In keeping with “Should prosecutors be held accountable” week, the 9th Circuit issued this scathing opinion, chastising two prosecutors for egregious violations:

The government egregiously failed to meet its constitutional obligations under Brady and Giglio. It failed to even make inquiry as to conviction records, plea bargains, and other discoverable materials concerning key witnesses until after trial began. It repeatedly misrepresented to the district court that all such documents had been disclosed prior to trial. The government did not admit to the court that it failed to disclose Brady/Giglio material until after many of the key witnesses had testified and been released. Even then, it failed to turn over some 650 documents until the day the district court declared a mistrial and submitted those documents to the court only after the indictment had been dismissed.

The Court concludes with:

This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available.

Despite that, the opinion declines to name the prosecutors in question. Fortunately, Mike at C&F is not so shy. He’s going to send a copy of the opinion to the Nevada State Bar Association. Maybe something will come of it. It should.

Looks like I wasn’t the only one who had prosecutorial ethics on my mind this past week. From Grits, Dallas DA Craig Watkins has about had it with these exonerations and wants to do something about it. His proposals are serious.

“Something should be done,” said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. “If the harm is a great harm, yes, it should be criminalized.”

Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

And he has reason to be considering such harsh penalties. Texas has already paid $8.6 million since 2001:

Of the 45 wrongful-conviction cases for which the state has paid compensation, at least 22 of them involved prosecutors withholding evidence from the defense: 19 in the infamous Tulia drug convictions and three of Dallas County’s DNA exonerations. The remainder of the payouts involved exculpatory DNA evidence or other flaws.

The article notes the paucity of sanctions against prosecutors who withhold evidence - one of the only example given is the only case in recent history where a prosecutor was disbarred: Mike Nifong in the Duke lacrosse case.

But as can be expected, there are other prosecutors who take an opposing view. John Bradley, a prosecutor in Williamson County near Austin calls Watkins’ proposal “ridiculous” and “an overreaction”.

What’s ridiculous is that innocent people spend decades in prison and the prosecutors that withheld evidence to put them there don’t get as much as a slap on the wrist. Prosecutors have a duty to do justice and to seek out the truth. To turn a blind eye when they neglect that duty and in fact take affirmative steps to circumvent justice is a big f*ck you to the whole system.

There’s absolutely no reason not to have a mandatory grievance process, at the very least, for prosecutors who intentionally withhold Brady or Giglio material.

The Innocence Project of Texas, a nonprofit legal clinic that worked to free many of the Dallas County exonerees including Mr. Woodard, supports criminalizing Brady violations. Michelle Moore, a board member of the Innocence Project and a Dallas County public defender, said that doing so would reduce the number of violations.

“If he can do 27 years behind bars,” she said of Mr. Woodard, “the prosecuting attorney can face time for hiding evidence.”

Damn straight he can. I know some prosecutors read this blog. What do you think of Watkins’ proposal? Would you be in favor of something like this in your State? If not, why not?

Since the first installment of “Judge for a day” was so successful, I’ve decided to bring it back for another round. This time, ripped right from the headlines. By now, most of you have heard of Susan M. LeFevre. LeFevre, also known as Marie Walsh, was arrested in her “hometown” of Del Mar, San Diego. Problem is, she was on the lam for 32 years. LeFevre, as she was known back in Michigan, was sentenced to a 10 to 20 year sentence back in 1974, for sale of heroin (although differing stories are emerging about her role).

One year later, she ran away from the prison, at the age of 21. Now 53, she is married with children, living a law-abiding, successful life. Now, she faces the remainder of her sentence and a corrections spokesperson said that it’s most likely that she’ll be required to serve 5 1/2 years of the time she owes.

Pretend, however, that you are the prosecutor/judge that has to decide what to do with her. She obviously escaped from prison and owes time. Since then, however, she has lived a law-abiding life and has raised a family. This was also 32 years ago. She is now 53. Important to note, also, is that her co-defendant was released on parole after serving two years of the same 10 to 20 year sentence. He was sentenced on the same day as her.

