South Carolina Criminal Defense Blog

The Indiana Supreme Court publicly reprimanded a prosecutor for allowing the victim in a case to dictate the terms of the defendant's plea agreement, finding that the prosecutor "engaged in conduct prejudicial to the administration of justice."

Respondent, however, did more than just include in a plea offer, at a victim's request, a restitution amount in excess of what the court could order under the Restitution Statute. Rather, Respondent ceded to Big Rivers the entirety of restitution decisions with respect to the First Plea Offer, permitting Big Rivers to use the criminal case, without prosecutorial oversight, as leverage in its civil dispute with JH.

This is the problem in many civil cases which involve breach of trust charges or other disagreements with former employers or contractors - sometimes, the charge itself is only brought to force a person to pay money in what would otherwise be a purely civil dispute. Often when the person who thinks they are entitled to payment calls an attorney, the attorney will see that it is either not a good case to file or that there is not much chance of recovering if they do file suit, and they will advise the person to call the police instead.

When charges are brought in cases that are really civil in nature, some prosecutors will allow them to die on the vine. They might get kicked at the preliminary hearing, they might receive an offer of PTI, they might be dismissed after restitution is paid, but the bottom line is that many prosecutors can recognize which cases are viable and which are not.

Some prosecutors, however, have insisted that they cannot dismiss a case because their victim is not willing. There are some prosecutors who will do nothing in a case unless the victim approves - there are some prosecutors who have gone as far as to claim the victim in a case is their client.

The victim is never the prosecutor's client - if they were there would be an unavoidable conflict of interest. The victim in any case is a witness, and the State is the prosecutor's client - the prosecutor's goal is not to make the victim whole, and the prosecutor should not be prosecuting the case at the direction of the victim. The prosecutor's goal is to achieve Justice - Justice might make the victim happy, it might make the defendant happy, or it might make no-one happy.

Although the interests of the victim and the interests of the State may often align, it is not necessarily so.

H/T Legal Profession

The Montrose County, Colorado, District Attorney Myrl Serra has been disbarred following his convictions for criminal extortion, unlawful sexual contact, violating a protective order, harassment, and violating the conditions of his bail. There were multiple allegations against Serra of fairly egregious sexual misconduct against women including office staff, including groping the women, and attempting to force women to touch his penis/ masturbate him in his office.

One thing that stood out to me in the articles is that, long before an investigation was begun against Serra, at least one woman sought a restraining order against him which was denied by the magistrate, despite allegations of Serra physically assaulting her and her fiancee, and then a second request for a restraining order against Serra was denied despite her claim that Serra was sending sexually harassing messages to her phone.

Whether it is in court or out, there is a tendency to believe prosecutors - we want to believe that they are good human beings, who wear the white hat and who try at all times to do the right thing and make the right decisions. I want to believe that. But it is an inescapable fact that, for some people, power leads to corruption. Some like the feeling of power too much, and begin to abuse it for their own gratification - whether the gratification comes from the need to control, the need to win at all costs, or some other dark emotional need the person has. In some cases, the abuse of power leads to crime. In many others, it leads to abuse of the system, abuse of the litigants, abuse of the people who live and work in the system.

It can lead to Brady violations and the abuse of prosecutorial discretion - when courts do not punish or provide any sanction for misconduct, and when disciplinary bodies do not provide any sanctions for prosecutorial misconduct, some prosecutors will abuse their freedom.

For some, it may lead to a feeling of un-touchability, like the person is above the law, and for some this may lead to clear cut criminal conduct like that of Mr. Serra. I think that Serra could never have gotten to that point unless judges, attorneys, employees, and all around him were looking the other way and tacitly excusing his conduct for some time before it came to light. It's a slippery slope that we create for those in power - how many others are struggling to keep their footing on that same or similar slopes?

H/T the Legal Profession

A Circuit Court judge in Florence on Tuesday denied a motion to dismiss a double homicide based on prosecutorial misconduct, but ordered that the Attorney General's office take over the prosecution and SLED take over the investigation. A Florence County Sheriff's Office evidence custodian had secretly taped the conversations between prosecutor and defense attorneys as they met to review evidence in the case - apparently the evidence custodian had the recorder in his pocket, and when he accidentally bumped it on a box it started re-playing the conversation from a few moments earlier.

Apart from questions regarding the propriety of a Sheriff's Office employee recording conversations between defense counsel and prosecution, reportedly under orders from someone at the sheriff's office, the incident raises ethical and possibly criminal issues.

Was the evidence custodian a party to the conversation? If not, they were violating state and federal wiretap laws and could be prosecuted criminally. Further, was the recording solely at the request of someone in the Sheriff's Office, or was the prosecutor involved? The laws regarding surreptitious recording (in S.C. - it varies from state to state) say that you can record a conversation that you are party to; however, the ethics rules that govern attorneys state that we cannot surreptitiously record a conversation, nor could we direct someone to record a conversation for us.

The S.C. Supreme heard oral arguments Wednesday in the appeal of Jerry Buck Inman, who pled guilty to murder and was sentenced to death in Spartanburg County. During the sentencing phase of the trial, Solicitor Bob Ariail threatened to prosecute the defense's mitigation witness because she was not licensed in South Carolina, prompting her to refuse to testify.

The defense had hired a social worker to testify about Inman’s mental illness and troubled childhood. But during questioning about her credentials, Solicitor Bob Ariail told the social worker she was testifying without a proper license in South Carolina and suggested she could face charges for practicing without a license.

Toal said the court has made it clear South Carolina will accept out-of-state licenses and called Ariail’s questioning a bullying tactic and an attempt to “scare the very life out of this witness.”

“This court is deeply concerned with this win at all costs attitude among some of the state’s solicitors,” Toal said. “How can we get that message out?”

The trial judge ruled that what Ariail did was prosecutorial misconduct. The only way to send a message is 1) to overturn convictions where misconduct occurred; 2) to discipline prosecutors who commit misconduct; 3) to allow tort liability in appropriate cases; or 4) to allow criminal liability in appropriate cases. 3 and 4 are not going to happen. 2 is not likely to happen, although there are times when disciplinary counsel takes notice (for example the ethics trial against the Maricopa, Arizona, county attorney which is going on now). As a practical matter, the only sanction that is left is in the hands of the appellate courts.

Overturn the sentence. Inman is not going anywhere. If I read the news account correctly, he asked for the death penalty - he probably is going to get it. If he does not, he is still not going anywhere - he pled to capital murder and he will receive at a minimum a sentence of life without parole. Why a prosecutor feels that it is necessary to act the way that Ariail did is beyond me - there is no need to cheat or bully in order to win a case like Inman's. Why not take the high ground, wear the white hat, prosecute the case honestly and ethically, and get a clean conviction and sentence?

The State article highlights some prior South Carolina cases where the death penalty has been overturned as a result of prosecutorial misconduct:

The state Supreme Court has dealt several times with prosecutors who crossed the lines of fairness in pursuit of a death sentence. In 2000, the court overturned the death sentence of David McClure for killing his father and his girlfriend in Barnwell County because then-Solicitor Barbara Morgan sat in the witness chair and suggested McClure had no remorse for the crime because he did not testify.

In 2003, the justices overturned a death penalty case for a man convicted of killing a Horry County police officer because investigators in Solicitor Greg Hembree’s office talked to the families of jurors as part of background checks the day before the trial started. They said jurors could have found the checks intimidating.

And in 2007, the justices overturned a death sentence for a Lexington County father for killing his infant daughter after Solicitor Donnie Myers cried during his closing argument and staged a mock funeral procession for the baby that included the girl’s crib draped in a black shroud.

Since the fiasco in Spartanburg, where the trial had to be halted until the Court could confirm that the witness was permitted to testify, other prosecutors, including in Horry County, have attempted to discredit this same witness by cross examining her on what Ariail did - if what Ariail did is prosecutorial misconduct, other prosecutors are now following in his footsteps and committing misconduct in their own cases on the same issue. This is one reason why the Supreme Court needs to send a message on this issue - so there is no question that what they are doing is improper. Prosecutors should not be able to point to this case and justify their own conduct with the fact that Inman's case was not overturned or that it was held to be harmless error.

A jury in Texas County, Missouri, returned a verdict of one million dollars against Texas County Prosecutor Mike Anderson on behalf of a court clerk who sued for malicious prosecution and abuse of process after she was targeted, harassed, and sued by the county prosecutor.

"It's a case of bullying, I think...a big man over a little person and she's been harmed. You could tell that."

The allegations arose following Anderson's harassment of another court clerk who subsequently quit her job and later settled a lawsuit against Anderson in federal court. I suppose the lesson here is that a prosecutor can lie, cheat, and put on perjured testimony to secure convictions with impunity, without fear of lawsuit, prosecution, or in many cases disciplinary action, but - you do not have impunity when it comes to your dealings outside of the role of prosecutor. Bravo to these courthouse employees and their attorneys for fighting back.

Years ago, I would from time to time allow an agreement not to sue in exchange for the dismissal of a client's criminal charges. What was the harm, if we had no intention of suing anyway? At some point, I stopped advising clients to accept this type of agreement, and began telling the officer or prosecutor that in my opinion this violated the ethical rule against using criminal charges to gain an advantage in a civil matter. Even if we have no intention of filing a lawsuit, I came to believe that I should not give up any potential rights of my client in exchange for the dismissal of a case that should never have been brought in the first place. Ironically, I think it was a prosecutor that pointed this out to me.

