Tuesday, July 31, 2018

'Egregious' and common prosecutor misconduct not enough to overturn drug conviction

The U.S. Fifth Circuit Court of Appeals last week found that prosecutors engaged in "egregious" misconduct in a federal drug case out of Harlingen, but did not provide relief. "Two of [the defendant's] claims — the prosecution’s use of drug profiling evidence and bolstering of witnesses’ credibility — are errors that we have repeatedly warned the government about." The ruling concluded thusly:
Today’s outcome is the same as many of our prior decisions addressing drug profiling testimony and bolstering of witnesses: we find that the government engaged in misconduct but nonetheless conclude the defendant cannot meet the heavy burden of obtaining reversal for error he did not object to during trial. If the ultimate end of prosecution is securing convictions, it may not be surprising that this trend has not deterred these improper trial tactics. Of course, winning is not supposed to be a prosecutor’s lodestar. Striking “hard blows” but not “foul ones” in pursuit of justice is. Berger v. United States, 295 U.S. 78, 88 (1935). Fidelity to that higher calling would prevent us from seeing these errors yet again.
That's wishful thinking. As long as prosecutors have absolute immunity and the courts refuse to penalize their cases, even for repeated misconduct, you can bet your bottom dollar that fidelity to a higher calling will NOT "prevent us from seeing these errors yet again."


Tom said...

The case was a "plain error" case with no objection. The circuit held the defendant did not meet his burden of showing egregious harm. If there had been an objection, the result would have been different.

Gritsforbreakfast said...

And yet, the Fifth Circuit says it sees similar cases over and over, with prosecutors continuing to engage in the same misconduct. So that safeguard clearly is insufficient.

Anonymous said...

The 5th circuit reads like a who's who of republican appointees so no one should be surprised at their rulings.


Anonymous said...

"Your honor, I plead guilty to the listed charges but hope and pray you grant me clemency with my acknowledgement that my fidelity to a higher calling would prevent us from seeing these errors yet again."

I go to trial next week, how well do you think I'll do?

Steven Michael Seys said...

Quite often when reading case law from appeals court rulings I run across comments by the justice writing the ruling that some egregious error was detected in the transcript that would have compelled them to overturn the conviction if the defendant had only done.... The fact is that the defendant is not the one in charge of what is done in his case, his attorney of record is. These lawyers are gatekeepers between a defendant and the courts that determine their fate. When they fail to represent their clients' best interest, for whatever cause, they pay no penalty, the client does. Yet Strickland gives them vast leeway to do as they please and call it strategy. The adversarial system is broken and no one is willing to fix it.

Anonymous said...

Grits and others, please suggest a reform to address the issue cited by the 5th circuit.
I tend to agree with the justices in a case like this where the guilt or innocence doesn’t seem impacted by the unchallenged errors. But what would actually work in this instant? The attorney should have objected but didn’t. Do you give the defendant a new trial? The standard seems to be right that you have to make a convincing case a different outcome was likely. Would you adjust that standard? Would you penalize prosecutors? Make them pay a fine? Create a database of such offenses so def nose counsel can be aware of oft repeated tactics?

Serious question: what is the reform and how would it have impacted this case?

Kuato said...

We need to follow the example being set in New York, and go even further;
Our Constitutions prohibit Titles of Nobility. If you read The Federalist Papers #84 by Hamilton, and understand the Law of Feudal England, you will understand that the absolute immunity our Judiciary has given to Prosecutors is a violation of that prohibition. It is a grant of a Title of Nobility. The result has been the death of the Rule of Law, of Liberty, replaced by the Rule of Nobles titled Prosecutor. For more visit honorquest.org

Kuato said...

Law School LIES and MYTHS.... Our is criminal justice system NOT an "ADVERSARIAL SYSTEM". Defendants are NOT the "enemy" of the State. The State, by and through Prosecutors, has a Contractual duty, under a Contract known as the Constitution and the ancillary Laws that govern the State, to provide the PEOPLE of the State, including those charged with crimes, with the EQUAL PROTECTION OF THE LAW!

Texas Code of Criminal Procedure says "the duty of the prosecutor is NOT to convict, but to see that Justice is done". Justice requires the prosecutors, as well as the Judge, insure the Defendant's constitutional rights are respected and provided to them. The prosecutor is NOT an advocate for "the victim". The prosecutor is an advocate for the STATE and THE LAW. If "the victim" wants an Attorney to represent them in the criminal proceedings, or in a civil case against the accused, they then need to acquire PRIVATE counsel. informed.org

Gunny Thompson said...

