South Carolina Criminal Defense Blog

In Cone v. Bell, released yesterday, the U.S. Supreme Court reversed a death sentence based on Brady violations by the prosecutor. Cone asserted an insanity defense at trial, with testimony that he suffered from post-traumatic stress disorder resulting from his service in Vietnam and amphetamine-induced psychosis resulting from extended and heavy use of drugs. The prosecutor argued that Cone knew the difference between right and wrong, introduced testimony that Cone was not a drug user, and called Cone's defense "baloney." Years later, Cone's attorneys discovered that the prosecutor's file contained numerous undisclosed documents that contradicted the prosecutor's statements and witnesses:

Among the undisclosed documents Cone discovered were statements from witnesses who had seen him several daysbefore and several days after the murders. The witnesses described Cone’s appearance as “wild eyed,” App. 50, and his behavior as “real weird,” id., at 49. One witness affirmed that Cone had appeared “to be drunk or high.” Ibid. The file also contained a police report describingCone’s arrest in Florida following the murders. In that report, a police officer described Cone looking around “in afrenzied manner,” and “walking in [an] agitated manner” prior to his apprehension. Id., at 53. Multiple police bulletins describing Cone as a “drug user” and a “heavy drug user” were also among the undisclosed evidence. See id., at 55–59.

The documents included impeachment evidence from which the jury could have concluded that two of the state's witnesses, a woman who had lived with Cone who testified that he was not a drug user, and an officer who testified that Cone was not a drug user, were lying on the stand.

What the Court did: The Court begins the opinion with strong language about due process and the duties of a prosecutor to seek justice and not convictions:

The right to a fair trial, guaranteed to state criminal defendants by the Due Process Clause of the Fourteenth Amendment, imposes on States certain duties consistent with their sovereign obligation to ensure “that ‘justice shall be done’” in all criminal prosecutions. United States v. Agurs, 427 U. S. 97, 111 (1976) (quoting Berger v. United States, 295 U. S. 78, 88 (1935)). In Brady v. Mary-land, 373 U. S. 83 (1963), we held that when a State sup-presses evidence favorable to an accused that is material to guilt or to punishment, the State violates the defendant’s right to due process, “irrespective of the good faith or bad faith of the prosecution.” Id., at 87.

The Court holds that Cone's claim is not procedurally barred. A federal habeas claim is barred if the state courts were not first given the opportunity to consider the federal claim. In this case, the state courts twice considered Cone's claims and, for various reasons some of which were not supported by the record, ruled against him. Therefore his claims were not barred and the state had ample opportunity to decide his claims.

The Court then holds that the withheld evidence is material to the question of punishment, but not of guilt. Despite the fact that Cone's defense was insanity based on mental illness induced by his excessive drug use, the Court holds that the evidence of guilt was overwhelming and the withheld evidence would not have made a difference. But, the Court holds that it might have made a difference as to whether Cone was given the death penalty, and therefore the case is remanded to the district court to consider the merits of the Brady violation claim (which is not procedurally barred, which was the district court's reasoning for refusing to hear the claim).

What the Court did not do: Despite it's bold opening paragraph, the opinion's tone sounded like the prosecutor's ethical violations were no big deal. This is just another legal issue that we must analyze to determine if there is prejudice to the defendant or not (I disagree with the Court's analysis as to prejudice, as the evidence of excessive drug use is very relevant to his defense of drug-induced psychosis).

It would be nice to hear the Court say, this case is riddled with unethical conduct by state's attorneys, and the extent of that misconduct and the resulting denial of due process demands reversal of this conviction. We will no longer stand idle while prosecutors pursue convictions at the expense of justice and our system is subverted by unethical conduct. If a prosecutor lies to the court and to a jury, if a prosecutor does not produce exculpatory evidence in violation of our prior opinions, court rules, and ethics rules, if an appellate state's attorney argues inconsistent and contradictory theories depending on which court they are before, we will reverse the conviction and strongly recommend discipline by their state bar authorities.

All of these actions by state's attorneys were before the Court, noted by the Court, and accepted by the Court as true. The issue framed on appeal was whether Cone's habeas claim was procedurally barred, but the Court could have gone much further in their analysis of this case.