Finally laying the matter to rest, today a colleague pointed out that there is an ethics advisory opinion directly on point in South Carolina, which finds that such agreements implicate rules 3.8, 4.5 and 8.4(e):

Rule 4.5, SCRPC, states that “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” In the present facts, the solicitor did not threaten to bring criminal charges, and the solicitor did not actually bring the criminal charges. However, the solicitor does have the sole discretion to proceed or not to proceed with the prosecution of the pending criminal charges. The exercise of that discretion includes the responsibility to only prosecute charges supported by probable cause and to protect the basic rights of the defendant. Rule 3.8, SCRPC. This gives the solicitor even more “bargaining” power than an attorney who can simply threaten to present criminal charges. The criminal charge here is not a threat; it is a reality. Holding the “carrot” of dismissing pending charges is much greater than the threat to bring charges.

The solicitor is in a unique position to use criminal charges to gain an advantage for a third party. While conditioning the dismissal upon the waiver of civil redress may not directly violate Rule 4.5, it would violate Rule 8.4(e), which prohibits conduct that is prejudicial to the administration of justice. The solicitor has the power to summarily dismiss one or both charges against the defendant. This would require the defendant to weigh the threat of jail against his right to seek civil redress for the alleged improper conduct of the police.

Even where such an agreement is instigated by the defense without suggestion from the solicitor, the solicitor may not ethically accept the offer.

Although the opinion specifically addresses the duties of a solicitor or other attorney-prosecutor, I think that the spirit of the rules apply equally to the defense lawyer, and, regardless, no defense lawyer should be waiving such an important right of their client. I point out that the ethics rules that govern lawyers do not govern police officers, and in many smaller cases officers are still required to prosecute their own cases. In most cases, the prosecution does not have a case to begin with and they want to dismiss the charges - the officer is just afraid that he will be sued once the case is dismissed. In most cases, there are no grounds to bring a lawsuit against the officer anyway and there is no basis for their concern.

The bottom line is, if there were grounds for a lawsuit against the officer based on their conduct, the criminal case should be won at trial anyway. If the wrongdoing involved an arrest without probable cause, the criminal case should not go forward. If the wrongdoing involved use of excessive force, a conviction on the underlying offense will not necessarily prevent them from filing suit. Either way, if the choice is to try a case or agree to a release in exchange for a dismissal, the attorney should try the case.

A municipal court judge has been suspended for 30 days, for taking money from the chief of police, paid from the police department's victim's assistance fund.

The judge's sister apparently had been cashing forged checks in the judge's name for 8 years, but SLED determined that the judge was not responsible for her sister's conduct:

Respondent's sister, who was the Clerk of the Town of Varnville, was arrested and charged with embezzlement of public funds, forgery, and misconduct in office. Respondent's sister was accused of issuing checks in respondent's name, forging respondent's name to the checks, and converting the money for her personal use over an eight year period.

The South Carolina Law Enforcement Division (SLED) determined that respondent was not involved in any of the alleged misconduct in office involving her sister. There is no allegation or evidence that respondent was even aware of the alleged conduct leading to her sister's charges.

However, while SLED was investigating the checks that were forged in the judge's name, they also came across payments that were made to the judge - checks that were written to the judge from the police department's victim's assistance fund, and approved by the chief of police. Because the chief of police wanted to supplement the judge's salary.

From 2002 until 2006, respondent received 43 checks totaling $4,890.00. The checks ranged from $50.00 to $200.00. Respondent submits she was unaware it would be improper for her to receive supplemental payments from the police department who prosecuted cases before her. She submits that the checks from the police department never affected her judicial decisions, but she now realizes the payments could give the impression she was not impartial.

The tone of this opinion is that this judge simply did not understand that anything was wrong with taking the payments. From the chief of police. From the victim's assistance fund. Coincidentally, the judge's sister, who had been forging checks in the judge's name for 8 years, would cash the judge's checks written from the victim's assistance fund at the clerk's office and give the judge cash.

I don't know what to say about this - where is the outrage? SLED has apparently whitewashed the entire deal, finding no wrong doing on the judge's part, and the Supreme Court has written the most bland and apologetic opinion possible, making it clear that the judge didn't really mean to do anything wrong, and allowing the judge to continue to sit on the bench.

What would we have done if this were a Circuit Court judge who was receiving payments from the Solicitor's victim's assistance fund? How is this any different?

Via Legal Ethics Forum, we have what appears to be a press release from the State's Attorney's office responding to the allegations that software developer John Bradley provided information to the prosecution about the error in his program which was not revealed by prosecutors to the court or to the defense.

It appears that they are saying that Bradley never told them that his software was wrong, and that he only told them that there was a discrepancy between his software (84 results) and the first software that they used, Net Analysis, which said that there was only 1 search conducted, and that they revealed this information to the defense.

Basically, their response appears to be that Mr. Bradley is a liar, and it is their word against his. The last paragraph of the press release is golden. They "are dismayed by the suggestion . . . that prosecutors would withhold exculpatory material." Such a thing would never happen.

We are dismayed at the suggestion made by the defense that prosecutors would withhold exculpatory material. Court records show that the defense was completely aware of the issues, utilizing these facts at trial.

I've made it this far without blogging a single word about Casey Anthony. I've listened to my barber, and people on Facebook, and even my clients, talk about how she was obviously guilty and the jury let her go anyway. I'm pretty sure these are all people, like myself, who were not in the courtroom and did not hear the witnesses or see the evidence, and so I've declined to comment.

One thing I heard was how she googled Chloroform 84 times. Obviously chloroform was used to kill the child, since Casey Anthony googled it not once, but 84 times before the child disappeared. But yesterday the N.Y. Times reported that the software designer who testified at Anthony's trial is saying that there was an error in the analysis of the computer, and that chloroform was actually googled one time from the computer.

1) The software designer was never told by the police or prosecutors that another report had already determined that there was only one search for chloroform; the software designer learned this only after he took the stand and testified; and 2) When the software designer realized the mistake in his program, he called the police and prosecution and told them about the error - a fact that was apparently never disclosed by the prosecutors to the defense, the judge, or the jurors in the case.

The Orange County Sheriff’s Office had used the software to validate its finding that Ms. Anthony had searched for information about chloroform 84 times, a conclusion that Mr. Bradley says turned out to be wrong. Mr. Bradley said he immediately alerted a prosecutor, Linda Drane Burdick, and Sgt. Kevin Stenger of the Sheriff’s Office in late June through e-mail and by telephone to tell them of his new findings. Mr. Bradley said he conducted a second analysis after discovering discrepancies that were never brought to his attention by prosecutors or the police.

Mr. Bradley’s findings were not presented to the jury and the record was never corrected, he said. Prosecutors are required to reveal all information that is exculpatory to the defense. . . .

. . . Mr. Bradley, fearing that jurors were being given false information based on his data, contacted the police and the prosecution the weekend of June 25. He asked Sergeant Stenger about the discrepancy, and the sergeant said he was aware of it, Mr. Bradley said. He waited to see if prosecutors would correct the record. They did not.

So, the prosecutors not only failed to prove their case and lost the trial, they cheated and withheld critical information from the Court and the jury, and they still lost the trial. As Gideon points out at apublicdefender.com, despite the clear duties of a prosecutor to disclose exculpatory information to the defense and their responsibility of candor to the Court, it is not likely that any action will be taken against the prosecutors for they did here.

Update: Prosecutors' response to allegations of Brady violations.

The Supreme Court's ruling in Montejo v. Louisiana that law enforcement can contact represented counsel and seek a waiver of Miranda rights was never intended to apply to prosecutors, and one would hope that it was never an open question. Despite this, as predicted, some prosecutors are attempting to use the Montejo decision as a rationale for sending police to interview defendants in criminal cases. In Arizona, Martin Brannan and Michael Whiting, a County Attorney and Chief Deputy County Attorney, were disciplined last month for authorizing investigators to question a defendant without his attorney present.

In Count One, Respondents, in their capacity as county attorney and chief deputy county attorney, authorized county investigators to interview a criminal defendant (who was incarcerated and represented by counsel) to ascertain whether or not the defendant had been advised by his attorney of the pending plea offer. Respondent Brannan erroneously believed that pursuant to Montejo v. Louisiana, 129 S.Ct. 2079 (Louisiana 2009), it would be permissible to interview the defendant regarding the plea as long as the investigators “Mirandized” the defendant and he waived his right to have his counsel present. The defendant’s attorney did not receive advanced notice of the visit and was not present during the visit.

Whiting was further disciplined for a press release where he criticized a judge for subsequently dismissing the defendant's case. Prosecutors are subject to the same ethics rules that every other attorney is subject to, which includes the prohibition on communication with represented persons; and prosecutors cannot direct law enforcement to interview a represented defendant in order to get around the ethics rules.

H/T Legal Profession Blog

When I see injustice, and especially when I see it happening in a courtroom, I feel alternately enraged, disappointed, saddened, and then inspired to do more and better to make a difference. I see a police detective who has no evidence but has a suspicion and feels the pressure to make an arrest, threaten potential witnesses, threaten them with life in prison and the loss of their family, and tell them word for word what to say if they want to stay out of prison. On video. I have seen this same scenario in more than one case.

I see the same detective make promises to help a jailhouse snitch, and look the other way as the jailhouse snitch collaborates with other snitches to put together a story that will fit the detective's theory. The detective conceals exculpatory evidence, concealing it even from the prosecutor. The detective lies under oath at more than one hearing, about the evidence, about the testimony, about his conversations with the witnesses.

A prosecutor sees all of this, and somehow inexplicably believes that his duty is to take what the detective has given him and prosecute this case. If the system works, won't a competent and effective defense lawyer prevail over injustice? A very competent and effective defense lawyer exposes all of this, in open court to a judge, and proves all of the above through impeachment with documents, audio, and video evidence.

Yet a judge ignores the injustice, sides with the detective, and allows the case to go forward. Why are we fighting to stop the government from lying, fighting to try to keep the government from prosecuting individuals based on lies? It occurs to me that we need only look to the developments in recent months in the Middle East to see why we keep fighting here, to see why it is important to keep our government in check and to keep our government honest.