What do you do? Do you go after her hard for the escape? Or do you take into account her life and her family and the nature of the crime (drugs, after all) and her age at the time of the crime and offer to re-negotiate the deal and sentence her to something lesser, like probation and community service?

After all, one of the purposes of imprisonment is rehabilitation and prevention of future crime. She’s already shown that she’s no recidivist, so is there any point to incarceration now?

What would you do and what do you think is the just outcome in this case? I’ve already tipped my hand as to what I think should happen.

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Images from Michigan DOC and AP

Western Justice, self-proclaimed small town prosecutor, quotes Alan Dershowitz in asking whether criminal defense attorneys are “lie promoters“.

But let’s say their client comes in, and tells them everything that happened–down to the very last detail, and those details are essentially–I’m guilty, I did it, and everything in the police reports is true.

Under that limited scenario, when a defense attorney goes into court, questions the jury during voir dire, presents an opening statement, cross examines witnesses, and maybe even calls a few witnesses himself, and then argues in closing not just that the District Attorney did not prove its case beyond a reasonable doubt, but that there are several other reasonable alternatives as to what might have happened, are defense attorneys lie promoters?

Several things struck me about this as problematic. First of all, it would indeed be an extremely rare circumstance in which the defendant actually admits that everything that is alleged is 100% true. There’s a reason for this and it’s not because defendants are liars, but because rarely is everything actually true.

The second, and more fundamental, problem is the abject failure to recognize the system that we have and the distinct roles that prosecutors and defense attorneys fill in that system.

Defense attorneys are not partners in this pursuit of justice - we are defenders of the Constitution and of individual liberties. We are not charged with coming at the truth, but rather ensuring that the Government does not willy-nilly imprison individuals. There is a reason that the burden of proof rests with the State and defendants need not lift a finger at trial.

Yet another thing that bothers me is the holier-than-thou attitude, which I’ve written about several times. Prosecutors like to think of themselves are righteous, can-do-no-wrong proponents of some higher ideal. Yet, time and again, they will take as gospel the drivel spewed forth by cops in “police reports”, ignore blatant lies, “lose” exculpatory information, condone arm-twisting of witnesses and victims. Where is the righteous indignation then? Why no outcry? The hypocrisy is palpable.

If you’re looking for the truth, Mr. Prosecutor, start by asking yourself if you would file a substitute information on a lesser charge or dismiss them entirely if you have any doubt as to the veracity of the facts are reported by the police. And if you would, recognize that it is your job to do so and that you are in the minority. Just as the defense attorney who goes to trial with a client who has “admitted” guilt. And even then, recognize that both the rare prosecutor who does not drink the kool-aid and the defense attorney that goes to trial in those circumstances are obligated to do so. The burden is yours, not ours.

This is not some silly game. The very liberty of individuals hangs in the balance. What I know or do not know about my client’s guilt or innocence is irrelevant. What is relevant is whether you can prove that he is guilty.

In the real world, one would assume that if the facts are such that all the elements of the offense would be easily proven, and there is no dispute from the defense, then the case will be plea bargained. But remember that a bargain means give and take. If you make an offer that is essentially the same as what the defendant would get if he went to trial, there is no bargain. You are providing no incentive to avoid putting you to your burden.

Scott provides a fitting conclusion:

But the galling aspect of this “theory” is the implicit assumption that it is the defendant who is inclined to play with the “truth”. I can’t count the number of times some kid prosecutor confuses himself with being Odie to some cop’s Garfield, lapping up whatever story the cop feeds him as if it’s gospel. What makes prosecutors believe, truly believe, that they aren’t getting fed a slab of beef surrounded by a garnish of utter fabrication? This “my cop would never lie” attitude is the mark of naiveté. Cops treat kid prosecutors like the village idiot, too stupid to recognize tailored testimony if their life depended on it.

