You may have heard recent accounts of negotiations between lawyer Marc E. Kasowitz, a lawyer for the Trump family and the Manhattan District Attorney regarding the possibility of charging Ivanka Trump and Donald Trump Jr. for allegedly misleading investors in a condo-hotel project. The stories highlighted that Mr. Vance had received a $25,000 contribution from Mr. Kasowitz (which was returned prior to the meeting) and that a year later Mr. Vance’s campaign accepted a $32,000 gift from Mr. Kasowitz, only to end up returning it seven weeks ago after reporters highlighted it.
Should there be some limits to, or regulation of, defense lawyers' contributions to District Attorney's campaigns? The New York Times discusses the issue in a recent article you can access here.
Showing posts with label Prosecutors. Show all posts
Showing posts with label Prosecutors. Show all posts
Sunday, November 19, 2017
New York adopts new rule requiring judges to remind prosecutors to comply with duty to disclose exculpatory evidence
In response to the efforts of a task force convened by the state’s chief judge to address the causes of wrongful convictions in New York, beginning in January, judges will be required to issue an order reminding prosecutors
of their obligation to turn over “information favorable to the defense” in all criminal cases. According to the
National Registry of Exonerations, 38% of the 234 exonerations in
New York state have involved violations of the duty to disclose exculpatory evidence. You can read the press release announcing the new rule here. (This link also includes the task force's report, which makes a number of other recommendations worth reading.) The new rule also directs judges to remind defense lawyers of their duty
to provide effective assistance of counsel under Constitutional
standards. The ABA Journal has more on the story here.
7th Circuit refuses to reverse a conviction even though the prosecutor did not comply with duty of candor to disclose perjured testimony
Applying the principle that a federal court of appeals can not reverse a conviction unless the defendant shows that the lower state court’s decision was contrary to, or an unreasonable application of, clearly established law under Supreme Court authority, the Court of Appeals for the Seventh Circuit recently refused to reverse a conviction even though the prosecutor in the case failed to comply with the duty of candor.
In the case, Long v. Pfister, one of the key witnesses for the prosecution identified the defendant as the perpetrator of the crime in question even though the witness had at one point recanted her testimony. When asked on cross–examination, the witness denied having recanted her testimony. Both the prosecutor and defense counsel knew this was a lie. Defense counsel eventually called another witness who testified that the prosecutor’s witness had lied on the stand. However, the prosecutor did nothing to inform the court or the jury about the perjured testimony. The defendant was convicted.
The defendant was denied post conviction relief by a federal district court, but a panel of the Court of Appeals reversed. The panel concluded that, by not spontaneously correcting the perjured testimony, the prosecutor had violated the rule of Napue v. Illinois, 360 U.S. 264 (1959) and Giglio v. United States, 405 U.S. 150 (1972), which according to the panel’s interpretation, hold that whenever any witness makes a statement that the prosecutor knows is false, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement immediately.
After an en banc rehearing, however, a majority of the court reversed. According to the majority, the case involved four questions that have never been expressly decided by the Supreme Court: (1) Do Napue and its successors apply when the defense rather than the prosecutor elicits the false testimony?; (2) must the prosecutor correct false testimony when defense counsel already knows the truth?; (3) does the Constitution forbid a conviction obtained when the prosecutor does not correct but also does not rely on the falsehood?; and (4) does the Constitution forbid a conviction obtained when all material evidence is presented to the jury before it deliberates?
In Napue v. Illinois the Supreme Court held that the State deprives a person of liberty without due process of law if it convicts the person by knowingly using false testimony. Thus, Napue has been interpreted to hold that whenever any witness makes a statement that the prosecutor knows is untrue, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement. Rules of professional conduct in all jurisdictions also impose on all lawyers a duty to remedy the effects of material false evidence known to the lawyer before the end of the proceeding. Further, in Giglio v. United States the Court reversed a conviction when a prosecutor failed to correct perjured testimony and then relied on it during summation to the jury.
The Court of Appeals, however, distinguished the case before it from these two cases. In a 5 to 3 opinion, the court held that there is no clearly established Supreme Court law on whether a prosecutor has a duty to disclose perjury if the perjury is known to the defendant’s lawyer and the defendant’s lawyer presents evidence to contradict the perjured testimony.
