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QUESTION ASKED: What Happened During Flynn Lawyer’s Secret Meeting With Judge This Week? “The question is whether Michael Flynn was affected by efforts to get Trump, and whether Judge Sullivan will keep him from reviewing the evidence that could prove prosecutorial misconduct.”

HAM SANDWICH NATION UPDATE: Prisons are packed because prosecutors are coercing plea deals. And, yes, it’s totally legal. “The other big problem with coercive plea bargaining is that it helps cover up an untold amount of prosecutorial misconduct. Even in the federal system, where prosecutors are held to a relatively higher standard, there has been a surprising amount of misconduct in the handful of cases that end up going to trial.”

Related thoughts here.

TIMOTHY HARKER DISAGREES WITH MY HAM SANDWICH NATION AND CRIME FOLLIES PIECES, and has published this in the Tennessee Law Review: Faithful Execution: The Persistent Myth of Widespread Prosecutorial Misconduct.

THE QUESTION IS, WILL THESE PROSECUTORS FACE DISCIPLINE? WILL ANY BE FIRED? Judge Dismisses Bundy Case With Prejudice After Finding of Extensive Unethical Conduct By Federal Prosecutors.

Another major case has been thrown out due to prosecutorial abuse by the United States Department of Justice. We have previously discussed cases where federal prosecutors have withheld evidence and filed false or misleading statements to the court. Now, U.S. District Court Judge Gloria Navarro has issued a dismissal with prejudice against the Justice Department in the case against Cliven Bundy and his sons due to what Navarro describes as flagrant and knowing violations of professional ethics and federal law by the Justice Department. In past cases, the Justice Department has shown little commitment to discipline, let alone terminate, anyone for the violations (or the waste of millions of dollars). In this case, however, Attorney General Jeff Sessions has called for a review of the case.

Once again, the Justice Department has been accused of violating the Brady Rule, the foundational evidentiary rule that requires prosecutors to discussed potentially exculpatory evidence to the defense. The Justice Department has been a serial violator of Brady for decades.

While many judges seem to struggle to avoid findings of misconduct against federal prosecutors, Navarro remained firm in upholding the basic tenets of judicial independence and integrity. By dismissing with prejudice, she barred the Justice Department from trying the defendants again in light of the misconduct of the federal prosecutors.

This was a disgrace, and I hope that Sessions’ review produces more than the whitewash or wrist-slap that I expect.

SO MUCH FOR THE COOL PROFESSIONALISM OF FEDERAL LAW ENFORCEMENT: Bundy mistrial highlights why right distrusts the feds.

As Washington conservatives question whether partisan FBI officials working for Special Counsel Robert Mueller have stacked the deck against President Donald Trump, a criminal case in Las Vegas points to the sort of federal prosecutorial abuses that give the right cause for paranoia.

On Wednesday, U.S. District Judge Gloria Navarro declared a mistrial in the infamous 2014 Bunkerville standoff case against rancher Cliven Bundy, his sons Ammon and Ryan, and co-defendant Ryan Payne, on the grounds that federal prosecutors improperly withheld evidence. . . .

Navarro’s decision apparently was a reflection on federal officials. It follows release of a memo by BLM investigator Larry Wooten that described “a widespread pattern of bad judgment, lack of discipline, incredible bias, unprofessionalism and misconduct, as well as likely policy, ethical and legal violations among senior and supervisory staff” in the BLM’s Office of Law Enforcement and Security.

Wooten wrote that he had seen “excessive force,” described officers grinding Bundy’s son Dave’s face in gravel and opined that federal officials were intent on commanding “the most intrusive, oppressive, large scale and militaristic cattle impound possible.”

In an apparently partisan reference that used a term Hillary Clinton designated for Trump supporters, Wooten wrote that a federal prosecutor said, “Let’s get these ‘shall we say Deplorables.’”

(Likewise FBI agent Peter Strzok and FBI lawyer Lisa Page, who worked on Mueller’s probe into Russian interference in the 2016 election, shared texts in which they called Trump a “loathsome human.” Mueller removed Strzok after he learned of the texts.)

Wooten also wrote that the Bundy case “closely mirrors” the circumstances behind the trial of former Sen. Ted Stevens, R-Alaska.

In 2008, federal prosecutors indicted Stevens, a Republican senator, for failing to report that an oil contractor had paid for renovations on his Alaska cabin. A jury convicted Stevens, who then lost a re-election bid.

Only later did the case fall apart after a Department of Justice probe found prosecutors had withheld exculpatory evidence. Attorney General Eric Holder, who inherited the case after President Barack Obama won the White House, asked the courts to throw out the conviction.

Remember this when people talk about the patriotic, nonpartisan professional civil servants at the DOJ.

I’VE GOT AN AMICUS BRIEF WITH ERWIN CHEMERINSKY AND ILYA SOMIN IN THE SEVENTH CIRCUIT, in a case involving prosecutorial misconduct and the “John Doe” investigations of Scott Walker supporters. A press account is here. The brief — which, unsurprisingly, cites my Ham Sandwich Nation piece — can be found here.

