Editor's note: This is a republication of a column originally published by City Journal.
Under two Supreme Court cases, Brady v. Maryland and Giglio v. United States, prosecutors are constitutionally required to disclose to defense lawyers the credibility problems of potential prosecution witnesses, such as a history of lying or drug use. Police officers are justifiably warned that lying in any capacity can not only endanger their ability to testify but also result in termination.
Progressive prosecutors in the United States have vastly expanded this technical disclosure requirement, using Brady and Giglio to justify putting police officers on publicly available “do not use” lists—sometimes with scant justification and affording them no procedural protections. Now, these same officials are being found to lack credibility. What are the legal ramifications of a court’s calling a prosecutor a liar?
Cook County State’s Attorney Kim Foxx
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Philadelphia district attorney Larry Krasner, in a well-publicized example, tried to let a murderer’s death sentence be vacated. The defendant robbed and killed a couple, then left their infant daughter alone in a freezing house to die, though she was eventually rescued. At one point during the defendant’s various court proceedings, he staged a violent escape attempt from the Philadelphia courthouse. In proposing to vacate the defendant’s death sentence, Krasner’s office told a federal judge that his office had consulted with the victims’ family—the now-adult daughter whom the murderer had left to die—and that the defendant had adjusted well during his incarceration.
The federal judge held a hearing and discovered that the D.A.’s office had been untruthful. In a stinging opinion, the judge denied Krasner’s request to vacate the death sentence, noting that the surviving daughter had never been consulted and that the defendant’s escape attempt was not disclosed to the court. In a separate sanctions opinion, the judge specifically found that two prosecutors and the entire Philadelphia D.A.’s office had breached their duty of candor to the court—lied.
Krasner is not the only progressive prosecutor caught in such untruths. In Chicago, Cook County state’s attorney Kim Foxx has been called out for not telling the truth during the Jussie Smollett debacle. A special prosecutor—who eventually convicted Smollett for staging a fake hate-crime—identified in a report possible ethical violations by Foxx’s office regarding “false and/or misleading public statements made about the prosecution and resolution of the Initial Smollett case.” Foxx herself was identified in the report as having made “false and/or misleading” statements to the public about the evidence against Smollett when she initially decided to dismiss the case. Foxx’s response was to attack the special prosecutor and claim that, in convicting Smollett, “our justice system failed.”
Meantime, just last month Foxx had to remove the head prosecutor from her vaunted “conviction integrity unit” from a case because the prosecutor faces a misconduct motion for hiding evidence in a case in which a police officer was murdered. Accused of a lack of candor regarding evidence in the Smollett case, Foxx is now pulling one of her chief integrity supervisors off a murder case for allegedly hiding evidence. In Chicago, layers of deception emanate from the prosecutor’s office.
Finally, in St. Louis, Circuit Attorney Kim Gardner was sanctioned for being untruthful during a failed prosecution of a political rival. The Missouri supreme court reprimanded and fined Gardner for her conduct during a botched investigation of former governor Eric Greitens. Gardner admitted to failing to produce documents and failing to correct misstatements during the course of the investigation. Gardner could have faced losing her license to practice law over the allegations. Like Foxx, Gardner used the occasion to counterattack, claiming that the ethics issues were merely an attempt by her political enemies to get rid of her.
Now comes the tricky part for these prosecutors. If Brady and Giglio require the disclosure of credibility problems for people involved in a case, what does the law require when the chief prosecutor has been found to be untruthful? Should every criminal case in Philadelphia, Chicago, and St. Louis come with a warning that the prosecutor may not be telling the truth? Should a public list of these chief prosecutors identify and shame them, as with untruthful police? Should judges compile a “do not use” list for such prosecutors, making sure that they can’t take official action? After all, when Durham County district attorney Mike Nifong lied and withheld evidence during the infamous Duke lacrosse case, he was disbarred, convicted of contempt of court, and jailed.
The criminal justice system relies on the expectation that prosecutors and police will be honest with the defense, the courts, and the public. Dishonesty should be called out and punished severely—and that goes for prosecutors as well as cops.