Prosecutorial Misconduct Taken to A Whole New Level

Orange County, CA – Its no secret that many felons, defense attorney’s, and inmates believe that the office of the prosecutor fights unfairly and plays dirty. The reality is, there isn’t much oversight to keep prosecutors from doing so. Making matters worse, there is nearly no mechanism used to punish prosecutors who do.

Charge bargaining (plea extortion), trial penalties, and Brady violations are all common forms of prosecutorial misconduct. They are very easy to suspect, but often very hard to prove.

Hard to prove, that is, until a story like this comes out. A judge in Orange County has disqualified any prosecutors from the county District Attorney’s office from participating in a specific criminal case because of rampant corruption and civil rights violations against defendants. Shaun King over at the Daily Kos exhaustively goes over the allegations and the events leading up to the disqualification of prosecutors. His piece gets started this way:

Between San Diego and Los Angeles is Orange County, California. With more than 3 million residents, it’s larger than 21 states. If Orange County were a separate country, its economy would be the 45th largest in the world. Now known for Disneyland, the county may soon be known for having one of the most corrupt justice systems in the world. The width and depth and duration of the corruption truly boggles the mind. A case that should’ve been open and shut has blown the lid off some deep secrets.

On October 12, 2011, Orange County experienced the deadliest mass killing in its modern history. Scott Dekraai killed 8 people, including his ex-wife, in a Seal Beach beauty salon. He was arrested wearing full body armor just a few blocks away. Without a doubt, Dekraai was the perpetrator. A dozen surviving witnesses saw him. He admitted to the shooting early on. Yet, nearly four years later, the case against him has all but fallen apart.

It turns out that prosecutors and police officers committed an egregious violation of Dekraai’s rights—so much so that Superior Court Judge Thomas Goethals shocked everyone and removed the Orange County District Attorney’s Office, and all 250 prosecutors, from having anything more to do with the case.

The entire piece is worth a full read, and will make your blood boil.

June Roundup

The end of May was not a good one for anybody sitting at the defense table in Federal (and even State) courtrooms. This post is a quick look at the decisions that make defendant’s lives harder.

Maryland v. King

This case is all about 4th Amendment rights, and what constitutes too much invasion of personal liberties (and one’s own body) without a judge’s authorization. In short, can police take a DNA sample of citizens suspected of felony crimes?

In recent years, law enforcement and prison bureaus have taken DNA samples from inmates who are convicted of felonies and certain misdemeanors. These samples get loaded into local and national databases to be compared to DNA samples from unsolved crimes.1

In Maryland, a law was passed which allowed law enforcement to take DNA samples of citizens who were arrested of crimes, but not yet convicted. All without a judicial warrant for this “search” of the body. An old case was solved using DNA, and a conviction for a rape in 2003 was achieved through this process. Defendant King appealed, saying that DNA collection from people not yet convicted of any crime violates 4th Amendment Protections against unreasonable search and seizure.

The United States Supreme Court, in this recent and sharply divided decision, said that these DNA collections are not protected by the 4th Amendment and do not need a judges signature for those arrested for certain crimes.

Some Good News

Managers and leaders are taught in training courses that, in order to communicate dismay, such news must be presented in between positive notes. While there aren’t enough good cases to bookend the bad, there was one decision from the 6th Circuit that bodes exceptionally well in the Fair Sentencing Act (FSA) arena.

The FSA 2010 brought down the sentencing disparity in federal courts between powder and crack cocaine. In the pre-FSA days, there was a disparity between sentences of 100:1. This meant that 2.2 pounds of distributed powder cocaine carried the same sentence as only 10 grams of crack cocaine. FSA 2010 brought that ration down to a mere 18:1. These drugs are not treated equally yet, and it still punishes poor urban defendants disproportionately, but its a start.

Later on, the US Sentencing Commission decided unanimously to apply these reductions retroactively. This retroactive ruling, however, did nothing for those sentenced to mandatory minimum sentences before FSA 2010 became active. In US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013), the 6th Circuit decided in a split decision that it would be the UN-Fair Sentencing Act of 2010 if it did not apply retroactively to defendants who were sentenced before the enactment of the law.

This decision is sure to be reviewed by the entire panel of 6th Circuit judges en banc and may well not make it through that review, but its good news for incarcerated crack cocaine defendants in the 6th Circuit until then.

Brady Rules of Evidence

Prosecutors want convictions. Defense council wants the opposite. However, in the American justice system, the prosecutor holds almost all of the cards. The landmark US Supreme Court decision in Brady v. Maryland, 373 U.S. 83 (1963) the interest of justice was put before simple conviction numbers.

This opinion editorial from the NY Time on May 18th begins by describing Brady this way:

Fifty years ago, in the landmark case Brady v. Maryland, the Supreme Court laid down a fundamental principle about the duty of prosecutors — to seek justice in fair trials, not merely to win convictions by any means. The court said that due process required prosecutors to disclose to criminal defendants any exculpatory evidence they asked for that was likely to affect a conviction or sentence.
It might seem obvious that prosecutors with any sense of fairness would inform a defendant’s lawyer of evidence that could be favorable to the defendant’s case. But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases.

Read more about this complete lack of punishment for prosecutors who commit misconduct from their office in this lengthy Yale Law Journal post. Noting how the Brady decision above has been so thoroughly gutted since 1963, the Times article points out the Thompson case.2

The 2011 case of John Thompson is particularly instructive — as an example of atrocious prosecutorial misconduct and of the Supreme Court’s refusal to hold the prosecutor accountable. Mr. Thompson spent 14 years on death row for a murder he did not commit. He was exonerated when an investigator found that lawyers in the New Orleans district attorney’s office had kept secret more than a dozen pieces of evidence that cast doubt on Mr. Thompson’s guilt, even destroying some. Yet the Supreme Court’s conservative majority overturned a $14 million jury award to Mr. Thompson, ruling that the prosecutor’s office had not shown a pattern of “deliberate indifference” to constitutional rights. Outrageous breaches of due process rights in such cases show that the Brady rule — which seems essentially voluntary in some places — is simply insufficient to ensure justice.

To summarize, prosecutors must disclose all evidence which would be beneficial to the defendant, in order to secure fairness in the judicial system. Prosecutors are not supposed to withhold or suppress evidence in order to secure convictions simply for the sake of convictions. However, prosecutors are not required to exercise this mandate during 95% of federal cases because that many cases end up with plea deals. Further, even if a prosecutor plays unfairly, there are no consequences of note.

Many clients believe that the cards are stacked against them. If this isn’t objective evidence enough that they’re right, what is?
And last but not least…

Fricosu: A final Update

This is a story that we’ve followed through half-dozen-or-so posts (see here, here, here, and here to get started). The anti-climatic ending to this very important 5th Amendment case was reported in this related article over at Wired.com yesterday.

What could have been a huge case in the 5th Amendment fight against a judiciary that doesn’t understand technology fizzled when a co-defendant went all “5K” and gave authorities the password that Fricosu was supposed to supply.

  1. crimes of murder, rape and the like… []
  2. Connick v. Thompson, 09-571 (SCOTUS 2011) []