So is it more fulfilling to claim ownership of the “truth” when it’s the product of child-like self-righteousness? One side has an ethical duty to do justice. The other had a duty to defend a person. That’s the way the system is supposed to work, and to think that there’s one side that owns the truth is just silly.

What say you, WJ?

You must’ve heard the phrase “Don’t knock it till you’ve tried it”. Some police departments have now tried it and may be sorry they knocked it. The Day has this article on the pilot program to videotape interrogations and the surprising (to some) results.

“The police are waking up to the fact that this is not the enemy, that it can be their best friend,” [Judge Kevin P.] McMahon said.

The police have long resisted being compelled to videotape interviews but apparently are seeing good results when they participate voluntarily.

“There has been, for quite a while, a positive reaction to it, but a recognition that we have to be careful and do it right,” said Kevin T. Kane, chief state’s attorney. Kane said there are many issues yet to be resolved, such as creating transcripts of the interviews, preserving the records and training investigators. He said one consideration will be whether the camera inhibits suspects from talking or investigators from using normal or lawful investigative techniques, two reasons police had resisted videotape in the past.

So how are some departments feeling about this?

The time for videotaping has come, said detective Lt. John Varone of the Groton Town Police Department. His department will be included in the second wave of the pilot program and will share its resources with departments east of the Thames River. In the home invasion/murder case, which Varone declined to discuss specifically, police used a camcorder. Eventually, the department’s interview room will be revamped to accommodate state-of-the-art video equipment.

“I think some of the defense attorneys are in for a huge, huge letdown when we do this,” Varone said. “Now they’re not going to be able to challenge us and say we tricked them (the suspect).”

Ugh. This is not a game of Gotcha!, Lt. Varone. I don’t wake up every morning hoping that some cop tricked my client somewhere so I can challenge the confession. We want transparency. The point of videotaping interrogations is precisely to see what cops are doing and to make sure that they don’t get a false confession because they’ve got your sights set on one man and can’t look beyond their nose.

Defense attorneys have long called for mandatory recording of interrogations.

“I think it adds transparency to the process that benefits everybody, both the defense and the state,” said New London attorney Matthew G. Berger. “It removes doubt about what happened.”

Public Defender extraordinaire Tom Ullmann wants to videotape interviews with witnesses.

“Juries are not stupid,” he said. “They don’t understand why this stuff can’t be taped. And from a police perspective, if you did the job correctly and you’ve got someone making a statement and have the whole interview process recorded, it’s going to be reliable.”

Ullman said juries will now be able to see “what police really did.” The courts have allowed police to use trickery and false statements during interrogations, he said, “but I think there is much more problematic stuff that goes on that would stop, such as (the police) suggesting what photo to pick out of a lineup.” In New Haven, Ullman said, the public defenders had a case where the detective whispered “numero dos” to help the eyewitness pick the correct photo.

I don’t know how The Day got this next bit of information, but it sure is juicy:

Defense attorneys regularly ask judges to suppress statements that are not recorded. On Wednesday, attorneys Richard Emanuel and Douglas Nash filed a brief with the state Supreme Court to overturn the conviction of Julian Lockhart, who was convicted in the beating death of Robert Glidden in Durham in 2002. The attorneys claim in the appeal that “the electronic recording of interrogations, advisements of rights and statements is constitutionally required when the interrogation occurs at a place of detention and recording is otherwise feasible.”

I bet that’s a State Constitution claim.

The question mark is because I can’t tell from this piece what the heck actually happened. Shoddy, shoddy writing.

Under pressure to respond after two deadly home invasions in the past nine months, the state Senate voted early this morning to strengthen the state’s criminal law and allocate $10 million for enhanced crime-fighting.

