April 11, 2014
When Judges Attack: Prosecutorial Smackdown Edition

An Assistant District Attorney in the Bronx was recently destroyed in open court by a Bronx Criminal Court Judge.  The judge was livid about the D.A.’s failure to turn over exculpatory evidence to the Defense during a rape trial.  The Defendant spent eight months in prison awaiting trial, and the evidence wasn’t disclosed until the end of the trial, after closing arguments.  The judge took the rare step of barring the prosecutor from ever appearing in his courtroom again.  The transcript of the hearing is epic, to say the least:

The Court: I think I’ve heard enough. You can stay standing. 

I was admitted to the bar in April of 1987, and I was, at the time, an Assistant District Attorney in the Bronx DA’s Office.  I’ve always been very proud of that association, until today.  I also served as a defense lawyer and 18B counsel.  I’ve tried homicides; I have tried child molestation cases; and I have tried drug sale cases.

I have now been on this bench nine years and three months.  In all that time, as a prosecutor, as a defense lawyer, as judge, I have never once seen a Brady violation as egregious as this.

To my mind, this is an utter and complete disgrace, not just for you, but for your office in general.  Disgrace.

The excuse you offer, passing the file back and forth, no one looking and no one knowing what anything is, saddens me on one level and makes me sick on another.

For my own peace of mind, I absolutely refuse to believe that you did this on purpose.  However, it is gross negligence on your part to have not found this information, and turned it over to Defense, and for your supervisor to find it and turn it over right after Defense summations.  I emphasize those words: Gross negligence.

I recall the Defense asking before the trial started for any notes that the People had in their possession, and you blithely said, “No, we don’t have any notes.”  It turned out, unfortunately, to be a lie.  Your actions bring disgrace to both your office and to yourself.

But what really concerns me more than anything else is: Where is the justice for your complaining witness?  Where is her justice?  She had the right to have this case heard by a jury and have that jury decide whether or not they believed her allegations.  She’s lost her chance at that justice due to your conduct.

What about [the Defendant’s] justice?  The Defendant had a right to have a jury decide whether or not they believed those allegations.  Where is his justice waiting for his trial?  You have failed on so many levels, on so many levels.

Here are your sanctions:  You’re going to leave this room, and you’re never going to come back.  You can’t appear before me anymore.  I’ll tell you why, because I cannot trust anything you say or do.  I can’t believe you.  I can’t believe your credibility anymore.  The only thing a lawyer has has to offer is their integrity and their credibility, and when you’ve lost that, there is no purpose in your appearing before this Court.

Step out.

March 18, 2014
Justice Department Bad Boys: More Than 650 Cases of Misconduct Documented in 12-Year Period

From the article:

Federal prosecutors, judges, and other officials at the Justice Department committed over 650 acts of professional misconduct in a recent 12-year period, according to a new report published by a DC-based watchdog group, the Project On Government Oversight. POGO investigators came up with the number after reviewing documents put out by the Department of Justice’s Office of Professional Responsibility (OPR). According to one little-noticed OPR document published last year, a DOJ attorney failed to disclose a “close personal relationship” with the defendant in a case he was prosecuting, in which he negotiated a plea agreement to release the defendant on bond. An immigration judge also made “disparaging remarks” about foreign nationals. POGO contends that this number is only the tip of the iceberg and OPR needs to release more information about this misconduct to the public.  

Also, some potential for reform:

A bill proposed on Thursday by Sens. Mike Lee (R-Utah) and Jon Tester (D-Mont.) would overhaul how misconduct is investigated at the Justice Department. Right now, only OPR is allowed to look into ethics complaints, instead of the Justice Department’s Office of Inspector General, which is widely considered to be more independent. The senators’ bill would move that authority to the IG’s office. Sen. Lisa Murkowski (R-Alaska), who supports the bill, says: ”When Americans pledge to abide by ‘liberty and justice for all,’ that does not mean that those pursuing justice can creatively apply different standards or break the rules to get convictions—it means that in America everyone is held equally accountable.” 

January 30, 2014
7th Circuit pokes a hole in prosecutorial immunity

From the article:

A three-judge panel for the U.S. Court of Appeals for the 7th Circuit just issued an important opinion (PDF) on absolute immunity, the policy that makes it impossible to sue prosecutors who engage in misconduct, even when that misconduct results in a wrongful conviction.


[This case involves] a gory mess of injustice, including a trial judge who took a bribe from Fields’ co-defendant. But, for the purposes of this discussion, Fields discovered that prosecutors had knowingly coerced witnesses into giving false testimony, which resulted in his conviction and 17 years in prison before he was acquitted at a second trial. Writing for the majority, Judge Richard Posner makes it clear that Buckley was a special circumstance in which one prosecutor replaced another before trial, and that it should not be used to close the investigation exception to absolute immunity[.]

