Prosecution: A competition to win — with someone’s life hanging in the balance

By Bina Ahmad, CRC Senior Attorney

When I was a public defender, I had several cases where prosecutors knew the cops they were putting on the stand were dirty, and had information showing they were proven liars with their own mile long rap sheet of misconduct and lawsuits against them. But they hid this evidence from me and the court, evidence they had to turn over to me but didn’t.

This evidence was potentially Brady material, meaning any evidence favorable to the accused must be turned over — evidence that goes towards negating someone’s guilt, that would reduce a potential sentence, or evidence going to the credibility of a witness.

But because you don’t know what you don’t know, I can only estimate just how many times this happened in my cases and my clients were convicted or plead guilty, as only the prosecutor has the information that they did not turn over.

As a former state and federal public defender, nothing can truly prepare you for the crushing weight of power and racism your clients face. You learn quickly that prosecutors and judges, both representing the carceral state, are often two sides of the same coin — both aim to convict and incarcerate. You see how much power our system gives to prosecutors — power with complete impunity, power of state resources such as an entire police force behind them, discretion on charging, how harshly, and against who. And you see the protection of this power shielding prosecutors with absolute immunity from civil suits, meaning unlike cops or other attorneys, prosecutors essentially cannot be sued for on the job misconduct without overcoming this huge hurdle. This combined with the extra protection they receive from the bench, prosecutors are rarely if ever even admonished for their misconduct.

The big picture is that prosecutors destroy communities of color as part of their job. They use their discretion to target poor communities of color, to instigate and run a process that can take away someone’s freedom for the rest of their life. They for instance can and often do choose to charge high school kids of color with felonies for school yard fights. They do their job knowing they cage and break apart families, and criminalize being poor.

This power railroads your clients into pleas given the odds they face at trial, meaning a 97% guilty plea rate in federal cases, and 94% in state cases. And without a trial, there is almost no accountability, and the prosecutors have almost total control.

After practicing as a public defender, it’s almost impossible to not identify as an abolitionist, and join the calls to shrink, defund, and abolish these state carceral systems and actors (prosecutors, police, judges) that cage human beings. This state lust for incarceration sanctions the fact that prisons and the guards inflict immense violence and harm on the incarcerated inside, and on their families.

Yet with all this legally sanctioned power, prosecutors often break even the most basic, low bar rules and constraints on their power, with no accountability. Like proffering false testimony or lying to the court by putting a lying cop on the stand, hiding exculpatory evidence, and not listening to the judge’s orders restricting their cross or summation. Prosecution is viewed as a competition to win with someone’s life hanging in the balance, and there’s never any questioning whether the state should give someone the power to play god with someone’s life.

And yet nothing happens — judges rarely verbally reprimand prosecutors, let alone formally sanction them or refer them to the bar. And defense attorneys are constrained from filing formal complaints because they have to protect their clients from retribution.

This is why we helped form Accountability NY, a group of professors, public interest groups, attorneys, activists, and others to collaborate on researching and filing bar complaints against prosecutors. These prosecutors were subject to the rare judicial finding of misconduct. And we know this is only the beginning given how underreported prosecutorial misconduct is.

These complaints are about chipping away at a prosecutors’ power, starting when they go even beyond the already immense amount of power the law gives them. It’s important to note that these complaints don’t even touch the everyday harm prosecutors commit as part of their job.

Someone had to act, as our research has not revealed a single instance of a prosecutor in New York being disbarred for on-the-job misconduct, unlike other jurisdictions. Filing bar grievances is the most basic thing we can do, when Black and brown New Yorkers have lost decades in prison at the hands of these prosecutors.

People have a right to life and liberty, but prosecutors don’t have a “right” to prosecute and cage. This is the first step towards shrinking a prosecutor’s power, and the power of the carceral state.