Power feeds on itself. The power of government grows and will continue to grow if it goes unchecked. And at its worst it kills, it enslaves, and it abuses its citizens. There are horrendous examples across the world, throughout history, and here in the land of the free.

John Thompson spent 18 years in prison for a crime he did not commit, 14 years on death row, and was nearly executed before it was discovered that prosecutors hid evidence that proved his innocence, effectively conspiring to commit murder themselves. The United States Supreme Court then decided that the prosecutors, who were not and will never be prosecuted themselves, are also immune from lawsuit for what they did. The N.Y. Times printed his story, told in his own words.

Anthony Graves spent 18 years in prison before he was exonerated of rape by DNA evidence, then was denied compensation by the state that took his life away, and now the state has decided to garnish his wages for back child support for the years he was in prison.

The news is filled with stories of wrongful convictions and persons exonerated by DNA evidence after spending years or even decades behind bars - most from the handful of states that require law enforcement to preserve DNA evidence and allow defendants access to have it tested. The wrongfully convicted in other states will continue to live in prison.

Why is it important that we do not allow the government to prosecute with unreliable evidence, to stop law enforcement who lie on the stand, to shut down prosecutors who go forward with prosecutions despite a lack of real evidence? If it is not enough that innocent people are convicted and locked in cages across the country, that innocent people are abused, threatened, sometimes beaten, tazed, or shot by agents of our government, consider that it is a slippery slope, from America to China where the government stops Christians from congregating to celebrate Easter and where lawyers are arrested, detained, or simply disappear when they speak out about human rights abuses.

Or to the absolute extreme, as the Syrian government begins killing its own citizens indiscriminately and without pretense for speaking out about injustice, or the Bahraini government begins to attack and detain physicians for treating wounded protesters, who were attacked by their government because they were protesting.

We have the best government, and the best court system in the world, many Americans say. And in comparison to Gadhafi's Libya it is certainly a miracle of freedom and democracy. But, why is it the best in the world? What are the principles that make it so amazing and what are we doing to make sure that the reality matches our ideals?

Apparently, District Attorney Carol Chambers is offering cash incentives to prosecutors in her office for getting convictions in their cases. The obvious ethical implications involved have been covered already by Mark Bennett and Scott Greenfield - Mark puts it into plain language for us:

Offering prosecutors more money to get more convictions gives them an incentive to make unreasonably high offers on the easy cases that should be pled, and to make unreasonably low offers on the tough cases that should be tried. There is nothing okay about that.

Another element to this story that's missing is that Chambers knew when she put this policy in place that she would get nationwide press coverage - and she was not shy about speaking to the Denver Post to give them plenty of quotes for their article. I can't believe that any prosecutor would actually believe that such a plan is ethical, but - Chambers is an elected official who needs votes to stay in office, and any press is good press, right?

Back to the ethics of cash for convictions - the duty of every prosecutor is to seek justice and not convictions, and any program offering incentives to achieve convictions subverts this duty and creates fertile ground for some prosecutors to cheat in order to obtain recognition. If you don't believe me, listen to the National Center for Prosecution Ethics, which has a webpage listing quotes about prosecutors and the prosecution function:

National Rules and Standards

American Bar Association Model Rules of Professional Conduct

3.8 – Special Responsibilities of Prosecutor
Comment [1]:
“ A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”

American Bar Association Standards for Criminal Justice

3-1.2(c): The Function of the Prosecutor
The duty of the prosecutor is to seek justice, not merely to convict.

National District Attorneys Association Prosecution Standards

1.1 Primary Responsibility
The primary responsibility of prosecution is to see that justice is accomplished.

Or listen to the United States Supreme Court in Berger v. U.S.:

" The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

But, you say, what about defense lawyers? Aren't they also bound to seek justice and not acquittals? No. Although justice is what we all want to achieve in the courtroom, the job of a defense lawyer is to do everything ethically possible to defend his or her client and achieve an acquittal. Again, from the United States Supreme Court, this time Justice White's concurrence in U.S. v. Wade:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. [Footnote 2/5] To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. [Footnote 2/6] Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe, [Footnote 2/7] but, more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which, in many instances, has little, if any, relation to the search for truth.

Despite this difference in the functions of defense lawyer and prosecutor - I wonder, if a public defender's office were offering cash incentives for cases taken to trial and acquittals achieved, what kind of outcry would we hear?

Tim Masters was sentenced to life in prison after being convicted for murder - after spending nine years in prison, he has been exonerated by DNA evidence and the detective from his case - Lt. Jim Broderick - is being prosecuted for perjury:

Masters, who served nine years of a life sentence after his 1998 arrest in Peggy Hettrick's murder, has said he hopes Fort Collins and Larimer County will finally acknowledge that he was railroaded.

The city and county have paid Masters a combined $10 million to settle a civil rights lawsuit related to the conviction, but they painted the payouts as business decisions rather than reparations.

"I am anxious to see if the leadership in Fort Collins will finally publicly admit my incarceration was a mistake or if they will continue this charade that their people did nothing wrong," Masters said in a statement provided by his attorneys. . . .

. . . Among the charges in the indictment are that Broderick intentionally lied about an FBI profile used to support Masters' arrest, shoeprints found at the crime scene, a fellow investigator's crime scene observations and his own degree of participation in the case.

The prosecutors that put Tim in prison have since been rewarded by being elected as judges - Jolene Blair and Terry Gilmore.

Although the city and county have paid out $10 million, they still admit no wrongdoing.

Broderick still admits no wrongdoing, and his attorney suggests that Broderick's prosecution is politically motivated because the prosecutor is running for office (irony?).

From KCCN.tv, H/T the agitator:

Sheriff's deputies in San Luis Obispo County California respond to a call for conduct that is not criminal, enter the man's home over his objection, search his home including his gun safe, take all of his guns, debate on video (their own car-cams) what story to tell in their reports to justify the invasion, and then arrest the man on bogus charges.

Police are usually provided with summaries of developing Fourth Amendment law - typically just enough to know what to say to get around the Fourth Amendment and for their testimony to stand up in court. The conversation on the video below illustrates why, for some law enforcement, they are given just enough information to be dangerous but not to get by - can we imagine what law enforcement could get away with if they had actual legal training?

Why are these deputies having this conversation on their dash-cams? They don't seem to be too bright - maybe they are used to not providing these to the defense and don't think about it; maybe they just don't think about it. How often does this type of conversation take place off camera?

Happy ending? After a judge dismisses two counts for lack of evidence, the man's public defender advises him to plead guilty to one of the remaining misdemeanors because the prosecutor is threatening to bring additional charges if they take his case to trial. At the time of the video, the police still had not returned the man's guns.

Part I

Part 2

part 3

According to a comment on last year's post about the prosecutor, police, and judge who are being prosecuted in Detroit for conspiracy to commit perjury, the Michigan Supreme Court has agreed to hear Aceval's appeal and the prosecution against the officials is going forward:

This is a 6-16-10 update to the 3-24-09 and 2-12-10 posting on your site regarding the Michigan criminal cases of People v Aceval, a drug trial completely tainted by a judge-prosecutor-police perjury conspiracy, and of People v Mary Waterstone, Karen Plants, et al, the prosecution filed 3-25-09 by the Michigan Attorney General’s Office against the involved public officials, the People v Aceval judge [Wayne County, Michigan, Circuit Judge Mary Waterstone], prosecutor [Wayne County Prosecutor’s Office Drug Unit Chief, Karen Plants] and two City of Inkster, Michigan police officers.

Lightning strikes, hallaleujah! The Michigan Supreme Court has granted reconsideration of the 9-25-10 3-3 denial of the Application For Leave To Appeal and the case will be fully considered on oral argument within the next 60 days or so.

The high court also denied Judge Waterstone's appeal of the right of the Michigan Attorney General's Office to prosecute her, and the judge, prosecutor and police officers will proceed to preliminary examination in the near future.

Thanks to socially-conscious sites such as yours that kept public scrutiny on the case, and made the prosecution of these public officials, and the continuing fight to set aside the corruptly-obtained conviction that resulted from their actions, so visible!

There are more details at David Moffitt's website, and there is a Michigan State Bar Association Litigation Section Journal article that discusses the case (towards the end of the last article).

H/T Legal Profession Blog: California prosecutor Ben Field has been suspended from the practice of law for four years, for conduct including withholding evidence, failing to inform the defense that a key prosecution witness may have participated in the crime, and initiating searches of the homes of a defendant's family and friends despite a judge's order not to do so without prior approval.

In 2008 I was following Field's story, and it struck me that what forced the California Bar to take action in Field's particular case was the media coverage - it is the state bar's duty to investigate and stop unethical conduct by attorneys, yes even prosecutors, but it was investigative reporting by the Mercury News that brought Field's unethical practices to light. In a three-year study of Santa Clara County criminal trials, they concluded that questionable conduct affected more than a third of all cases, that mistakes at every phase of trial are being tolerated by the appellate courts, and that in the worst of cases, defendants were wrongfully convicted.

Thank you to the news media for doing what state bar associations and appellate courts cannot - regulate our profession when it comes to prosecutorial ethics. The California State Bar Court on February 12 adopted the recommendations of the hearing judge in Field's case, including a four year suspension, and found that:

Field's misconduct was inexcusable and we hold him accountable for unethical behavior in four criminal prosecutions. We conclude that the recommended discipline, particularly the four-year actual suspension, is necessary to protect the public and the courts, to preserve public confidence in the legal profession, and to maintain high professional standards for attorneys.