The bill passed by 32 to 3 at about 2:20 a.m. Thursday after the Senate Democrats withdrew a previous amendment that had prompted a sharply bitter debate with Republicans. The final version gained bipartisan support after lawmakers said the bill would authorize a judge to double the penalty following a second violent crime and triple the penalty after a third offense - up to a maximum of life in prison for a violent felon.

The debate on the three-strikes bill had the usual rhetoric from the Republicans that criminals are not being punished. The Dems responded with “bumper sticker politics”.

So what happened, exactly?

Earlier in the evening, the Republicans had verbally pummeled the original bill on the Senate floor, saying that it would actually weaken the state’s laws for violent crimes. Following that clash, Democrats — who hold the majority in the chamber — suddenly postponed the debate and called for a recess shortly before 11:30 p.m. The chamber reconvened later, and the “three strikes” debate pushed the vote past 2 a.m. Thursday.

“This is an extraordinary change in our public policy,” McDonald said, adding that criminals “will be punished in extraordinary ways.”

But Sen. John Kissel, an Enfield Republican, said the original bill was so badly written that it would not accomplish the legislature’s tough-on-crime goals and, in fact, would backfire.

“I guess I’m missing something,” Kissel said. “It actually is weaker addressing persistent dangerous felony offenders. … This amendment pushes us backward. How can this be tougher on criminals? It’s not.”

Out of 21 violent crimes mentioned in the original bill, the maximum prison sentence would actually be reduced for eight of them, Kissel said. That includes second-degree manslaughter with a firearm, among others.

Oh well, that’s interesting. Pray tell us, Courant, why these sentences would be reduced and what other crimes?

No? That’s not important to the narrative? Oh. Okay. Well, then tell us what the final version of the bill was.

Besides streamlining the law, the bill provides money for more prosecutors, public defenders and probation officers, along with expanding the state’s “cold case” unit and providing additional re-entry programs for criminals who are released from prison.

“So many people fail on probation,” said Senate Majority Leader Martin Looney, a New Haven Democrat. “So many people fail on parole.”

But McKinney said he was stunned when he read the original five-page bill. Currently, a criminal could receive 40 years in prison for compelling someone to have sex at gunpoint. The bill, crafted by Democrats, would reduce that penalty to 20 years, he said.

Wait. I’m confused. Is this the original version, the amendment that was scrapped or the final version? Don’t know? I don’t either. Good job there, Chris Keating, Capitol Bureau Chief. Now I know less than I did when I started reading your story.

Can you condense all of this into bullet points for stupid old me?

# $5,492,000 to improve supervision of sex offenders who are on probation, including upgraded lie-detector and global-positioning-system (GPS) technologies. The money also would be used for truancy prevention and helping officials serve warrants on probation violators.
# $2,147,000 to hire more parole officers and prison guards, along plus expanding the use of GPS technology to track criminals who are on parole.
# $910,000 for the state Department of Mental Health and Addiction Services to provide supportive housing and for improving the women’s jail-diversion program, among others.
# $681,000 to the Division of Criminal Justice for more prosecutors and better computers.
# $514,000 to hire more employees for the state police major crime squad.
# $252,000 to the Public Defender Service Commission for lawyers to handle more prosecutions and aide indigent criminals.

Yet nothing on penalties. Sigh.

Oh, by the way Chris Keating, Capitol Bureau Chief, the correct term would have been “indigent defendants“, not criminals. Unless, of course, this bill removed the presumption of innocence. Which I have no way of knowing whether it did or not, because I didn’t understand anything you wrote.

Anyone have a link to the actual bill that was passed?

Everyone that practices criminal law is probably aware of the Sixth Amendment right to effective assistance of counsel and the (usually) appropriate venue for seeking relief for a violation of that right: a petition for writ of habeas corpus. This remedy, however, is difficult to obtain and is backward-looking in nature.

The question I’m currently considering, however, is whether there is a need - or does anyone have the responsibility - to preempt habeas corpus petitions by stopping the damage while it occurs.