In a strong dissenting opinion, however, three judges dispute the majority’s holding arguing that the opinion is based on notions that have been clearly rejected by the Supreme Court. They, therefore, concluded that the defendant had met the burden to get Habeas Corpus relief.
According to the majority, it is not clearly established that a prosecutor has a duty to remedy known perjury if (1) the defendant’s lawyer already knew the testimony constituted perjury, (2) the defendant’s lawyer presented evidence to contradict it (which could create an inference in the jury that the testimony was not credible), and (3) the prosecution did not rely on the perjured testimony in its argument the jury.
The dissenting judges addressed all these arguments concluding that it is clear that a prosecutor has a duty to correct the testimony regardless of the circumstances. A lie is a lie, and the prosecutor has a duty to correct it, they said. The duty belongs to the prosecutor and he or she can’t rely on the evidence presented by the defendant to contradict the perjured testimony. The fact that the defendant attempted to contradict the perjured testimony does not constitute a correction of the perjury.
It should be made clear that even though the case revolves around the issue of the duty of candor of a prosecutor, the court did not decide what that duty involves. Unlike what has been reported in some news stories about the case (in the Chicago Daily Law Bulletin, for example), the court did not decide that a prosecutor does not have a duty to disclose perjury under the circumstances of the case. It only held that the Supreme Court has not decided it. It is precisely because, according to the court, the issue has not been decided, that it felt it could not reverse the conviction in this case. I hope I am wrong, but I am afraid, however, that the case might be interpreted to relieve prosecutors of the duty of candor under certain circumstances. That would be wrong.
The Marshall Project has a comment on the case here.
In the case, Long v. Pfister, one of the key witnesses for the prosecution identified the defendant as the perpetrator of the crime in question even though the witness had at one point recanted her testimony. When asked on cross–examination, the witness denied having recanted her testimony. Both the prosecutor and defense counsel knew this was a lie. Defense counsel eventually called another witness who testified that the prosecutor’s witness had lied on the stand. However, the prosecutor did nothing to inform the court or the jury about the perjured testimony. The defendant was convicted.
The defendant was denied post conviction relief by a federal district court, but a panel of the Court of Appeals reversed. The panel concluded that, by not spontaneously correcting the perjured testimony, the prosecutor had violated the rule of Napue v. Illinois, 360 U.S. 264 (1959) and Giglio v. United States, 405 U.S. 150 (1972), which according to the panel’s interpretation, hold that whenever any witness makes a statement that the prosecutor knows is false, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement immediately.
After an en banc rehearing, however, a majority of the court reversed. According to the majority, the case involved four questions that have never been expressly decided by the Supreme Court: (1) Do Napue and its successors apply when the defense rather than the prosecutor elicits the false testimony?; (2) must the prosecutor correct false testimony when defense counsel already knows the truth?; (3) does the Constitution forbid a conviction obtained when the prosecutor does not correct but also does not rely on the falsehood?; and (4) does the Constitution forbid a conviction obtained when all material evidence is presented to the jury before it deliberates?
In Napue v. Illinois the Supreme Court held that the State deprives a person of liberty without due process of law if it convicts the person by knowingly using false testimony. Thus, Napue has been interpreted to hold that whenever any witness makes a statement that the prosecutor knows is untrue, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement. Rules of professional conduct in all jurisdictions also impose on all lawyers a duty to remedy the effects of material false evidence known to the lawyer before the end of the proceeding. Further, in Giglio v. United States the Court reversed a conviction when a prosecutor failed to correct perjured testimony and then relied on it during summation to the jury.
The Court of Appeals, however, distinguished the case before it from these two cases. In a 5 to 3 opinion, the court held that there is no clearly established Supreme Court law on whether a prosecutor has a duty to disclose perjury if the perjury is known to the defendant’s lawyer and the defendant’s lawyer presents evidence to contradict the perjured testimony.
In a strong dissenting opinion, however, three judges dispute the majority’s holding arguing that the opinion is based on notions that have been clearly rejected by the Supreme Court. They, therefore, concluded that the defendant had met the burden to get Habeas Corpus relief.
