Category Archives: prosecutors

Are there viable solutions for prosecutorial misconduct?

Just last week, I wrote a lengthy column in the Law Tribune outlining the many instances of prosecutorial misconduct occurring over the last month and a half or so, all of which seemingly went unpunished. In it, I didn’t propose any ideas to eliminate the problem. Just that same day, however, news broke of yet another instance of egregious misconduct by a prosecutor in California – a man named Robert Murray – who fabricated two sentences and added them to a defendant’s statement to police:

Kern County prosecutor Robert Murray added two lines of transcript to “evidence” that the defendant confessed to an even more egregious offense than that with which he had been charged—the already hideous offense of molesting a child. With the two sentences that state’s attorney Murray perjuriously added, Murray was able to threaten charges that carried a term of life in prison.

Murray called it a “joke”:

The panel found that Murray deliberately altered an interrogation transcript to include a confession that could be used to justify charges that carry a life sentence, and distributed it to defense counsel at a time when Murray knew defense counsel was trying to persuade Palacios to settle the case.

The court cited the changes made by Murray in the transcript as follows:

(Detective): “You’re so guilty you child molester.”

(Defendant): “I know. I’m just glad she’s not pregnant like her mother.”

Murray placed the falsified admission of guilt into the English transcript translation of Palacios’ interrogation that was done in Spanish.  For nine days, Murray kept quiet about his fabrication. It was only after defense attorney Ernest Hinman confronted Murray about the altered version. Murray said he meant it only as a joke to be kept between the two men.

His immediate supervisor, Kern County District Attorney Lisa Green said she was disappointed… in the appellate court ruling [PDF]. California AG Kamala Harris’ office appealed the dismissal and continues to defend it.

Instapundit (and Law Prof) Glenn Reynolds picked up on this and my prior post and wrote a powerful column in USA Today excoriating unethical prosecutors. But he too noted the problem with the current idea of sanctions: that prosecutors are immune from civil liability:

Worse yet, prosecutors are also immune from civil suit, under a Supreme Court-created doctrine called “absolute immunity” that is one of the greatest, though least discussed, examples of judicial activism in history. So prosecutors won’t punish prosecutors, and victims of prosecutors’ wrongdoing can’t even sue them for damages.

That leaves courts without much else to do besides throwing out charges in cases of outrageous misconduct. But if we care about seeing the law enforced fairly and honestly, we need more accountability.

Indeed we do. Misconduct is an area that gets prosecutors angry and swarming, because it is an allegation of dishonesty and ethical failures. It’s an incendiary topic and well it should be. When a prosecutor commits misconduct, individual defendants aren’t the only ones who lose: the ideal of justice does as well. So while it is a delicate subject, it shouldn’t be taboo. While we must be careful not to accuse every prosecutor we dislike of engaging in misconduct, we should not be afraid to stand up against those who do and demand action against them for it.

I’ve pondered many solutions for years and Glenn Reynolds lists them in an easy to digest paragraph:

First, courts should sanction prosecutors directly and personally for misconduct. Second, legislatures need to pass laws promoting accountability — and ensuring that prosecutorial misconduct is policed by someone other than the same prosecutors’ offices that are committing it. Third, the notion of absolute immunity for prosecutors, which has no basis in the law or the Constitution, needs to be abolished.

I’m going to examine some ideas in turn now.

Hold prosecutors accountable to restore faith in the justice system

“Her license remains active and in good standing.” The words rang out at me as I stared at a newspaper article in the Indianapolis Star. It was about the conduct – or misconduct – of a woman named Gillian DePrez Keiffner who is a Deputy Prosecutor there. During trial, she had vouched for the credibility of the complaining witness in a sexual assault case, demeaned and insulted the defense attorney and asked the defendant which of the two 14 year old girls he liked touching better. A few weeks ago, the Indiana Supreme Court reversed the man’s conviction finding that her conduct was improper and deprived him of a fair trial.

Her license remains active and in good standing. It reminded me of Willie Jerome Manning, who this past month, received a new trial thanks to the Mississippi Supreme Court, finding that exculpatory information was not turned over to the defense.

Her license remains active and in good standing. It reminded me of Linda Carty, who is on death row and just a few weeks ago won the right to have a hearing to investigate claims of prosecutorial misconduct. Both a former DEA agent and the only eyewitness to the crime claim that prosecutors threatened them into testifying against Carty.