ABOLISH GOVERNMENTAL IMMUNITY: Trial and Error: Report Says Prosecutors Rarely Pay Price for Mistakes and Misconduct.

The Innocence Project released a report Tuesday alleging that prosecutors across the country are almost never punished when they withhold evidence or commit other forms of misconduct that land innocent people in prison.

The Innocence Project, a nonprofit legal group that represents people seeking exonerations, examined records in Arizona, California, Texas, New York and Pennsylvania, and interviewed a wide assortment of defense lawyers, prosecutors and legal experts.

In each state, researchers examined court rulings from 2004 through 2008 in which judges found that prosecutors had committed violations such as mischaracterizing evidence or suborning perjury. All told, the researchers discovered 660 findings of prosecutorial error or misconduct. In the overwhelming majority of cases, 527, judges upheld the convictions, finding that the prosecutorial lapse did not impact the fairness of the defendant’s original trial. In 133 cases, convictions were thrown out.

Only one prosecutor was disciplined by any oversight authorities, the report asserts.

I had some thoughts here and here.

And, of course, there’s my Ham Sandwich Nation piece in the Columbia Law Review.

JUSTICE IN THE OBAMA/HOLDER/LYNCH ERA: Ninth Circuit Harshly Scrutinizes Law Enforcement Leak, Threatens Sanctions Against Department of Justice.

What the hell is going on in America?

The federal judiciary — which previously could be counted upon to be relatively complacent in the face of a culture of prosecutorial misconduct — has begun to take notice and harumph and even do something about it. In January a Ninth Circuit panel blasted state prosecutors defending a conviction won with perjury. Ninth Circuit Judge Alex Kozinski has started a blunt public and academic discussion of misconduct as a systemic problem. This week the Fifth Circuit cited prosecutorial misconduct — including federal prosecutors commenting on cases online under pseudonyms — in overturning the federal convictions of some murderous New Orleans police officers.

This is a trickle, not a tide. But normally federal judicial recognition of the problem of misconduct is a parched desert; any relief is notable. And in the last two months, judges have even questioned one of law enforcement’s most cherished methods of gaming the system — leaks to the press. The situation raises questions not just about government misconduct, but about how the press addresses such misconduct.

The behavior has gotten so bad — and the obvious impunity so obvious — that something is finally happening. So thanks guys, for being such gigantically corrupt bullies that it may actually produce change, I guess. . . .

JUDGE ALEX KOZINSKI ON reforms that can help prevent prosecutorial misconduct.

KEVIN WILLIAMSON: When District Attorneys Attack: The GOP should turn its attention to prosecutorial misconduct. “This is not a one-off. Prosecutorial misconduct is a plague upon these United States, from the vodka-pickled Democratic political jihadists in Austin to California, where judges complain of an ‘epidemic’ of prosecutorial misconduct abetted by Democratic attorney general Kamala Harris, who is seeking to replace retiring Barbara Boxer in the Senate.”

JUSTICE: You’re All Out: A defense attorney uncovers a brazen scheme to manipulate evidence, and prosecutors and police finally get caught.

Prosecutorial and police misconduct are often dismissed as just a few bad apples doing a few bad apple-ish things. But what happens when it’s entrenched and systemic and goes unchecked for years? That looks to be the case in Orange County, California, where the situation got so completely out of hand this spring that Superior Court Judge Thomas Goethals issued an order disqualifying the entire Orange County District Attorney’s Office (that’s all 250 prosecutors) from continuing to prosecute a major death penalty case. . . .

Revelations of misconduct in the Dekraai case have raised questions about patterns of obstruction and deception that have unraveled various other murder cases in the county, which has a population larger than that of 20 different states. Other cases involving informants who were eliciting illegal confessions have emerged, entire cases have collapsed, and more may follow. The story goes way back to the 1980s, as R. Scott Moxley explains at length in the OC Weekly, to a prosecutorial scandal that ended in the execution of one defendant and a lengthy sentence for his alleged co-conspirator. Their convictions were based on the testimony of various jailhouse informants even though they told conflicting stories. That scandal rocked the area then, and this new one shows eerie parallels. All this is happening right up the road from Los Angeles, home of one of the most massive jailhouse informant scandals in history.

End official immunity.

HONESTLY, THIS KIND OF BEHAVIOR SHOULD CARRY THE DEATH PENALTY: California Prosecutor Falsifies Transcript of Confession; California Attorney General Kamala Harris Defends.

Ninth Circuit Judge Alex Kozinski declared months ago in a much-quoted opinion that there is “an epidemic of Brady violations abroad in the land.” And yet, prosecutors continue to deny there’s a problem. Indeed, the Department of Justice gets outright indignant at the suggestion, and so do many state court prosecutors. They bristle at the very mention of the possibility.

