Category Archives: Prosecutorial Misconduct

Bad Apples All Around

Police misconduct has been a popular topic lately. Yesterday, I wrote a post about it because I couldn’t understand what type of person would brutally beat down a defenseless person. I honestly thought that would be the end of it. I was wrong. Someone sent me an email last night about another incident of police brutality. I forwarded that link to a friend of mine and another post made the blog circuit.

Evidently, police misconduct is more common than the public might know. Rick Horowitz has an excellent and comprehensive post on the topic. Everyone should read it.

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Supreme Court gets another chance to look at Prosecutorial Misconduct

The Supreme Court agreed yesterday to review Connick v. Thompson, a case involving prosecutorial misconduct in a death penalty trial according to Professional Responsibility. Actually, the appeal is a civil case where the former criminal defendant was awarded $14 million dollars plus attorney fees (approximately $1 million) for his wrongful conviction and death sentence.

The misconduct? Failure to disclose evidence pursuant to Brady v. Maryland, of course. From the opinion of the U.S. Court of Appeals for the 5th Circuit:

After a jury trial lasting several days, the jury determined that the DA’s Office was deliberately indifferent to the need to train, monitor, and supervise its attorneys on Brady principles.

That pretty much sums it all up, in my opinion: failure to supervise.  Criminal law is serious business and the folks prosecuting these cases need to take it seriously. It’s not a game and they are not on the high school year book club. Life and liberty are at stake, not to mention that prosecutors are ministers of justice – not someone looking to win at all costs. Here is a quick lesson on ethics for those who haven’t been trained.

This case didn’t merely involve simple carelessness or even indifference. John Thompson was factually innocent and the prosecutors willfully withheld exculpatory evidence. As a result, Thompson spent almost twenty years on death row.

Here’s what happened. Thompson was arrested on two unrelated charges: Murder and armed robbery. The prosecutor hid blood evidence in the armed robbery case that would have exonerated Thompson. Then the prosecutor switched the order of the trials. The armed robbery was tried first and Thompson was convicted. This was a strategic decision to keep Thompson off the witness stand as well as evidence of aggravation at the sentencing phase in the death case.  It was outrageous and unethical. And it worked.

It worked until Thompson’s investigators found the evidence – one month before the execution date. It gets worse. Turns out that the former prosecutor was diagnosed with cancer and learned he had only months to live. He confessed his sins to his friend who was also a former prosecutor. This friend did nothing with the confession until after the evidence was found. The question I have is would this former prosecutor have kept this information a secret if the blood evidence had not been found? Would another innocent man have been executed?

Something has to be done about prosecutors failing to disclose evidence. It seems to be a common event now. Every time I have a serious trial scheduled to start on Monday, I always get some new discovery from the prosecutor on Friday – even though the case is two or three years old.

I don’t think this case will settle like Pottawattamie did recently and I look forward to the Supreme Court’s decision. Prosecutors will argue immunity, but that is a pretty weak argument for intentionally violating someone’s constitutional rights.

One other thought. Some prosecutors like to comment on the defendant with no prior record that he just hadn’t been caught before. Well, I wonder how many other prosecutorial misconduct cases are out there that haven’t been caught yet.

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A Common Sense Approach to Ethics

This morning I read about another prosecutor getting suspended for ethics violations. Ethics can be a complicated field of law. I believe there are 59 Rules listed under the heading Rules of Professional Conduct.  There are scores of cases on the subject.  It can be difficult. But it doesn’t have to be, particularly for prosecutors.  Here are my four simple rules.

  1. Don’t become the lowest common denominator. I think this is simple, but for clarification I will explain it like this. You are prosecuting a bad guy. You think he broke the law and should be punished.  Don’t stoop to his level of conduct.  Don’t break the law just because you think he did.
  2. Don’t lie. Cops get to lie to suspects. They don’t get to lie on the witness stand. Fact witnesses sometimes like to lie. Prosecutors are never allowed to lie. Don’t let your witness lie on the stand.
  3. Don’t cheat. Not disclosing evidence in a timely manner is, for all intents and purposes, the same as not disclosing it. Not disclosing evidence is the same as hiding it. Hiding evidence is cheating.
  4. Don’t disobey court orders. If you don’t like a judge’s order, do what we do: Appeal it or move on.

That’s it. An entire rule book and years and years of jurisprudence boiled down into four simple rules. Actually, I think rule number one takes care of it all. I would add one other bit of advice. If you are questioning yourself about a potential course of conduct, then the answer is you probably shouldn’t do it.

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Judge dismisses case due to Government’s Misconduct

From the White Collar Crime Prof Blog:

It is rare that a judge uses supervisory powers to correct an injustice, but sometimes it is the right action – especially when there has been government misconduct. The Hon. Cormac J. Carney used his supervisory powers to dismiss the case against former Broadcom’s Henry Nicholas III, and former CFO William Ruehle, stating:

“Based on the complete record now before me, I find that the Government has intimated and improperly influenced the three witnesses critical to Mr. Ruehle’s defense.  The cumulative effect of that misconduct has distorted the truth-finding process and compromised the integrity of the trial.”

The judge ended by stating that “I sincerely regret that the government did not heed the righteous words of the Supreme Court” referring to the Berger case. I read the opinion and this is the language from Berger:

“The United States attorney is the representative, not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and a very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocent suffer.

He may prosecute with earnestness and vigor. Indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones.  It is much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

Righteous words indeed. This case will surely make the rounds for everyone to provide commentary and analysis and opinion and so forth. I think the analysis is simple. The government’s misconduct made the case unfair and as a result, the judge dismissed it. That seems fair to me.

The question that remains, however, is whether or not the prosecutors will take this opportunity as a teaching moment. I doubt it. The misconduct described in this case is outrageous. There are other examples that are not as outrageous, but have the same result: an unfair trial.

Judges surely can’t dismiss every case. They do, however, have other remedies available to ensure a fair trial.  Not too long ago, a local judge found a police officer in contempt for not turning over discovery. That should have been the shot fired over the bow. Maybe it wasn’t heard because today I saw a defense lawyer’s motion to compel discovery because the prosecutor refused to reveal it. Maybe it is time for a case to be dismissed in Horry County. Maybe that will be the teaching moment.

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