As night follows day when courts make this stuff up, they spend the rest of their lives having to cut back on it because every clever defense lawyer argues that, in his client’s particular case, some minor police or prosecutor error is so monumental as to be “shocking” and thus to demand that the indictment be dismissed. The motion never succeeds because the dimension of “shock” we’re talking about never happens — and because, now that the exclusionary rule is fully applicable against the states, if you find yourself without an illegal search argument, and you’re reduced to claiming “outrageous government misconduct,” you’re basically out of luck (I want to say “SOL,” but this blog called is Ordered Liberty for a reason!).
The whole thing is pretty silly, but that doesn’t stop defense lawyers from feeling, as The Hill puts it, “justified in seeking a mistrial” — even though they know the mistrial motion doesn’t have a prayer.
Yes, if someone at DOJ leaks to Congress wiretap information that did not get used in a defendant’s case, that may be a bad thing to do. If they catch the leaker, he can be fired, disciplined, or even prosecuted if the leak is serious enough. But the leak has utterly nothing to do with the evidence-gathering process by which the wiretap defendants were investigated, prosecuted and convicted. It has nothing to do with the way the case was presented at the trial (assuming there was a trial). So there is obviously no colorable motion that the defendant has been prejudiced by “outrageous government misconduct.”
In fact, even if the information we’re talking about had gotten leaked during the defendant’s trial — i.e., during the time when it actually could have unfairly prejudiced the jury against the defendant — it is still highly unlikely that there would have been a mistrial. These things happen a lot. A trial is a very human process, and there are no perfect ones. The way the system deals with inevitable error is to have the trial judge give the jury a “limiting instruction” not to consider information to which they should not have been exposed. The law assumes that juries follow these instructions, and in my experience the jurors are generally conscientious in doing what judges tell them to do. In any event, it is exceedingly rare for unfairly prejudicial information to result in a mistrial.
Of course, if the leak does not happen until after the trial, there is no chance that it could have affected the jury. Thus it is frivolous to suggest that leaks of wiretap information to Congress by a DOJ mole could result in dangerous criminals having their convictions reversed.
The interesting question is: Will Holder, in order to change the subject from the embarrassing Fast and Furious fiasco, launch an investigation of his own department for whistleblower leaks to Congress while turning a blind eye to the far more damaging Obama administration leaks of national defense information for the New York Times’ recent contribution to the president’s re-election campaign?