Monday, November 02, 2009

Prosecutorial hubris, entitlement on display in recent cases

The National Law Journal published an op ed today by Bennett Gershman criticizing the Texas Court of Criminal Appeals and Collin County prosecutors for using procedural excuses to avoid addressing egregious judicial and prosecutorial conduct in the Charles Dean Hood case, where the judge and prosecutor were engaged in an extramarital affair during Hood's capital murder trial. Gershman says too often prosecutors and judges rely procedural excuses to dismiss legitimate defense claims, even in actual innocence cases:
Of all the gamesmanship that prosecutors routinely play, one of the most alarming is to aggressively raise ­hypertechnical and attenuated procedural obstacles and hurdles that a defendant must overcome in order to get a court to listen to his often meritorious claim that the prosecutor committed misconduct. Indeed, the U.S. Supreme Court has characterized such prosecutorial conduct as "gambling" and "playing the odds" with a defendant's rights, playing "hide and seek" to avoid disclosure of exonerating evidence, and requiring a defendant to engage in "scavenger hunts" to find exonerating evidence of which the prosecutor is secretly aware but has suppressed.

Thus, knowing full well that a defendant's claim is legitimate and meritorious, prosecutors regularly argue that the defendant failed to raise his claim earlier, as with Hood, even though the prosecutor well knew that the defendant could not raise the claim because he did not have the information that, brazenly, the prosecutor had suppressed. Some prosecutors have sought to deflect post-conviction claims of innocence by arguing that the defendant pleaded the wrong theory, or failed to use the correct nomenclature to describe the violation. And too many courts have endorsed the prosecutor's arguments. There are limits to this judicial deference. A few terms ago, in Banks v. Dretke, the Supreme Court reversed the U.S. Court of Appeals for the 5th Circuit, which had endorsed another Texas prosecutor's gamesmanship. In a death penalty case, the prosecutor argued that the defendant failed to differentiate sufficiently between his distinct legal claims — in effect, he "didn't say 'Simon Says.' "

Procedural gamesmanship by prosecutors is not a new phenomenon. But with the increasing demands by courts for enhanced and much more rigorous pleading requirements — for example, the Supreme Court's decision last term in Ashcroft v. Iqbal — defendants like Charles Hood are going to find the gateway to justice littered with procedural hoops and mazes of sufficient magnitude and complexity that a defendant may be barred from establishing on the merits that a prosecutor engaged in prejudicial misconduct, that a fair trial was denied and that the truth was lost. And some prosecutors, like the prosecutor of Hood, will champion this result as a big victory.
Hood's case must be one of the worst examples of prosecutors seeking (and usually, procuring) procedural excuses for tolerating official misconduct, but it's hardly an isolated instance. Later this week the US Supreme Court will hear oral arguments to decide whether there is a "freestanding constitutional right not to be framed," as the Washington Post editorial board put it this morning. Prosecutors in that case say there is not, including the National District Attorneys' Association. (See briefs pro and con on the SCOTUSWiki page.)

These two cases are thematically linked by prosecutorial attitudes of entitlement and hubris. Where are the voices among elected District Attorneys saying this kind of behavior can't be tolerated? Who really believes that prosecutors needn't be held accountable for framing innocent people, or that prosecutors and judges may have sexual relations during trial so long as they successfully conceal it from the defense until years afterward? How can anyone truly trust the justice system when stakeholders routinely defend such corrupt and abusive practices?


Faceless Man said...

Later this week the US Supreme Court will hear oral arguments to decide whether there is a "freestanding constitutional right not to be framed,"
I'll be interested to see what Scalia has to say about this.

Anonymous said...

"They argue that state and bar disciplinary structures are best able to deal with accusations of prosecutorial misconduct..."

Aside from the extraordinarily high profile case of Mike Nifong, how often do bar disciplinary structures deal with accusations of prosecutorial misconduct?

Do prosecutors want to rely on the state bar associations simply because they know the state bar associations rarely, if ever, hand down punishment for violations.

Not to mention that there are plenty of rights violations that rise to the level of criminal offense - something a state bar association cannot dole out.

Personally, I'd kind of like there to be a chilling effect that makes prosecutors think twice before coercing witnesses or manufacturing evidence or withholding exculpatory evidence. Even if this chilling effect resulted in a prosecutor turning over evidence beyond his Brady-related responsibilities just to cover his ass, I don't see how that would be bad.

Lori Wilson said...

Nifong was only disciplined because he was bass-ackward in his attempt to go after the "rapists".
If he had done the same thing with a group of black college boys accused of raping an upstanding white woman, those boys would be in jail right now.
For some reason he went after well-heeled white boys accused of raping a black woman (who was of "lower character". He was doomed from the start.

Anonymous said...

That's pretty much the point, though. It seems pretty clear that Nifong behaved the way he did (falsifying and hiding evidence, lying in court, telling the police to give the accuser a "no wrong answers" line-up, threatening publicly to manufacture evidence when one of the accused was shown on camera miles away at the time of the "crime") was because he had no fear that he'd get in serious trouble.