Her license remains active and in good standing. It reminded me of former federal prosecutor and now Orange County Superior Court Judge Terri Flynn-Peister, who ordered a sheriff’s deputy to only turn over four out of 196 pages of notes about an informant.

Her license remains active and in good standing. It reminded me of Darryl Gumm and codefendant Michael Bies, whose 1992 murder convictions were overturned at the end of January by the Sixth Circuit Court of Appeals because of “flagrant” and “severe” prosecutorial misconduct. Both Gumm and Bies used to be on death row.

Her license remains active and in good standing. It reminded me of R. David Favata, a prosecutor in Delaware whose unprofessional and insulting behavior toward a pro-se defendant and improper vouching for a witness led the Delaware Supreme Court, at the end of January, to reverse a murder conviction and death sentence.

Her license remains active and in good standing. It reminded me of Jennifer Darby, a prosecutor in Colorado Springs. Her “pattern and history of prosecutorial misconduct” including providing false information about a defendant at sentencing, led a trial court judge to enter a dismissal in a third case involving her in the last 6 months.

Her license remains active and in good standing. It reminded me of prosecutors Robert Spira and Paul Vinegrad, the latest objects of Judge Kozinski’s affections. A video of his lambasting of the CA prosecutor trying desperately to salvage the conviction Johnny Baca has gone viral and caused quite an uproar. Kozinski is no stranger to demanding prosecutorial accountability, as I mentioned in my first column for the Law Tribune exactly one year ago. Kozinski’s threats of prosecution for lying prosecutors resulted in California dropping the appeal against Baca, but the viral video cannot be unseen.

Her license remains active and in good standing. Finally, it reminded me of Victor Santiago, who had his conviction reversed because of a “deliberate pattern of improper conduct” by prosecutor Terrance Mariani.

The common theme here seems to be repeated misconduct by select prosecutors with no repercussions beyond new trials for the accused. While that, in of itself, is a just solution, that does nothing to ensure justice across the board. The concerns expressed by Judge Kozinksi and others seem quite valid: without any personal consequences to individual prosecutors, there is no barrier to them repeating their improper conduct in court.

Prosecutors are not the same as defense attorneys. Defense attorneys have one responsibility – and that is to zealous represent the interests of their individual clients. Prosecutors have no individual client and represent the people of the state as a whole. Their responsibility is to ensure justice, whatever that may be. It is not for them to adopt a “win at all costs” mentality. The prosecutorial power should never be a game, with the winner being the one who gets the most convictions. Yet it is precisely that mentality that leads to these unfortunate instances of misconduct which results in injustices in several ways: either innocent individuals get convicted by hook or crook, or guilty individuals go free when courts reverse convictions for due process violations.

Disciplining of prosecutors by ethics boards or internal review committees remains infrequent and elusive. While defense attorneys are routinely “grieved” by disgruntled clients, it is unknown if prosecutors ever are – by anybody – despite demonstrated misconduct. The grievance committee does not see it as their responsibility to initiate an investigation; appellate courts will find prosecutorial impropriety but not refer the individual to the grievance committee and whether the Division of Criminal Justice has an internal review mechanism is known only to them.

I want to make it clear that I am not suggesting that all prosecutors are unethical or engage in misconduct or are caught up in winning rather than ensuring justice. Far from it. Most are honest, hard-working, ethical and reasonable. But there are those who are not, unfortunately, in this State and elsewhere. Whether they are motivated by zeal or a desire to win or a plain dislike for defendants, I do not know.

But justice is not served – the community is not served – when prosecutors are permitted to repeatedly engage in misconduct without any consequences whatsoever. There is a national discussion brewing on how best to ensure that prosecutorial improprieties are minimized and eliminated. I do not subscribe to Judge Kozinski’s view of prosecuting prosecutors, but I do think there needs to be accountability when there has been a finding of impropriety. Every incidence of misconduct – particularly when it results in a reversal of a conviction – undermines confidence in the criminal justice system itself. The system needs to police itself and hold accountable errant prosecutors so we can respect the authority of the system itself. One need look no further than Ferguson and its aftermath to see how dangerous it is when when our faith in figures of authority is lost.

The Judiciary Committee of the state legislature has before it a bill or a proposal for oversight of the Division of Criminal Justice. From what I can tell the bill seems to be nothing more than a title – an idea or a concept. There is no language attached to it and I cannot think of what language might be suitable.