But here’s another doozy: The People (of California) v. Efrain Velasco-Palacios. In this unpublished opinion from the Fifth Appellate District, the California Court of Appeal reveals that state prosecutors and California Attorney General Kamala Harris continue to be part of the problem. Kern County prosecutor Robert Murray committed “outrageous government misconduct.” Ms. Harris and her staff defended the indefensible—California State prosecutor Murray flat out falsified a transcript of a defendant’s confession.

Kern County prosecutor Robert Murray added two lines of transcript to “evidence” that the defendant confessed to an even more egregious offense than that with which he had been charged—the already hideous offense of molesting a child. With the two sentences that state’s attorney Murray perjuriously added, Murray was able to threaten charges that carried a term of life in prison.

Capitalizing to the maximum on his outright fabrication, state’s attorney Robert Murray committed his own crime against the defendant at the crucial time when defense counsel was consulting with the defendant on a possible plea.

Prosecutor Murray had ample time and opportunity to correct his lies and his falsification of the transcript, but instead, he let it go until defense counsel had encouraged his client to plead guilty based on this fabricated evidence. Not until after defense counsel requested the original tape recording from which the transcript was made did Mr. Murray admit that he had added the most incriminating statements to the transcript.

Disgraceful. But wait, there’s more: “Undaunted by the criminal conduct of a state prosecutor, or the district court’s opinion, Ms. Harris appealed the decision dismissing the indictment. According to the California Attorney General, only abject physical brutality would warrant a finding of prosecutorial misconduct and the dismissal of an indictment. Fortunately for all of us—and the Constitution—she lost again.”

NEW YORK OBSERVER: All the President’s Muses: Obama and Prosecutorial Misconduct: Chronic bungling by DOJ officials who have the President’s ear. Yeah, I’m not so sure it’s bungling so much as malfeasance.

Note the final paragraph.

TODAY IN PROSECUTORIAL MISCONDUCT: Former Brooklyn District Attorney Charles Hynes admitted he believed man cleared of murder after nearly 16 years in prison was innocent. “In a stunning about-face, former Brooklyn District Attorney Charles Hynes admitted in a recent deposition that he did not believe a man exonerated for murder was guilty — even though one of his prosecutors insisted, as the man’s conviction was vacated, ‘We believe in this defendant’s guilt.'”

People should be facing jail time over this, but it will be an amazing example of accountability if they’re even disbarred.

TODAY IN PROSECUTORIAL MISCONDUCT: Jonathan Fleming, convicted in killing despite vacation alibi, freed after 24 years.

At his trial, defense lawyers provided family photos and home videos of Fleming in Florida around the time of Rush’s killing. But according to Taylor Koss, another of Fleming’s lawyers, they did not have evidence he was in Florida on the day of the slaying. The prosecution persuaded jurors to ignore the alibi.

Fleming told his attorneys he had paid a bill for phone calls made from his Florida hotel room the night before Rush was killed, and he believed the receipt was in his pocket when police arrested him. But authorities told the defense he had no such receipt, according to Koss.

In the course of the investigation, the Conviction Review Unit found the receipt in police records, time stamped and dated — solidifying Fleming’s claim that he was in Florida at the time of the killing, according to the district attorney’s office.

“This is proof of alibi that was basically purposely withheld,” Koss said.

The review unit also interviewed Fleming’s former girlfriend, who said she called Fleming the night of the killing while he was still at his hotel in Florida. The investigation found her story to be credible, with phone records to support it.

The prosecution also produced a witness who said she saw Fleming commit the crime.

According to Koss, the woman recanted her testimony weeks after Fleming’s conviction. She later testified in front of a judge that she was on parole and had been arrested with another woman for being in a stolen van the night of the killing. She said police persuaded her to give a statement against Fleming to avoid going back to jail.

Stuff to remember, should you find yourself on a jury. Meanwhile, of course, this means the real killer — whom a witness identified — was never punished.

JOHN STEELE GORDON: A Corrupt Criminal Justice System. “Prosecutorial discretion—deciding whom to go after and whom to ignore—is an open invitation to corruption. And this corruption can have consequences beyond the individuals involved. Had Senator Ted Stevens not been convicted a week before he narrowly lost reelection in 2008 in a trial that involved ‘gross prosecutorial misconduct,’ he undoubtedly would have been reelected and the Democrats would not have had the sixty votes in the Senate they needed to ram ObamaCare through.”

BRAD SCHLESINGER: How The Drug War Disappeared The Jury Trial.

The criminal jury trial is a vital check against prosecutorial excesses, police misconduct, and arbitrary state power. But over the last three decades, criminal justice policy has transferred enormous amounts of power to prosecutors and away from juries and judges. Judges once had wide discretion in weighing the facts and circumstances of each case prior to sentencing. Mandatory sentencing laws give control of sentencing proceedings to prosecutors instead, leading one federal judge to describe the process of sentencing someone to years in prison as having “all the solemnity of a driver’s license renewal and [taking] a small fraction of the time.”

For example, when United States Army veteran Ronald Thompson fired two warning shots into the ground, he intended to scare off his friend’s grandson, who was attempting to enter her home after she denied him entry. He never imagined his actions would leave him facing decades in prison.