According to the majority, it is not clearly established that a prosecutor has a duty to remedy known perjury if (1) the defendant’s lawyer already knew the testimony constituted perjury, (2) the defendant’s lawyer presented evidence to contradict it (which could create an inference in the jury that the testimony was not credible), and (3) the prosecution did not rely on the perjured testimony in its argument the jury.
The dissenting judges addressed all these arguments concluding that it is clear that a prosecutor has a duty to correct the testimony regardless of the circumstances. A lie is a lie, and the prosecutor has a duty to correct it, they said. The duty belongs to the prosecutor and he or she can’t rely on the evidence presented by the defendant to contradict the perjured testimony. The fact that the defendant attempted to contradict the perjured testimony does not constitute a correction of the perjury.
It should be made clear that even though the case revolves around the issue of the duty of candor of a prosecutor, the court did not decide what that duty involves. Unlike what has been reported in some news stories about the case (in the Chicago Daily Law Bulletin, for example), the court did not decide that a prosecutor does not have a duty to disclose perjury under the circumstances of the case. It only held that the Supreme Court has not decided it. It is precisely because, according to the court, the issue has not been decided, that it felt it could not reverse the conviction in this case. I hope I am wrong, but I am afraid, however, that the case might be interpreted to relieve prosecutors of the duty of candor under certain circumstances. That would be wrong.
The Marshall Project has a comment on the case here.
Sunday, November 5, 2017
California finally adopts professional responsibility rule requiring prosecutors to disclose exculpatory evidence
A few days ago I reported that the Louisiana Supreme Court recently held that the duty to disclose
exculpatory evidence in Rule 3.8(d) is not broader than the duty
recognized by the US Supreme Court decision in Brady v. Maryland. (See here.)
Now comes news that the California Supreme Court has approved revisions to the California Rules of Professional Conduct governing the ethical duties of prosecutors in California by revising Rule 5-110 to include the obligation to disclose exculpatory evidence. If you are wondering how this was not part of the rule already, it is because California remains the only state that has not fully adopted the ABA Model Rules. Popehat has the details here.
Interestingly, in contrast with the decision in Louisiana, the comment to the new California rule implies that the duty to disclose is broader than the duty imposed by Brady:
Now comes news that the California Supreme Court has approved revisions to the California Rules of Professional Conduct governing the ethical duties of prosecutors in California by revising Rule 5-110 to include the obligation to disclose exculpatory evidence. If you are wondering how this was not part of the rule already, it is because California remains the only state that has not fully adopted the ABA Model Rules. Popehat has the details here.
Interestingly, in contrast with the decision in Louisiana, the comment to the new California rule implies that the duty to disclose is broader than the duty imposed by Brady:
[3] The disclosure obligations in paragraph (d) are not limited to evidence or information that is material as defined by Brady v. Maryland . . . and its progeny. For example, these obligations include, at a minimum, the duty to disclose impeachment evidence or information that a prosecutor knows or reasonably should know casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely. . . .
Saturday, October 28, 2017
Louisiana continues to make bad law regarding duty to disclose exculpatory evidence
As you probably know already, Louisiana has a long (and on might say troubling) history as it relates to the duty of disclosing exculpatory evidence (see here and here), most notably Connick v. Thompson and Smith v. Cain (See here, here, and here).
Now comes word that the Louisiana Supreme Court has held that the duty to disclose exculpatory evidence in Rule 3.8(d) is not broader than the duty recognized by the US Supreme Court decision in Brady v. Maryland.
Although the ABA Standing Committee on Professional Responsibility has held that the Model Rule imposes a broader duty (see Formal Opinion 09-454), a few jurisdictions have held otherwise. I have written about this in the past here.
Courts or Ethics Committees have also decided the duty under rules of professional conduct is broader in, at least, Washington, Utah, Texas, North Dakota, Massachusetts and the District of Columbia. The New York City bar's ethics committee has also issued an opinion holding that a prosecutor's ethical obligation to disclose exculpatory evidence is broader than the constitutional minimums imposed by Brady v. Maryland. See N.Y.C. Bar Ass'n Comm. on Prof'l Ethics, Op. 2016-3, 7/22/15. Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, and Wisconsin.
