Prosecutorial Misconduct – Advanced Trial Handbook

Possible courses of action if you are experiencing prosecutorial abuse or misconduct.

As seen on Prosecutorial Abuse Website:
Summary or Checklist of Possible Remedies and Opposing Actions for Prosecutorial Misconduct and Abuse.

These are remedies and suggestions which an attorney and his or her client should consider when trying to offset prosecutorial wrongdoing. The list is not exhaustive, and, to some extent, contains ideas which are somewhat novel.  Some are without significant precedent and some have no precedent.  Yet, the relative novelty of the opposition makes it more effective in some cases. These possible remedies for consideration (without any elaboration, and in no particular order) are:

• Direct constitutional action against federal prosecutor and conspiring witness;
• Raising issues at all levels in state criminal proceedings (trial court and all available appellate courts) to be able to make 2254 habeas corpus petition in federal court without dismissal for failure to exhaust remedies;
• Filing 2254 or 2255 petition in federal court within 1 year after conviction becomes final raising any issues of prosecutorial misconduct and abuse and any issues of ineffective assistance of counsel;
• Demand pre-trial expert discovery equivalent to expert discovery permitted in federal civil actions, to obtain such discovery, if possible, and to preserve such issue on any appeal;
• Demand that prosecutor and/or court or appropriate agency provide funds to defendant equivalent to the amount being spent by the prosecutor (including the market value of the prosecutor’s time), if the defendant is unable to afford to pay such amounts himself/herself;
• File a civil action, as soon as possible, against complaining witnesses for any wrongdoing by them, to ensure that you bring your claim on a timely basis (because if you waited until the criminal proceeding ends you might be precluded by the statute of limitations) and to obtain discovery useful in the civil and criminal actions; and to make the overall litigation more easily resolved through global structured settlement (including the defendant, prosecutor and complaining witness).  After the civil action is filed, in exchange for the claimant’s securing the dismissal of the lawsuit, the defendant agrees to make a series of periodic payments over time known as a structured settlement annuity;
• File a criminal complaint against the federal prosecutor and/or complaining witness if you have grounds, using the Givens rationale (direct constitutional action);
• File a motion demanding that the prosecutor recuse himself/herself due to a conflict of interest, if appropriate (note: a meritorious civil or criminal action by the defendant against the prosecutor would seem to be grounds for recusal, as well as the filing of a meritorious 2255 petition alleging prosecutorial misconduct);
• Demand and file a motion for the taking of pre-trial depositions of bribed prosecutorial witnesses as a constitutional right, or demand an evidentiary hearing in the alternative, to enable the defendant to get all relevant facts in the record; this will be useful during any appeal and during a 2255 or 2254 habeas corpus petition;
• File charges against the prosecutor with the appropriate state organization (usually a part of the state court system) which regulates the conduct of attorneys in the state and can order or recommend sanctions against errant attorneys, including suspension or disbarment; but make doubly sure that you have appropriate grounds;
• Establish a record that the bail being sought is excessive, without justification, far more than is being requested or imposed in other, similar matters, would have the effect of precluding you from defending yourself (by taking funds needed for your defense, or worse, would preclude you from getting out of prison and make you less able to defend yourself against the charges as a result), and that this is the prosecutor’s intent; also, request an evidentiary hearing on the bail issue to establish an appropriate record; and go up on appeal on these bail issues, as an interlocutory appeal, if and to the extent possible under law;
• Demand an evidentiary hearing on the bail issue (as stated within the prior point);
• Move to stay the criminal proceeding as unconstitutional selective, arbitrary and discriminatory enforcement of law (which stay would require holding up the prosecution until the prosecutor commenced criminal proceedings against all others similarly situated);
• Seek a jury charge to let the jury be told that it is lawful for a jury to nullify the court’s instructions to the jury by finding in favor of the defendant if the jury wishes, under whatever standards for upholding jury nullification exist under law; in other words, request a charge on the law which governs the extent to which a jury may find for the defendant in spite of the governing substance law as charged to the jury; and do this with an eye toward raising this issue on appeal if and when the defendant’s request to charge is denied by the judge;
• Demand the right of defendant to appear before the federal grand jury to explain his/her side of the issues;
• When making a 2254 or 2255 petition, demand that any hearing on the matter be commenced within 70 days from the date of filing the petition (under the Speedy Trial Act of 1974, as amended), and upon failure to obtain the commencement of such a hearing within the 70-day period, move to have your criminal proceeding dismissed under the Speedy Trial Act of 1974, as amended;
• Encourage co-defendants to make some of these motions, and join in with their motion, if applicable;
• Demand that the prosecutor’s report to the court monthly the amount of time and money they are spending in their prosecution of the defendant (which is necessary for the defendant to be able to know how much funding he/she should be able to get, similar to “matching funds” to oppose the prosecution);
• Make a motion to require the prosecution to answer under oath that he/she has turned over all listed categories of exculpatory evidence set forth in your motion, as a way of forcing the prosecutor to turn over more exculpatory evidence than he/she normally would, and prepare for the 2254 or 2255 motion based on prosecutorial wrongdoing (of not providing the defendant with all exculpatory evidence the prosecutor did in fact receive, or had failed to accept when he/she was obtaining evidence from various persons);
• Make a motion to request the judge to permit the defendant to testify at the trial with substantial restrictions on the prosecutor’s right to cross-examine the defendant as to the defendant’s background, prior convictions, other matters — on the grounds that such testimony is too prejudicial and the jury’s need to hear the defendant’s side of the story far outweighs the prejudice which the extraneous cross-examination would create for the defendant (and thereby make the defendant unable to testify in his/her own behalf); and do this for purposes of using any denial of the motion as a basis for appeal, and for possible 2255 prosecutorial abuse in denying a reasonable request;
• Review the complete website and the related website Prosecutorial Abuse Website for other matters to add to this list;
• Make a motion to have the judge hold that expert witness reports and all documents upon which the reports are based is not covered by the grand jury secrecy provisions for various reasons, including that experts are not fact witnesses; their testimony is purchased and revealing of the whole relationship is required to limit expert-witness abuse; experts were not envisioned or used when the grand-jury secrecy doctrine was first established, and it was judicial oversight by which expert testimony was swept within the grand-jury secrecy provisions;
• File a motion to preclude the prosecutor from using testimony of prisoners who have been promised mitigation of sentence as violating the Citizen’s Protection Act of 1998, 28 U.S.C. Section 530B; and take this issue up on appeal and in a 2255 or 2254 petition.

