Category: Prosecutorial Misconduct

“Grotesque” Prosecutorial Misconduct Leads to Reversal in Katrina Prosecutions

In a stunning and unprecedented decision, a federal district judge in Louisiana vacated the convictions of five New Orleans police officers who were convicted of killing civilians in the aftermath of Hurricane Katrina. Judge Kurt Engelhardt, in a 129-page opinion, found that the “grotesque”  misconduct of several  federal prosecutors who posted inflammatory online comments using fictitious names that viciously attacked the New Orleans police department and the individual police officers as “racist,” “delusional,” and “inept” was such flagrant misconduct and so likely to have prejudiced the jury that a new trial was warranted.

United States v. Bowen et al., No. 10-204 (E.D. La. Sept. 17, 2013) at GPO Access.

Habeas Granted Based on Prosecutorial Misconduct and Ineffectiveness of Appellate Counsel

On September 4, 2013, in Williams v. Artus, Judge Gleeson of the EDNY granted habeas corpus based on prosecutorial misconduct and on ineffectiveness of appellate counsel for failing to raise ineffectiveness of trial counsel for trial counsel’s failure to object to the prosecutor’s misconduct.

In Williams, the defendant and his girlfriend, Rebecca Madigan, were involved in a high speed car chase; Williams was driving and Madigan was in the passenger seat. One of them fired a shot at the car they were chasing, causing the car to crash. One of the passengers in that car was killed. At trial, Madigan testified that Williams had fired the shot; Williams claimed Madigan had fired it. At trial, the prosecutor purposely elicited evidence from Madigan that Williams had told her he had killed before. The judge denied the motion for a mistrial and attempted to give a curative instruction that was ultimately confusing. The prosecutor returned to this in summation, erroneously stating that Madigan had testified Williams had told her he had “killed people before.” Defense counsel did not object.

Judge Gleeson granted the writ of habeas corpus based on the prosecutor’s misconduct and on the ineffectiveness of appellate counsel for failing to raise trial counsel’s failure to object to the summation comments. Interestingly, Judge Gleeson noted that this was a case that met the deferential standard for habeas set forth in the AEDPA: that the state court not only incorrectly rejected his claims but that there is “no possibility fair minded jurists could disagree that” the state court decision conflicts with Supreme Court case law.

The prosecutor committed clear misconduct in eliciting evidence of prior murders and, after objection was sustained, to return to that subject in summation. But equally important, Judge Gleeson made the very rare finding that there was no strategic reason for appellate counsel not to raise the issue of ineffectiveness of counsel on appeal. Habeas grants are rare to begin with; ineffectiveness of trial counsel claims rarely succeed; and claims of ineffectiveness of appellate counsel for failure to raise trial counsel’s ineffectiveness on appeal are extremely rare. Judge Gleeson’s opinion is a reminder that the habeas courts are still watching out for problems in state convictions.


  • Williams v. Artus, No. 11-CV-5541 (JG), 2013 WL 4761120 (E.D.N.Y. Sept. 4, 2013).
  • Williams v. Artus, No. 11-CV-5541 (JG), 2013 BL 237268 (E.D.N.Y. Sept. 4, 2013).
  • Williams v. Artus, No. 11-CV-5541 (JG), 2013 U.S. Dist. LEXIS 126240 (E.D.N.Y. Sept. 4, 2013).
  • William v. Artus, 11-CV-5541, NYLJ 1202618541720, at *1 (E.D.N.Y., Decided Sept. 4, 2013).

Why Prosecutors Overcharge?

In his most recent Huffington Post blog post titled Overcharging George Zimmerman With Murder, Prof. Bennett L. Gershman of Pace Law School analyzes the implications of prosecutors charging defendants with crimes “that cannot reasonably be supported by the evidence.” He points out the extraordinary discretionary power prosecutor possesses and the potential for abuse this power can lead to. Prof. Gershman takes the Florida George Zimmerman case in which the defendant was charged with second degree murder and demonstrates the considerations and the decision process the prosecutor engages in when charging a defendant.

What do you think – did the prosecutor in the Zimmerman case overcharge to create leverage for plea bargain, was it a trial tactic, or was she pressured by public?

No Recording of Police Interrogation in New York

On May 1, 2009, Jonathan Lippman, Chief Judge of the State of New York, announced the creation of the New York State Justice Task Force—one of the first permanent task forces on wrongful convictions in the United States. The Justice Task Force was formed to study wrongful convictions, learn the causes of wrongful conviction, and propose recommendations to make wrongful convictions less likely to occur

Information about the Task Force, its mission and members, as well as its recommendations, can be found here.

Among other criminal justice proposals, the Task Force is unanimously recommending electronic recording of police interrogation because

recording can aid not only the innocent, the defense and the prosecution, but also enhances public confidence in the criminal justice system by increasing transparency as to what was said and done during the interrogation. Indeed, among its many benefits, recording helps identify false confessions; provides an objective and reliable record of what occurred during an interrogation; assists the judge and jury in determining a statement’s voluntariness and reliability; prevents disputes about how an officer conducted himself or treated a suspect, and serves as a useful training tool to police officers.

Over 800 jurisdictions nationwide, including the states of Alaska, Minnesota and Illinois, regularly record police interrogations. A 2004 study conducted by Illinois officials of 200 locations that implemented this reform found that police departments overwhelmingly embrace the measure as good law enforcement whose time has come.

Certainly recording of interrogation could have prevented the wrongful conviction of Jabbar Washington, whose case is discussed once again in the New York Times this morning.

But legislation to require recording of police interrogation is being blocked in New York by the recalcitrance of the NYC District Attorneys. Why don’t our district attorneys join collective efforts to improve the criminal justice system? Why shouldn’t New York be in the forefront of criminal justice reform? Why are we lagging behind?

The “Immunity” Defense

A new controversy has arisen from the already controversial authority of government prosecutors to promise or confer immunity. Recently, a defendant raised a defense that the government had authorized or permitted him to commit the charged offenses. Click here to read Prof. Bennett L. Gershman’s take on Licensing Crimes.