But it is the prompt for a discussion. A discussion that everyone needs to have, however unpleasant and difficult it might be: what is to be done, if anything, to prosecutors who repeatedly violate the law and engage in misconduct?

Here’s the video in case you haven’t seen it:

[This is my latest column for the CT Law Tribune.]

Provoking prosecutorial oversight

Slate has published an interview with Fordham Law professor John Pfaff (Twitter) that is both very good and very bad. I suspect they contacted him because of his post at PrawfsBlawg (guys, it’s been, like, 10 years. Can we change that name now? Seriously please?) in which he thinks about prosecutors.

Thinking about prosecutors is a very good thing – we here at APD do it often – and it seems that John Pfaff recognizes that thinking about prosecutors is an important thing and he seems to do it often and do it well:

The second question concerns a recent change in prosecutorial behavior that has had a profound impact on punishment in the United States over the past twenty years (and one I have raised in earlier posts as well). Since the early 1990s, prison populations have continued to soar even as crime rates steadily dropped. Why? Well, before asking “why,” we need to ask “who”—whose actions are most responsible for the change.

The basic facts are straightforward: since the 1990s, crime has fallen, and so too have arrests. The likelihood that a felony case results in a prison admission has been flat. The time that admitted person spends in prison has been flat too (I swear—though contrary to conventional wisdom, this is in fact the case). Only one thing has increased: the probability that an arrest results in a felony charge.

The change has been dramatic: over the course of the 1990s and 2000s, the probably that an arrest resulted in a felony case soared, from about 1-in-3 to 2-in-3, and this appears to be the primary engine of prison growth during the crime decline. Thus the story of post-crime decline prison growth is a story of increased prosecutorial aggressiveness.

In fact Pfaff has been at this for a while. Here’s a paper he wrote in 2009 and here’s an accompanying piece in, of all things, Slate in 2009. Here’s another one from 2014. His point is that while a lot of us have been focused on the war on drugs as the main driving force behind America’s incarceration problem, it is but one factor. He urges us to look at prosecutors more skeptically and question their unchecked power and their exercise of their discretion in determining who to charge and with what crimes.

This is, of course, not a novel idea: it stands to reason that if prosecutors are overzealous and heavy-handed and throw around their power, they will charge greater numbers of people with more serious crimes and use the threat of incarceration to get potentially innocent people to plead to lesser offenses and thus boost prison populations, despite actual crime dropping.

Whether there is a direct correlation here is beyond my mathematical abilities, but intellectually one cannot escape coming to the conclusion that this theory holds water. Anecdotal, experiential evidence supports this theory. Every criminal defense lawyer has encountered a prosecutor or three who insists that – despite damning evidence to the contrary – a dismissal shall not be forthcoming and a defendant must agree to accept some responsibility whether real or imaginary. Every criminal defense lawyer has encountered a prosecutor who refuses to forgo a prosecution despite it being the morally correct path to take. Statutory rape cases are the prime example of opportunity for abuse. Additionally, in CT alone – a very small state – there are 1532 offenses one could commit that would land one in jail.

“A pound of flesh” isn’t a phrase thrown about in criminal justice circles because the participants are avid meat eaters.

The Slate interview with Pfaff is a good thing, however, because it highlights the problem with a lack of oversight of prosecutors to the lay individual1.

So what caused prosecutors to become more aggressive? Sadly, no one knows. I thus want to start talking through some of the possibilities, such as other political incentives, changing budgets, improved policing, tougher sentencing laws (which do not necessarily result in longer sentences, but may facilitate plea bargains), etc. Any real reform of criminal justice outcomes in the US will require some change in prosecutorial behavior.

But that’s a tricky thing to accomplish. Not only do we not really understand what motivates or shapes prosecutorial outcomes, but DAs are very hard to regulate: directly elected at local levels, generally unchallenged and politically popular. Any effort to modify prosecutorial behavior will thus likely have to operate indirectly and by persuasion, which of course requires us to know what is persuasive.

There is, as far as I’m aware, no oversight of prosecutors anywhere. Grievances are rarely filed, if ever. There are no boards who review the performance of prosecutors and internal investigations are pro-forma if they are ever performed.2 Even those who are found by courts to have engaged in unethical behavior are rarely punished and not only continue to keep their jobs, but also get promoted and become judges.

The greater the awareness of this issue and the greater public interest we can generate, the better it is for everyone.

