‘Cage The Bastards’

On March 30, Fox News personality and former prosecutor Jeanine Pirro was back on the network after her suspension for Islamophobic comments about Representative Ilhan Omar. Naturally, she was joined by another former prosecutor, Rudy Giuliani, on her first post-suspension show. “You know what I think of you and your entire career,” he swooned, “you’re a crusader for justice.” And in true prosecutorial fashion, Pirro suggested that those involved in special counsel Robert Mueller’s investigation into Russian interference with the 2016 election should face “behind-the-bars justice.”

The exchange was a reminder that former prosecutors like Pirro and Giuliani are pulled into President Trump’s orbit precisely because of their harsh and simple-minded conception of justice, along with their willingness to ignore their legal obligations in order to impose it. It is a deep irony of the American criminal legal system that the top officials sworn to enforce the law often operate above it, willing to break the law for the sake of convictions, vengeance, and political agendas.  

Such behavior is enabled by the lack of prosecutor accountability. Prosecutors rarely face consequences of any kind for trampling the rights of defendants or sending innocent people to prison, even when there is a long pattern of misconduct. They are protected by the judge-made doctrine of “absolute immunity” from civil liability, which means that it’s nearly impossible to sue them for constitutional and other civil rights violations. And no prosecutor ever went to jail for misconduct that led to a wrongful conviction until 2013, when Ken Anderson was ordered to spend 10 days in jail after he intentionally withheld evidence and sent an innocent man to prison for 25 years.  

DAs office as ‘battleground’

Pirro, an assistant prosecutor in Westchester County, New York, for 16 years and then its elected district attorney for 11 more, embodied the prosecutor as an all-powerful punisher archetype.

In her 2003 book “To Punish and Protect: A DA’s Fight Against a System That Coddles Criminals,” she wrote that “the office of district attorney is a battleground where the fight between good and evil unfolds.” As a local prosecutor she boasted that she engaged in “settling scores” with the “freaks,” “perverts,” “slime,” and “animals” she prosecuted. It was pure Trump-ism long before the billionaire and former game show host occupied the Oval Office: In 2018, the Trump White House issued a Pirro-esque press release titled “What You Need To Know About The Violent Animals of MS-13.” Indeed, Pirro used the “lock her up”-like phrase “cage the bastards” so often that she made it the title of a book chapter.  

During Pirro’s tenure, this rhetoric pervaded the justice system in Westchester County, often with devastating consequences. When she became district attorney in 1994, she repeatedly refused to test the DNA evidence against state and federal databases in the case of Jeffery Deskovic, a 17-year-old wrongfully convicted of killing his 15-year-old classmate, Angela Correa. Her office also aggressively fought Deskovic’s appeals. Pirro successfully opposed Deskovic’s petition for federal habeas relief by arguing that he filed the petition four days late, even though his lawyer said he followed filing instructions from the court clerk.

Pirro’s pyrrhic battle to maintain the Deskovic conviction was all the more disconcerting because the prosecution, which was conducted under her predecessor, was riddled with flaws including a coerced confession and DNA evidence taken from the victim that did not match Deskovic,  evidence explained away by false statements from a sheriff’s investigator.

In 2006, Pirro successor Janet DiFiore ran DNA samples for potential matches, revealing that Desvokic was innocent and that Correa was killed by someone already in prison for committing another murder. Deskovic was released from prison on Sept. 20, 2006, the same day that Pirro, then a candidate for New York attorney general, planned a press conference at the World Trade Center site to call for reinstating the death penalty in the state.

A month later, Pirro defended her actions in the Deskovic case during a debate with opponent Andrew Cuomo. “Mrs. Pirro got a letter from the man in prison saying, please review my DNA, run it against the database,” Cuomo said. “She didn’t do it. … If she had, the man would have been exonerated. The man spent 16 years in jail, wrongfully.”

In 2008, Deskovic protested the premiere of the “Judge Jeanine Pirro” reality TV show outside the New York offices of the CW Network. “She has engaged in prosecutorial misconduct regularly in just an all-out effort to win, even at the cost of innocence and justice,” he told The New York Daily News. “It bothers me that she’s continuing this image that she’s a crusader for justice and that she rails against ethical problems,” Deskovic later said. “From where I sit, she’s above the law.” In October 2014, a federal jury awarded Deskovic $40 million after finding that a former sheriff’s investigator fabricated evidence and coerced his false confession.

Westchester County wrongful convictions

In another high-profile murder case, Pirro secured the conviction of Anthony DiSimone for stabbing a college student to death outside a bar in Yonkers in 1994. In 2000, DiSimone was sentenced to 25 years to life in prison. During his trial, Westchester County prosecutors withheld a witness statement in which another man, Nick Djonovic, confessed to participating in the stabbing, and also withheld a search warrant application supported by that statement. Despite multiple requests from DiSimone’s attorneys for the disclosure of all witness statements, Pirro’s prosecutors refused to disclose such statements and instead accused the defense of engaging in a “fishing expedition.” After DiSimone served seven years in prison, a federal court overturned his conviction, writing that Pirro’s office’s failure to disclose potentially exculpatory evidence—a firmly established constitutional requirement—was, “to say the least, egregious.”

For those saddled with unlawful convictions and unjust sentences, the painful lesson is that although powerful actors in the criminal legal system like Pirro can and often do cause extraordinary harm, they are rarely penalized for it. Not a single official involved in their cases, and certainly not Jeanine Pirro, has suffered personal or professional consequences. Instead, Pirro is a Fox News star scoring ratings that top the likes of Rachel Maddow. And her sole moment of accountability—a brief suspension from the network—earned her public praise from the president himself. “Bring back Jeanine Pirro,” Trump tweeted on March 17, “the Radical Left Democrats, working closely with their beloved partner, the Fake News Media, is using every trick in the book to SILENCE a majority of our Country. They have all out campaigns against @FoxNews hosts who are doing too well…”

“That’s been the one thing that bothers me,” Deskovic told Prison Legal News in 2013, “because had I broke the law or anyone else had broken the law in any fashion, you know, we’d be called to account for that. There would be punishment of some kind.”

Kyle C. Barry is senior legal counsel for The Justice Collaborative.