How to Deal with Prosecutorial Misconduct and Abuse – Part Two

If you believe you have become a victim of prosecutorial abuse or misconduct, you should consider consulting with a different criminal attorney.  You may find that your present attorney is unwilling to deal with the problems properly.  You may also consider a civil rights attorney.  Review these and other possible matters with such attorney:

Applicability of 28 USC 2254 or 28 USC 2255 or other state or federal habeas corpus motions, or other motions for a new trial, or to dismiss criminal proceedings (grounds for which may include one or more points listed below);

All complaints which your criminal attorney voiced to you about the activities of the prosecutor;

All complaints which you have, if any, about your criminal attorney, whether voiced to such attorney or not;

Any pre-trial publicity which may have been generated by the prosecutor;

Any possible bribery of prosecution witnesses;

Any possible failure to ask for exculpatory evidence when the prosecution was investigating the matter;

Any possible failure by the prosecutor to turn over exculpatory evidence to your criminal attorney (evidence which would tend to help prove innocence of the defendant, or cast doubt on the accuracy or veracity of any of the prosecution’s witnesses);

Any possibilities for obtaining discovery which might have been overlooked, even if such discovery requires an application to the court for permission to obtain;

Any possibilities for obtaining government-provided additional funding of the costs of your investigation or retention of expert witnesses;

Any possible use of civil litigation at this time to preserve your right to relief for the infringement of your constitutional rights (bearing in mind that such action might expose you to discovery yourself, unless you apply for and obtain a court order in the civil case protecting your from discovery until resolution of the criminal matter);

Possibility of a motion to disqualify the prosecutor for the alleged misconduct, and because of any civil action you might have or have brought against the prosecutor;

Motion in the criminal case to demand expert discovery comparable to that which is provided in civil litigation under Rule 26(b)(4) of the Federal Rules of Civil Procedure, the denial of which would be an excellent ground for appeal (the issue being the unconstitutionality of Rules 16(a)(1)(E) and 16(a)(2) of the Federal Rules of Criminal Procedure and 18 U.S.C. Section 3500 7/1/01 Letter to Sen. Leahy, with rule and statute quoted at end of letter which prohibit expert discovery, and particularly expert discovery of government employees who are used as expert witnesses (such as FBI laboratory experts);

Possibility of application of doctrine prohibiting arbitrary, selective and discriminatory enforcement of law, which means that under constitutional law you are not allowed to be selected for prosecution while others known to have done the same thing are not also being prosecuted (which gives grounds to stay, but not to dismiss, the discriminatory criminal proceedings);

Failure to present felony to grand jury under New York law is grounds for a dismissal, whether or not the defendant is incarcerated (there is a constitutional right under New York law to have a felony alleged in a complaint brought before a grand jury for indictment, unless this is waived by the defendant, and this is so even if the defendant is out on bail); you should determine whether this right exists in any other states;

And other matters which come to mind. This list is far from exhaustive.

cited http://caught.net/caught/prosecuteabuse.htm

The Northern California Innocence Project finds 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct. The group, based at the Santa Clara University School of Law, is advocating more transparency in how misconduct is addressed.

