Tuesday, October 07, 2014

'Economist': Judges must seize back power from prosecutors

The Economist last week (Oct. 4) published a pair of pieces lamenting the super-sizing of prosecutorial power and calling for the state to hand back some of its authority to the judiciary.
The arguments are framed in terms of the federal government but would apply equally well to state-level courtrooms. E.g., "Several legal changes have empowered [prosecutors]. The first is the explosion of plea bargaining," which occurs at a slightly higher rate in Texas, even, than the federal number cited by The Economist.

"Another change that empowers prosecutors is the proliferation of incomprehensible new laws." Check.

Further, "The same threats and incentives that push the innocent to plead guilty also drive many suspects to testify against others. Deals with 'co-operating witnesses,' once rare, have grown common." Check. (The article opened with the story of prosecutors allegedly withholding evidence of a snitch deal in Todd Willingham's capital case.)

The main story concludes:
Prosecutors enjoy strong protections against criminal sanction and private litigation. Even in egregious cases, punishments are often little more than a slap on the wrist. Mr Stevens’s prosecutors, for example, were suspended from their jobs for 15 to 40 days, a penalty that was overturned on procedural grounds. Ken Anderson, a prosecutor who hid the existence of a bloody bandana that linked someone other than the defendant to a 1986 murder, was convicted of withholding evidence in 2013 but spent only five days behind bars—one for every five years served by the convicted defendant, Michael Morton.

Disquiet over prosecutorial power is growing. Several states now require third-party corroboration of a co-operator’s version of events or have barred testimony by co-operators with drug or mental-health problems. Judge Rakoff proposes two reforms: scrapping mandatory-minimum sentences and reducing the prosecutor’s role in plea-bargaining—for instance by bringing in a magistrate judge to act as a broker. He nevertheless sees the use of co-operators as a “necessary evil”, though many other countries frown upon it.

Prosecutors’ groups have urged Mr Holder not to push for softer mandatory-minimum sentences, arguing that these “are a critical tool in persuading defendants to co-operate”. Some defend the status quo on grounds of pragmatism: without co-operation deals and plea bargains, they argue, the system would buckle under the weight of extra trials. This week Jerry Brown, California’s governor, vetoed a bill that would have allowed judges to inform juries if prosecutors knowingly withhold exculpatory evidence.

Most prosecutors are hard-working, honest and modestly paid. But they have accumulated so much power that abuse is inevitable. As Jackson put it all those years ago: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts with malice or other base motives, he is one of the worst.”


Phelps said...

The funny thing is that the judge's best weapon for this would be... jury nullification. Let the jury decide what the law really is, after being instructed by the judge.

As an example, I was on a veneer for a jury a few weeks ago. (I shockingly was struck.) One of the charges was racing, and the way the prosecutor was emphasising the elements (trying to outgain or outdistance another driver, or prevent them from passing) made it clear that there wasn't any actual racing going on.

If the jury was told, "you've been instructed what the law is, but you also carry your life experiences as to what constitutes a 'race'" then there is no way a jury would find that someone is racing just because they wouldn't let someone pass them on the highway.

Anonymous said...

There was a segment the other evening on 60 minutes on the problems with mandatory minimum sentences. They were particularly focused on Florida. That got me to wondering. Other than enhanced punishments for repeat offenders and major sex crimes, are there any real onerous mandatory minimum sentences for first time offenders under Texas law?

Also, I thought Texas judges typically had the power to accept or reject any plea bargain under Texas law. To that degree, aren't Texas judges already a part of the plea bargaining process?

Anonymous said...

Judges can reject plea agreements, but that doesn't stop prosecutors taking the case to a different Judge. Happens all the time ... or, just bring the case before the same Judge on a different date but meet in chambers prior to sentencing. Happens all the time.

The plea bargain is the solution to move the docket. The please agreement is also the problem with the system.

Judges most often just rubber stamp the agreements.

Anonymous said...

1. Death Penalty for prosecutor misconduct.
2. Abolish plea bargaining in all of its forms.
3. Make the state fully fund the defense or at least provide, for free, the same resources the state has at its disposal when conducting a trial.

DA's, prosecuting attorneys and doctors all bury their mistakes.

TriggerMortis said...

Just felt the need to add that, in Texas, most of the time the judge IS the prosecutor. And it's so obvious, that if you ask jurors in post trial interviews which side the judge was on, most would say the prosecutor's side. Sadly, most jurors believe that's how the system is supposed to work.

PAPA said...

the majority of Judges were previously prosecutors??? isn't that why he/she leans toward the prosecutor or takes on the roll of the prosecutor...thanks to the wrongful convictions many times created by the prosecutors this wrong doing is costing the taxpayers millions of tax dollars each year

Pragmatic said...

In Texas, the system would collapse under its own weight if only 10% of criminal defendants demanded a trial; especially if they exercised their right to a SPEEDY trial.

There are simply not enough judges and prosecutors to conduct that many trials and hiring the necessary personnel would also require building lots of new courtrooms and offices. So a big county-level tax increase would be required, the brunt of which would, most likely, be borne by people who are not common criminals.

The prosecutors are already complaining that they are overworked by the Morton act's requirement that they turn over evidence favorable to defendants. Terry Breen on the TDCAA board labeled it an unfunded mandate. Overall his opinion stinks but he is correct that following the law will add to his workload. IMHO a better answer for controlling costs is to dismiss more of those marginal cases. Whatever. Let his boss figure that out.

Limiting plea bargains means that politicians would be forced to choose between raising taxes or dismissing more criminal cases. Can you think of any Texas politician that wants to make that choice?

Lee said...

The interesting part of the second article was something to the effect of if a defense lawyer makes a deal with a witness for an alibi testimony it is a crime (bribery) but if a prosecutor makes a deal with a witness for incriminating testimony its is acceptable as usual business. Very interesting that what is good for the goose is not for the gander.

Anonymous said...

It's kind of amusing to me that the concept of plea bargaining is somehow a "tool" used by the prosecution to oppress. In our county, nearly every criminal defendant WANTS to plea bargain because they are scared of what juries will do to them if they go to trial.

Anonymous said...

Well 3:38, considering how the system is stacked against defendants, they should be scared of going to trial, ESPECIALLY IF THEY ARE INNOCENT. Guilt or innocence don't matter in the current system. The prosecutor will lie, cheat or steal to get a conviction. The judge will bend the rules, or make up new ones to help get a conviction. And, the gullible juries have mostly already made up their mind that the defendant is guilty before the trial even starts. So, under the current system, it is often the smart and safe thing for even an innocent defendant to accept a plea bargain. Do you think that is a good thing, 3:38?

Anonymous said...

Not true at all that the majority of judges are former prosecutors. Many judges are former criminal defense attorneys, or former civil lawyers who hardly ever appeared in court, or former city council type politicians who have a familiar name. What is certain is they are all part of the same bar association, they all live in close proximity to each other, they all are involved is similar community organizations, and what is best for the criminally accused often takes a back seat to the relationship between the lawyers.

Anonymous said...

Not true at all... not that is a load of crap. There is no database to track but you should try typing in a judges name and the word prosecutor on the internet and see how often their names show serving as the prosecutor or in the prosecutors office.

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