In another opinion finding against the defendant today, the U.S. Supreme Court, in Dean v. U.S., held that the mandatory minimum for discharging a firearm during the course of a violent crime does not require intent to discharge. Possession of a firearm during a violent crime or drug trafficking crime results in a mandatory minimum of 5 years, "brandishing" a firearm results in a minimum of 7 years, and discharging a firearm results in a minimum of 10 years.

Dean argued that, because the discharge of his firearm during a bank robbery was accidental and not intentional, he should not be subject to the mandatory minimum of 10 years. The Supreme Court disagrees - it does not matter if the discharge was accidental or intentional, the statute does not require a separate finding of intent, and if you carry a loaded gun into a bank robbery you assume the risk that the gun may go off unintentionally. As the witty Chief Justice Roberts put it in his opening lines: "Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns."

In Kansas v. Ventris, released today, the United States Supreme Court held that, although a statement has been obtained in violation of a defendant's right to counsel, it may be used at trial for purposes of impeaching the defendant's testimony. Ventris and a co-defendant, Theel, were charged with aggravated robbery and murder. Theel's murder charge was dismissed in exchange for her testimony that Ventris pulled the trigger, and the prosecution placed an informant in Ventris' cell to obtain incriminating statements.

Predictably, the informant claimed that Ventris confessed to killing the victim. The state admitted at trial that this was a statement obtained in violation of Ventris' right to counsel (cops, prosecutors, or their agents cannot question a defendant once the right to counsel has attached unless the defendant approaches them himself), but at trial the judge allowed the state to call the informant to impeach Ventris' testimony that he was not the shooter. The Supreme Court held that this was appropriate, as the deterrent effect of excluding evidence obtained in violation of the constitution does not apply where it is used for impeachment purposes only, and to hold otherwise would give the defendant free reign to lie under oath. (If Ventris' disagreement with the informant was only whether or not he was the triggerman, it looks like Ventris won on that point anway, since he was acquitted of murder and convicted of robbery)

I agree with the Court's reasoning and I believe it is the right conclusion, but in my opinion we are discussing the wrong issues. The question we should be asking is whether the informant, who undoubtedly is attempting to please the prosecutor in order to obtain his own freedom, should be permitted to testify at all without independent corroboration of his testimony. Our criminal courts have become poisoned by the use of perjured and unverified testimony by informants, which are used routinely by prosecutors, whether knowingly and unethically or ignorantly and incompetently. A culture of lying to obtain deals has arisen in our jails and prisons, which is used indiscriminately by many prosecutors in state and federal courts.

Testimony of jailhouse informants is inherently unreliable, and may be the biggest challenge that our justice system faces today. It is too easy for prosecutors, wielding the threat of prosecution and the promise of freedom, to find an inmate who is willing to say anything that will get them closer to the light of day. I agree that it makes sense to allow use of evidence which was obtained unlawfully for impeachment purposes. It does not make sense to allow use of patently unreliable evidence, whether obtained in violation of the constitution or not, for any purpose.

Earlier this week I was in a lower court in Horry County for several hours, waiting to enter a plea to reckless driving with one of my clients. As we waited, I watched in shock as my colleagues stood with their clients who were pleading guilty to driving under the influence, one after the other. Who am I to criticize? I don't know, and I'm not going to name names or the court that we were in. Maybe there were extenuating facts in all of these cases that justified the attorneys lying down and pleading out their cases.

It's not that I don't know and appreciate that every defendant makes his own decision to plead guilty or take his case to trial - and if they do they are entitled to have a lawyer standing with them. I think its the fact that these were attorneys that I know charge healthy fees and, other than the impression I received from sitting through guilty pleas this week, I consider them to be excellent attorneys and have the utmost respect for them. I also did not hear anything in the recitation of facts by the prosecutor that would have precluded these cases from going to trial - one of them was a case with no datamaster result.

One thing that I considered as I watched was the things that I know many attorneys (not necessarily the ones I watched this week) tell their clients. I believe that the most important aspect of an attorney-client relationship is trust, and I believe that you have to be honest with your clients, regardless of what they want to hear. For example, if you are going to plead guilty to DUI 1st offense, you do not need a lawyer to do that. With the average DUI first offense, if you walk into court in Horry County with no lawyer and plead guilty, you will most likely get the minimum sentence and fine. Whether you have a lawyer standing with you or not, following a guilty plea to DUI first offense you will most likely receive the minimum jail sentence of 48 hours (most likely time served), and the minimum fine. You will also have your license suspended, you will be required to enroll in ADSAP before you can drive again, and when your license is reinstated you will have to carry SR-22 insurance for 3 years, all of which will cost you thousands of dollars.