This is huge.  It is extraordinarily hard to sue a prosecutor for prosecutorial misconduct.  Generally, you can only sue a prosecutor for actions taken during the investigation stage of a criminal prosecution, which generally means prior to indictment.  Wrongful acts committed during a trial are immune from suit, even if they lead to a wrongful conviction.  

In this case, however, Judge Posner says that a prosecutor who fabricates evidence during the investigative stage of a trial, uses it to indict someone, and then uses that evidence during trial to wrongfully convict someone, can’t then claim Absolute Immunity based on the fact that the misconduct was completed during the trial phase of the prosecution:

A prosecutor cannot retroactively immunize himself from conduct by perfecting his wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity. That would create a “license to lawless conduct,” which the Supreme Court has said that qualified immunity is not to do. Wharrie’s interpretation of our decision in Buckley would place that decision in conflict with the Supreme Court’s Buckley decision, by giving absolute immunity to prosecutor‐investigators who having fabricated evidence make sure that the evidence is used to convict the innocent victim of the fabrication… .

Indeed.  A great case.  Sometimes, the good guys win.

December 28, 2013
"There is a courthouse saying - known by anyone who has ever practiced criminal law - that expresses the ethos of winning over everything else in a grisly, sardonic way: "Any prosecutor can convict the guilty. It takes real talent to convict the innocent." This would be just another cheap (but clever) shot about prosecutors if there weren’t so many cases in which prosecutors have proudly convicted the innocent and refused to back down even upon compelling proof that the conviction was wrongful."

Abbe Smith

December 24, 2013
"Some prosecutors like to claim that they have a duty to victims of crimes to prosecute zealously. But they are not above trashing the victim if it serves to support a bad conviction. For example, in Illinois v. Juan Rivera, the defendant was convicted in part on snitch testimony and in part on a coerced confession. The victim was Holly Staker, an eleven-year-old girl who was raped and brutally murdered. When DNA showed that the sperm in Holly’s vagina was not Rivera’s, the prosecutor made the absurd and repulsive argument that the child had been “sexually active” and, therefore, the fact that the sperm was not Rivera’s did not exculpate him. Similarly, in a case in Nassau County, New York, when DNA showed that the sperm in a sixteen-year-old victim was not that of the man convicted of the crime, the prosecution argued that it “must have come from a consensual lover, even though [the girl’s] mother and best friend insisted that she was a virgin.” The unnamed lover theory has been used by prosecutors so often that defense lawyers have a name for it. Varying the term unindicted co-conspirator, defense lawyers refer to it as the “unindicted co-ejaculator.”"

Monroe H. Freedman

December 10, 2013
"On October 28, 2013, Michael Kiefer, a prominent and highly respected journalist with the Arizona Republic, published a four-part series about the prevalence of prosecutorial misconduct in that state’s death penalty cases. … Kiefer’s investigation discovered that in half of all the death penalty cases in the state since 2002 involved allegations of prosecutorial misconduct by the appellate attorneys assigned to handle those cases on appeal. Shockingly, the Arizona Supreme Court validated half of those allegations. Worse yet, reported Kiefer, “since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials …”"

John T. Floyd

I want to emphasize this finding from Kiefer’s study:

Shockingly, the Arizona Supreme Court validated half of those allegations [of prosecutorial misconduct].

Death penalty cases are not tried by neophytes.  They are given to seasoned prosecutors with years of training and experience.  These are the prosecutors who shouldn’t be making mistakes because they have the experience and professional skills to know better.  Nonetheless, Arizona’s highest court sustained fifty percent of allegations of prosecutorial misconduct by appellate attorneys in all Arizona death penalty cases in the past ten years.  That means every other seasoned prosecutor accused of misconduct in death penalty cases in Arizona violated the Constitutional rights of the accused—not to mention their ethical duties to the Bar.

When people talk about prosecutorial misconduct being the bailiwick of a “few bad apples,” they place themselves in a difficult position.  How is it possible that 50% of the seasoned prosecutors handling death penalty cases in a reasonably well-populated state (Arizona) are violating the Constitution?  How do we reach such a disturbing rate of Constitutional violations unless there are systemic failures in the prosecutorial profession that need to be addressed?

December 10, 2013
"No civilized system of justice should have to depend on … flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty. The Phoenix Police Department … should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute [these] cases without bothering to disclose [the lawless cop’s] pattern of misconduct."

