Many cheat, but only prosecutors get away with it

Cheating to gain an advantage against your opponent is as old as competition itself.

In the last few weeks alone, we have seen cheating scandals in chess, poker, and even fishing.

Magnus Carlsen, the world’s top chess player, has accused Hans Neimann, a 19-year old rising star in the chess world, of cheating. Neimann admitted to previously cheating in online tournaments, after which Carlsen said: “I believe that Neimann has cheated more — and more recently — than he has publicly admitted.” Neimann offered to play Carlsen naked in an attempt to refute the allegations. The website Chess.com conducted an investigation of Neimann’s online play and has concluded that he cheated in more than 100 games, including in matches where prize money was at stake. He has been banned from playing on the website.

Just last week, poker had its own cheating scandal — Robbi Jade Lew was accused of cheating when she called Garrett Adelstein and bet $269,000 even though her hand was a lame jack high. Lew returned the money but has denied cheating. She has challenged him to a heads-up game. The casino where the match took place is taking the allegations seriously — it has hired a law firm to conduct an investigation, which may include a polygraph test and a third-party cybersecurity firm.

Poker and chess, fine. But fishing? Yes, even fishing. At the Lake Erie Walleye Trail tournament in Cleveland, Jacob Runyan is accused of inserting weights into fish so he could win a $30,000 prize. He was disqualified, and an investigation has been initiated over his past three tournaments, which he and his partner won.

We’ve also seen cheating in ice-skating, baseball, and even paralympic basketball where the winning team faked IQ tests so that they would qualify to compete. Jaw dropping, right?

But when those folks cheat, there is a real investigation and they are punished (and of course, their victims do not end up in jail).

Not so when prosecutors cheat: No one really investigates; they are almost never punished, and their victims can spend years in prison.

You may think that lawyers who decide to become prosecutors to go after who they believe have violated the law would never cheat and break the very laws they are seeking to uphold. But some are no different from the fisherman and paralympic basketball players. There are many examples of cases where prosecutors have intimidated witnesses, hidden evidence, spied on their opponents, produced false testimony and convicted innocent men.

But unlike the cheating chess player who has been banned from playing, prosecutors don’t get suspended. They can’t even be sued by their victims — prosecutors are immune from such suits. Their victims don’t get relief from their convictions because many times, appellate courts find the prosecutor’s misconduct is “harmless.”

And unlike the casino that is conducting a full investigation into the alleged poker cheater, no one really investigates prosecutors who engage in wrongdoing. We don’t turn a blind eye to the cheating in our society, except when it comes to prosecutors who break the law in order to win. Although an internal government agency (the Office of Professional Responsibility) is tasked with investigating bad prosecutorial apples, that agency too often looks after its own and rarely does anything significant to these cheating prosecutors. 

If we want to improve our criminal justice system, we should take action against cheaters. For starters, prosecutors who cheat should not be permitted to prosecute other cases. Victims should be permitted to sue. And convictions obtained by cheating should be overturned. 

Is it too much to ask that prosecutors — the very people tasked with pursuing justice — be held to the same standard as fishermen?

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.