If you pay top dollar for a lawyer to represent you on your DUI, expecting them to fight your charge and test the state's evidence, you should be prepared to take your case to trial. If, when your case comes up on the roster, your attorney tells you that they've worked out a deal where you will get a minimum fine and no jail time if you enter a plea, but if you go to trial you will go to jail, it's possible that you've been had by an attorney that never had any intention to fight your case. An honest advocate should tell you at the beginning that you can get that wonderful deal without paying him or her the big bucks, and that if you retain them you are paying for a trial. If you are convicted at trial you could be sentenced to up to 30 days on a first offense, or you may receive a fine - in my opinion a fair magistrate would not punish a defendant for insisting on his constitutional right to a jury trial, but there are no guarantees that you will not go to jail. If you are not willing to take your case to trial if that is what it comes to, there are lawyers who charge minimum prices to stand with you in court while you plead guilty.

I heard some eloquent guilty pleas this week, they were truly impressive. But those people still walked out of the courtroom with DUI's on their record and their pocketbooks significantly lighter with nothing to show for it.

The Fourth Amendment has gotten its head above water for a gasp of fresh air with the United States Supreme Court's opinion in Arizona v. Gant. It is not necessarily a far-reaching opinion (because the exceptions still swallow the rule when it comes to application of the Fourth Amendment), and it's holding is limited to a fairly specific set of circumstances as I'll discuss in a moment, but it does spark some hope that the Supreme Court still believes in our Constitution and specifically the Fourth Amendment. Yesterday following the opinion's release there was a ripple across the blogosphere as criminal defense bloggers celebrated and provided their commentary (see below for links).

Gant deals with the search of a vehicle incident to arrest, and it's holding is that:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

Up to this point, police have routinely searched vehicles any time there was an excuse to arrest the driver (note that in S.C. you can technically be arrested for minor traffic violations such as speeding). In 1969, the U.S. Supreme Court held in Chimel v. California that police could search the area around an arrestee from which they could grab a weapon or destructible evidence, in the interest of 1) officer safety; and 2) preservation of evidence. In 1981, the U.S. Supreme Court decided New York v. Belton, which expanded this rule to the passenger compartments of vehicles and all containers therein. Despite the policy served by this rule - officer safety and preservation of destructible evidence - this has been interpreted to apply to cars even where the person arrested is handcuffed and in the patrol car, and in some cases it has been held to apply hours after the arrestee has been removed from the scene.

Justice Stevens in the majority opinion acknowledges this and says, "lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel." The majority holds that the rule in Chimel and Belton will apply in two situations: 1) "when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search," and 2) "when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle."

My first thought regarding the first circumstance was, will they now train police to leave arrestees unsecured by their car long enough to search for evidence? I believe the Court considered this as well, as they noted in footnote 4: "Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains."

Regarding the second circumstance, this leaves open a valid search incident to arrest where evidence of the crime of arrest may be found in the vehicle, such as an arrest for a drug offense, but the Court makes it clear that this does not encompass an arrest for a traffic offense - you cannot reasonably expect to find evidence of driving under suspension, for example, inside a jacket pocket in the back seat of the car.

A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

Scalia's concurring opinion is more straightforward and honest, and I agree with his analysis. He proposes that the Court completely do away with the charade of the Belton line of cases and overrule them.

When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means ofensuring their safety—and a means that is virtually always employed: ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him in the squad car. . . .

In my view we should simply abandon the Belton-Thornton charade of officer safety and overrule those cases. . . .

We should recognize Belton’s fanciful reliance upon officer safety for what it was: “a return to the broader sort of [evidence-gathering] search incident to arrest that we allowed before Chimel.”

Courts need to be honest in their analysis of cases - if we are going to have an exception to the Fourth Amendment for vehicles, to allow law enforcement more leeway in gathering evidence of crimes, we need to call it that. We don't need to justify it with a non-existent concern for officer safety - I am impressed with the majority opinion in Gant and even more so with Scalia's view. Gant's case is a perfect example of police using the Belton rule for general investigation where officer safety was never an issue - the police were at his house following an anonymous tip regarding drug activity. They knew his license was suspended. When he arrived at his house driving a car, they placed him under arrest, handcuffed him, and secured him in a patrol car. They then searched his car for drugs, which they found in a jacket pocket in the back seat. There was no probable cause to search the car for drugs, there was no concern for the officer's safety, and there was no evidence of driving under suspension to be found in his vehicle.