Fields was found to be responsible for

professional misconduct in four criminal cases over a ten-year period . . . that he violated court orders and directives, performed incompetently, did not respect the court, failed to obey the law, withheld evidence, misled a judge and committed multiple acts involving moral turpitude, dishonesty or corruption.

They declined to disbar Fields, noting that the mitigation presented on his behalf was compelling.

The Court says that Fields lost sight of the ultimate goal of the criminal justice system, which is "the ascertainment of the truth," and that

he disregarded the the foundation from which any prosecutor's authority flows - "The first, best, and most effective shield against injustice for an individual accused . . . must be found . . . in the integrity of the prosecutor." (Corrigan, Commentary on Prosecutorial Ethics (1985) 13 Hastings Const. L.Q. 537.) Field's misconduct began shortly after his admission tot he bar, involved moral turpitude, spanned a 10-year period and significantly affected the criminal justice system. A narrow reading of his discovery obligations, coupled with the desire to convict, blurred his understanding of a prosecutor's special duty to promote justice and seek the truth.

"The first, best, and most effective shield against injustice for an individual accused . . . must be found . . . in the integrity of the prosecutor."

H/T Popehat: I'm sure everyone remembers the Duke lacrosse fiasco - exotic dancer accuses three Duke University students of rape, prosecutor Mike Nifong publicly excoriates the defendants and ignores the overwhelming evidence that the girl is lying until the charges are dismissed by the Attorney General and Nifong is ultimately disbarred for dishonesty, fraud, deceit and misrepresentation and held in contempt of court?

Crystal Gail Mangum was arrested this morning in Durham and charged with attempted first-degree murder; five counts of arson; simple assault; identity theft for providing a false name to police after she was arrested; communicating threats; damage to property; resisting, delay and obstruction; and three counts of child endangerment.

A judge this morning ordered that she remain in jail on a $1 million bond. Wearing a white jail jumpsuit, Mangum kept her head down during her court appearance today and said nothing as the charges from this morning’s incident were read.

According to authorities, Mangum, 31, and her boyfriend, Milton Walker, were fighting in their apartment at 2220 Lincoln St. She then set fire to Walker’s clothing inside a bathtub, located in a bathroom in the middle of the apartment, police said. She tried to start another fire after officers arrived, according to an arrest warrant read during her court appearance.

Police said Mangum also threatened to stab Walker.

In 2008 Mangum attempted to further capitalize on the fiasco by writing a book.

Surely Nancy Grace will pick up this story?

Baru A. Trump, who was charged with the murders of Cecil M. Bennett and Shirley Wiles at an Orangeburg barbershop after the murder weapon was found in his car, has filed a lawsuit in federal court against Orangeburg County prosecutor David Pascoe.

Trump was arrested in December of 2005. The complaint alleges that Pascoe's office had all of the investigative reports in the case in August or September of 2006, which I assume would have shown that there was no case against Trump, but did not dismiss the murder charge until February of 2007. Trump had told investigators that he purchased the gun from another individual named Roger Johnson, who is currently serving a prison sentence for shooting two Orangeburg County Sheriff's deputies.

From everything that I see, in the article and the complaint itself, Trump does not have a case. I'm all for filing suit against a prosecutor in the right case, to test prosecutorial immunity in light of the Pottawattamie case which was never decided by SCOTUS, but this is not that case.

Problems? Trump was also charged with unlawful carrying of a pistol, to which he pled guilty and was sentenced to a year. He was indicted by the grand jury on the murder charge, which means there was a finding of probable cause (the cliche is that the grand jury will indict a ham sandwich - despite this, a finding of probable cause is a significant hurdle that Trump would have to get around if this suit went forward). And let's not forget that the law still says that prosecutors are immune from suit for decisions such as whether or not to charge a person.

Is there a moral outrage that they allowed a man to sit in jail when they knew that there was insufficient evidence to go forward on the case? There should be. But it does not rise to the level of a prosecutor who obtains perjured testimony to make their case, who manufactures inculpatory evidence or buries exculpatory evidence. It rings of negligence, as opposed to maliciousness. It is ironic that a civil attorney, who deals in money as opposed to freedom, can be sued for malpractice but that a prosecutor, who holds a person's life in his or her hands, is immune from suit.

I predict that the complaint will never be served on Pascoe. It has been filed but not served - if it is not served within 120 days it will be dismissed. It got the media's attention, which may have been the point, but the case has too many problems to get off the ground.

A judge found that Deputy District Attorney Troy Benson lied under oath about a videotape that was not provided to the defense in a child molestation case, a case in which the alleged victim had also recanted prior to trial. After spending four years in prison, Augustin Uribe's charges are dismissed and he has been released:

"Mr. Benson's numerous acts of misconduct, culminating in his false testimony in this proceeding, strikes at the foundation of our legal system and is so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed,'' Bryan said. "As such, defendant's motion to dismiss on due process grounds is granted.''

The U.S. Supreme Court will not decide the question in Pottawattamie County v. McGhee, whether prosecutors can be liable for fabricating evidence, coaching witnesses, concealing exculpatory evidence, and sending an innocent person to prison for 25 years of his life, because the government has settled the case before SCOTUS had the opportunity to rule.

The lower courts had ruled that prosecutorial immunity does not extend to the preparations that occur before trial begins, and SCOTUS heard arguments in the case in November. Now a settlement of $12 million has made the issue moot. I am guessing that the County feared an adverse ruling from the Supreme Court which would allow lawsuits to go forward against prosecutors in future cases - but, lawsuits are going to be filed now anyway, and the issue will make its way back to the Court eventually.

Prosecutors should be liable in extreme cases such as the Pottawattamie County case, where the misconduct can be proven. They should be more than civilly liable, they should be criminally liable. If it is proven that a person (prosecutor) lied, suborned perjury, and obstructed justice and the result was that an innocent man lost 25 years of his life, should there be criminal consequences? Should that person be sentenced to 25 years in prison to pay for what they did? Does $12 million really make up for the loss of 25 years of a person's life?

If it is proven that a person (prosecutor) lied, suborned perjury, and obstructed justice and the result was that a human being was sentenced to death by a judge or jury, should there be criminal consequences? Did that prosecutor commit murder, the very thing that he is supposed to be working to prevent? And what should the penalty be?

These are the extreme cases, but they are out there and it happens. There should be consequences - under the current system, prosecutors are immune from lawsuit, no-one polices them, and in most cases they are not so much as disciplined by the bar association. Police, prosecutors, judges, and defense attorneys hold peoples lives in their hands. They have the power to heal, to help, to hurt, and even to kill. With that power comes responsibility, and accountability.

I am glad that McGhee and Harrington are being compensated for what was done to them. I doubt that they feel $12 million is enough.

Edit: Gamso and Norm Pattis have blogged about the settlement as well.

The Honorable Cormac J. Carney, a federal judge in California, dismissed charges William J. Ruehle and other defendants in the Broadcom case, based on the prosecutor's intimidation of key witnesses; i.e. threatening them with prosecution if they did not cooperate and making them say what the prosecutor wanted to hear. Or actually charging them despite a lack of evidence and then offering them deals only if they said what the prosecutor wanted to hear.

For the past few days it's been the topic on all listserves I'm a member of and on several blogs - the White Collar Crime Blog, Law and Baseball, Gamso, and Simple Justice to name a a few.

The transcript from the hearing is here, and I recommend reading it. It's a rare day when a judge holds the prosecutor's feet to the fire and dismisses a case with prejudice based on prosecutorial misconduct - but "you've got to make them lose to make them learn," as Cathy Cook in Ohio says.

BASED ON THE COMPLETE RECORD NOW BEFORE ME, I FIND THAT THE GOVERNMENT HAS INTIMIDATED AND IMPROPERLY INFLUENCED THE THREE WITNESSES CRITICAL TO MR. RUEHLE'S DEFENSE. THE CUMULATIVE EFFECT OF THAT MISCONDUCT HAS DISTORTED THE TRUTH-FINDING PROCESS AND COMPROMISED THE INTEGRITY OF THE TRIAL.

TO SUBMIT THIS CASE TO THE JURY WOULD MAKE A MOCKERY OF MR. RUEHLE'S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS AND A FAIR TRIAL. THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION GUARANTEES THE ACCUSED THE RIGHT TO COMPULSORY PROCESS FOR WITNESSES IN ITS DEFENSE. FOR THIS CONSTITUTIONAL RIGHT TO HAVE TRUE MEANING, THE GOVERNMENT MUST NOT DO ANYTHING TO INTIMIDATE OR IMPROPERLY INFLUENCE WITNESSES.

Bold and inspiring words. ln another bombshell, U.S. District Judge Clay D. Land in Columbus, Georgia rejected a "sweetheart plea deal" made by federal prosecutors with a snitch in exchange for his testimony against acquitted criminal defense lawyer J. Mark Shelnutt, instead sentencing the snitch to twice the recommended time (what if Shelnutt had been convicted, would the snitch have gotten his deal then?).

U.S. District Judge Clay D. Land issued his harsh criticism of the U.S. Attorneys' Offices for the Middle and Southern Districts of Georgia in an unusual 19-page order explaining why he more than doubled the recommended prison sentence of a federal witness who testified against Columbus lawyer J. Mark Shelnutt.

Land suggested that the judgment of the U.S. Attorney's Middle District office in Macon, Ga., which oversees federal prosecutions in Columbus, "may have become clouded by its zeal to bring down a prominent defense attorney."

"The Court became concerned that the focus of the U.S. attorney's office was on getting a high-profile lawyer and negotiating sweetheart plea deals with the actual drug dealers to accomplish that," Land wrote.

Land made it clear that he believed that it was not a "rogue assistant" prosecutor making the decisions, but that the problem went to the "highest levels of management" in the district attorney's office.