The choice that prosecutors sometimes face is to follow the rules and maybe lose elections or lose points from your boss for not winning cases or break the rules, win elections, get ahead at work for winning so many cases and have a .0000000000000000000001 percent chance that you'll even have to answer for your violations, let alone see any punishment for them.

As it is now, it's probably a smarter play for a prosecutor to not follow the rules.

Anonymous said...

Where are the voices among elected District Attorneys saying this kind of behavior can't be tolerated?

You're shitting me, right? You expect them to do anything but hide behind their office?

Prosecutors that engage in this activity are no different than King George III. They are un-American.


Anonymous said...

"Where are the voices among elected District Attorneys saying this kind of behavior can't be tolerated?"

Well, this one is keeping his damn fool head down.

I'm a prosecutor, and a fairly new one. I love my job, I want to do it for a long time, and I try to play as fairly as I can. I have an open file policy, affirmatively disclose all sorts of crap that I'm not required to, and generally take my losses in the same stride I do my wins- you file them both under "shit happens."

But you know what? That doesn't get you a raise. Nor will it get me hired at my next job. So the only thing I can do is keep my head down, work my ass off, continue to hand out pretrial diversion to every marijuana defendant that I can possibly push past probation, and keep quiet.

It's hard enough to stand up to the internal pressures to convict, but to actively call out career prosecutors? I've got a family to feed too, and Sallie Mae never gives up.

Anonymous said...

It's hard enough to stand up to the internal pressures to convict, but to actively call out career prosecutors? I've got a family to feed too, and Sallie Mae never gives up.

So you're saying you have knowledge of misconduct, yet keep quiet.


And yes, I've put my money where my mouth is on this sort of issue. I changed jobs when I discovered that a partner at a firm where I worked was misusing client information. It got his license suspended (probated, unfortunately), and caused me to have to find a new job.

But I can hold my head up, where you keep yours down, and it earned me a client for life.


Anonymous said...


And people on this blog wonder why prosecutors don't like them? The accusations (as well as lack of reading comprehension) don't help.

Do I have knowledge of misconduct? No, and I never said anything of the sort. But I'm not going to go around calling out potential bosses in other counties and districts when I don't know a damn thing more than what's on the news.

Am I going to agitate in ways which will make me unemployable? No. Will I make the appropriate referrals when necessary, even when it might lead to another attorney being disbarred? I have in the past and will in the future, thank you very much. Simply throwing around "Coward." when you don't know the situation (nor bothered to understand it) doesn't really get much accomplished other than make me wonder why in the world I even bother TRYING to understand the unbridled and often unaimed animosity that's directed to anyone who happens to be a prosecutor.

I'm simply honestly answering a question that was put here. If you haven't, go browse the TDCAA forum. Look at who the active contributors are, and what their politics and criminal justice views are. Now, what would be gained by my "standing up" in the way that Grits advocates? I'd never find a job, and they'd still be the prosecutors invited to speak at CLEs. In the end, They represent an extremely small, very vocal minority.

Grits directs his comments at OTHER electeds, and that's where it is going to have to start. They have the ability to do that. But they have the cover of being elected to do that. The vast majority of ACAs, ACDAs, and ADAs don't have that ability.

And good for you for doing that- but take your righteousness somewhere else.

Anonymous said...

You specifically said you would not call out other prosecutors because you have a family to feel and loans to pay.

You may be able to double-speak your way through most of your life, but what you said was obvious.

And in this last post you even say it again--that you wouldn't do the right thing because you wouldn't be employable.

I regularly read the forums at the TDCAA. I am unimpressed by anything but their closed-mindedness.


Anonymous said...

"that you wouldn't do the right thing because you wouldn't be employable."

Let's be very clear- I've reported misconduct, and will do it again. If, in your mind, the only way that me and other hired assistants can "do the right thing" is to publicly go after elected prosecutors, then we're going to have to differ on that.

And in the end, it's all human failings the drive the answers here. Elected prosecutors don't publicly deride other prosecutors because there's no benefit, and quite a bit of downside. I don't have any better solution to that than you do. In the end though, it's an elected position, and there's a solution every 4 years. Texas has some good, young, elected prosecutors. The more people like Craig Watkins and Brett Ligon, the better off we all are.

Anonymous said...

Having personally seen the morass that makes up law enforcement and prosecution in this area, I'm not impressed. My experience shows that it's more to do with politics, lazyness, and funding, than it has to do with justice. The police have been to my ex's house more than 80 times in the last 2 years, and yet, nothing happens to her. She impersonates a US marshall in front of a deputy, threatens someone with arrest, actually gets herself arrested and indicted for it, but the prosecutor feels that "it's not a real crime" and drops the case.

Yet, she makes completely unsubstantiated allegations time and time again, and the police are willing fools for assault and harassment by proxy. Costs her nothing, but costs her victim thousands in legal defense, if he's lucky.

Hell, I've handed the police the video of someone kicking in my front door, and they've been unable to identify him.

The louder I hear a prosecutor, DA or whatever, bray about a case in front of the news, the more I am likely to think that not only is his case a pile of junk, but that he knows it's worthless, too, but doesn't care.