The Legal Profession Blog has a discussion on the new decision by the Louisiana Supreme Court here. The case is called In re Seastrunk and you can read the opinion here.
Now comes word that the Louisiana Supreme Court has held that the duty to disclose exculpatory evidence in Rule 3.8(d) is not broader than the duty recognized by the US Supreme Court decision in Brady v. Maryland.
Although the ABA Standing Committee on Professional Responsibility has held that the Model Rule imposes a broader duty (see Formal Opinion 09-454), a few jurisdictions have held otherwise. I have written about this in the past here.
Courts or Ethics Committees have also decided the duty under rules of professional conduct is broader in, at least, Washington, Utah, Texas, North Dakota, Massachusetts and the District of Columbia. The New York City bar's ethics committee has also issued an opinion holding that a prosecutor's ethical obligation to disclose exculpatory evidence is broader than the constitutional minimums imposed by Brady v. Maryland. See N.Y.C. Bar Ass'n Comm. on Prof'l Ethics, Op. 2016-3, 7/22/15. Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, and Wisconsin.
The Legal Profession Blog has a discussion on the new decision by the Louisiana Supreme Court here. The case is called In re Seastrunk and you can read the opinion here.
Saturday, October 21, 2017
How not to practice law -- UPDATED
It has been a while since I posted a story to the running "How not to practice law" series, so here are two new ones.
How not to practice law: As a prosecutor, be in a personal-romantic relationship with the lead FBI investigator you use as principal witness to get indictments before a grand jury. The Legal Profession Blog has the story. The prosecutor was suspended for a year and a day (although all but 6 months was stayed.) [UPDATE 10/29/17: Lawyer Ethics Alerts Blog has a story on this case here.]
How not to practice law: Offer to pay a witness $7,000 for his "honest testimony." The Law For Lawyers Today has that story here. The lawyer was suspended for 35 days.
How not to practice law: As a prosecutor, be in a personal-romantic relationship with the lead FBI investigator you use as principal witness to get indictments before a grand jury. The Legal Profession Blog has the story. The prosecutor was suspended for a year and a day (although all but 6 months was stayed.) [UPDATE 10/29/17: Lawyer Ethics Alerts Blog has a story on this case here.]
How not to practice law: Offer to pay a witness $7,000 for his "honest testimony." The Law For Lawyers Today has that story here. The lawyer was suspended for 35 days.
Monday, May 15, 2017
NPR article on one example of prosecutorial misconduct
NPR has published an interesting short article chronicling a criminal case recently dismissed because of prosecutorial misconduct. The title says it all: "'This Was A Colossal Screw-Up': A Close Look At A Case Dismissed For Misconduct."
Georgia Supeme Court finds duty to disclose exculpatory evidence does not necessarily require disclosure before trial
The Georgia Supreme Court recently absolved a state prosecutor of ethics charges arising from an alleged violation of the duty to disclose exculpatory evidence because, according to the court, the “record fail[ed] to show any clear-cut violation of Brady or Rule 3.8 (d), and for that reason, we conclude that no discipline at all is warranted.”
Given that the court concludes the record shows "clearly and convincingly" that the prosecutor failed to disclose evidence to the defense, I wonder what the court means by a “clear cut violation.” Does that mean that the record showed a violation but that it was an “acceptable violation,” a “so-so violation”...? Hm; don’t know, but I will let that slide.
There are two more interesting things to point out here. The first one if that the court does not make any distinction between the obligation imposed by the Constitutional standard in Brady and the regulatory standard in the Rules of Professional Conduct. As you probably know, some jurisdictions consider the Rules to impose a broader duty.
The second interesting point is the reason the court did not find a violation of the prosecutor’s duty to disclose. The court found that even though the record “clearly and convincingly shows that [the prosecutor] failed to disclose to defense counsel [the material evidence] before trial . . . Brady does not always require pretrial disclosure of exculpatory evidence . . .” Citing several older Georgia cases, the court holds that a prosecutor can withhold exculpatory evidence from the defendant until the trial itself and that the duty would be satisfied even if the disclosure is made at the last minute if defense counsel has a chance to cross examine the witness who offers the evidence. According to this line of cases “[w]hether a disclosure at trial is timely enough to satisfy Brady depends on the extent to which the delay in disclosing the exculpatory evidence deprived the defense of a meaningful opportunity to cross-examine the pertinent witness at trial, whether earlier disclosure would have benefited the defense, and whether the delay deprived the accused of a fair trial or materially prejudiced his defense.”