Make them lose to make them learn is one to approach the problem of lying jailhouse informants. Take away their motivation to lie is another.

What has bothered me since these stories broke is the fact that these are high profile white collar defendants. Would these judges have done the same thing if it were an indigent black man on trial for a drug crime, or a rape or a murder, represented by the public defender's office? The fact is that these judges see prosecutors buying perjured testimony over and over - this is how the system works, even more so in federal court - but the courts do not do anything to stop it until they have found the most blatant examples with rich, white-collar defendants.

I've asked this question in the last few days, have you seen a case where a judge has dismissed charges based on prosecutorial misconduct against an indigent defendant? I've seen a case where a judge blasted the prosecutor for not only using perjured testimony in trial but then vouching for the snitch's testimony even after it was proven false - that judge dismissed some of the counts against the defendants in a strongly worded opinion, but then sent them to prison on the remaining counts.

So, print the transcript linked to above, read it, share it, celebrate it, but above all use it to advocate for clients who are not privileged but who should be receiving the same safeguards against prosecutorial misconduct as these upper class defendants received.

Update: U.S. District Judge Robert Gettleman in Chicago has ordered a new trial for former Streets and Sanitation Commissioner Al Sanchez, based on the government's failure to disclose to the defense that one of the prosecution witnesses was a high-ranking gang leader and drug dealer. (Impeachment material falls under Brady and must be disclosed to the defense prior to trial.) Another example of a judge doing the right thing, and the only thing that will make prosecutors follow the rules, at least for a wealthy white collar defendant.

Do lawyers on the ground in Maricopa County care about the state of their courts as much as the scattered bloggers across the country? Today was the rally on the courthouse steps, and according to the Phoenix New Times, about 300 showed up, mostly attorneys:

In a series of short speeches, the protestors focused on two things: defending the local judiciary from Thomas' onslaught of attacks, and then turning the tables and attacking Thomas.

Attorney Tom Ryan kicked things off by explaining that he was neither a criminal defense lawyer, a Democrat, nor a liberal. "I'm a native of Chandler, Arizona, a Republican, and a lifelong East Valley conservative," he said, setting things straight right out of the chute.

But, Ryan said, it was time for "all concerned men and women of the Bar to come together."

"Andrew Thomas is a bully and a coward," Ryan said, to cheers from the phalanx of lawyers, "who, when he does not get his way, abuses the awesome power of the county attorney in a misguided and unethical attempt to get his own way."

The crowd recited the Attorney's Oath, sang America the Beautiful, and called for the removal of County Attorney Andrew Thomas.

Cameron Todd Willingham was executed in Texas in 2004, after being convicted of murdering his family by arson. For the past month, the media and law blogs have been buzzing with news of reports that the junk science that Willingham's conviction was based on was bogus, and that this is the clearest case of an innocent person being executed by a state.

A panel that was investigating the claims has been replaced by governor Rick Perry, 48 hours before the panel was to hear from arson expert Craig Beyler, who had been retained to assist in the investigation.

Beyler's report is the latest of three to conclude that arson was not the likely cause of the 1991 fire, and the first commissioned by a state agency. Death penalty opponents say an impartial review of the Willingham case could lead to an unprecedented admission that the state executed an innocent man.

The Beyler report concluded that the ruling of arson at the heart of Willingham's conviction "could not be sustained" by modern science or the standards of the time. The report, filed in August, said the state fire marshal who testified in Willingham's trial approached his job with an attitude "more characteristic of mystics or psychics" than with that of a detective who followed scientific standards.

Perry, who faces a Republican primary challenge in his bid for a third term next year, refused to issue a last-minute stay of execution for Willingham in 2004 and has said he remains confident that Willingham was guilty. So have authorities in Corsicana, south of Dallas, who prosecuted Willingham in his daughter's deaths.

Despite their requests to remain on the panel, the governor says that he is replacing them because their terms are up. Possibly there is no desire to sabotage the investigation on the part of the governor, but this was a critical time in the case to announce the replacements.

The death penalty phase of the trial of Colin James Broughton, who was charged with murder and armed robbery in Charleston, South Carolina, ended in a mistrial this morning following new revelations that the state had intimidated witnesses in an attempt to influence their testimony:

“That effort to intimidate strikes at the very heart of our legal system,” [Circuit Judge] Nicholson said. “I just don’t think the court can tolerate that, especially in the death-penalty phase.”

Defense attorney Bill McGuire told The Post and Courier on Monday that a Berkeley County jail official had urged guards not to paint too rosy a picture of Broughton on the witness stand.

The alleged intimidation came to light Monday as Nicholson questioned the guards in his chambers, outside the view of the jury. The guards had backed away from their previous comments that Broughton has behaved well inside the jail since his arrest for the 2006 slaying of Shirley Birch

This is the same trial where the original trial judge, Circuit Judge Deadre Jefferson, had ordered defense attorney Beattie Butler to remain mute in the courtroom and not to speak other than to whisper in Bill McGuire's ear; and where McGuire had filed motions alleging that Judge Jefferson, Chief Justice Toal, and Patton Adams had attempted to get McGuire to drop Beattie from the defense team:

Patton Adams, the director of the S.C. Commission on Indigent Defense, asked McGuire to drop his request to add Butler to the defense team.

McGuire said in the pleading that he understood the request was initiated by Jefferson and relayed to Adams through S.C. Supreme Court Justice Jean Toal.

"It was further relayed that failure to waive the issue would anger Judge Jefferson, Jean Toal and the rest of the South Carolina Supreme Court," one of McGuire's pleadings said.

The right result was reached in the case - whether or not you believe in state-sanctioned killings in the name of justice, you have to agree that we should not be putting citizens to death under these circumstances.

The next question is, whether there will be an independent investigation and prosecution of those responsible for instructing the guards not to testify for Broughton. Witness tampering and obstruction of justice are crimes that are prosecuted vigorously, because they interfere with the administration of justice and they undermine the operation of our court system. Will we look the other way when agents of the state are the alleged criminals?

.

The Myrtle Beach Sun News and the Charlotte Observer have picked up the investigation, although they have nothing new to report:

The FBI is investigating former S.C. prosecutor Jay Hodge following allegations about financial improprieties during his time in office.

Before retiring in January, Hodge, 59, served for 12 years as the elected solicitor of the 4th Judicial Circuit, which covers four mostly rural counties southeast of Charlotte, N.C., - Chesterfield, Darlington, Dillon and Marlboro.

"Allegations came in from that community regarding Mr. Hodge and financial matters within the office during his tenure as solicitor," said Kevin McDonald, first Assistant U.S. Attorney for South Carolina. "And the FBI is following up on the allegations."

Last week I wrote about the developing scandal surrounding the Fourth Circuit Solicitor's Office, which is apparently being investigated by the FBI along with Mercy Ministries, a non-profit organization formed to help victims of criminal domestic violence.

The mainstream media has been deafeningly silent on this story - at this time I can find only one short article by Tonya Brown at carolinalive.com, and no others. There was an article by the Cheraw Chronicle - but it appears to no longer be available online, although you can pull up an apology and retraction stemming from the story:

In this week’s issue of The Cheraw Chronicle & Chesterfield Advertiser regarding the article on the Fourth Circuit Solicitor’s Office, it was mentioned that Safrona Finch was a former employee with the Fourth Circuit Solicitor’s Office in Bennettsville.

It is correct to say that Safrona Finch is still a current employee of the Solicitor’s office and that she has not been terminated or has she resigned from her position.

Sorry Safrona. I'm sure they didn't mean to point fingers at you. Fitsnews has been dogging this story from the beginning, and is now reporting that Bill Overcash, who ran the Pre-Trial Intervention program, has also left the solicitor's office amid allegations of misappropriations of funds.

Where is the rest of the mainstream media on this story? [post edited]

Anyone that has more information, feel free to comment below.

Edit: Chesterfield County newspaper The Link has also reported on the scandal. Leighton Bell's article was on the front page this week.

Assistant Solicitor Jay Hodge (Hodge was the 4th Circuit Solicitor before stepping down this term and was replaced by Will Roger) has resigned as the FBI investigates his office. Although details are hazy, it appears that subpoenas have been issued to the 4th Circuit Solicitor's Office and for the financial records of Mercy Ministries, a non profit organization for victims of domestic violence. Hodge and two solicitor's office employees served on Mercy Ministries' board of directors.

Fitsnews is reporting allegations of misappropriations of funds and labor at the 4th Circuit Solicitor's Office, Mercy Ministries, and the 4th Circuit drug court program:

The alleged misappropriation of public funds the subpoenas are said to be investigating stems from Solicitor’s office money (specifically monies from Drug Court and Pre-Trial Intervention programs) and Mercy Ministries money being used to pay for improvements to personal property and rental properties, as well as the co-mingling of public funds with personal bank accounts.

Drug Court clients have allegedly done work at the home of the former solicitor and another employee, with one of these providers claiming that they were told to say that any work they did was on state property.

Also being investigated are accusations of forced campaigning during the recent solicitor’s office race.

Specifically, at least one employee is alleged to have been fired from the Fourth Circuit office as a direct result of refusing to campaign, while other employees tell FITS they were “strongly encouraged” to campaign on weekends and during the work week.

They are also reporting that SLED and S.C. Attorney General Henry McMaster were informed of the allegations years ago and refused to investigate.

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.

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?

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.

Two police officers, a prosecutor, and a judge have been charged with conspiracy to commit perjury and with misconduct in Detroit.

Former top drug prosecutor Karen Plants and two Inkster cops were arraigned today and face up to life in prison for an alleged conspiracy to use perjured testimony to convict two drug dealers in a 2005 cocaine case, according to charging documents filed this morning.