The most honest answer that I've ever received from an attorney working for the government was when I asked about going after someone for malicious prosecution, false reporting, whatever the charge might be, her answer was "well, it's just not cost effective".

Gotta get those federal funds from somewhere, right? They don't send money where there isn't any crime, right?

Somehow, I think there's a conflict of interest.

Anonymous - you might be the rare exception that actually cares to do the right thing when no-one is looking, rather than seeing your case load as a score card, but enough of your peers have crapped in the pond to make the stink cover all of you.

Nifong was blatant, certainly, but two judges, Mark A. Ciavarella Jr., Michael T. Conahan, take the cake.

So the next time someone suggests I have faith in my government and my elected officials, you can thank them for the fish eye I give you in return.

Anonymous said...

Send the memo to the Bexar Judges about how you should not sleep with your first chair ADA!!!! Seems a few missed the ethics class in law school. Not a joke! Still going on in Bexar!!!!

doran said...

Anon 3:25--I've some questions for you.

Assume that some of us out here want to form a private (non-profit) organization which exists soley to receive and investigate reports of prosecutorial misconduct, and to file grievances and/or lawsuits against prosecutors who are determined to be or to have been acting unlawfully and/or unethically:

1. Would you make reports to that organization?

2. What kind of procedures or safe-guards would have to be in place to assure you that your identity would remain confidential?

3. Do you think anonymous reports would be worthwhile for this organization to spend the time looking into?

4. What, in your opinion, would be the response of prosecutors like yourself to this organization?

5. What are some questions I should be asking here, but have not?

Karo said...

The lower trial court is the "finder of fact" and the upper appellate courts offer relief when the lower court judge makes a non-harmless mistake of law. The upper levels of our judicial system were simply not designed to determine disputed facts. Strange as it seems, they were never supposed to consider facts like actual innocence.

The appellate courts were designed years ago before we had some of the modern technologies like video tape and DNA testing which can objectively and absolutely determine facts.

Fairness demands that the system adjust to the realities of modern life.

Anonymous said...

Doran- I'll do my best to respond. But, as always, I can only speak for myself.

1. Would you make reports to that organization?

Most probably, but you anticipate some of the difficulties and barriers in your later questions. I think one of my biggest concerns, rather than privacy, would be that the organization was also working towards overall reform, rather than solely concentrating on scoring points with one-off prosecutions. And I'd be very happy indeed if they worked through the grievance process, at least in conjunction with lawsuits.

2. What kind of procedures or safe-guards would have to be in place to assure you that your identity would remain confidential?

A single point of contact. If I'm making a report to one person, then I can talk to them or look them in the eye and take them at their word. If I was talking to many people in an office, or a different person each time, that would make me nervous.

3. Do you think anonymous reports would be worthwhile for this organization to spend the time looking into?

Yes, in general. But, just like with police tips, the more detailed the tip the more seriously it should be taken. Fortunately this is usually an area with pretty black and white issues- you should be able to fairly quickly screen out the worthless tips.

4. What, in your opinion, would be the response of prosecutors like yourself to this organization?

I'd be prepared for a healthy does of skepticism, at least at first. Believe it or not, us prosecutors don't like misconduct any more than you do. It makes my job harder even if I'm doing everything right. But, we're also used to pretty immediate group vilification. There would be quite a bit of worry that such an organization was looking merely to score political points. In the end, if it won the trust of some key people (I might start with a newly elected DA in a suburban area) then you'd gain lots of credibility quickly. Otherwise you'd end up with the same kind of support that I give LEAP- "Here's my money, keep up the fight, please don't send me anything or put me on your membership list."

5. What are some questions I should be asking here, but have not?

Who's your audience? Young prosecutors that you want to work with to try and lay a better foundation professionalism? Career electeds that you want to clean up shop? The public who you want to come forward with reports of misconduct? Please god, anyone but the media...

doran said...

Thank you, Anon. Very helpful.

Anonymous said...

Anonymous 11/03/2009 02:23:00 AM

Tell us more about Bexar. I know it happened in the past but still going on? I simply must know!

Anonymous said...

I understand the reasoning behind not wanting to make public statements about unethical behavior by a prosecutor or whoever; however, it seems like to me that the only time we ever see any kind of movement from the bar to even attempt to go after an attorney for these kinds of violations is when there is a public outcry.

Reporting violations is good and all, but it seems like the bar isn't willing to stick its neck out, either, in most cases.

And beyond that we could get into areas where prosecutors simply refuse to prosecute attorneys or police officers who break the law in their "pursuit of justice".

That police officer who became famous in the Ryan Moats incident was, in another case, caught lying on the stand. He testified that he had probable cause to make a driver do a field sobriety test because he smelled alcohol but the dashcam tape has the officer telling another officer that he doesn't smell any alcohol or have any other kind of reason to be suspicious, but he's going to pull him out anyway.

Cases don't get much more open and shut than that, but because the prosecutor isn't interested in pursuing the case, this officer gets to continue to violate civil rights as a police officer.

Even when one of the police officers in the Duke case admitted under oath that he lied to the grand jury, nobody ever cared enough to bring charges.