As I said at the beginning above, Gant is limited in its application, and the Court notes that there are many other exceptions to the warrant requirement that will apply in various circumstances. Although the Court does not address this, the biggest one will be the inevitable discovery rule and inventory searches. If a person is arrested for any reason and the car must then be towed, it will eventually be subject to an inventory search; because it will be searched anyway, courts will find it reasonable for the police to go ahead and search the vehicle. This means that Gant will only apply where the car is on the arrestee's property or where there is another licensed driver in the car - in which case the car will not be subject to towing and a subsequent inventory search.

More commentary on Gant across the blogosphere: A Public Defender, Jamie Spencer, Robert Guest, John Wesley Hall, Mark Bennett, Scott Greenfield, and Paul Kennedy.

Via Skelly at Arbitrary and Capricious, Judge Peter D. McDermott in Idaho ordered a mentally ill defendant gagged with duct tape to stop his outbursts during a hearing. Nicklas Frasure was in court for a probation violation hearing, but his public defender, Kent Reynolds, was requesting a mental competency evaluation (his clients response: "I'm totally fine," Frasure said. "I have a sense of humor. I'm not bad looking. I can walk on my hands.").

Frasure had spent time in a mental hospital, and there was testimony during the hearing as to his mental illness. Rather than order the defendant removed from the courtroom, which the judge had every right to do, he instead ordered that the defendant be gagged to prevent his outbursts during the proceeding. Ultimately, the judge did order that Frasure be committed for evaluation and treatment (in department of corrections).

"I want to see you get better," McDermott told Frasure.

"You want to arm wrestle?" was Frasure's reply before being led from the courtroom by bailiffs.

The SCOID blog points out that this judge has recently announced retirement:

Does this have anything to do with the Judge's recently announced retirement? Maybe he's been wanting to do this for 20 years and saw this as his last chance. Now, I've occasionally wanted to tape my client's mouth shut too, but for different reasons and I've never actually done it! Does the Idaho Judicial Council read the Idaho State Journal?

I think that judges can sometimes become jaded, presiding over criminal trials, pleas, and hearings day after day, and at times can forget that these are human beings standing before them. To order that a mentally ill defendant be gagged in the courtroom is shameful and disgusting, and regardless of this judge's announced retirement some action should be taken in response to this. Maybe at the time it was amusing, but there is nothing amusing about it when it is seen in print from 2500 miles away. Just my opinion.

Via Radley Balko, this video of a Baptist minister's account of his beating at the hands of the border patrol in Arizona is worth watching. He refused to consent to allow his car to be searched, citing his Fourth Amendment rights, and found out the hard way how much our government agents really care about the Constitution.

I have not been able to find a news story on this guy as of yet, and have not seen any independent verification of his story - if anyone comes across other information I'd be glad for you to post it in the comments, thanks.

Edit: Thanks to Micah at LightsCameraSnead for finding a news report from KPHO in Phoenix:

A Valley pastor is claiming border patrol agents beat him and stunned him with a Taser at a checkpoint, but he said he had done nothing wrong.

Steve Anderson, a preacher at Faithful Word Baptist Church in Tempe, said the incident happened Wednesday night at a checkpoint along I-8, far from the Mexican border.

Anderson said agents stopped him on his way back to the Valley from San Diego. The agents asked him where he was going and if he was a U.S. citizen. Anderson said he wasn't answering any of their questions and told them he wanted to go home.

The agents then told Anderson to pull over. He said he sat in his car for an hour before DPS arrived to tell him he was under arrest.

"He said, 'Our dog alerted us that you either have a human being or drugs in this trunk,'" Anderson said.

The officers then forced Anderson from his vehicle, he said.

"They told me, 'You're coming out of this car one way or the other,'" he said.

Then, Anderson said the agents broke the windows of his car, removed him from the car, and beat him.

The checkpoint described was nowhere near the Mexican border. The news report above has a link to more video coverage.

This morning at 9:40 am I received an email from a prosecutor stating that one of my client's case was to be tried this morning and to get up to the courthouse. At 9:45, as I was meeting with a different client at my office, the prosecutor called to make sure I knew that my case was going to trial today and that the judge wanted me at the courthouse. At 9:50, as I was still trying to explain to the client in my office that these things happen and when the judge calls I must go, another prosecutor called from the judge's chambers to tell me that the judge wanted me at the courthouse.