Norm has been blogging up a storm recently about Gerry Spence and the Fieger trial in Chicago, talking about taking the opportunity to see the master in action. Of course, when a trial lawyer as celebrated and revered as Spence is “performing”, there is much to learn. But what of the exact opposite? What of the trial where everyone is painfully aware the counsel is performing horribly?

A trial, from the perspective of the State, is the pursuit of justice and a quest for the truth. If, during that trial, the defendant (who, let us remember, is presumed innocent) is being defended in a manner that is obviously deficient, does anyone have the responsibility to step in and say, “let us stop this sham before it goes any further”? Does the judge? The prosecutor?

Does there come a point during a trial when the system has so obviously failed that to continue would be a mockery of justice? Keep in mind that I am talking about extreme cases here - cases where it is apparent either that the defense is not really doing any “defending” or that the quality of representation is so poor that a subsequent habeas becomes an almost foregone conclusion.

Or is that too heavy a burden to place on the system? There are a few things that can be done post-trial (habeas, grievance), but is there anything that can - or should - be done during a trial?

In the comments to my post about prosecutorial immunity yesterday, John raised an interesting point. He writes:

At the VERY least, why do we not see prosecutors grieved, disciplined, reprimanded, made to take remedial ethics classes, etc. when THEY do something unethical? Is it our fault? Should we (defense attorneys) be filing grievances against prosecutors who (as in a case I have pending now) withhold exculpatory information? Should judges (a lot of them former prosecutors here in CT) be taking the lead in seeking sanctions? Why should they not be held accountable?

In a case involving clear prosecutorial misconduct, such as hiding Brady or Giglio material or offering knowingly false testimony to secure a conviction, where a conviction is reversed, does it mean that a prosecutor has violated the Rules of Professional Conduct and if so, do we have a duty to report that to the Grievance Committee?

I think the answer is pretty clear, as I demonstrated in my response to his comment. Yes, there is an ethical violation and yes, there is a duty to report. But stories of such reporting are very scarce. In fact, it seems as though it almost never happens. The Duke lacrosse team case is the only one I can come up with in recent memory where a prosecutor was disbarred (or even reprimanded!) for an ethical violation. Perhaps something will happen as a result of Tim Masters’ exoneration, but even there two of the prosecutors are now judges (IIRC), so it will be an uphill battle.

What if there is no conviction yet, but you discover that a prosecutor has willingly and knowingly withheld exculpatory information. Obviously, you first turn your sights on exonerating your client and getting any charges dismissed, but when that is done, do you file a grievance? I’ve never heard of it happening. Perhaps some more experienced readers can fill in the blanks.

This reluctance to report is not limited to prosecutorial misconduct impropriety alone. Every one of us has seen clear instances of incompetence of fellow counsel in the courtroom. Yet, the question is almost never asked: Is that grievable and do I have a duty to report it?

Why this reluctance? Is it because we work alongside these people on a daily basis and have to interact with them regularly? Is it because we are afraid to “piss off” the prosecutor, who will have the fate of tomorrow’s client in his/her hands? Will the prosecutor seek revenge by taking it out on the obviously guilty client next week? Are we violating some sacred bond between members of the profession by considering reporting a fellow attorney for an ethical violation? Is it just easier to turn a blind eye?

One of the first polls I put up on this site was “Would you ’snitch’ on another attorney?” The options were “Always”, “Never” and “Only if it was really bad”. An overwhelming majority chose “Only if was really bad” (65%). Granted, the sample size was really small - 20 votes. In fact, I asked this very same question nearly one year ago [weirder still is that in April 2007, I also had a post about videotaping interrogations. Go figure]. So maybe it is time for another vote on that poll.

Why do you folks think this is? Or am I way off and are these not “reportable” offenses? Or am I off further still and do people actually report such actions?

[PS: Scott, this is my 5th post today. No more complaining.]

Image courtesy 3×0=3 (LVSFRD). License details here.

Some interesting CT stories from today that I’m really just too lazy to make into full-fledged posts.