From the 3d Grade Dropout Section:

My appreciation to Kuato for his most informative post. The problems are well established, What is needed are more positive solutions.

Gritsforbreakfast said...

@7:04, either courts should start tossing cases when prosecutors engage in misconduct, or ensure they are punished separately for it (perhaps contempt proceedings? go after their bar license? etc.). If US Attorneys (or ftm elected DAs) cared about eliminating misconduct, they could fire prosecutors when courts find they've engaged in it. But they don't care, so that never happens.

Just spitballing: Maybe we need to change the law so that, when courts find prosecutor misconduct but still uphold the conviction, they can also order a jail stint for the prosecutor to punish the misbehavior.

After it was implemented a time or two, that would stop the behavior, IMO.

Anonymous said...

Removing Prosecutorial Immunity would be a good start.

Pachuco said...

I am not as involved with the law as most of you folks. Still, being a testifying and consulting expert witness with two exonerations and the downfall of one DA under my belt has given me some experience over the years. Add other cases from child custody to capital murder mixed in and now I think I am seeing patterns that I don't like. Prosecutorial misconduct being the most egregious of the egregious misconducts I have witnessed.

So, when I read about rulings like this 5th Circuit ruling it reinforces my concern that the law at this level is more about following the law than delivering justice. Is that correct? Has this adversarial system of ours failed, completely? Have the changing social mores of our legal society changed to the point that it's now the DA's, and not the defense lawyers, who can't be trusted to produce their part of a truly legal, truly honest trial where "the duty of the prosecutor is NOT to convict, but to see that Justice is done"?

I have only been doing this work about 15 years and so far I have seen far more prosecutorial BS than defense BS. Four years ago I was the one who found potentially exculpatory evidence on the DA's laptop. Evidence that she had withheld during a capital murder trial. AND this happened soon after the passage of the Michael Morton Bill AND it happened in the very county where Michael Morton was wrongfully convicted in the 1980s.

I wonder what the real percentage is in regards to inmates who were wrongfully convicted? I wonder how many people the State of Texas may have executed who were truly not guilty of actually innocent?

Anonymous said...

To think, I had to respond to a grievance because a client felt he was owed some $50 ish dollars more than I gave him when his case was over. Then it turned into a full blown case and I had to answer a petition and responses for discovery before the SBOT finally came to their senses.

Yet a prosecutor has full immunity on their actions.

As a defense attorney, we show up and try to make sure our client's rights are protected. The judges hate us because they feel we are wasting everyone's time (note: the judge's time) with a case where our client is obviously guilty in the court's eyes. The prosecutors act as if we are making their job harder by making them actually do their job. Shockingly, you can't just convict someone because you want to—at least not yet. But prosecutors have tantrums over any request or motion you file and the prosecutor in a robe sides with them.

On top of that, some prosecutors still feel determined to 'cheat.' Forget to tell defense about things, wait until the last minute to drop new information, strike deals and not tell the defense. For what? Justice? Highly doubt it, it's to 'score one' on those pesky defense attorneys who keep putting up road bumps for the prosecutor and the judge.

All and all, immunity for prosecutors makes little to no sense. Give them extreme unchecked power, and blame the defense attorney for not saying 'Objection.' I guess in the next trial I should tell the jury, 'Sorry ladies and gentlemen, but I have to object a lot, and it's not that I want to slow down your day, but you see if this case goes on appeal and the prosecutors did something like bolster testimony or hit below the belt, my client doesn't get a new trial unless I said the words 'objection' so I need to make sure I do that whenever I feel it's necessary. And don't worry ladies and gentlemen of the jury, if the prosecutors do such a thing and it would be unbeknownst to you they are doing it, they will not get in trouble. They have immunity for everything they do here today. So you can trust what they do and say.

Anonymous said...

Prosecutors in all levels of the Judicial System are out of control. Period.

And I say this as a Republican. I care about actually putting people in prison that actually did commit a crime.

As a taxpayer, I don't want to pay for someone in prison who shouldn't be there.
As a citizen, I don't want to see someone wrongfully convicted.

I speak from personal experience, (not as a defendant, but as someone who assists with criminal defense) prosecutors have too much power. And it's wrong on so many levels.