There is a trial roster that is put out by the solicitor's office for each term of court. This client's name was not on that trial roster, which was sent to me by email on March 30th, and so I should be able to safely assume that this client's case was not going to trial. In addition, this client has not one, but six separate cases pending, and the prosecutor has yet to identify which case he intends to call to trial and to provide complete discovery in some of the cases.

So, my staff calls my client and tells him to get to the courthouse while I grab the file and some books and jump in the car. At the courthouse, I tell the judge that my client is not on the trial roster and he informs me that I am wrong, my client is on the trial roster that he has. We compare notes and discover that the judge has been given a completely different trial roster. The prosecutor then assures the judge that I was provided both trial rosters, the one that I have produced for the judge (without my client's name) and the one that the judge holds in his hands (with my client's name), and that perhaps I do not check my email. I assure the judge that I check my email religiously (I do) and that I have not received a copy of the trial roster that the judge is holding in his hand. Fortunately, the judge accepts that I would not lie to the court and agrees that the case will not be called for trial this week.

But, this does not solve the problem. Why is the judge holding a trial roster in his hand that is different from the trial roster that was provided to me by the solicitor's office? As I spoke with other attorneys at the courthouse I did not find a single one that had received this super secret trial roster that my client's case was on. A different prosecutor called the assistant who had emailed the trial rosters and had her come up to the courtroom, to assure the judge that I was either wrong or lying to the judge, and when the assistant got there she freely admitted that she had emailed the roster that I held in my hand, that she had not emailed the super secret trial roster to anyone, and that she had been instructed that the super secret trial roster was not for distribution.

So our solicitor's office did not provide this trial roster to any defense attorneys, but told a judge that it had been provided to attorneys (me), and then called me the morning of trial to tell me to get to the courthouse and try a case that they knew I had not prepared for trial today. If I did not religiously check my email, or bring the paperwork with me this morning, or have some measure of credibility with our judges as an attorney that will not lie to the court, I could easily have been painted as incompetent or unethical myself.

What this screams to me is the problem with the prosecutor's offices having control of the docket in our criminal courts in South Carolina. The prosecutor can call a case for trial whenever they are ready, which means they pick the judge, they take as much time as they need to prepare for trial, they are able to play games and try to blindside defense attorneys when they are not prepared for trial, and they can leave defendants sitting in our hellhole of a county jail for years at a time in an attempt to force guilty pleas out of them. If a defense attorney wants a motion heard, they must file the motion with the clerk, and then call the prosecutor and ask them to schedule a hearing. On more than one occasion, I have had a prosecutor refuse to schedule a hearing (at which point we must go to a judge and request that they do it for the prosecutor). When the prosecutor does schedule the hearing, by virtue of the fact that they are the one scheduling it, they get to choose what judge will hear the motion.

Imagine, if you will, a system of common pleas court where the plaintiff's attorneys have exclusive control of the docket. They set the day, time, and courtroom where pre-trial motions will be heard; and they determine when a case will be tried and what judge it will be tried in front of. Do you think that such a system would be rife with abuses by the plaintiff's attorneys in how the docket is controlled?

The clerk of court should set the docket in criminal courts just as it is done in civil courts - an interested party such as the plaintiff's attorneys (prosecutors) should not have this power. The system as it is is a violation of due process, it is inherently unfair and gives an undue advantage to one side, and it leads to other abuses such as manipulation of the docket and deprivation of defendants' right to a speedy trial.

I would like to hear more discussion about this issue from attorneys in our state - it is time for a change. Any suggestions or comments are welcome.

In State v. Odom, at the trial level Judge Mark Hayes suppressed evidence which was obtained by use of a criminal discovery order which was authorized by the federal Patriot Act, on grounds that 1) the circuit court which issued the order is not a "court of competent jurisdiction" as defined by the Patriot Act, and 2) the order was prohibited under S.C. law. The state appealed the trial court's decision, and the S.C. Supreme Court overruled the trial court on March 31st.