He was charged “with four counts of aggravated assault with a firearm” under Florida’s 10-20-Life mandatory minimum gun law. Prosecutors used the minimum twenty years in prison he faced to try to avoid a trial by asking him to accept three years in prison. While the deal remained on the table throughout the trial, he was ultimately convicted and sentenced to twenty years in prison.

Ronald Thompson’s case, and so many others, reveals that prosecutors don’t think that twenty-year sentences for shooting into the ground constitute justice. Why else would the plea bargain stay on the table.

The case is an example of the trial penalty in action. Utilized by prosecutors to scare accused citizens into pleading guilty, the trial penalty threatens severe sentencing outcomes if found guilty at trial compared to the plea. And the the last thirty plus years have shown that it works. . . . The prosecutor alone chooses whether to charge the accused, which charges to file, whether to drop charges, and whether or not a plea on lesser charges will be offered, outside of any judicial oversight. These unilateral discretionary decisions “often predetermine the outcome of a case since the sentencing judge has little, if any, discretion in determining the length, nature, and severity of the sentence.” This results in radically different sentencing outcomes between the sentence a defendant receives who loses at trial compared to one who pleads guilty.

These enormously different outcomes effectively coerce criminal defendants into pleading guilty. Mandatory minimum sentencing laws give prosecutors the leverage and superior bargaining position needed to coax accused citizens, many of whom are completely innocent, into surrendering a fundamental right for a perceived benefit – a significantly lesser sentence for forgoing a jury trial and pleading guilty.

I think that bullying people into foregoing a trial is a deprivation of constitutional rights. This is a topic I have addressed before.

THE NEW YORK TIMES EDITORIALIZES ON RAMPANT PROSECUTORIAL MISCONDUCT. But of course, the open-ended legislation and oppressive regulatory apparatus that the Times routinely support are what give prosecutors such power.

Also, they need to read my Columbia Law Review piece.

TITLES OF NOBILITY: Appeals Courts Give Misbehaving Prosecutors The Privilege Of Anonymity.

Last month, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit ruled that a prosecutor in San Mateo County, Calif., committed “textbook” misconduct when she “knowingly elicited and then failed to correct false testimony” during an armed robbery trial. A judge from the U.S. District Court for the Northern District of California also found misconduct in the case, but ruled it was a “harmless error” and upheld the conviction of the defendant, La Carl Martez Dow. The appeals court panel overturned that ruling, and Dow’s conviction.

But an important detail was missing from both those rulings — the prosecutor’s name, Jennifer Ow. At the time of Martez Dow’s conviction, she was an assistant district attorney for San Mateo county. She currently holds the same title in Nevada County, Calif.

Earlier this year, the U.S. Supreme Court declined to hear an appeal alleging misconduct by a federal prosecutor who made racially offensive remarks during a drug trial in Texas. Justice Sonia Sotomayor wrote a separate opinion that excoriated the prosecutor, who, she wrote, “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation.”

“It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century,” she wrote. “Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice.”

But Sotomayor didn’t name the prosecutor, either. And while her opinion attracted a fair amount of media attention, those initial accounts also failed to give the prosecutor’s name.

You can’t have anonymity and accountability. So, apparently, the courts don’t want accountability here.

YA THINK? High Profile Cases Show A Pattern Of Misuse Of Prosecutorial Powers.

It’s hard to imagine the U.S. as a place where citizens have to fear overzealous prosecution, but last week’s reversals in the cases of former House Majority Leader Tom DeLay and five New Orleans police officers are part of a troubling pattern reminiscent of the Soviet criminal justice system — a system in which the state is always right, even when it is wrong.

In both cases, the judges who overturned the original trial-court verdicts cited instances of prosecutorial overzealousness and abuse of power, making the two cases the latest high-profile trials to run aground on the basis of misconduct by the state’s attorneys.

The high-profile cases in recent years run the gamut from the ancient offenses of murder and rape to increasingly esoteric details of campaign finance and contractor law.

In 2008, Sen. Ted Stevens of Alaska, the longest-serving Republican in the U.S. Senate, was charged by federal prosecutors with failing to report gifts. During the campaign season, Barack Obama said Stevens needed to resign “to put an end to the corruption and influence-peddling in Washington,” and Senate Majority Leader Harry Reid, Nevada Democrat, moved to have Stevens expelled.

Stevens lost the election, but three months later, FBI agents accused prosecutors of withholding exculpatory evidence that could have resulted in the senator’s acquittal. Newly appointed U.S. Attorney General Eric H. Holder Jr. asked the court to vacate Stevens‘ conviction, but the damage already had been done.

The prosecutors’ misconduct destroyed Stevens‘ reputation and political career and affected the balance of power in the U.S. Senate in favor of Democrats.

Circumstances were not entirely different in the prosecution of former U.S. House Majority Leader Tom DeLay, who was accused by local Democratic prosecutor Ronnie Earle to influence state elections with corporate money.