I find it difficult to think that a prosecutor can knowingly delay disclosing information there is a duty to disclose and that it would be acceptable to surprise the defense in the middle of trial. (And, even if the information is not withheld "knowingly," as the court states in the case, Brady applies irrespective of the good faith or bad faith of the prosecutor.) I find the last quote of the court (above) to be of little comfort. However, I am not an expert on criminal procedure or the Brady doctrine, which is maybe why I find this result surprising. I just don’t know if this approach is common among jurisdictions. Do you? Let me know.
The Legal Profession blog has more information here.
Given that the court concludes the record shows "clearly and convincingly" that the prosecutor failed to disclose evidence to the defense, I wonder what the court means by a “clear cut violation.” Does that mean that the record showed a violation but that it was an “acceptable violation,” a “so-so violation”...? Hm; don’t know, but I will let that slide.
There are two more interesting things to point out here. The first one if that the court does not make any distinction between the obligation imposed by the Constitutional standard in Brady and the regulatory standard in the Rules of Professional Conduct. As you probably know, some jurisdictions consider the Rules to impose a broader duty.
The second interesting point is the reason the court did not find a violation of the prosecutor’s duty to disclose. The court found that even though the record “clearly and convincingly shows that [the prosecutor] failed to disclose to defense counsel [the material evidence] before trial . . . Brady does not always require pretrial disclosure of exculpatory evidence . . .” Citing several older Georgia cases, the court holds that a prosecutor can withhold exculpatory evidence from the defendant until the trial itself and that the duty would be satisfied even if the disclosure is made at the last minute if defense counsel has a chance to cross examine the witness who offers the evidence. According to this line of cases “[w]hether a disclosure at trial is timely enough to satisfy Brady depends on the extent to which the delay in disclosing the exculpatory evidence deprived the defense of a meaningful opportunity to cross-examine the pertinent witness at trial, whether earlier disclosure would have benefited the defense, and whether the delay deprived the accused of a fair trial or materially prejudiced his defense.”
I find it difficult to think that a prosecutor can knowingly delay disclosing information there is a duty to disclose and that it would be acceptable to surprise the defense in the middle of trial. (And, even if the information is not withheld "knowingly," as the court states in the case, Brady applies irrespective of the good faith or bad faith of the prosecutor.) I find the last quote of the court (above) to be of little comfort. However, I am not an expert on criminal procedure or the Brady doctrine, which is maybe why I find this result surprising. I just don’t know if this approach is common among jurisdictions. Do you? Let me know.
The Legal Profession blog has more information here.
Sunday, February 12, 2017
Ethical Considerations When Switching from Criminal Defense to the Prosecution
Here is a new short article on ethical considerations when switching from criminal defense to the prosecution published by the New York Legal Ethics Reporter.
Sunday, October 23, 2016
California Appeals Court upholds disqualification of entire DA's office -- UPDATE
Back in March of 2015, I reported that a state judge in California removed an entire DA's office from a high-profile murder prosecution because prosecutorial
misconduct had tainted the entire office’s handling of the case. The judge reassigned the case to the California attorney general, who appealed the ruling. Go here for a New York Times article with more information on the original story. The state legislature eventually adopted a statute to manage prosecutorial misconduct. See here.
More than a year later, the California appeals court heard the oral arguments over whether the Orange County judge was right to remove the entire district attorney’s office. The ABA Journal has more information here.
UPDATE (12/3/16): In what the ABA Journal is calling a "blistering" and "sharply worded" ruling, the Court has upheld the order disqualifying the entire DA's office. The opinion can be found here.
More than a year later, the California appeals court heard the oral arguments over whether the Orange County judge was right to remove the entire district attorney’s office. The ABA Journal has more information here.