But let’s not call prosecutorial oversight “provocative” shall we? What’s so provocative about suggesting that prosecutors are sending more people to jail and thus our prison populations are increasing across the country?3

This is why this piece is very bad. It sets up Pfaff’s theory as some sort of ground-breaking, dangerous, novel idea. It reveals another pet subject of ours here at APD and that is the complete and abject genuflection that the media engages in at the altar of law enforcement.

Most media representations of the justice system are from an solidly “law and order” position: all crime is bad, all criminals are bad, whatever police say is true and every person deserves the punishment they get.

When that is the underlying theme of every story written about the justice system, it isn’t hard to see why an idea that questions the righteousness of those on the “law and order” side of the justice equation would be treated as “provocative”.

I have never understood why the media isn’t more skeptical. They are clearly so when it comes to other forms of governmental power and abuse: the military, state secrets, who’s making how much and which contract was given to which relative. So why do the police and prosecutors get a “can-do-no-wrong” pass? Why are press releases from the police blotter routinely printed verbatim? Why isn’t it equally normal to wonder if the accused in a particular case was given a just sentence or whether the prosecutor really needed to purse a more serious charge when a lesser one would have sufficed?

If judges, defense lawyers, grievance committees, legislators and the media won’t challenge the authority of prosecutors and demand oversight, then who’s left? That’s right: prosecutors.

Seattle PD’s arrest of black man is every problem with the justice system in a nutshell

If there were a video and accompanying story that could be used as a textbook example of every problem with our criminal justice system, this is it. First, watch the cruiser cam video (you only need watch from 1:40 to 7:40):

What the video shows is Wingate standing motionless at the crosswalk and Officer Whitlatch pulling over and immediately asking him to drop his weapon and then claiming that he swung it at her.

She then cautions him that the entire encounter is being recorded. Wingate stands there dumbfounded, like someone who never had any negative interactions with anybody:

Wingate is a 70-year-old Air Force veteran and retired King County Metro bus driver had a daily habit of walking and using a golf club like a cane, according to his attorney, Susan Mindenbergs.

But Whtilatch’s version is quite different. This is from the police report:

In the police report filed by Officer Coles about the incident, Whitlatch said “she observed him look at her and aggressively swing his golf club in the direction of her patrol car.” “Because Wingate was still in possession of the golf club,” Coles wrote in the report, “and she was fearful of being assaulted by him, she said that she kept her distance from him upon exiting her patrol car.”

There are four disconcerting things about this:

  1. It seems that Whitlatch is a long-time racist:

Facebook user Cynthia Whitlatch accuses Davis of being a “black racist” and writes, “If you believe that blacks are NOT accusing white America for their problems then you are missing the point of the riots in Ferguson and the chronic black racism that far exceeds any white racism in this country. I am tired of black peoples paranoia that white people are out to get them. I am tired of hearing a black racist tell me the only reason they are being contacted is because they are black solely because I am NOT black.”

in a police department that has had several concerns about systemic racism:

Officer Whitlatch is one of 123 police officers who sued the government last year, at both the federal and city level, to block the Department of Justice–ordered use of force policies. The SPD is under a federal consent decree and is being forced to address the DOJ’s concerns over racial bias and its finding that Seattle police routinely use excessive force.

And obviously a liar, as evidenced by the disconnect between her version and reality.

  1. The police don’t seem to think that it has anything to do with race:

“They know that had this been a white man,” said [former Democratic Washington State representative Dawn Mason], “we wouldn’t be here.” But, in fact, it appears they don’t know that. The Seattle Police Department insists racial bias played no role in the incident.

“If this person had been white,” said SPD spokesman Sean Whitcomb, speaking by phone on Tuesday, “I would imagine it would have been the same outcome. We don’t believe this was a biased policing incident. We don’t believe the officer acted out of malice or targeted this man because of his race.”

At the East Precinct, Mason said, they watched the video with Assistant Chief Nick Metz and East Precinct captain Pierre Davis.

But the police commanders, including Metz and Davis, didn’t see it that way. Mason said they “tried to convince me nothing was wrong.” Metz, in particular, “kept trying to convince us nothing was wrong here. He defended the officer.”

  1. That Whitlatch’s “punishment” was a talking to:

Whitlatch has not been disciplined. “This did not go through the OPA process,” said SPD’s Whitcomb. “Basically, she was talked to by her supervisor.”

