One of the fundamental problems of the U.S. criminal legal system is the nearly unfettered power of prosecutors to indict, so much so that Judge Learned Hand once quipped that a prosecutor could get a ham sandwich indicted. (Note that this quip is often ascribed to former New York State Court of Appeals Chief Judge, Solomon “Sol” Wachtler, who was ultimately indicted, and pleaded guilty to harassing his former lover and threatening to kidnap her daughter. He would spend a total of 13 months in federal prison and a halfway house.) What should be added to that quip, known by most people not professionally affiliated with the legal system but working outside of its structures, that is, advocates and policy makers seeking to right the sales of justice, is that these indictments often lead to convictions, many “erroneous,” which have led to far too many innocent people spending decades in prison. A case in point: Jonathan Fleming was convicted of a 1989 murder that was committed in Brooklyn when the prosecutors knew that when the crime was committed Fleming was with his family in Disney World in Florida. With typical prosecutorial arrogance, the prosecution left this exculpatory evidence, which had not been turned over to the defense, in Fleming’s case folder. After spending nearly 25 years in prison, Kenneth P. Thompson, elected as Kings County (Brooklyn) District Attorney in 2014, looked at a number of cases of his predecessors, Charles Hynes and Elizabeth Holtzman, and unearthed Fleming’s case and the blatant prosecutorial “misconduct” that led to his conviction. Fleming was ultimately released and exonerated. (There are a number of other cases where people who served decades in prison under Hynes’ watch were exonerated.)
When a prosecutor brags about his or her conviction rate, just think what lengths they have gone to achieve such: knowingly using false testimony in order to obtain a conviction, withholding exculpatory evidence, that is, evidence that may prove innocence, and even manufacturing evidence. In the final analysis, prosecutors are supposed to seek justice, not convictions, but in a nation where “justice” is equated with convictions and punishments, we have pigs flying out of Grand Juries handing down indictments, most which are tantamount to convictions.