UPDATE (12/3/16): In what the ABA Journal is calling a "blistering" and "sharply worded" ruling, the Court has upheld the order disqualifying the entire DA's office. The opinion can be found here.
Friday, October 7, 2016
California: Prosecutors who withhold evidence can be charged with a felony
Long time readers of this blog know I often complain about the fact that
courts do not seem to take prosecutorial misconduct too seriously. Go here, here, and here, for a few examples; and you
can go to the prosecutors tag and scroll down for lots of stories, and links on the topic.
Well, today, I am posting good news, for a change. Almost exactly one year ago, I posted (here) that California had adopted a new law to bolster a judge's ability to disqualify a prosecutor or an entire prosecuting attorney's office and to make it mandatory for judges to report violations to the state bar.
Now, California has gone even further by making it a felony crime to withhold exculpatory evidence. Violators of the law could be sentenced to up to three years in prison. The ABA Journal has more details here.
Well, today, I am posting good news, for a change. Almost exactly one year ago, I posted (here) that California had adopted a new law to bolster a judge's ability to disqualify a prosecutor or an entire prosecuting attorney's office and to make it mandatory for judges to report violations to the state bar.
Now, California has gone even further by making it a felony crime to withhold exculpatory evidence. Violators of the law could be sentenced to up to three years in prison. The ABA Journal has more details here.
Wednesday, September 21, 2016
NYC Bar Ethics Committee issues opinion holding that prosecutors’ duty to disclose is broader than the duty imposed by Brady v Maryland
As you probably know, there are differences of opinion as to whether the duty to disclose information imposed on prosecutors by ABA Model Rule 3.8 is broader than the duty
imposed by the constitutional standards in Brady v. Maryland. The ABA Standing Committee on Professional Responsibility held that it does in Formal Opinion 09-454, but a few jurisdictions have held otherwise. I have written about this in the past here. (And for all my posts on prosecutors' duty to disclose evidence go here.)
Courts or Ethics Committees have also decided the duty under rules of professional conduct is broader in Utah, Texas, North Dakota, Massachusetts and the District of Columbia. Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, Louisiana and Wisconsin.
Now comes news that the New York City bar's ethics committee has issued an opinion holding that a prosecutor's ethical obligation to disclose exculpatory evidence is broader than the constitutional minimums imposed by Brady v. Maryland. See N.Y.C. Bar Ass'n Comm. on Prof'l Ethics, Op. 2016-3, 7/22/15.
Thanks to the ABA/BNA Lawyers' Manual on Professional Conduct for all the links.
UPDATE 10-29-16: Legal Ethics in Motion has a comment here.
Courts or Ethics Committees have also decided the duty under rules of professional conduct is broader in Utah, Texas, North Dakota, Massachusetts and the District of Columbia. Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, Louisiana and Wisconsin.
Now comes news that the New York City bar's ethics committee has issued an opinion holding that a prosecutor's ethical obligation to disclose exculpatory evidence is broader than the constitutional minimums imposed by Brady v. Maryland. See N.Y.C. Bar Ass'n Comm. on Prof'l Ethics, Op. 2016-3, 7/22/15.
Thanks to the ABA/BNA Lawyers' Manual on Professional Conduct for all the links.
UPDATE 10-29-16: Legal Ethics in Motion has a comment here.
Saturday, June 11, 2016
Judge in trial of police officer charged with murder in the death of Freddie Gray rules that prosecutors withheld exculpatory evidence
According to a story in ABC news, available here, the judge overseeing the trial of a police officer charged with murder
in the death of Freddie Gray has determined that prosecutors withheld
information that would have been beneficial to the defense. It seems to me this would be big news, but, oddly, I have not seen this reported anywhere else.
Thanks to the Legal Ethics Forum for the link.
Thanks to the Legal Ethics Forum for the link.
New York Times editorial board calls for federal government oversight over DA offices that violate defendants' rights
In a recent Op-ed piece, the NY Times is arguing that because prosecutors are almost never held accountable for misconduct, even when it results in wrongful convictions "it is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights." You can read the full article here.