In all, Plants is accused of five felonies and two Inkster police officers are each charged with four felonies in the court documents, filed by the Michigan Attorney General’s office after a nine-month investigation. Among the charges faced by the trio is conspiracy to commit perjury, a potential life offense.

Retired Wayne County Circuit Judge Mary Waterstone faces four felony counts of official misconduct, according to charges filed this morning in Detroit 36th District Court. The maximum penalty for those felonies is five years.

Plants is charged with conspiracy to commit perjury, one count of official misconduct for provide false information to defense lawyers, one count of misconduct for failing to correct false evidence and two misconduct charges for allegedly holding improper meetings with Judge Waterstone.

David Moffitt, one of the defense attorneys at the trial, asked Attorney General Mike Cox to investigate the case three years ago, but apparently was ignored until recently. The attorney general's investigative report alleges that the state's informants lied on the stand at a preliminary hearing, with the proseuctor's knowledge. Later, the prosecutor had an ex parte meeting with Judge Waterstone where she told the judge about the perjury, and asked for and received an order signed by the judge preventing the defense attorneys from obtaining cell phone records that would have revealed the perjury. At trial, the prosecutor again met with the judge ex parte and discussed the perjury which was allowed to continue at trial without the knowledge of the defense attorneys.

They should be prosecuted. There are cops who lie under oath and there are prosecutors who will do anything to obtain a conviction. There are judges who will look the other way (although I hope it is rare that a judge will actually participate in unethical conduct such as what is alleged in this case). The only way to ensure the credibility of our justice system is for cops to know that they will be prosecuted for perjury and for prosecutors to know that they will be held accountable for their actions.

When prosecutors know that they will not be charged with anything, they know that they will not be disciplined by their state bar, they know that they are immune from lawsuit, and they know that judges will not dismiss cases for prosecutorial misconduct, there will be prosecutors who will take advantage of their free pass and do whatever it takes to win their cases. As much as we want and need to believe that prosecutors and police officers will be moral and upstanding by virtue of who they are and what they do, they are human and it simply is not always true.

Prosecutorial misconduct such as withholding evidence, the use of jailhouse snitch testimony, faulty eyewitness identifications, and coerced confessions lead to wrongful convictions that destroy lives. There is nothing to prevent these miscarriages of justice unless prosecutors are held accountable for misconduct and unless laws are passed or rules put into place to limit the use of unreliable evidence at trials.

In the news recently:

In California, Adam Miranda is granted a new trial after nearly 30 years in prison, following the revelation that his prosecutors withheld evidence that could have exonerated him - Judge David S. Wesley found that prosecutors did not tell the defense attorneys that their star witness Joe Saucedo had confessed to the murder himself before Miranda was charged. Saucedo was paid $1350, was relocated, and was given a deal that resulted in 2 years of probation on his own charge.

"This kind of violation snaps the spine of the justice system," defense attorney Kerry R. Bensinger said after Friday's hearing.

Tim Masters' 1999 murder conviction in Fort Collins, Colorado, was overturned last year after new evidence was discovered, but still struggles to put his life back together with the stigma of a first degree murder conviction hanging over him:

In 1987, Masters became the prime suspect in the slaying of Peggy Hettrick, a 37-year-old found in a field near his house. Among the reasons police said they focused on Masters was that he failed to report the body after he found it and his childhood drawings and stories suggested he was fixated on death.

Masters was convicted of murder in 1999, but a judge last year threw out the conviction and released him from prison, citing new evidence that did not implicate Masters. Masters now has a lawsuit pending against several police officers, ex-prosecutors and the city.

In Louisiana, the City of Covington has agreed to settle a lawsuit for $1.4 million for the 19 years that Dennis Patrick Brown spent in prison for a rape he did not commit.

Covington police arrested Brown in September 1984 after a woman reported being raped at knifepoint in her home on Polk Street. Based on her description, police sketched an image of a suspect with a bandanna covering all but his eyes.

She later picked Brown out of a lineup. During the September 1985 trial, the victim testified that she had no doubt Brown raped her.

Brown denied the attack, testifying that police had threatened him with a knife to gain a confession. He told the jury that police investigators were lying and that the first time he set eyes on the victim was in court. He was found guilty and sentenced to life in prison.

In 2004, the Innocence Project of New Orleans obtained a court order to test blood, semen and clothing found at the scene of the rape. Two tests of the evidence excluded Brown as the rapist.

In In re Boyce, in December 2006, an attorney was given a public reprimand for issuing a subpoena for bank records when there was no case pending. Although the lawyer's assistant drafted and mailed the subpoena and not the lawyer, the Court held that the lawyer was responsible for the supervision of her employees:

The subpoena contained the following false and misleading statements and implications:

1. that Owner was a party in a pending civil action when he was not;

2. that the subpoena was issued by the “civil court in the County of Spartanburg” when it was not;

3. that the subpoena was in furtherance of a pending civil case when it was not;

4. that the bank was required by law to produce certain documents and information for inspection and copying when it was not;

5. that a designated official for the bank was required to provide the documents and information at the Spartanburg County Family Court when there was no cause pending in that court and no official for the bank was required to appear;

6. that the subpoena was issued in compliance with Rule 45(c)(1), SCRCP, when it was not; and

7. that respondent was an attorney acting on behalf of the plaintiff in a pending civil action in issuing the subpoena when, in fact, she was not.

Respondent acknowledges it was improper to send the subpoena when no action was pending. Even if the subpoena had been pursuant to a pending action, respondent admits she failed to review it prior to its service upon the bank. Finally, respondent admits that she failed to adequately supervise her non-lawyer assistant in the preparation and service of the subpoena.

What rules did this violate?

Respondent admits that, by her misconduct, she has violated the following provisions of the Rules of Professional Conduct, Rule 407, SCACR: Rule 5.3 (lawyer having supervisory authority over non-lawyer shall make reasonable efforts to ensure the person’s conduct is compatible with the professional obligations of the lawyer); Rule 8.4(a) (it is professional misconduct for lawyer to violate Rules of Professional Conduct); Rule 8.4(d) (it is professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and Rule 8.4(e) (it is professional misconduct for lawyer to engage in conduct that is prejudicial to the administration of justice). Respondent acknowledges that her misconduct constitutes grounds for discipline under the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR, specifically Rule 7(a)(1) (it shall be ground for discipline for lawyer to violate Rules of Professional Conduct) and 7(a)(5) (it shall be ground for discipline for lawyer to engage in conduct tending to pollute the administration of justice or to bring the courts or legal profession into disrepute or conduct demonstrating an unfitness to practice law).

A few days ago, I wrote about the practice of the 15th circuit solicitor and other solicitors around the state of using a clerk of court signature stamp to issue their own subpoenas, and the practice of issuing illegal subpoenas for investigation purposes when no case exists, instead of seeking a search warrant. Greg Hembree, the 15th circuit solicitor, and other solicitors, made public statements that there was nothing wrong with this practice:

Greg Hembree, solicitor for the 15th Judicial Circuit, said there is little legal precedent on how subpoenas can be used for investigative purposes. Prosecutors with the S.C. attorney general's office said state law does not expressly prohibit their use in such cases.

Besides the text of the S.C. Rules of Criminal Procedure, which do not allow for subpoenas unless there is a pending case, there is a South Carolina ethics opinion which is directly on point, which asks the questions: 1) can a prosecutor obtain a subpoena duces tecum during a criminal investigation prior to the issuance of an arrest warrant or true billed indictment? and 2) can another prosecutor use the information obtained pursuant to that subpoena in a criminal prosecution? The answer:

It would be unethical for an attorney to obtain a subpoena duces tecum in a criminal case prior to there being an active arrest warrant or true billed indictment. Further, it would be unethical for a subsequent attorney, who is aware of the unethical conduct of the first attorney, to utilize the subpoenaed information in a criminal prosecution.

As to the prosecutor obtaining the subpoena:

Rule 8.4 (g) provides that an attorney may not, “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.”(emphasis added).

If the rules of procedure or substantive law do not allow for the issuance of criminal subpoenas prior to the existence of an arrest warrant or a true billed indictment, then the request or effort of Prosecutor A to obtain or serve such a subpoena would violate this rule. The attorney may also consider Rule 3.3 and Comments (candor toward tribunals) and 4.1(a) (truthfulness in statements to others).

As to a second prosecutor using evidence obtained as a result of the subpoena:

Rule 8.4 (a) states that it is professional misconduct for a lawyer to “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” (Emphasis added).

Rule 5.1(c)(1) provides that a lawyer shall be responsible for another lawyers violation of the rules of professional conduct if the lawyer “orders or, with knowledge of the specific conduct, ratifies the conduct involved.”

If the first prosecutor has in fact acted unethically in his conduct of obtaining or serving a subpoena duces tecum prior to the issuance of an active arrest warrant or true billed indictment, a subsequent prosecutor who knowingly utilizes the information would violate Rule 5.1(c)(1) and Rule 8.4 (a) of the Rules of Professional Conduct.

Besides issuing their own subpoenas and using subpoenas as pre-arrest investigation tools, the 15th circuit assistant solicitors, at least in the magistrate court division, are mailing their subpoenas to out of state witnesses, then informing the witness that they must appear in court. In one instance, I was told that the assistant solicitor told an out of state witness they would be arrested if they did not appear.

For any newer assistant solicitors who may be reading, the 15th circuit solicitors office does not have the power to compel attendance by a witness who lives in Pennsylvania, New York, or Maryland. There is a process by which attorneys can subpoena an out of state witness, found in S.C. Code Section 19-9-10. When subpoenaing an out of state witness, you must find the comparable statute in the home state of the witness you wish to subpoena. Typically, that statute will require you to have a local judge sign a certificate to compel the appearance of the out of state witness. You must take that certificate to the home state of the witness and schedule a hearing, giving the witness notice of the hearing. At the hearing, you request that the home-state judge issue a subpoena compelling the witness to attend the trial in South Carolina.