Hmm. If only we could find a common factor here. Meanwhile, the tribunes of the press are acting more like party organs: Networks That Touted Tom DeLay’s 2010 Conviction Now Silent About His Acquittal. Love the Stephanopoulos pic.

But if you want to rein in prosecutorial misconduct, I have some suggestions.

MISCARRIAGE OF JUSTICE? Were the Watergate coverup defendants denied due process? “It turns out that the notion that no man is above the law’ somehow didn’t apply to judges or prosecutors involved in the cover-up trial. Documents I have uncovered indicate that the efforts to punish the wrongdoings of Watergate led to further wrongdoing by the very officials given the task of bringing the Watergate defendants to justice. . . . The new documents suggest that defendants in the Watergate cover-up trial, held before Judge John Sirica, received anything but a fair trial. Indeed, they suggest prosecutorial and judicial misconduct so serious –- secret meetings, secret documents, secret collusion — that their disclosure at the time either would have prevented Sirica from presiding over the trial or would have resulted in the reversal of the convictions and the cases being remanded for new trials.”

RADLEY BALKO: The Untouchables: America’s Misbehaving Prosecutors, And The System That Protects Them. Read the whole thing.

I’ve offered some suggestions for addressing this problem. Abolishing official immunity would be a good start.

And speaking of prosecutorial misconduct: Glenn Loury on the decision to charge Zimmerman as a capitulation to the mob.

JOHN FUND: Injudicious Criminal Justice in Florida: The prosecutorial misconduct in Zimmerman’s trial reveals a judicial system run amok. “Kruidbos feared he would put his job in jeopardy if he came forward with this information, but he also was concerned about a possible miscarriage of justice, so he directed his attorneys to alert Zimmerman’s defense team about the withheld evidence. He turned over the photos in late May, and the state placed Kruidbos on administrative leave until this past Friday, the day the Zimmerman case went to the jury. That morning, according to the Florida Times-Union, he received a hand-delivered letter from Corey informing him that he was fired and that he ‘can never again be trusted to step foot in this office.’ The treatment he received for telling the defense about government misconduct will discourage others from becoming whistleblowers.”

This crowd doesn’t like whistleblowers. There’s too much going on that’s whistleable.

AN EVENT NOTABLE MOSTLY FOR ITS RARITY: District attorney should be disbarred for prosecutorial misconduct, state bar court recommends.


The power prosecutors have to charge people with crimes is often overlooked. While probable cause is the minimum standard police officers need to make an arrest and the minimum standard to convict is beyond a reasonable doubt, the question is where the power to charge should be between those two extremes.

In the 22 states that require a grand jury indictment before charging, the grand jury standard is a preponderance of the evidence, although grand juries are sometimes notorious for rubber-stamping a prosecutor’s wishes.

But without a grand jury, a prosecutor’s charging power is entirely discretionary.

Once charged, a suspect often needs to hire expensive legal representation or, if he can’t afford it (and there aren’t many people who can pay for representation on a murder charge), request a public defender. It likely means at least temporary incarceration, the posting of bond, and a stigma more damaging than an arrest, but less so than a conviction.

A judge may occasionally dismiss charges due to lack of evidence, but generally speaking, the decision to charge is the prosecutor’s. And while police officers can be sued for a wrongful arrest, prosecutors are protected by absolute immunity, meaning that as long as they’re performing a prosecutor’s duties, they can’t be sued.

That “absolute immunity,” by the way, is entirely a judicial creation and — except, I suppose for absolute judicial immunity — as overweening an example of “judicial activism” as you’ll ever find, though this is seldom noted. If such immunity is to exist, it should be legislatively arrived at, not the product of judicial fiat.

Personally, I think that overcharging should cost prosecutors something. How about this — the state is on the hook for a pro-rata share of defendant’s legal expenses based on the number of offenses charged, but not convicted. Charge with 20 crimes, convict on 2, you pay 90% of the defendant’s legal fees.

Or maybe it should be based on years: Charges adding up to a maximum penalty of 100 years; actual sentence, 1 year. Government pays 99%. What do you think? I think that we need more oversight of prosecutors, and since I have little faith that the legal establishment will provide it, I’m looking for structural ways to give them skin in the game.

UPDATE: Former prosecutor, now criminal-defense lawyer John Steakley emails:

So who pays? If it’s the prosecutor personally, then good luck getting money out of someone earning a little more than a well-paid public school teacher. If it is the county government, then won’t the jurors (and county taxpayers) have a incentive to convict so that they can reduce their indirect liability? I can already hear the prosecutor’s argument: “A vote to convict means more tax dollars available for teachers, cops and cable TV in the jury room!”

And if we are going to make the prosecutor pay for acquittals, how long until we make the defendants reimburse the government for the expense of convicting them? And wouldn’t that create yet another financial incentive for jurors to convict?

Hmm. Would a prosecutor really make that argument to a jury? Would a court permit it? If so, the problem’s bigger than I thought. But I welcome other suggestions for structural reform, because I have no faith in the system’s ability to police itself.

