DA Mary Rain recently had to defend an extensive appellate delay caused by one of the attorneys in her office. Is there a better solution to extensive delays in criminal appeals?
Pace Professor Bennett Gershman makes a case for the establishing a prosecutorial misconduct commission, as New York considers doing just that. Read the article in The Daily Beast titled How to Hold Bad Prosecutors Accountable: The Case for a Commission on Prosecutorial Conduct.
As we reported last week, a hearing was held on Friday, May 29 on the motion for appointment of a special prosecutor in Ferguson. After a contentious discussion the Judge Joseph L. Walsh III agreed to consider the expert affidavit of Prof. Bennett Gershman on the issue of prosecutorial misconduct in the grand jury.
Gershman complained about a “gross deviation from proper standards of conduct,” saying he never before saw prosecutors go to “extraordinary lengths to exonerate a potential defendant.”
This Friday, May 29, 2015, a hearing will be held in Missouri State Court in the matter of State of Missouri ex inf. Montague Simmons, et al., v. Robert McCulloch, St. Louis County Prosecuting Attorney, seeking appointment of a special prosecutor to investigate the St. Louis County Prosecutor’s conduct in the grand jury in State of Missouri v. Darren Wilson (previously discussed here). The Wilson matter arose from the death of Michael Brown. After a grand jury presentation, the grand jury failed to indict Officer Wilson in the death of Mr. Brown.
Missouri has an interesting statute, Missouri Revised Statutes §§ 106.220–106.290, that allows a private citizen to bring an action for an investigation to determine if a sitting prosecutor’s conduct constituted a failure to perform the duties of his public office. If so found, a special prosecutor would be appointed with authority to file a writ of quo warranto action seeking ouster of the sitting prosecutor from office.
The motion is supported by the affidavit of Prof. Bennett Gershman, from Pace Law School, who addresses the questions of serious misconduct in the presentation of the case to the grand jury.
In a clear, well-reasoned decision, the DC Court of Appeals has held that a prosecutor’s ethical responsibility to disclose exculpatory evidence is significantly broader than the Brady standard and does not contain a “materiality” requirement. While the decision is binding only on attorneys who practice in DC it will cover many federal prosecutors.
The case came to the court based on a report and recommendation of the Board on Professional Responsibility that had recommended a 30-day suspension for a federal prosecutor who violated Rule 3.8(a) of the DC Rules of Professional Conduct. The charges arose in a felony assault case involving a drive-by shooting where the defendant filed an alibi notice. The issue was the reliability of the identification; significantly, what the prosecutor failed to disclose was that the victim had said after the shooting, at the hospital, was that he did not know who shot him. The first trial ended in a mistrial when the jury could not agree. Although after the first trial a subsequently assigned prosecutor revealed the statement, the second trial ended in a conviction.
Among his various arguments, Kline argued that his ethical obligation was co-extensive with his Brady obligation. The court soundly rejected this argument, and its explanation for why post-conviction materiality cannot be used to judge ethical conduct is notably clear and to the point. The court also surveyed the various conflicting decisions nationwide about whether the two standards are co-extensive. Meanwhile, because of a confusing sentence in the commentary to the DC rule, the court determined not to sanction the prosecutor.