First, New Haven public defender Tom Ullmann gives the New Haven police department a piece of his mind and takes a few swings at the State’s Attorney’s office too:

Defense attorney Thomas Ullmann has charged that some members of the New Haven Police Department’s Detective Bureau are “incompetent, unprofessional and untruthful” in handling witnesses and investigating crimes. Ullmann, said the detectives’ performance is “at its lowest level in the 30 years I’ve been here.”

Ullmann accused the detectives of “a rush to judgment, not being thorough, not following up on obvious leads.” He said there was “a shocking lapse of asking witnesses investigative questions, such as who had been drinking or doing drugs.” Ullmann added, “Their attitude was ‘the less we know, the better.’ This feeds into their tunnel vision on the case.”

He alleged the Detective Bureau has “a history of suggesting information and providing facts to witnesses and failing to investigate facts pointing in a different direction.” He said in some cases witnesses have been “harassed.”

Moreover, Ullmann charged, “This culture doesn’t exist without some enabling by the state’s attorney’s office. This doesn’t happen without the prosecutors winking and nodding and looking the other way.” He added, “There are some really good prosecutors here, but sometimes people close their eyes to this stuff.”

Yowza!

Second, the Appellate and Supreme Courts might be in danger of losing heating and cooling May 1st onwards. The Supreme Court recently rejected emergency appeals filed by the State to compel the service provider to continue providing past the expiration of the contract on May 1.

On March 27, Hartford Superior Court Judge John J. Langenbach ruled that TEN Company has no obligation to supply the state buildings with heat, or the chilled water that runs air-conditioning systems, after its contract expires.

Langenbach said he could find no legal authority to “force TEN to continue a business relationship with the State that it wishes to end because the State may suffer harm as a result of its failure to plan for the expiration of that relationship.”

The State apparently figured that there’s no way TEN wouldn’t provide heat and a/c, so they have done absolutely nothing to prepare for this.

TEN offered to sell the piping system to the state, but officials didn’t make an offer. Wrote Langenbach: “The State has not taken a single step to begin the process of procuring an alternative source of heating and cooling for the eight buildings.”

Actually, it’s not entirely true that the state has failed to act. “Well, we filed an injunction. We also sought some legislative relief. So those are the things we’ve done,” one state official told Langenbach.

Public Works officials contend that a permanent system would take six years to install, and even a temporary solution would take two years to implement. But Langenbach gave credence to TEN’s general manager, Derek Rudd, who testified that temporary heating and cooling could be put in place “fairly quickly.”

Luckily, the current term of the Courts ends on April 30 (although the next one starts mid-May!). This should get interesting.

At the end of June, four police departments in CT will begin to videotape interrogations of suspects of violent felonies.

Supporters think such a policy should have been required in Connecticut years ago, especially in light of two high-profile cases in which police were accused of coercing confessions. Law enforcement officials have remained leery, voicing concerns that suspects will balk at being recorded and that defense lawyers will critique interrogation tactics.

In 2003, Illinois became the first state to enact legislation requiring electronic recording of interrogations. Maine and New Mexico soon followed suit. But even those states were a decade behind Alaska and Minnesota, whose supreme courts mandated taping in the mid-1980s. New Hampshire and New Jersey’s supreme courts have since made similar rulings. Additionally, 500 smaller jurisdictions have adopted recording policies.

Under State v. James, a 1996 CT Supreme Court decision, videotaping interrogations is not required. Despite that, many organizations have lobbied tirelessly for requiring such videotaping.

Rep. Michael Lawlor, the committee’s co-chairman, said the measure has been merged with another bill aimed at compensating those wrongfully convicted. He said a Commission on Wrongful Convictions would evaluate the pilot program and report back in January. “Then next year we’ll talk about expanding” the videotaping program said Lawlor.

Lawlor said he believes Connecticut will eventually require recording statewide.

Won’t be too soon.