Unethical Prosecutors


Criminal Lawyer Exposes Rogue Prosecutors

As any experienced Massachusetts criminal defense attorney can attest to, there is no greater threat to the criminal justice system than that posed by the unethical prosecutor. His opportunities to cheat the accused citizen of his right to a fair trial are unlimited. His voracity for victory encourages every abuse imaginable – by the police, by “objective” or “disinterested” witnesses, and by expert witnesses, particularly those at the state crime laboratory. An assistant district attorney, as the Commonwealth’s legal representative, is not only not bound to pursue a conviction at all cost, he is prohibited by the rules of ethics from intentionally undercutting the rights of the accused. The prosecutor is obligated to do right by the accused.

The infliction of cruelty with a good conscience is a delight to moralists. That is why they invented Hell.

~Bertrand Russell

Many prosecutors, in their zeal, fail to appreciate their obligations. Some, perhaps a substantial number, are so driven by impulse to punish the accused, they readily disregard their ethical obligations; these individuals, unrestrained by the rules or by conscience, hide exculpatory evidence from defense counsel, coach their witnesses, pressure defense witnesses into disappearing, threaten defense witnesses with prosecution, thereby, intimidating them into refusing to testify or into adopting “recollections” favorable to prosecutor.

Obligation to Reveal Exculpatory Evidence

The U.S. Supreme Court, in Brady vs. Maryland, 373 U.S. 83 (1973) ruled that prosecutors must disclose to the defense all exculpatory evidence. Exculpatory evidence has been broadly interpreted to include everything from the motive of a State witness to the failure of crime scene investigators to collect evidence that might have proven useful to the defense. No civilized society will tolerate the imprisonment of innocent citizens by unscrupulous prosecutors. No decent human being would play hide the ball with exculpatory evidence. Nevertheless, an unsettling number of prosecutors routinely disregard their obligation to disclose exculpatory evidence to the defense. As a result, scores of innocent citizens are sentenced to prison or to their deaths. These prosecutors are unashamed at having hoodwinked the good, solid citizens of jury into returning a conviction on bogus or incomplete evidence. Many take satisfaction at having achieved the end, by whatever means.

Commonwealth vs. Christina Martin

The prosecutor in Commonwealth vs. Christina Martin “high-fived” the lead detective when the misinformed jury found Ms. Martin guilty of first-degree murder. The prosecutor persuaded the jury that Ms. Martin had deliberately caused the deceased to suffer a fatal heart attack by spiking his Jell-O with LSD. To prove the presence of LSD in the tissue samples taken from the deceased, the prosecutor introduced the results of a radioimmunoassay test – a highly unreliable testing methodology known for “false-positives.” Unbeknownst the jury, the prosecutor and state chemist knew that radioimmunoassay results weren’t just shaky, they were a sham.

The prosecution had a duty to inquire concerning the existence of scientific tests, at least those conducted by the Commonwealth’s own crime laboratory. That obligation is inherent in the allowance of the motion to produce all scientific test results. The prosecutor’s office obviously did not conduct scientific tests. It could not satisfy the production order simply by turning over test information that it had in its files. It had a duty of inquiry.

~Supreme Judicial Court, Commonwealth v. Martin (1998)

Five years after Ms. Martin was consigned to a damp, cold, concrete cell for life, Massachusetts criminal defense lawyer Kevin J. Mahoney, with the help of toxicologist Brian Pape, Ph.D., uncovered the prosecutor’s unethical failure to disclose to the defense that samples taken from the deceased had been tested and re-tested with the most reliable toxicological equipment available; the gas chromatology/mass spectrometer detected no LSD in the samples. Even more disturbing, the state chemist (and very likely the prosecutor), had learned, but refused to reveal to the defense, that the embalming fluid that had saturated the body of the deceased had triggered the false-positives of the radioimmunoassay test. Despite the overwhelming evidence of prosecutorial misconduct, the District Attorney’s Office vigorously fought Ms. Martin’s attempts to reverse the wrongful conviction. When Attorney Mahoney persuaded a Superior Court judge to overturn the conviction and grant Ms. Martin a new trial, the District Attorney’s Office appealed to the Massachusetts Supreme Judicial Court. In 1998, the Supreme Judicial Court affirmed the Superior Court’s decision.

Unethical Prosecutors are Never Prosecuted

A prosecutor’s refusal to reveal exculpatory evidence may be immoral, unethical and illegal – and it may result in the imprisonment or death of innocent individuals – but the unethical prosecutor is never prosecuted. Indeed, a prosecutor enjoys immunity from prosecution for anything he does in his capacity as prosecutor. But not only are prosecutors never prosecuted, their unethical conduct appears to interest not at all the Board of Bar Overseers. Whereas the BBO will prosecute a Massachusetts criminal defense lawyer for the slightest indiscretion, the staff attorneys at the BBO (who consider themselves prosecutors) will only very rarely pursue an assistant district attorney. Despite the well publicized decisions of the Superior Court and the Supreme Judicial Court, the prosecutor of Christina Martin was not only not sanctioned for her unethical conduct, the BBO never investigated her. Worse, in 2011 she was awarded a judgeship. There is no credible disincentive to discourage prosecutors from violating the rules of ethics.

Contact a Massachusetts Criminal Defense Lawyer

If you have been victimized by an unethical prosecutor, contact Criminal Attorney Kevin J. Mahoney at 617-492-0055 or by using our online contact form to schedule a free in-office consultation with us.