So, what is the problem? A witness who does not want to come can move to quash the subpoena, or can simply not appear right? The problem is that issuing the illegal subpoena in the first place, and threatening to arrest a person when you know that you have exceeded your authority, is unethical and it is an abuse of power.

A recent pre-trial hearing in the embezzlement trial of Beulah and Dayo White, a mother and daughter accused of taking money from the Five Rivers Community Development Corp, has brought to light what many consider to be rampant abuse of the subpoena power by not only the 15th Circuit Solicitor's Office, but solicitor's offices statewide.

The first practice that has been exposed, which may or may not cross the line although it certainly raises questions, is that the clerk of court in Horry County and other counties has given a signature stamp to the prosecutor's office - there is no need for the prosecutor to walk the 20 feet or so down the hall to the clerk's office, they can simply pull out their stamp and sign the clerk's name to their subpoena (or other documents?) themselves.

In civil cases, the attorneys can issue subpoenas under their own name. However, in criminal cases, the clerk of court must issue subpoenas - the clerk does not have the authority to review, approve, or disapprove a subpoena based on content, but, per the S.C. Rules of Criminal Procedure, they must be issued by the clerk:

RULE 13
SUBPOENAS

(a) Issuance of Subpoenas. Upon the request of any party, the clerk of court shall issue subpoenas or subpoenas duces tecum for any person or persons to attend as witnesses in any cause or matter in the General Sessions Court. The subpoena shall state the name of the court, the title of the action, and shall command each person to whom it is directed to attend and give testimony, or otherwise produce documentary evidence at time and place therein specified. The subpoena shall also set forth the name of the party requesting the appearance of such witness and the name of counsel for the party, if any.

Of course, providing the solicitor's office with a signature stamp with the clerk of court's name certainly saves time for both the prosecutor and for the clerk's office (I am still waiting for my clerk of court signature stamp, apparently this is a privilege given only to attorneys on one side of criminal cases). Giving a stamp to the prosecutors so that they can sign the clerk's name to subpoenas does not = the clerk issuing the subpoena. These subpoenas are issued by the prosecutor, not the clerk, and they violate the rule.

David Wren at the Sun News reports that, according to numerous solicitors from across the state, the practice is widespread:

They say clerks of court are not required to review or verify the subpoenas and that state law only calls for the documents to be issued - not signed - in the name of a clerk of court. "If the clerk of court is rubber-stamping subpoenas anyway, what's the difference?" said Trey Gowdy, solicitor for the state's 7th Judicial Circuit. Gowdy said his office prints subpoenas from a computer program that automatically downloads the clerk of court's signature. "We went to the clerk of court years ago to get his signature" for the computer program, Gowdy said. "The subpoenas are issued in his name, but from our office."

Worse than this - and here we get to why this "small" violation of the rule can become a big problem - is the admission by solicitors that they have been using the clerk's signature stamps to issue subpoenas when there is no criminal case yet pending - I have seen a few subpoenas issued without a caption or case name, but this is the first time that I have seen a prosecutor admit to the practice. Former solicitor Jay Hodge, and our own solicitor Greg Hembree argue that there is nothing wrong with the practice:

Hodge said the 4th Circuit has used signature stamps to issue subpoenas for at least 20 years and continues to do so under current solicitor Will Rogers. Hodge and other solicitors say they also issue subpoenas prior to arrests or indictments to gather evidence that can lead to criminal charges. "How else are your cops and [solicitors] going to get evidence?" asked Gowdy, the 7th Circuit solicitor.

Lawyers for the Whites say subpoenas in their case were improper because they were issued before a criminal case had been initiated, possibly violating the Fourth Amendment right, which guards against unreasonable search and seizure.

Greg Hembree, solicitor for the 15th Judicial Circuit, said there is little legal precedent on how subpoenas can be used for investigative purposes. Prosecutors with the S.C. attorney general's office said state law does not expressly prohibit their use in such cases.

As 10th Circuit Solicitor Chrissy Adams notes, the proper practice is to obtain a search warrant to obtain evidence prior to an arrest. The Fourth Amendment guarantee against unreasonable search and seizure requires that a judge review the probable cause for a search and approve before the search is conducted - cops and prosecutors cannot get around the Fourth Amendment by using a fake subpoena instead of seeking a search warrant. Which brings us back to the original revelation of the solicitors issuing subpoenas and signing the clerk's name to them - the clerk cannot refuse to issue a subpoena based on content or who it is issued to, but should a clerk refuse to issue a subpoena when it does not even reference an ongoing case? I think the clerk should if it was a subpoena presented by a prosecutor, and certainly would if it was a subpoena presented by a defense attorney - which makes it quite convenient to have a clerk of court signature stamp in your desk drawer if you are inclined to break the rules.

Radley Balko at Reason.com has released the disturbing story of Dr. Hayne, who has been under fire for some time now for his questionable testimony for the state of Mississippi, and Dr. West, who allegedly have been manufacturing bite-mark evidence for use in murder prosecutions by Mississippi prosecutors. The article contains video which experts say show West creating the bite marks on a child's body which put a man on Louisiana's death row. Excerpts from the video, which I warn you are graphic and disturbing, are available in the article:

Last year, two men that Hayne and West helped convict of murder in the early 1990s, Levon Brooks and Kennedy Brewer, were exonerated and freed from prison through DNA testing after serving more than 30 years combined behind bars. Both men had been accused of raping and murdering the daughters of their respective girlfriends. In what has come to be a pattern with the two doctors, in each case Hayne claimed to have found in an initial autopsy what other examiners missed: bite marks on the victim's body. He then called in West, a forensic odontologist (dental examiner), who definitively matched bite marks to the defendants. Partly because of the testimony from Hayne and West, Brooks was sentenced to life in prison, and Brewer to death (he spent 14 years on death row). DNA testing in 2008 determined that the semen found on both girls belonged to a third man, 51-year-old Albert Johnson. As Brooks and Brewer were freed, Johnson confessed to both crimes.

The Brooks and Brewer cases form their own forensics riddle: How could West and Hayne have definitively linked previously undetected bite marks on the victims to two men who didn't commit the murders?

Reason recently obtained shocking video from another Hayne and West collaboration that may shed light on the question. In 1993, the two conducted an examination on a 23-month-old girl named Haley Oliveaux of West Monroe, Louisiana, who had drowned in her bathtub. The video shows bite marks mysteriously appearing on the toddler's face during the time she was in the custody of Hayne and West. It then shows West repeatedly and methodically pressing and scraping a dental mold of a man's teeth on the dead girl's skin. Forensic scientists who have viewed the footage say the video reveals not only medical malpractice, but criminal evidence tampering.

It is amazing how much trust the general public has in law enforcement and prosecutors, and yet a quick search on any given day turns up several reported instances of prosecutors playing dirty. My theory is that 1) we need to believe that we can trust law enforcement, so we refuse to accept that there are problems that need to be addressed; and 2) television and popular fiction have created an image of upstanding prosecutors and sleazy defense attorneys that colors our perception. Most prosecutors and defense attorneys that I know are purposefully ethical, and take care not to cross the line in litigation. But the prosecutors that do cross the line, who place winning cases at any cost ahead of seeking truth and justice, do not deserve to be in the positions of power in which we have placed them. As Peter Parker says, "with great power comes great responsibility."

Via Radley Balko at the Agitator, in Cole County, Missouri, Joshua Kezer's murder conviction was overturned this week after he served 17 years of his life in prison:

Kezer was convicted despite no physical evidence, DNA, or fingerprints linking him to the crime scene; no murder weapon; and no eyewitnesses to the actual murder. The evidence against him consisted of a witness who claimed to have saw him near Lawless’ car (that witness later recanted) and testimony from jailhouse informants who say Kezer confessed to them. Two of those informants have since recanted, and one has since testified for Kezer’s defense. Another says he made up his story about Kezer’s confession, but went on to testify for the state, anyway . . .

Callahan chastised Hulshof for withholding several key pieces of exculpatory evidence from Kezer’s trial attorneys, including the witness recantations, witnesses who contradicted state’s witnesses, and police notes mentioning other possible suspects.

"Social Services for Feral Children" brings us the case of Theodore Williams, a defendant in Stanley County, North Carolina, who sued an assistant district attorney, the sheriff, and the county commissioners for alleged civil rights violations. Soon after, he was transferred to a different jail without explanation, beaten severely by officers, and then charged with striking an officer. The district attorney then put up posters with before and after pictures of Williams' injuries:

The poster contained two photographs of defendant. The first depicted defendant without any injuries as he appeared when processed into the Stanly County Detention Center on 17 November 2003, with a caption stating: “Before he sued the D.A.’s office.” The second photograph depicted the injured defendant as he appeared when processed back into the Stanly County Detention Center on 20 April 2004, with a caption stating: “After he sued the D.A.’s office.”

When Williams' attorney subpoenaed the booking photos and the posters for trial, the district attorney destroyed them instead of turning them over. The trial judge, also a former prosecutor, dismissed all charges against Williams after the prosecutor admitted to destroying the photos, and the N.C. Supreme Court upheld the dismissal.

A murder case in Lincoln County, Mississippi must be tried a second time when the defense is granted a new trial based on prosecutorial misconduct:

The defense was granted a second trial based on what Circuit Judge Mike Taylor ruled as prosecutorial misconduct when the defense contended the state had made a secret deal with star witness Mark Culbertson. Prosecutors vehemently denied a deal was in place with Culbertson, who was also accused in the crime and pleaded guilty to a manslaughter charge after testifying in Leggett's trial.

