Category: Prosecutorial Misconduct

Brady: New Decision Holds Ethical Requirements are Broader Than Constitutional Requirements

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.

Related Readings:

Texas Prosecutor Pleads Guilty and is Sentenced in the Morton Case

The prosecutor in the Michael Morton case in Texas, in which the defendant was exonerated, has pled guilty to criminal contempt for intentional non-disclosure of exculpatory evidence and will give up his law license, perform 500 hours of community service, and serve 10 days in jail.  Among the withheld evidence was the account of an eyewitness, the defendant’s son, who said he was not the murderer.

No matter what one’s views are on this unprecedented event, it should raise consciousness about the risk of withholding substantial exculpatory evidence and risking the conviction of an innocent person.

Does Prosecutorial Misconduct Need to Be Punished to Make a Difference?

In his newest op-ed New Commission to Regulate Prosecutorial MisconductProf. Bennett Gershman of Pace Law School introduces the nation’s first public commission, proposed in New York State, that is designed to investigate complaints of misconduct by prosecutors and impose discipline upon prosecutors who violate the rules.

Prof. Gershman recaps some of the most egregious recent instances of prosecutorial misconduct and points out that prosecutors are rarely disciplined for their misconduct.   He points out that misconduct by prosecutors is costly because it leads to wasting money on re-litigating the same case over and over, it diminishes public confidence in the criminal justice system when prosecutors are not held accountable for their misconduct, and it imposes unimaginable pain and suffering on the innocent and their families. Prof. Gershman then concludes that

a commission that is independent from the legal profession, and independent from the prosecutor’s office, will be able to conduct investigations in a nonpartisian, non-political, and objective manner.

Read the full Bennett L. Gershman, New Commission to Regulate Prosecutorial Misconduct, HuffPost Crime (May 20, 2014).

An Act of Courage: Bronx Criminal Court Judge John H. Wilson

Former United States President Theodore Roosevelt Jr., once stated that “justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.”  Recently, Bronx Criminal Court Judge John Wilson heeded Roosevelt’s command of justice when he took the courageous step in barring  Assistant District Attorney Megan Teesdale from ever appearing in his courtroom as a result of her failure to provide exculpatory evidence to a defendant charged with rape. Judge Wilson, who formerly served as an Assistant District Attorney in Bronx County and graduated from Pace Law School in 1986, ruled that ADA Teesdale had taken part in one of the worst Brady violations that he had witnessed after serving more than nine years on the bench, bringing about great disgrace to both herself and her office.

During pre-trial proceedings, the defense had requested that the prosecution turn over all notes regarding the alleged victim’s initial statements to police. However, the prosecution rebuffed the defense’s request claiming that it did not possess any interview notes or exculpatory evidence that it was required to produce under its Brady obligations.  Judge Wilson explained that the prosecution’s representation “turned out, unfortunately to be a lie,” as the prosecution’s file had contained memorialized statements of the victim initially telling police that the sexual encounter with the defendant was consensual.

Judge Wilson noted that the prosecution’s failure to honor its Brady obligation amounted to “gross negligence,” requiring that the case be dismissed in its entirety. He further informed ADA Teesdale that

You are going to leave this courtroom and you are never going to come back. You can’t appear before me anymore. I’ll tell you why, because I cannot trust anything you say or do. I can’t believe you. I can’t believe your credibility anymore. The only thing a lawyer ever has to offer is their integrity and their credibility, and when you’ve lost that, there is no purpose in your appearing before this court.

Judge Wilson deserves great praise for his bravery to faithfully uphold the law. His actions are truly exemplary, and should be followed by all judges when dealing with prosecutors that play “fast and loose” with their Brady obligations. It has become all too common for prosecutors to go unpunished when failing to honor their duty to provide exculpatory evidence to the defense. Judge Wilson’s decision to bar ADA Teesdale from his courtroom was not only proper in this case, but was done in the best interest of the criminal justice system. Indeed, the only thing a court has to offer is its integrity and its credibility, and when it loses that, there is no reason to believe that there will ever be “justice and liberty for all.”

As a result of Judge Wilson’s decision, one must not wonder too far as to whether ADA Teesdale will be more likely to ever commit another Brady violation; or if she will take her Brady obligations more seriously. I would propose that there would be far less Brady violations if all judges took the approach that Judge Wilson did in barring the culpable ADA from ever appearing in his court. For that reason alone, he deserves this honorary salute.

Related Readings:

Federal Habeas Court Resists Deferential Standard of Review

Addressing once again the restrictive standard for granting habeas review only when the decision of a state court is not simply wrong but also unreasonable or contrary to Supreme Court authority, the Ninth Circuit granted a writ of habeas corpus in a case of “textbook prosecutorial misconduct” that the state court found to be harmless error.  The Ninth Circuit held that the finding of harmless error was unreasonable and contrary to well established Supreme Court authority.

In Dow v. Virga, the defendant’s attorney had requested that each participant in a lineup wear a bandage under his right eye to cover up the area where the defendant had a scar. At trial, however, the prosecutor knowingly elicited false evidence that this request had come from the defendant, himself, and argued in summation that this demonstrated a consciousness of guilt.  On appeal, the state court found this to be clear prosecutorial misconduct in violation of  Napue v. Illinois, but found the error harmless.  The habeas court held that the finding of harmless error violated Napue’s clearly established rule that the knowing use of false testimony is not subject to harmless error analysis.

Read the Dow v. Virga, No. 11-17678 (9th Cir. Jan. 14, 2013) decision.

This is yet another instance in which a federal habeas court has resisted the extremely deferential standard of review that explicitly requires such a court to uphold a conviction admittedly infected with constitutional error.  This may be a trend worth tracking, and we intend to watch it by setting up a repository of similar cases.