She has however, been removed from duty that involves interacting with others:

Seattle police chief Kathleen O’Toole said in a statement this afternoon that she feels “shocked and disappointed” at the way SPD officer Cynthia Whitlatch behaved on Facebook—tacitly confirming that a post-Ferguson Facebook screed about “chronic black racism” and “black people saying poor poor me” was, in fact, written by the same Officer Cynthia Whitlatch who arrested an elderly military vet last summer for “walking in Seattle while black.”  Officer Whitlatch, O’Toole said, is now on administrative assignment, “where she will have no interaction with the public” while a “comprehensive review” of her behavior in this and other cases is completed (along with an independent investigation by the Office of Professional Accountability).

  1. The system condones this behavior. Notice how, in the video, Whitlatch can be heard telling Wingate that it’s all recorded on audio and video. She’s not lying; it is. But she also has to know that the video tells a completely different version than hers. So why is she making that bold claim about the video? Because she knows that no one’s ever going to bother to see it. She knows that it’s a minor charge and the nuisance factor of it is enough to get someone to accept some sort of slap-on-the-wrist rather than spend months contesting what is essentially a minor infraction. She knows that she can get away with it because she’s a cop and what’s in the report will almost always be exclusively relied upon.

And she almost did get away with it:

The next day, prosecutors at the city attorney’s office decided to file a misdemeanor charge of unlawful use of a weapon against him, “based on the SPD incident report,” according to spokesperson Kimberly Mills.

“On that day,” she writes, “Mr. Wingate, who was represented by an attorney, agreed to enter into an agreement under which the case would be dismissed after two years if he complied with all conditions ordered by the Seattle Municipal Court judge.”

What the city attorney’s account of events leaves out, according to Mindenbergs, Wingate’s current attorney, is that the elderly man was told, “If you sign this stipulated order of continuance, it will all be over, basically.” She said her client followed a public defender’s instructions.

As a public defender, I think it’s entirely ineffective and completely defensible. Wingate must’ve been one of hundreds of clients that day. An elderly man accused of threatening a cop with a golf club; a man with no record who probably was just having a bad day. “Your word against the cop’s, Mr. Wingate. And they’re only offering you a deferred adjudication. Who knows if the dashcam even exists?”

And so Wingate pleads guilty. I call it guilt by convenience and that’s what happens when the nuisance value is high enough that people will pled to infractions and small offenses rather than spend the days, weeks, months litigating and fighting minor cases. Most people, believe it or not, don’t like to come to court. Wingate got lucky:

Weeks later, city prosecutors, after conferring with [Deputy Police Chief Carmen Best, who, like Wingate, is black] recommended dismissing both the case against him and the two-year stipulation.

But just imagine how many others there were on that same day, who were harassed, wrongfully accused, arrested and convicted just because an officer like Watlatch decided to flex her muscles.

Well, at least Wingate got his club back and an apology to boot.

H/T: PD Gumshoe

Reminder to cops and prosecutors: it’s not my job to help you

I swear, sometimes, I think everybody needs to go back to grade school for remedial lessons in English and Civics.

I’ve said it again and again, our system of laws is an adversarial system, as opposed to a “truth-seeking” or inquisitorial system. This means there are two sides in opposition: those that try to put people in jail and those who try to ensure that only those who are guilty beyond a reasonable doubt are put in jail. The system can build trust and work relatively properly only when the two sides fulfill their stated roles and don’t exercise improper influence over the other1.

So that means, for instance, that a public defender shouldn’t be arrested and charged with hindering prosecution because his client failed to return to court at the start of a trial.

An Allegheny County public defender was arrested Monday on charges that he gave inaccurate information to a judge’s staff about whether his client had appeared for trial in a sex assault case.  [He] was arraigned Monday night on charges of hindering apprehension and obstructing the administration of law. Court records show Mr. Capone, who could not immediately be reached, was released on nonmonetary bond.

He was arrested for giving “inaccurate information”? What in Blackbeard’s black beard is that?

Mr. Capone represented Jeffrey Derosky, 44, of Imperial, who was charged by Allegheny County police with sexually assaulting a child and other crimes. Mr. Derosky was scheduled to go to trial Jan. 12. Four days later, he was found dead of a self-inflicted gunshot wound in West Virginia.