Fort Bend, Missouri defense attorney Richard Tate speaks out about prosecutorial misconduct in the trial of his now-acquitted client Fulshear Mayor James Roberts:

“Next, I witnessed the employment of certainly unprofessional, and probably unconstitutional, conduct by the prosecution and/or the investigators – one or the other – when they withheld exculpatory evidence that clearly demonstrated the mayor’s innocence and should have ended the investigation early on,” Tate said. “I witnessed the use of threatening and intimidating tactics, both during the investigation and during the trial, toward witnesses in an attempt to force those witnesses to testify in a manner more favorable to the prosecution.”

A California state bar judge recommends disbarment for Santa Clara County District Attorney Ben Field:

Suggesting the harshest disciplinary punishment in recent history for a California prosecutor, a state bar judge Wednesday called for Santa Clara County Deputy District Attorney Ben Field to be stripped of his right to practice law in the state for four years because he "abused his prosecutorial power.'' . . .

"His overzealousness to convict and punish defendants who had murdered, robbed and raped obstructed his understanding of a prosecutor's special duty to promote justice and seek truth,'' the judge wrote.

Another Santa Clara County prosecutor accused of misconduct:

There was never any dispute in the case that the veteran, Sargent Binkley of Los Altos, had robbed the pharmacy. But the jury convicted Binkley last month of using a gun to commit the robbery — a finding that makes the crime far more serious — after prosecutor Deborah Medved told them they could use the grainy photographs from a store surveillance camera to help reach that verdict.
Now, a Santa Clara County crime lab examiner has come forward to testify that a day before Medved made that closing argument, he told her that he was unable to detect a gun in any of the photographs, after examining them at Medved's request.

Guilty plea is thrown out in Jackson County, Kansas, after discovery of a Brady violation by the prosecutor:

In a strongly-worded ruling, Judge Edith L. Messina found that Assistant County Prosecutor Dan Miller withheld hundreds of pages of investigative records from Matthew Davis’ defense lawyers and had “deliberately and fraudulently misled the court and defense counsel.”

“As a result,” Messina wrote in her ruling, “a continuing fraud was perpetrated upon the trial and motion courts.”

Davis was sentenced to 22 years in prison for abandoning Amber McGathey’s body and for three counts of possession of a controlled substance.

A former prosecutor in Pennsylvania is sued over allegations of sexual harassment:

A domestic abuse victim filed a civil lawsuit Friday against former Assistant District Attorney Lance Marshall, the county and its head prosecutor, alleging Marshall sent her explicit texts and voicemails, intercepted her conversations and offered to trade sex for favors in the courtroom. The woman is suing on allegations of invasion of privacy, intentional infliction of emotional distress, civil rights violations and the unlawful interception of telephone communications.

And Karl Rove agrees to cooperate with authorities in their investigation into prosecutor misconduct in the conviction of former Alabama Governor Don Siegelman:

Siegelman, who was convicted of corruption charges in 2006, was released on bail last April pending appeal after media reports -- including those of Raw Story and CBS' 60 Minutes -- revealed myriad irregularities surrounding his prosecution. The husband of the US Attorney who prosecuted Siegelman was a close associate of Rove's and worked as campaign manager for one of Siegelman's gubernatorial opponents. An Alabama Republican whistleblower also said that Siegelman was deliberately targeted and asserted that Rove had said he'd push the Justice Department to end Siegelman's political career.

A theme that tends to recur throughout the criminal law blogosphere is cops who lie on the stand. A recent Wall Street Journal article by Amir Efrati tackles the issue:

It's one of the most common accusations by defendants and defense attorneys -- that police officers don't tell the truth on the witness stand.

Of course, defendants themselves can be the ones lying, but the problem of police perjury -- and what can be done about it -- is being debated anew. Fueling the discussion are recent court cases in New York City and Boston that indicated officers may have lied and a U.S. Supreme Court ruling this month that could have broader implications for cases in which improperly obtained evidence is in dispute.

Questionable testimony by police comes up most often in firearm- or drug-possession cases in which officers often testify that a defendant had a bulge in his pocket -- which they thought might be a gun -- or dropped drugs in plain sight as they approached him, giving the officers the right to seize the contraband. Defense lawyers say in many of these cases, officers are "testilying" and that the guns or drugs were actually discovered when their clients were unjustly frisked by officers. They also say testilying frequently occurs in more serious cases.

(H/T Rick Horowitz at Probable Cause)

The article goes on to imply that the exclusionary rule is the cause of rampant lying by police officers - if they did not have to lie to prevent the evidence from being excluded, then cops would tell the truth. Bull****. Cops are lying to cover up the fact that they violated a person's constitutional rights, therefore if we allow them to violate the constitution with impunity, they will stop lying?

The public, by and large, believes that cops and prosecutors are ethical and upstanding. We place them on a pedestal, because they are here to protect us. You want to believe that cops would not lie or manufacture evidence, and so do I. The problem is I see what happens behind the scenes in criminal cases, as does every defense attorney, prosecutor, and judge. As Horowitz puts it:

Believing that law enforcement officers are good guys is one of the linchpins of our society; probably of all societies, even where they don’t officially call them “law enforcement” officers. But to believe in law enforcement officers, we must be able to believe law enforcement officers.

So far that doesn’t seem to be a problem for the majority of submitizens, even though newspapers as small as the Fresno Bee contain at least one — and usually more than one — story almost every day about the illegal activities of police officers.

Years ago I tried a case that resulted in a hung jury, and I was honestly shocked, because the evidence was clear and my client had been caught red-handed. After the trial, we asked the jurors why they could not reach a verdict and we were told that three jurors refused to convict - they simply said, "all cops are liars and I couldn't believe a word that they said on the stand." Without a doubt, that was the exception and not the rule.

How do we stop law enforcement from lying, manufacturing evidence, or otherwise cheating in their zeal to make cases? Hold them to the standard that we all feel they should have. Train officers not only to make cases, but to do so honestly and with integrity. Punish officers that do not. When an officer blatantly lies on the witness stand, prosecute him or her for perjury like any other citizen. Allow law suits to go forward when cops violate a person's rights, rather than looking for any excuse to grant summary judgment. Dismiss cases where there is police or prosecutor misconduct rather than looking the other way.

It is not necessary to lie or cheat to make cases, and if it is then odds are that case should not be made, because there is going to be doubt as to the person's guilt. Our courts' practice of shielding law enforcement and prosecutors from liability or accountability for unethical practices does not serve the ends of justice; it subverts justice. I believe that there are more ethical and rigorously honest prosecutors and cops than not. It is not asking too much to hold all law enforcement to the same standard that some among them exemplify.

In State v. Parker, the S.C. Court of Appeals affirmed a conviction over the defendant's claim of double jeopardy, following a mistrial caused by prosecutorial misconduct. The Court notes that double jeopardy does attach, even when the defense moves for the mistrial, when the prosecutor's conduct was at fault:

A defendant who has moved for and been granted a mistrial based on prosecutorial misconduct may successfully invoke the Double Jeopardy Clause to prevent a second prosecution when the prosecutor’s conduct giving rise to the mistrial was intended to “goad” or provoke the defendant into moving for the mistrial. Oregon v. Kennedy, 456 U.S. 667, 676 (1982); State v. Mathis, 359 S.C. 450, 460, 597 S.E.2d 872, 877 (Ct. App. 2004) (applying same standard in South Carolina).

But, the Court of Appeals affirms the conviction, finding that the prosecutor in this case did not goad the defense into asking for the mistrial. What did the prosecutor do?

Prior to questioning the first police witness, the solicitor explained to the court that there was a videotape made of the crime scene that included graphic footage of the victim’s body. The solicitor redacted that footage and presented defense counsel with the redacted copy on the day of trial. The original videotape, however, was shown to the jury. The solicitor claimed it was unintentional. Defense counsel moved for a mistrial and dismissal with prejudice based on prosecutorial misconduct. He argued the solicitor’s case was not going well and the State was now privy to his defense tactics. The solicitor argued she did not know how the tapes were switched and there was no intention on her part to force a mistrial. The court admonished the solicitor, but denied the motion for a mistrial. . . .

Parker’s counsel argued that many times during the trial, the solicitor accused him of unethical conduct, badgered witnesses to concede they were merely testifying as directed to by Parker’s counsel, and stated several times in closing arguments that Parker’s counsel had coached the defense witnesses. He further argued the solicitor improperly relied on numerous facts that were not in the record and implied to the jury it was their community duty to convict Parker of murder. He finally argued the cumulative effect of the prosecutorial misconduct warranted a mistrial.

The jury deadlocked at the first trial, but the judge also ruled that there was prosecutorial misconduct and that the prosecutor forced the mistrial:

The judge found the solicitor’s comments during closing argument were improper, constituted prosecutorial misconduct, and were alone sufficient to warrant a mistrial. The judge also found the attacks on Parker’s counsel, the imposition of the burden on the jury to convict in order to protect the community, and the videotape warranted a mistrial. The court stated: “In my readings of those opinions it’s almost as if . . . this court can infer that the defendant was almost goaded into the position of asking for the mistrial. So based on the totality of the circumstances that [have] occurred in this trial . . . I will declare a mistrial.”

The Court of Appeals bases its decision on a letter from the 1st trial judge after the trial, stating that he did not rule on the double jeopardy issue, and their finding of "support in the record to affirm the finding that the solicitor did not intentionally goad Parker into moving for a mistrial."

If these facts do not illustrate a prosecutor engaging in misconduct sufficient to force a mistrial, I don't know what would. The Court of Appeals is bending over backwards here to not call the prosecutor on her misconduct, and by doing so is sanctioning that conduct. The message to prosecutor is, as usual, do whatever you want because you are immune. You are immune from lawsuit, most trial judges will look the other way, and we will certainly not tell you how to do your job.