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By Jack Leonard, Times Staff Writer – April 4, 2011

Caught.net has emphasized some points in red

California courts last year found that Los Angeles County prosecutors withheld evidence, intentionally misled jurors or committed other types of misconduct in 31 criminal cases, according to an Innocence Project report released last week. The decisions involved convictions dating back as far as 1984 and were among 102 California cases in which the group found that courts identified prosecutorial misconduct.

In 26 of the cases – nine in Los Angeles County – the courts cited the misconduct in decisions to order a new trial, set aside a sentence or bar evidence, according to the Northern California Innocence Project, which is based at the Santa Clara University School of Law. Los Angeles County accounts for about a quarter of the state’s felony criminal filings and one-third of felony trials.

The study is part of an effort by the Innocence Project to highlight the scope and effects of prosecutorial misconduct, which the group says has led to wrongful convictions and costly re-trials. In a study released in October, the Innocence Project listed more than 700 California cases in which state and federal courts identified prosecutorial misconduct in rulings from 1997 to 2009. The Innocence Project has called for greater transparency in how local and state agencies respond to such cases and has urged the State Bar of California, which investigates claims of attorney wrongdoing, to examine all prosecutorial misconduct findings.

Courts are not required to report cases to the state bar if they decide the misconduct was harmless. “What we want is scrutiny,” said Maurice Possley, one of the authors of both reports and a visiting fellow at the Innocence Project. “If they’re not getting the cases or looking at the cases, that sends a message that this sort of behavior is tolerated or acceptable.”

Some prosecutors have accused the Innocence Project of exaggerating the problem. Legal experts – and courts – often disagree on what rises to the level of prosecutorial misconduct. And courts often do not distinguish between intentional and unintentional misconduct. Appellate courts reject most claims of prosecutorial wrongdoing. The Innocence Project’s October study showed that courts that identified prosecutorial misconduct usually determined that the actions did not undermine a defendant’s right to a fair trial. Nevertheless, the state bar has taken note.

After reviewing last year’s study, agency officials discovered that some of the cases cited by the Innocence Project had never been reported to the bar. Attorneys and courts are legally required to notify the state bar if a conviction is reversed or modified as a result of misconduct. “We need to improve the reporting of misconduct … by both lawyers and courts,” said Jim Towery, the state bar’s chief trial counsel. “It is beneficial that the Northern California Innocence Project is focusing public attention on a very significant issue.”

Towery (the state bar’s chief trial counsel) said his agency plans to investigate or reinvestigate “a modest number” of cases cited in the study to determine whether prosecutors should face discipline. He declined to give an exact number or to name the cases, saying that the bar’s investigations are confidential. The state bar, he said, is also extending efforts to educate prosecutors on how to avoid misconduct and what their responsibilities are when it does occur. He said some district attorney’s offices, including Los Angeles County’s, have invited bar officials to provide prosecutors with additional training.

One of the cases cited in last week’s report was that of Eric Hester, who was convicted of rape and sodomy in 2009. A state court of appeals reversed his conviction in September, concluding that L.A. County Deputy Dist. Atty. Robert Hight made numerous improper arguments during the trial. The court faulted Hight for arguing that Hester had a key to enter the victim’s apartment when no such evidence was presented. In discussing the key issue, the appellate court found that “there is every reason to believe that Hight made these arguments with the intention of misleading the jury.” Hight did not respond to calls seeking comment.

Dist. Atty. Steve Cooley said in a recent letter to county supervisors that he reviewed the case and found “no indication that the deputy district attorney acted in bad faith or with actual malice.” The letter said the state bar has launched an inquiry into the allegation, and Cooley asked the board to approve legal representation for the prosecutor. The board has yet to vote on it.

District attorney’s spokeswoman Sandi Gibbons said her office reviews all findings of prosecutorial misconduct and “offers extensive and ongoing ethics training” for prosecutors. She declined to comment on the Hester case or the other court findings, saying that they involve personnel matters. She said Hester is being retried.

In its report, the Innocence Project said it had identified 107 prosecutors with more than one finding of misconduct. Among those named in the study was retired L.A. County Deputy Dist. Atty. Sterling Norris. Last year, a panel of the U.S. 9th Circuit Court of Appeals overturned one of Norris’ cases, the 1984 murder conviction of Bobby Joe Maxwell, who was called the “skid row stabber.” The panel concluded that an infamous jail house informant falsely testified against Maxwell and that the prosecution failed to turn over multiple pieces of critical evidence that could have been used to undermine the witness’ credibility.

The Innocence Project noted another murder case in which a federal judge concluded in 2006 that Norris failed to disclose important evidence to the defense during a 1992 trial. Norris denied failing to turn over evidence in either case and said it was unfair for the federal appeals panel to accuse him of misconduct 26 years later, after the state Supreme Court had rejected previous attempts to overturn Maxwell’s conviction. “That opinion is a joke,” Norris said. Maxwell’s attorney has filed a complaint with the state bar about Norris’ role in the case.

jack.leonard@latimes.com

cited http://caught.net/caught/prosecuteabuse2.htm

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