o
Nonetheless, it seems that disciplinary authorities have condoned court-
room misconduct." It should be noted, however, that the Illinois Attorney
Registration and Disciplinary Commission ("ARDC") has not been entirely
lax in investigating prosecutorial misconduct.3 2 The ARDC will investigate
any and all allegations of prosecutorial misconduct that come to its attention.
Disciplinary proceedings against prosecutors for courtroom misconduct might
prove to be an effective solution to the problem." However, the ARDC disci-
plinary proceedings do not serve a punitive purpose; they function only to
safeguard the public and maintain the integrity of the profession.3 5 Because the
ARDC fails to take punitive measures, people like Leroy Orange are subject to
a life of imprisonment where the criminal justice system has followed the ad-
versarial system in reverse order, "guilty until proven innocent. "36
WRONGFULLY CONVICTED: LEROY ORANGE
In Illinois, Leroy Orange, a 34-year-old African-American man, was con-
victed and sentenced to death for four murders that his half-brother, Leonard
Kidd, testified he alone committed without Orange's participation or knowl-
edge.37 The conviction rested primarily on Orange's confession, which was
extracted by beating, suffocation, and electroshock at the hands of the Chicago
Police Lieutenant Jon Burge and other officers at Area 2 police headquarters on
the city's Southside.3 ' Leroy confessed to a murder after police placed a plastic
bag over his head and applied electric shocks to his testicles. 9 Orange only
confessed to the murders after twelve hours of interrogations and torture at the
29 Id
30 Id.
31 Id.
32 Id.
33' Id.
34 Id.
35 Id.
3o Id.
37 Center on Wrongful Convictions, Leroy Orange, NORTHWESTERN PRITZKER SCHOOL OF
LAW BLUHM LEGAL CLINIC, http://www.law.northwestern.edu/legalclinic/wrongfulconvictions/
exonerations/il/leroy-orange.html.
3 8 Id.
3 9 Id.
4
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No. 2 * Spring 2019
hand of the Chicago Police Lieutenant Jon Burge.40 The confession consisted
of answers to leading questions based on Kidd's initial story."1 Orange
promptly told virtually everyone with whom he came into contact that he had
been tortured.4 2
At Orange's 1985 trial, his confession was virtually the entirety of the
prosecution's case.4" Orange took the stand in his own defense, claiming inno-
cence." Orange's half-brother, Kidd, then took the stand testifying, against
the advice of the public defenders appointed to represent him, that he alone
committed the murders after Orange left the apartment. 5 In rebuttal, the
prosecution called Area 2 officers, who denied torturing either man.4 6 A jail
physician, who examined Orange two days after the alleged torture, testified
she observed no signs that he had been mistreated. 7 Despite the fact that the
Orange consistently claimed his innocence and told multiple people that he
was tortured in order to confess, the jury found Orange guilty and sentenced
him to the death penalty.4 8
After Orange's conviction and death sentence were affirmed on direct ap-
peal, People v. Orange, 121 Ill. 2d 364 (1988), he filed a pro se petition for
post-conviction relief in the trial court.4 9 The Bluhm Legal Clinic, at North-
western Pritzker School of Law, entered the case and filed an amended petition
alleging that Orange's defense attorney's failure to investigate the torture alle-
gation and to present evidence in mitigation constituted ineffective assistance
of counsel.5 0 The presiding judge denied the petition without an evidentiary
hearing.5 1 On appeal, the Supreme Court reversed judgment, ordered an evi-
dentiary hearing, vacated Orange's death sentence, and ordered a new sentenc-
ing hearing. 52 The Bluhm Legal Clinic filed a successor petition for post-
conviction relief based on new evidence supporting the torture claim.5 The
40 Id
41 Id
42 Id
43 Id.
44 Id.
45 Id.
46 Id.
47 Id.
48 Id.
49 Id.
50 Id.
51 Id.
52 Id.
53~ Id.
165
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hearing was pending.54 On January 10, 2003, Governor George Ryan granted
Orange a full pardon based on innocence, criticizing prosecutors and the judi-
ciary for relying on "procedural technicalities at the exclusion of the quest for
truth" throughout the case.5 5 Governor Ryan said, "I can see how rogue cops,
20 years ago can run wild. I can see how, in a different time, they perhaps were
able to manipulate the system. What I can't understand is why the courts can't
find a way to act in the interest of justice." 5 6
As a result of a faulty criminal justice system, lack of disciplinary proceed-
ings against prosecutors and police officers, the inevitable reality of collateral
consequences caused Leroy Orange to be subsequently arrested for attempting
to sell crack cocaine to an undercover police officer after his exoneration.5 7
Prosecutorial misconduct does not only affect innocent citizens at the outset,
but the amount of time to prove a wrongful conviction while sitting in jail
causes collateral consequences that are almost irreversible.5 ' The wrongfully
convicted who win their freedom only to find that they are penniless, unem-
ployable, and dependent on others, experience family friction, poverty, and
depression.5 9 This combination is a recipe for disaster, resulting in homeless-
ness, self-medicating with drugs and alcohol, and societal alienation.o Many
suffer from mental health symptoms that resemble those suffered by veterans
of war and torture survivors; these symptoms stem directly from wrongful con-
viction and incarceration.
CONCLUSION
The problem of prosecutorial misconduct is prevalent in Illinois and must
be rectified. 62 Judges and lawyers are the forefront of the criminal justice sys-
tem and it is incumbent upon the office of the prosecutor to implement
mandatory continuing education programs designed to educate its attorneys
54 Id.
55 Id.
56 Id.
57 Id.
58 Heather Weigand, Rebuilding a Life: The Wrongfully Convicted and Exonerated, 427, 435
(2009), https://www.bu.edu/pilj/files/2015/09/18-2WeigandSymposium.pdf.
5 Id.
60 Id.
61 Id.
62 Genson & Martin, supra note 27 at 40.
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about prosecutorial misconduct." Prosecutor offices also could invoke formal
intra-office investigatory and disciplinary procedures.
The Office of the Cook County State's Attorney currently does not have
programs to combat prosecutorial misconduct." Under current procedures,
when an instance of serious misconduct arises and comes to the attention of a
supervisor, the case might be investigated. 5 In most cases, however, it appears
that the office has found the charges to be unfounded.6 6 Obviously, because of
the repeated occurrences of misconduct, the current internal office practices of
prosecutors' offices are inadequate, and a more rigid internal disciplinary struc-
ture is needed.6 7 Because the Illinois Attorney Registration and Disciplinary
Commission fails to take punitive measures in prosecutorial misconduct cases,
prosecutors will continue heinous techniques that subject innocent citizens to a
life of imprisonment, collateral consequences, and loss of freedom.
63- Id.
64 Id.
65 Id.
66 Id.
67' Id.
68 Id.
167
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