Another reader goes a bit too far on the incentive side:

You bring up the very real point of prosecutorial misconduct. You get what you reward. Our current system incentivizes prosecutors to over charge and the plea bargain. No skin off their nose if it hurts the defendant and the plea bargain makes their life easier. However your solution tends towards punishing taxpayers, not prosecutors, for prosecutorial misconduct by adding to the tax burden (i.e. paying defense costs). The simplest solution is if the defendant is found innocent on any one charge, then they are found innocent on all. The chance that a prosecutor would over charge then would be greatly reduced, but we would also see many more guilty people go free. Perhaps the solution is to make the prosecutor face a personal penalty. Introduce three jury results (ala Scotland), Guilty, innocent and not proven. Not proven would be where the jury finds not enough evidence to convict, but enough evidence that they can’t clearly say the person is innocent. If the jury rules innocent, then the prosecutor loses his government job and has his law license suspended for a year. Then the prosecutor would have some skin in the game to balance the incentives to overcharge.

I think that would lead to undercharging. And another reader emails:

I’m a Harvard Law graduate working as an assistant district attorney in the Southwest and would like to offer some thoughts in response to your recent post on overcharging by prosecutors. Please do not use my name as I am writing in my personal capacity and do not want my views attributed to the office I work for. Thanks.

I think that the debate would be served by distinguishing between two different senses of the term ‘overcharging.’ In the first sense, overcharging means bringing charges that are not supported by the facts, in other words, the facts do not meet the legal definition of the crimes charged because one or more elements are missing. An example this type of overcharging might include charging a Defendant with bribery of a witness when the Defendant makes a victim some extra-judicial offer of some restitution or compensation, but does not actually ask the victim to change her testimony.

The second sense of overcharging is bringing charges that do indeed have a legitimate factual basis and meet the elements of the statute, but do not serve the interests of justice. For example, it my state, the crime of contributing to the delinquency of a minor, a felony, is defined broadly enough to include a 19-year old who shares a joint with a 17-year old. If the Defendant has no previous criminal history, then a felony conviction for this behavior is probably unjust. But the legislature has made it so. Another example might be a Defendant who uses fraudulent access to a computer at work to steal funds from her employer. She can legitimately be charged with both embezzlement and a computer crime. But depending on the circumstances, the additional punishment of the computer crime might not be appropriate.

The first form of overcharging is unethical and if a prosecutor knowingly brings charges that are not supported by the facts, he or she should be subject to discipline, whether administratively, through the state bar, or even criminally, if the conduct is egregious enough.

The second form of overcharging is much more of a gray area. If the charges are supported by the facts and the law as defined by the legislature, then it is up to the prosecutor’s discretion. There is nothing unethical about bringing such charges, unless they are brought as retaliation against the Defendant or defense attorney rather than to serve justice. Excepting those scenarios, it comes down to the prosecutor’s role vis-à-vis the legislature, and there is no easy right answer. In my mind, this challenge is the best argument for having elected District Attorneys.

I do agree with you that there are prosecutors out there who do not take their role seriously enough and cause damage to the public because of it. But I do not agree with using the convictions at the end of the process as your final metric of whether something was overcharged. There are many reasons why legitimate charges may not result in convictions. Witnesses do not always show up to trial. The witnesses who do show up may not necessarily come across very well. Evidence may get excluded by the judge. And a jury is a strange beast, not necessarily reaching the just result in every case. I believe that they do the right thing in most cases, but any prosecutor or defense attorney can tell you that there are outliers, cases where the jury acquits on solid evidence or convicts on insufficient evidence.

Well, even if the charges are theoretically justified, the practice of laundry-list indictments — which you didn’t used to see — puts unfair pressure on defendants to agree to a plea, because they potentially face enormous jail time if they go to trial. Prosecutors have no such countervailing pressure. I’d like it to be expensive to overcharge in some fashion. Of course, if judges were to strike excessive charges that would help, but this doesn’t seem to happen. Perhaps if we compute prosecutors’ conviction rates based on the initial charges — charge 50 crimes, accept a plea deal on 2, it counts as a 4% conviction. . . .

And reader Tim Maguire writes: “I think we could go a long way towards reining in over-aggressive prosecutors simply by barring them from running for political office until, say, five years has elapsed from their last prosecution.” Heh.

HIGHER EDUCATION UPDATE: K.C. Johnson on a sudden, newfound concern for due process on campus. “Davidson’s latest stab at commentary came in response to the pepper-spraying of peaceful protesters at UC-Davis—which today led to the suspension of the campus police chief. Cal-Davis deserves all the criticism that it gets for this incident, and I agree wholeheartedly with the remarks of FIRE’s Greg Lukianoff on the issue. Yet there’s something . . . peculiar . . . about seeing Cathy Davidson standing up for due process, given what was (at best) her indifference when three of her own institution’s students faced the highest-profile case of prosecutorial misconduct in recent U.S. history.”

THE CHICAGO WAY: Expose prosecutorial misconduct, get investigated.

I wrote about this a while back.

