Tuesday, October 29, 2013

Excellent reporting on AZ prosecutor misconduct

In Arizona, "Since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials," the Arizona Republic found in an extensive investigative series on prosecutor misconduct. The Arizona Supreme Court found prosecutor misconduct in more than one-fifth of all capital cases (18 out of 82) in the state since 2002, reported the paper, though the prosecutors involved were rarely sanctioned. See:
Anyone interested in the subject should read the whole series: Excellent reporting on a difficult-to-research topic. Tomorrow the paper will publish a story on potential reforms; Grits will add the link to this post when it comes online. UPDATE: Here it is. One recurring theme in the stories was the failure of judges to call out prosecutor misconduct when it happens, which Grits has certainly noticed here in Texas whenever the issue comes up. Here's a notable excerpt from the first story on that score:
On a recent afternoon, a Maricopa County Superior Court judge was talking about prosecutors
She drew a line on the table with her finger and then placed an eating utensil there to mark the line.

“That’s misconduct,” said the judge, who asked that her name not be used.

Judges are loath to comment on cases for ethical reasons — and because they need to remain impartial to the attorneys who come before them.

Then she placed another utensil an inch away and parallel to the first on the table.

“That’s reversible error,” she said, referring to the level of misconduct that can get a sentence or conviction thrown out.

She put her finger in the space between the utensils and said, “That’s where a lot of prosecutors operate.”

Maricopa County Attorney Bill Montgomery had a quick counter.

“If courts are not enforcing the Rules of Professional Responsibility as they pertain to the conduct of defense attorneys and prosecutors, they are then responsible for what goes on in court,” he said. “However, mere differences of opinion as to how a case should be tried cannot be the standard either.”
He's got a point: Whether it's because so many judges themselves are former prosecutors or just because of plain old cowardice, the failure of judges to rein in prosecutor misconduct inarguably is the main reason it usually goes unchecked.


Anonymous said...

How can anyone expect judges to rule against a prosecutor who they have been friends with for years? Not to mention appellate judges ruling against judges who they are friends with. It may be the right and honorable thing to do but it just isn't practical or a realistic expectation.

And after all, once you've been a prosecutor for 2-3 years and have seen a few innocents railroaded into prison, you realize it's all just a game anyhow and one that's not worth sacrificing a friendship over...

Anonymous said...

So what's the remedy? Don't allow ex-prosecutors to become judges? No, the better remedy is to hold the judges accountable. Watch them like a hawk: if the judge puts his or her thumb on the scale of justice, run them the hell out of court next election. If the judge allows a prosecutor (or defense counsel) to run rough-shod over the Rules of Ethics or the Rules of Evidence, then they are not doing their job. Vote 'em out.
That being said, the absolute BEST remedy for all this is for prosectors to abandon the "cheat to win" Lance Armstrong / John Bradley / Ken Anderson method of prosecution. Open your file, play it straight, hold your head up high, win with honor or lose with dignity. It can be done.

Anonymous said...

While some would think that the remedy is to vote them out, its better said than actually done.

Its the voters and taxpayers duty to make sure they vett prior to voting vs. after the fact. Promise someone something in return for their vote(s) or donation(s) & they aren't vetting crap.

If you knowingly and willingly vote for a former ADA to sit on a bench and fully expect him / her to play fair, you are and have always been the problem.

If you retain a former ADA to represent you in a criminal case you can expect it to never ever reach the level of a jury trial to verdict. Say it with me, Plea Bargain.

If you think that Judges and ADAs don't plan the outcome of cases, you are a darn fool. If you think that your hired or appointed laywer hasn't planned the outcome with the ADA, just wait til lunch recess.

If you expect them to play fair and hold each other accountable in a lawyer policing lawyer game, you drank the coolaid and need to go ahead lay down before you fall down.

Anonymous said...

11:00AM, said part of it best. Law students that don't spend mandatory time in multiple courtrooms judging judges and the players on the field prior to enrollment and graduation will be left with what the law prof wants them to think goes on.