This case seemed easy to me: § 2703(d) of the Patriot Act authorizes state courts to issue these orders where it is not otherwise prohibited under state law. State law (and the state and federal constitutions) prohibits unreasonable searches and seizures. The Order in this case was not supported by probable cause, a fact which is admitted by the government and by the Supreme Court in its analysis. Therefore, the issuance of the Order was not only prohibited by state law, but was a constitutional violation and any evidence received pursuant to it should be suppressed at trial.

In this case, the evidence sought was to trace a screenname to an alleged online sexual predator, who was having conversations and making big plans with a cop who was pretending to be a 13 year old girl online (when the cop was off duty and on his personal computer, btw). No one wants perverts sexing up teenage girls on the internet, and most people would certainly support the prosecution of such predators - but - we don't need to sacrifice our protections under the Constitution to prosecute these people.

What the Court has done in this case is not only give S.C.'s stamp of approval to provisions of the Patriot Act which remove the requirement of probable cause before an individual's privacy can be violated, but the Court has taken it a step further and gone beyond what even the Patriot Act authorizes, by allowing such searches without probable cause and implicitly stating that this is the law in S.C. No probable cause required.

In State v. Robertson, decided on Tuesday, the S.C. Supreme Court essentially held that a defendant can waive his right to counsel simply by not appearing for his trial. Robertson was charged with failure to register as a sex offender, was given on his bond form the required warning that he must appear on his court date or trial would proceed in his absence, was mailed two notices of appearances for court to his last known address, and then was tried in his absence without an attorney.

Although there was no express waiver of his right to counsel, the Court held that the above facts, coupled with the fact that Robertson had a prior record which shows his familiarity with the system, are sufficient to infer a waiver of his right to counsel from his conduct. In what seems rather twisted logic to me, the Court says that if a defendant elects to proceed without counsel, they must be advised of the dangers of self-representation under Faretta; but, if the defendant does not elect to proceed without counsel, there is no need for warnings and we may infer that they have waived their right to counsel:

We find both Prince and Faretta inapplicable to the instant case. Both cases addressed defendants who elected self-representation, and therefore the trial court was required to (1) advise the accused of his right to counsel, and (2) adequately warn the accused of the dangers of self-representation. Prince, 301 S.C. at 423-24, 392 S.E.2d at 463; Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 581-82. In the instant case, Respondent gave no indication that he wished to proceed pro se and instead failed to appear for trial. Consequently the Faretta requirements are irrelevant and pose no bar to waiver. See Jackson v. State, 868 N.E.2d 494, 500 (Ind. 2001) (warnings as to the perils of self-representation are irrelevant where defendant did not indicate a desire to represent himself).

Federal judge Emmett G. Sullivan dismissed the charges against former senator Ted Stevens yesterday, and then took the additional step of assigning a special prosecutor to investigate whether the prosecutors should be charged with criminal conduct themselves for their misconduct in the case.

Judge Sullivan made some bold statements as he announced his decision, including a call to other judges around the country to take steps to hold prosecutors accountable:

U.S. District Judge Emmet Sullivan said Tuesday that in his 25 years on the bench, he had never seen anything approaching the "mishandling and misconduct" perpetrated by the government in the case of former Alaskan Sen. Ted Stevens, who was convicted on corruption charges in October.

At a hearing Tuesday morning in the U.S. District Court for the District of Columbia on the government's motion to dismiss, Sullivan said Stevens' case was symptomatic of a larger trend of misconduct. The judge urged his colleagues around the country to enter exculpatory evidence orders at the outset of every criminal case, and to require that exculpatory material be turned over in a usable form.

Last week Attorney General Eric Holder asked that the charges be dismissed based on misconduct by the prosecutors, including the prosecutors' refusal to turn over notes of an interview with a key prosecution witness that contradicted his testimony at trial. In other words, notes that memorialize the fact that the witness told the prosecutor one thing and then later testified to something different at trial, which at best is evidence that the prosecutor failed to correct a fraud on the court and perjury by a government witness, and at worst is evidence of subornation of perjury by the prosecutor.

During the trial the defense asked for and was denied a mistrial more than once based on the prosecutors' attempts to manipulate the witness and alleged coaching of the witness by his attorney as he testified. The trial was riddled with problems, including allegations of inappropriate relationships between prosecutors and witnesses, the relocation of a government witness beyond the reach of defense attorneys despite a federal subpoena ordering his presence in the courtroom, and the prosecutors' refusal to turn over documents even after ordered to do so by the judge.