Tuesday, May 24, 2016
Prosecutors Coercing Defendants to Contribute to the Prosecutor’s Favorite Charities
Ron Rotunda's most recent column at Verdict is about prosecutors who force defendants to contribute to charity. His conclusion: "The best way to avoid the appearance of impropriety is not to engage in
the conduct at all. Fines in plea bargains should go to the state or
federal treasury, not to friends of the prosecutor."
Wednesday, May 11, 2016
Two days ago I lamented the lack of action against prosecutors who present false testimony; here is an example of the opposite
A couple of days ago, I commented on a news story about possible perjury by prosecutors’ witnesses and complained about the lack of action against prosecutors who present false testimony.
In response, one of the readers of the blog sent me a copy of Grievance Administrator v. Plants (March 20, 2012) in which the Michigan Attorney Disciplinary Board disbarred a prosecutor for presenting perjured testimony. In its opinion, the Board stated that "knowing submission of false testimony is among the most serious of ethical violations and the presumptive sanction for such misconduct is disbarment."
Thank you very much to Cynthia for the link!
In response, one of the readers of the blog sent me a copy of Grievance Administrator v. Plants (March 20, 2012) in which the Michigan Attorney Disciplinary Board disbarred a prosecutor for presenting perjured testimony. In its opinion, the Board stated that "knowing submission of false testimony is among the most serious of ethical violations and the presumptive sanction for such misconduct is disbarment."
Thank you very much to Cynthia for the link!
Monday, May 9, 2016
ABA Journal on perjury by prosecutors' witnesses, but no comment on the conduct of the prosecutors -- UPDATED
The ABA Journal has a story today on how courts are not doing much about a little kept secret in Chicago courts: that police officers sometimes lie on the stand. I wrote "sometimes" but the tone of the story clearly implies this is a much bigger problem than that.
In any case, the story and the comments are all about how there are little consequences for the officers who lie on the stand, which is likely true. But what is not discussed in the story is the role of the prosecutors who present the testimony. How come they get a pass too? If it is true that "everyone knows" the witnesses are lying, can you really say the prosecutors didn't know? And if that is the case, shouldn't they be disciplined for it?
Obviously, part of the problem is proving the allegations of "knowledge" but the rules clearly hold that knowledge "can be inferred from the circumstances." I have said it a million times and will continue to say it. If you want to do something about prosecutorial misconduct, judges have to start taking it seriously.
For more comments on prosecutorial misconduct go here and scroll down.
UPDATE 10:30pm: So, a few hours after I posted this comment and my complaint about judges not taking prosecutorial misconduct seriously, I came across this story in Simple Justice about what appears to be the very first ever attempt to impose sanctions on a prosecutor in Utah.
In any case, the story and the comments are all about how there are little consequences for the officers who lie on the stand, which is likely true. But what is not discussed in the story is the role of the prosecutors who present the testimony. How come they get a pass too? If it is true that "everyone knows" the witnesses are lying, can you really say the prosecutors didn't know? And if that is the case, shouldn't they be disciplined for it?
Obviously, part of the problem is proving the allegations of "knowledge" but the rules clearly hold that knowledge "can be inferred from the circumstances." I have said it a million times and will continue to say it. If you want to do something about prosecutorial misconduct, judges have to start taking it seriously.
For more comments on prosecutorial misconduct go here and scroll down.
UPDATE 10:30pm: So, a few hours after I posted this comment and my complaint about judges not taking prosecutorial misconduct seriously, I came across this story in Simple Justice about what appears to be the very first ever attempt to impose sanctions on a prosecutor in Utah.
Tuesday, March 8, 2016
Supreme Court orders new trial for death-row inmate because of prosecution failure to disclose evidence
Friday, February 12, 2016
Another comment on lack of accountability for prosecutorial misconduct
Long time readers of this blog know I often complain about the fact that courts do not seem to take prosecutorial misconduct too seriously. You can go to the prosecutors tag and scroll down for lots of stories, and links on the topic. Here is the latest from the blog a public defender.
Wednesday, February 10, 2016
D.C. District Court Proposes New Rules on Prosecutors Disclosure Obligations
The United States District Court for the District of Columbia has released a proposed rule which would codify the government’s discovery obligation set out by the Supreme Court. Most significantly, it imposes specific timelines on prosecutors. The Legal Profession Blog has more details (and the text of the proposed rule) here.
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