Saturday, December 5, 2015

GateHouse: Prosecution at all cost

Matthew T.  Mangino
GateHouse Media
December 4, 2015
California is taking on prosecutors who fail to disclose information in criminal cases. The legislature passed a bill enhancing sanctions for prosecutorial misconduct. Governor Jerry Brown signed the bill into law in early October.
The law permits a judge to remove a prosecutor who withholds evidence from the defense. Additionally, if other members of the prosecutor’s staff participated or sanctioned the suppression of evidence, the court is authorized to remove the entire office. The law requires the court to report violations to the state bar, which has the authority to impose discipline on lawyers who violate their code of conduct.
The rule requiring the prosecution to turn over evidence favorable to the defense was cemented into law in 1963 in a case known as Brady v. Maryland. Brady, as it has become known, provides that a prosecutor “violates due process when he suppresses evidence favorable to the defendant, when that evidence is material to guilt or innocence.”
In 2013, Judge Alex Kozinski, a member of the Ninth Circuit Court of Appeals, wrote a scathing opinion about prosecutorial misconduct in California. He recently told The Huffington Post “The (California) bill seems like a step in the right direction . . . It seems to give a great deal of discretion to trial judges, so its effectiveness will depend on the degree to which those judges are willing to exercise that authority.”
California is by no means the only state experiencing some degree of misconduct by prosecutors. One of the most egregious cases of prosecutorial misconduct makes it clear that anyone can be the target of misconduct--or at least overzealous prosecution. In 2008, Alaska Senator Ted Stevens was convicted of corruption.
On April 7, 2009, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia unleashed a diatribe on the federal prosecutors who sought and obtained Stevens’ conviction. Sullivan told a packed courtroom, “In nearly 25 years on the bench I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.”
Brendan Sullivan, the attorney who defended Stevens told National Public Radio, “The extent of the corruption is shocking,” Attorney Sullivan says. “It’s the worst misconduct we’ve seen in a generation by prosecutors at the Department of Justice.”
The report that roiled Judge Sullivan was prepared by investigator Henry F. Schuelke III. The 500-page report included a review of 128,000 documents and interviews with prosecutors and FBI agents. The report shook the legal community, as law professors described it as a milestone in the history of prosecutorial misconduct.
However, earlier this year the Merit Systems Protection Board, an entity that reviews discipline against civil servants, overturned the suspensions of the Stevens’ prosecutors.
According to the Washington Post, the decision upheld a 2013 ruling by an administrative judge that found that the Justice Department violated its own rules when it suspended the prosecutors without pay for failing to turn over evidence that could have helped Senator Stevens’ defense. One prosecutor lost 40 days of pay and another 15.
While the merit board did not clear the attorneys of wrongdoing, ironically it found that the justice department committed a “harmful procedural error” in doling out discipline to the two assistant U.S. Attorneys.
There are 3,144 counties, or their equivalent, in the United States. Each of those jurisdictions has a prosecutor, elected or appointed. The vast majority of those prosecutors are ethical men and women who are out to seek justice and nothing more. The new California law and efforts in other states are not targeting those prosecutors. The efforts nationwide to curb prosecutorial misconduct are focused on a handful of prosecutors hell bent on a conviction at any cost--including convicting an innocent person.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
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