Sorry, I forgot it mention it gets pretty serious. But here’s the crux of it:

A detective with the county sheriff’s office wrote in a criminal complaint that Mr. Capone told a staff member for Judge Donna Jo McDaniel that Mr. Derosky “had not appeared at court.” The judge’s tipstaff told investigators Mr. Capone asked several times that day whether his client had checked in and stated that “the last time he saw his client was when they met on the Friday before the trial,” the detective wrote.

Unfortunately, it turns out that he had seen Derosky on the morning of the trial and had conveyed an offer of 5 to 10 years to serve. Derosky and his girlfriend had left, both intending to not return. It doesn’t seem that Capone was aware of their intentions to flee.

But it’s still not clear what exactly happened:

The detective contacted the judge’s staff again and asked them to clarify whether Mr. Derosky had come to the courthouse for trial. Confronted with the information from Ms. Blystone, Mr. Capone said he “was unsure how to answer that question and believe that it would violate attorney/client privilege,” the detective wrote.

He said Mr. Capone told the judge’s staff that Mr. Derosky and Ms. Blystone had come to court for the trial, he informed them of the plea deal and Mr. Derosky then cursed and said, “I’m out of here.” Mr. Capone told the staff he went to another courtroom and when he returned about 10 minutes later, Mr. Derosky was gone, according to the complaint.

So it seems that Capone rightly told the cop to fuck off and then did tell the staff that the defendant had come to court.

He was charged with hindering apprehension or prosecution. In Pennsylvania, that crime is defined as:

§ 5105.  Hindering apprehension or prosecution.

(a)  Offense defined.–A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime or violation of the terms of probation, parole, intermediate punishment or Accelerated Rehabilitative Disposition, he:

(1)  harbors or conceals the other;

(2)  provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape;

(3)  conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;

(4)  warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; or

(5)  provides false information to a law enforcement officer.

I’ve put a strikethrough through those parts that aren’t implicated leaving only those that possibly might be. Those remaining parts, however, are a stretch. First, can it be said that he provided or aided a means of avoiding apprehension or escape? He just told the client the offer, the client said that he’d be back and then he pretended to not have seen the client that day.

Let me tell you. This happens all the time. Clients are late. They show up and then they disappear and you have no idea where they are. Some of them run off when you tell them you’re going to jail. It happens every single day every where in America, multiple times.

My job as a lawyer is to make sure my client doesn’t screwed and even doubly so when he’s doing the screwing to himself. So if I can avoid eye-contact with the judge or go disappear in my office for a few hours and pretend to have forgotten that they’re waiting for my client, you can damn well be sure I’ll do that, because clients that run and stay gone are rare. Most often they’re outside smoking a cigarette, calling their relatives arranging for bail or off for one last decent meal. If making myself sparse for an hour or so while they get their shit together avoids the hassle of a re-arrest warrant and then the subsequent vacating of that warrant, then I’m all for it. Call it judicial efficiency.

(4) is pretty damn stupid to be applied in this context. We warn our clients of their apprehension every day. “Hey, Jimmy Jones, you’re going to jail today.”

Finally, “tipstaff”, whatever that is, don’t qualify as Law Enforcement.

What was the problem here? Clearly, he shouldn’t have pretended to not have seen the defendant when he, in fact, did. But how much different is that than him saying “I don’t know where he is”? What if he had said “I can’t divulge any information without violating attorney-client privilege”? Would that be hindering apprehension? Or are those with guns and gavels simply mad that he dared “lie” to them?

This scenario has been discussed many times in my office and no doubt in other public defender offices across the country. I can tell you that there is a difference of opinion and sharp one at that. There are those who believe that it is not within their job description to do one thing to help cops or prosecutors in arresting and prosecuting their clients. There are others who believe that to omit information such as is the case here is to play with one’s word and trust and potentially expose one to professional sanctions.

Not a single person believes that it rises to – nor should it – a criminal act. That’s nothing more than flexing of the thug muscles by law enforcement and should be denounced from every quarter.

Frankly, I’m more concerned about a system that makes an offer of 5-10 years of jail on the day of trial and then causes a man to take his own life rather than be arrested and incarcerated. Isn’t that the real problem here, worthy of scrutiny?

To make it incumbent upon criminal defense lawyers – at the risk of arrest, incarceration and loss of license no less – to divulge the whereabouts of every client and assist in their apprehension is to make attorneys complicit in the machinery of the prosecution and to fundamentally erode the bedrock foundational principles we pretend to be so proud of.