Judge Alex Kozinski, discussing the misconduct of law enforcement officials in Milke v. Ryan, decided last March of this year.  The Court was so shocked by the scope of the misconduct in this case that it sent a copy of its opinion to the local United States Attorney’s Office to investigate the Phoenix Police Dept. and the Maricopa County Attorney’s Office for systemic civil rights violations.

December 10, 2013
"An Epidemic of Brady Violations"

Chief Judge Kozinski of the 9th Circuit published a dissent today that castigates federal and state prosecutors across the country for failing to adhere to their professional and legal obligations.  After discussing the facts of the case before the court, Kozinski writes:

I wish I could say that the prosecutor’s unprofessionalism here is the exception, that his propensity for shortcuts and indifference to his ethical and legal responsibilities is a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors’ offices across the country. But it wouldn’t be true. Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend.”
For those unfamiliar with Brady v. Maryland, it is a U.S. Supreme Court case that imposes Constitutional obligations on prosecutors to disclose evidence in their possession to defendants when that evidence is (1) favorable to the defense, and (2) material to the guilt of the accused.  Evidence is material if its disclosure would have created a “reasonable probability of a different result” at trial.  When a prosecutor fails to disclose material evidence that is favorable to the defense, he violates the Due Process rights of the defendant.
So what Kozinski is saying is that there has been an epidemic of prosecutors suppressing evidence that is favorable to criminal defendants and that could change the outcome of their cases.  It is rare to see a federal judge (particularly a high-profile judge like Kozinski) so openly chastize both federal and state prosecutors on a grand scale.  It is unfortunate that this opinion appears as a dissent attached to an inconspicuous opinion denying a rehearing to the defendant.  If more judges begin to make their voices heard on this issue, Supervising prosecutors may finally start taking their oversight responsibilities seriously.  As Kozinski notes at the beginning of his opinion, “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

December 4, 2013
The Prosecutorial Mindset

Note: This is a cross-post from my legal blog, 10 Guilty Men.

In the Fall 2012 issue of the Washburn Law Journal, Monroe H. Freedman and Charles E. MacLean, academics both, had a battle royal on the topic of prosecutorial misconduct.

In Freedman’s article, he makes a vigorous case that Prosecutorial misconduct is both widespread and unaddressed.  He drops this withering salvo on page 2:

One of the two greatest scandals in lawyers’ ethics is the general failure of disciplinary authorities and courts to take appropriate remedial action against prosecutors who violate both the constitutional rights of criminal defendants and the prosecutors’ own ethical obligations. For example, a computerized review has shown that there have been only 100 reported cases of professional discipline of federal and state prosecutors in the previous century—an average of only one disciplinary case per year. Moreover, these cases are not limited to violations of the rights of criminal defendants but include cases of bribery, extortion, conversion, and embezzlement of government funds. As one federal judge observed, “When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith.” And Professor Bennett Gershman, the leading authority on prosecutorial misconduct, has concluded that discipline of prosecutors is “so rare as to make its use virtually a nullity.

Ouch.  MacLean isn’t having it though.  He finds fault with Freedman’s anecdotes, such as United States v. Aguilar, wherein the prosecutors:

engaged in a series of improper and/or unethical behavior, including (1) falsifying entries in search warrants and, on at least six warrant applications, conducting searches of premises not enumerated in issued warrants, (2) proffering false and misleading grand jury testimony by a named FBI special agent, (3) failing to produce and withholding grand jury testimony and related discoverable evidence, (4) wrongfully obtaining certain privileged marital communications, and (5) exceeding the court’s relevance rulings by eliciting irrelevant testimony.

I will return to the bolded text in a moment.  While Freedman cites the court’s mere dismissal of the case as evidence of reluctance to hold prosecutors accountable, MacLean dismisses Freedman’s concerns:

That is a woeful record, to be sure. However, the trial court in Aguilar acted wisely and decisively when it suppressed the tainted evidence during the trial and eventually dismissed the indictment without leave to re-file.  As the court noted in conclusion, the government team “should not be permitted to escape the consequences of [its mis-]conduct. By not allowing [the government] to benefit from a ‘do-over,’ the Court hopes that this ruling will have a valuable prophylactic effect … . For the foregoing reasons, the convictions … are vacated and the … Indictment is dismissed.”