PROSECUTORIAL MISCONDUCT: Backdating case against 2 ex-Broadcom executives tossed. “Carney found that prosecutors tried to prevent three key defense witnesses from testifying, improperly contacted attorneys for defense witnesses, and leaked information about grand jury proceedings to the media.”

REYES CONVICTION REVERSED FOR PROSECUTORIAL MISCONDUCT: “Former CEO of Brocade Communications Systems, Gregory Reyes, had his convictions overturned by the the Ninth Circuit Court of Appeals. The court reversed Reyes’ conviction ‘because of prosecutorial misconduct in making a false assertion of material fact to the jury in closing argument.'”

THE SENATE ETHICS COMMITTEE: A black hole where investigations go to die.

The committee never took action in the case of former Sen. Ted Stevens (R-Alaska), despite abundant evidence that an oil contractor rebuilt his house and gave him other gifts never reported on his financial disclosure forms. The overturning of Stevens’ guilty verdict — owing to prosecutorial misconduct — does not erase the Ethics Committee’s dismal failure to police what seems an obvious violation of Senate rules.

More than a year ago, the committee got a complaint from CREW concerning unusually favorable mortgage terms accorded Sens. Chris Dodd (D-Conn.) and Kent Conrad (D-N.D.) by the now-defunct Countrywide Financial. Not a word has been heard about that probe.

Dodd is also the subject of a complaint, filed in April by yet another watchdog group, Judicial Watch, growing out of his purchase of — and apparent profit on — property in Ireland from the business partner of a person convicted of stock fraud for whom Dodd secured a pardon.

I’m not expecting much.


PROSECUTORIAL MISCONDUCT: It’s not just the Stevens case.

A “not guilty” verdict was returned on a drug case in Miami, but what happened during the investigation and prosecution of this case has now resulted in an award of $601,795.88 under the Hyde Amendment. The Hyde Amendment allows for attorney fees when a “prevailing criminal defendant” can demonstrate “that the position the government took in prosecuting him was vexatious, frivolous, or in bad faith.” (see Order, infra, citing U.S. v. Gilbert).

Hon. Alan S. Gold, in the Southern District of Florida, issued an Order awarding these attorney fees and enjoined the US Attorneys who practice in that court from “engaging in future witness tampering investigation of defense lawyers and team members in any ongoing prosecution before [this judge] without first bringing such matters to [the judge’s] attention in an ex parte proceeding.” The judge also issued a public reprimand against the US Attorneys office and specifically 2 AUSAs. And it does not end there, as the judge also makes it clear that a disciplinary body needs to review this matter. . . .

DOJ, the enforcer against corporate misconduct and the one who requests the appointment of monitors in deferred prosecution agreements, may seem to be having its own issues.

Read the whole thing.

WELL, THE ELECTION’S OVER: All Ted Stevens charges dropped. “The U.S. Justice Department has decided to drop all charges against former Alaskan Senator Ted Stevens amid charges of prosecutorial misconduct, NPR reported on Wednesday, citing Justice officials.” He was a disgrace, but apparently not a criminal one. Dan Riehl comments: “Good thing he didn’t work for AIG.”

PROSECUTORIAL MISCONDUCT IN THE TED STEVENS TRIAL. As InstaPundit readers know, I’m no Ted Stevens fan, but this does kind of stink.

SAW AN EXCELLENT PANEL THIS EVENING ON THE DUKE LACROSSE RAPE HOAX, featuring K.C. Johnson (author of Until Proven Innocent, with Stuart Taylor), James Coleman, Mike Gerhardt, Lyrissa Lidsky, and Angela Davis (no, not that Angela Davis), author of Arbitrary Justice: The Power of the American Prosecutor, which I bought on Kenneth Anderson’s recommendation and which is excellent, especially as a companion to K.C.’s book. The discussion was excellent and very fair. Lots of talk about what Nifong got wrong, plus the important point that the kind of misconduct for which Nifong was disbarred and punished is committed regularly by prosecutors who almost always get off scot-free even when it’s exposed. We really need a better mechanism for policing prosecutorial misconduct, and it’s not clear what that should be — independent audits of cases by a sort of inspector general? I’m not sure.

I disagree, though, with the idea that replacing elected prosecutors with appointed prosecutors would fix the problem. As with elected vs. appointed judges, it doesn’t get rid of the politics, just make it less transparent. And I suspect that situations like that obtaining in Britain, where burglars face little risk of prosecution while homeowners who defend their homes against burglars are targeted by authorities, couldn’t possibly prevail in a system of elected prosecutors.


THE SHADOW OF SPITZERISM: Prosecutorial misconduct in the Enron case? “‘The brief reveals suppression of exculpatory evidence by the Enron Task Force of a massive scale. The entire brief is devastating to the Task Force’s prosecution of Skilling and the late Enron chairman, Ken Lay.’ . . . I’m still waiting for this to capture the attention of the press, which had been so rivited on Fastow’s testimony at the trial.”


UPDATE: From former prosecutor Randy Barnett, a related post on prosecutorial misconduct.