Dispensing with the sham: prosecutors serving as judges


A judge usually wears many hats: jurist, prosecutor, defense attorney. A judge has to evaluate the strengths and weaknesses of a case in pre-trial negotiations, make offers, impose just sentences, etc.

Prosecutors usually end up being judges once they advance far enough in their careers and have schmoozed the right politicians.

Some prosecutors remain prosecutors even after they take the bench and Missouri is ensuring that they get ample practice in maintaining their bent1.

Neil Bruntrager, general counsel for the St. Louis Police Officer’s Association, works part time as a judge where police officers from county jurisdictions sometimes testify against defendants.  “There has never been a conflict. If there was I would remove myself,” Bruntrager said. “If anything, being a defense attorney makes me more sympathetic as a judge in terms of scrutinizing the evidence.”

St. Louis County and the Circuit Attorney’s offices both have full time prosecutors that are allowed to work part time as municipal judges. While prosecutors can do it, state law says public defenders cannot.

Here, have a look at how ridiculous it can get:

Attorney Ronald Brockmeyer works as a St. Charles divorce and criminal defense lawyer during the day, but by night he works part time prosecuting traffic violators in Dellwood. He also works part time as a judge in nearby Breckenridge Hills.

“I don’t think that’s a conflict at all,” Brockmeyer said. “Not at all.”

Brockmeyer makes $600 a session and isn’t alone in wearing multiple hats.

I’m the judge in Ferguson, a judge in Breckenridge Hills, a prosecutor in Florissant, a prosecutor in Vinita Park, and prosecutor here in Dellwood,” he said.

The defense attorney is a prosecutor and a judge and a prosecutor is always a prosecutor and a judge but never a defense attorney and a lawyer for cops is a prosecutor and a judge but never a defense attorney and public defenders are always defense attorneys but never judges and defendants are always screwed.


Yet another example of unsanctioned prosecutorial misconduct

I wrote last week about the double standard in sanctioning defense attorneys while scores of prosecutors nationwide engage in deliberate and willful misconduct that deprives individuals of their Constitutional rights without any consequences whatsoever.

A helpful reader sent me a link to this CT Supreme Court opinion from 2012 that I’d missed, as a further example. In this case, the defense argued that in order to convict him of aggravated sexual assault and aggravated kidnapping (both require the use of a firearm), the jury must be instructed that he actually possessed such firearm. The operative language of both statutes is similar and it is this:

(1) such person uses or is armed with and threatens the use of or displays or represents by such person’s words or conduct that such person possesses a deadly weapon

The reason for this argument is that it is an affirmative defense that the weapon was inoperable. Thus, it would make no sense for the affirmative defense to be applied to someone who had an inoperable gun, but unavailable to someone who had no gun at all.

The Court agreed with the prosecution that the defense had not preserved this argument and thus declined to consider it. And then it dropped this footnote:

[W]e feel compelled to note that in the section of her appellate brief addressing this issue the state’s appellate counsel, Assistant State’s Attorney Melissa L. Streeto, purported to provide quotations of §§ 53a-70a (a)(1) and 53a-92a but inserted commas supporting her statutory construction without any indication that alterations had been made.

In response to questions at oral argument regarding the accuracy of these quotations, she explained, in justification of the improper insertions, that “I put those there because that is how the statute should be read.

No matter how a statute should be read, it is for the legislature—and not counsel—to determine how the statute should be written. We strongly disapprove of the tactic employed here, which was at the very least misleading, and we remind counsel that they are obligated to indicate, through the use of brackets or explanatory parentheticals or otherwise, any modification to quoted materials.

Contrary to Assistant State’s Attorney Streeto’s suggestion at oral argument, and notwithstanding her apology for misleading the court, this obligation is not met by including unmodified copies of the relevant texts in an appendix.

A prosecutor, in reproducing something as basic as the text of a statute – something that everyone has free access to – which she must’ve known the parties would be familiar with, decided to pass off as accurate her own interpretation of the statute.

Then, upon being questioned, had the hubris to state “that’s how the statute should be read”.

This is what happens when prosecutors are allowed to run rampant without any oversight. Once again, I’m fairly certain, despite the Supreme Court’s concern and strong disapproval of this “tactic” that was “at the very least misleading”, she was not punished or reprimanded, let alone referred to the grievance committee.

When prosecutors apologize, everything is okay, because they didn’t really mean to deprive you of your Constitutional rights. After all, they’re in it for justice.