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.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.)
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.
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?