Well, sure the court acted wisely.  It was the right decision.  There was blatant misrepresentations and misconduct by the prosecutor, including six instances of purgery on warrant applications.  This is the sort of stuff that gets attorneys in private practice disbarred.  But apparently, simply dismissing a case is enough for MacLean:

Aguilar does not stand for the proposition that judges are reluctant to hold prosecutors to task for misconduct. On the contrary, it stands for quite the opposite. There is no denying that the court’s findings disclose a consistent series of various types of misconduct by the prosecutors and other government agents. Some prosecutors push the envelope too far; sanctions alone will not put an end to that. But good prosecutors learn from other prosecutors’ mistakes, as well as from court decisions, whether the courts suppress evidence, dismiss the charge or case, enforce the double jeopardy bar, or impose sanctions against the prosecutor’s attorney license.

There are two points to make here.  First, the idea that judges will impose sanctions against prosecutors’ attorney licenses is not supported by any evidence to date.  The 2010 Ridolfi-Possley study, for example, showed that less than 1% of reported cases of misconduct resulted in professional discipline for the prosecutors in California.  As Freedman suggests in his article, virtually every scholar who studies the topic inevitably discovers a shocking dearth of instances of ethical discipline for wayward prosecutors.  It is rare enough to be negligible.

Second, MacLean’s discussion of “good prosecutors” learning from bad prosecutors’ mistakes is irrelevant.  Good prosecutors are not the ones we are concerned about.  Good prosecutors care about the Constitutional rights of Defendants.  Good prosecutors attend CLE’s and re-read Brady to make sure they are complying with their legal and ethical obligations.  Good prosecutors care less about getting “scumbags off the street,” and more about making sure they do an honest job, disclose evidence to defendants, and uphold the Constitution.

Good prosecutors already do all of this—even when that means they have to let the bad guy go free, because they know that Constitutional rights are bigger than any one case.  They know that making exceptions for bad people creates case law that inevitably reaches “not-so-bad” people.  As Thomas Paine wrote nearly three centuries ago:

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.

So the issue at hand is not about making good prosecutors better.  It is about what happens when malicious or incompetent prosecutors make repeated or big mistakes.  And Aguilar is a prime example of what doesn’t happen to prosecutors when they commit blatant ethical and even criminal misconduct.

I want to drive home how absurd MacLean’s argument is here.  The prosecutors in Aguilar committed perjury on six warrant applications.  Perjury is generally considered a felony offense in most jurisdictions.  That is six felony-level offenses.  Perjury also involves making a knowing misrepresentation to the Court, in addition to engaging in deceitful conduct.  This is the kind of stuff that State Bars regularly deny applicants admission for.  But a prosecutor does it, and a mere dismissal is viewed as appropriate medicine?

This is a good example of why prosecutors’ offices are institutional incompetent to be judges of their own ethical obligations.  Just as prosecutors regularly interpret Brady to mean that they don’t have to disclose relevant evidence to the Defendant’s lawyer, they also convince themselves that a light slap on the wrist (e.g. getting one of your cases dismissed) is an appropriate sanction for committing serial perjury.  How any honest prosecutor could make MacLean’s argument with a straight face is beyond me.  Particularly when the misconduct at hand is criminal in nature.

Obviously there are plenty of honest prosecutors.  Indeed, I’m sure that the majority of prosecutors are honest and genuinely want to uphold the law and respect defendants’ constitutional rights.  But when it comes to holding bad prosecutors accountable, the system does not work, and it has not worked for some time.  Aguilar demonstrates, rather than undermines that proposition.

With all that being said, it’s probably true that professor Freedman over-used anecdotal evidence to make his point.  But MacLean’s attempt to undermine Freedmans’ Aguilar anecdote only demonstrates the point that Freedman was trying to make in the first place: prosecutors are rarely punished in accordance with the wrongs—both legal and ethical—they commit.  When a prosecutor can commit six instances of perjury by falsifying statements on a warrant application and escape without even a mark on their professional license, something is wrong.  And it’s not with Freedman’s anecdotes.

December 4, 2013
"One of the two greatest scandals in lawyers’ ethics is the general failure of disciplinary authorities and courts to take appropriate remedial action against prosecutors who violate
both the constitutional rights of criminal defendants and the prosecutors’ own ethical obligations. For example, a computerized review has shown that there have been only 100 reported cases of professional discipline of federal and state prosecutors in the previous century—an average of only one disciplinary case per year. Moreover, these cases are not limited to violations of the rights of criminal defendants but include cases of bribery, extortion, conversion, and embezzlement of government funds. As one federal judge observed, “When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith.” And Professor Bennett Gershman, the leading authority on prosecutorial misconduct, has concluded that discipline of prosecutors is “so rare as to make its use virtually a nullity.”"

Monroe H. FreedmanThe Use of Unethical and Unconstitutional Practices and Policies by Prosecutors’ Offices, 52 Wash. L. J. 1, 2 (2012).

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