PROFESSOR JOHN BANZHAF emails (okay, it’s a mass-email aimed at the media) that Durham D.A. Mike Nifong may have legal problems:

As the rape case against three Duke lacrosse players continues to unravel, and instances of apparent prosecutorial misconduct multiply, it appears increasingly likely that the accused students will be able to recover civil damages against the county and perhaps also the district attorney, says the public interest law professor who has successful orchestrated legal actions against several major governmental figures, including former Vice President Spiro T. Agnew.

“Although prosecutors generally enjoy absolute immunity from civil liability for violating the constitutional rights of defendants, there are instances — and this may well be one of them — where that immunity doesn’t apply,” says Law Professor John Banzhaf. Moreover, Durham County, NC, does not have absolute immunity, and so the county could be held liable for millions of dollars in civil damages even if District Attorney Michael Nifong is protected from law suits, notes Banzhaf.

I think it’s a bit early to start talking about that, but with the stuff that’s coming out you can bet that some people in Durham County are starting to think about it. As a more general matter, I also think that the notion of absolute immunity for prosecutors — a whole-cloth creation of judicial “activism” that one seldom hears about from critics of activist judges — should also be rethought.


CENTRAL PARK JOGGER UPDATE: Looks like a rout for the original prosecutors, and a tremendous miscarriage of justice.

I expect the defendants will be happy to get on with their lives, but I want to repeat a point I raised earlier: what kind of compensation is enough to make up for what they went through? Most states provide niggardly compensation for people who are wrongly imprisoned, if they provide any at all, and most freed defendants aren’t in a position to negotiate.

I’d like to see a statute providing for substantial (and I mean substantial-according-to-the-standards-of-lawyers-and-Congressmen, not substantial-for-the-hoi-polloi) compensation for innocent people who are imprisoned. A million bucks a year? That’s a good place to start.

Any system of justice will sometimes imprison innocent people. You do the best you can to avoid that (or at least you should). But that’s no excuse not to try to make them whole when you realize there’s been a mistake. That’s just as much a legitimate expense as the salaries paid to prosecutors and judges.

UPDATE: Many readers emailed to say that the Central Park joggers are criminals even if they aren’t guilty of the rape in question. Well, maybe. Ann Coulter is certainly making this point.

But, you know, even if it’s true that doesn’t excuse jailing them for a crime that they didn’t commit. Meanwhile prosecutorial reader John Kluge writes:

As a prosecutor, the unraveling of the central park jogger case sends chills up my spine. You are never there when police interview a suspect and have no idea what really happens during those interviews. At the same time, once you have a confession, it is virtually impossible not to go forward with the prosecution, especially in a case involving a real victim. Police misconduct in obtaining false confessions puts prosecutors in an impossible position. Imagine if prosecutors had concluded that the confessions were coerced back at the time of trial and not gone forward with the cases. Back then, they didn’t have the serial rapist confessing to the crime. A prosecutor not going forward on a brutal gang rape against five youths who gave videotaped confessions would have caused riot. Prosecutors and the entire justice system depends on the integrity of the police conducting interogations of suspects. By the time the case gets to you, the accused already has a lawyer and is not going to talk anymore. The police are usually the only ones who get a crack at interviewing the accused. To think that there is a possiblity that some of the confessions on which I have based convictions may have been false or coerced by police is a truly disturbing thought.

Yes, and it should be. As far as I can tell, there are two solutions to this problem: (1) Require that a lawyer be present whenever the police talk to anyone; or (2) Videotape every second of interaction between suspects and the police. The former is prohibitively difficult — though why in God’s name anyone in custody talks to the police without a lawyer is beyond me. I watch those TV shows where the cops say “bring in a lawyer and the deal’s off” and I cringe. But I know it happens in real life.

The second seems quite feasible these days, and the absence of such taping should be sufficient, in my opinion, to make confessions obtained otherwise unadmissible.

ANOTHER UPDATE: Okay, on rereading Ann Coulter after the sudafed took effect, I think she’s still mainly arguing that they really are guilty of the rape in question. Meanwhile The Comedian blogs on what it takes to get a conviction overturned in New York.

LAST UPDATE: Justin Katz, like a lot of emailers, thinks I’ve been suckered by the New York Times on this one. Well, what convinced me was that Manhattan DA Robert Morgenthau is reported to believe that the defendants are innocent. Did the Times get that part wrong? Morgenthau is in a position to know a lot more than me, has no incentive to be alarmist about this that I can see, and is a guy that I generally trust. And it’s awfully damned hard to get prosecutors to admit error even when it’s pretty clear, so when they do admit it, I tend to believe them.

JEFF COOPER has a post on the Central Park Jogger case in which he says Tom Maguire has persuaded him that he jumped to conclusions about the likelihood of prosecutorial misconduct, something for which he’s apologetic. Perhaps overly so — blogging is, in James Lileks’ phrase, a conversation, not a lecture. You react to what you know, and you refine your opinions as you learn more. “Do it once, do it long,” may be the style at the Los Angeles Times, but the L.A. Times is most definitely not a blog.