As much as we might wish that this were the beginning of a trend in judges holding prosecutors accountable for misconduct such as withholding evidence or knowingly allowing government witnesses to commit perjury, I don't believe it. Scott Greenfield points out that Judge Sullivan has also recently taken action in a Guantanamo case where the government withheld key evidence, demonstrating that, for Judge Sullivan at least, this is not an isolated incident. I applaud Judge Sullivan's efforts now to correct the government's unethical conduct during the Stevens trial, but the fact remains during the trial he took no real action to correct them until the Attorney General came forward and requested that the charges be dismissed. He allowed the trial to proceed and he allowed Stevens' conviction until the chief prosecutor gave him permission to do otherwise. Trial judges and appellate judges as a rule will not censure prosecutors for misconduct. Disciplinary committees will not censure prosecutors except in extreme cases. As much as I hope that judges, federal and state, will follow Judge Sullivan's example in this case, I find it highly doubtful.

Mike at Crime and Federalism believes that Judge Sullivan gave the prosecutors the benefit of the doubt, as judges tend to do for prosecutors everywhere, until he reached his breaking point:

The timing and psychology of Judge Sullivan's actions are interesting. Judge Sullivan knew about the prosecutorial misconduct in the Stevens case while the case was pending. He refused to dismiss the case. Why?

Judge Sullivan gave the prosecutors the benefit of the doubt. He wanted to believe that the Public Integrity Section of the United States Department of Justice had some integrity. There is a deep need to believe that our power structures have some justice to them. DOJ went too far. They could have stopped their lies and probably have never turned Judge Sullivan off to them. They kept telling more lies. Judge Sullivan finally realized that the mistakes were not good-faith errors or incompetence. He realized that everything he had ever been told was a lie.

The prosecutors under investigation, which includes two who were members of the Justice Department's public integrity division, are: Brenda Morris, Nicholas Marsh, Joseph W. Bottini, William Welch II, Edward Sullivan, and James Goeke. In an interview with Katie Couric last night, Attorney General Eric Holder declared that he does not intend to fire these prosecutors, "unless there’s some basis for me to decide if they have something wrong." So, Holder has determined himself that they did enough wrong to warrant dismissal of the case after the conviction, yet he states that he has no basis to decide if they have done something wrong for purpose of termination?

This apparently happened last month on March12, and Scott Greenfield is right, the blogosphere has been too quiet about it. According to Carlos Miller at Photography is not a Crime, blogger Jeff Pataky's home was raided March 12 and his "computers, routers, modems, hard drives, memory cards and everything necessary to continue blogging" were taken, along with his personal files and documents relating to Pataky's pending lawsuit against the police department.

Maricopa County Judge Gary Donahoe signed the search warrant allowing the police to go into Pataky's home and take his computers.

Pataky blogs at Bad Phoenix Cops, where he has chronicled misconduct by the Phoenix Police Department, including officers Mike Polombo and Heather Polombo, and Jack Harris. Many of the tips that Pataky receives come from within the police department, and I wouldn't be surprised if the primary motive for the raid was not just retaliation, but an effort to find out who the tipsters are.

Not many bloggers write about police misconduct, whether for fear of their safety or fear of retaliation such as having your home raided, and I applaud those who do. I join Greenfield in encouraging bloggers to pick up this story, and "let the police know that we are watching them as well, and that if they attack a blogger for writing, their misconduct will be exposed as far and wide as possible."

I pretty much have ignored this story for the last year, but this new bit of news is amazing if I read it right. It looks like Attorney General Eric Holder is planning on dismissing the charges and not proceeding with a new trial, citing the blatant prosecutorial misconduct that occurred throughout the trial.

In a statement released this morning, Holder said the department had "conducted a review of the case, including an examination of the extent of the disclosures provided to the defendant. After careful review, I have concluded that certain information should have been provided to the defense for use at trial. In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial."

Prosecutors withheld key pieces of evidence from the defense during the trial, even to the point where they were held in contempt by U.S. District Judge Emmet G. Sullivan, who ordered them to turn over information documenting the misconduct. Not allowing this conviction to stand would be a positive step for the Justice Department, although it should have been the judge who tossed the case based on the prosecutors' misconduct.

In his statement today, Holder said the Justice Department will review the prosecution. "This does not mean or imply that any determination has been made about the conduct of those attorneys who handled the investigation and trial of this case," he said. "The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice.