The title of this post comes from the new essay, “Threats and Bullying by Prosecutors” by Bennett L. Gershman, a law professor at Pace University. The essay, available for free right here, is definitely worth a full read at only 19 pages, but below I will take a moment to highlight some of the sections and ways Professor Gershman deconstructs the ways prosecutors bully and threaten defendants. It starts out this way:
[Prosecutors] have been described as “virtuous,” “prudent,” “ethical,” “good,” “unique,” and “gamesmen.” But there is one persona that seems to have eluded characterization and commentary: the prosecutor as a bully. In fact, one of the most prominent features of U.S. prosecutors is their ability to threaten, intimidate, and embarrass anyone – defendants, witnesses, lawyers – without any accountability or apology. This is the conduct of a bully.
On Intimidating Grand Jury Witnesses
A state senator’s chief of staff is called in to testify against his boss. He doesn’t want to testify, but is granted immunity and told his refusal to testify can be punished with contempt, and lying is perjury. The witness says he can’t remember a meeting between his boss and a wealthy real estate developer…
The prosecutor, in an extremely agitated tone of voice exclaims: “You know you are lying. Don’t insult this grand jury. You’ll be in jail in a heartbeat unless you tell the truth. You’ll be finished. You will never work again.”
Are the prosecutor’s threats a legitimate exercise of prosecutorial power? Do these threats enhance or degrade the prosecutor’s ethical duty to serve justice?
Gershman goes on to highlight prosecutorial conduct in coercing guilty pleas, attacking defense experts, bullying defense witnesses (and even their own prosecution witnesses), compelling waiver of civil rights claims, retaliation, demagoguery, shaming, and coercing corporate cooperation.
Look for future posts highlighting more sections of this important essay. Any first-time offender will learn quickly how true this information is. He or she will feel bullied and coerced by the prosecuting attorney and wonder how this is part of the legal system they’ve been taught to trust. A fantastic guide for all first time offenders can be found at the first-time-offender website, which hosts the ultimate resource for anybody facing their first charge.
An Example from This Blog
Looking back to our post on prosecutorial misconduct, this article is a spot-on critique of that case.
In that pose, we discussed a case where a prosecutor knew a defendant was innocent, because a co-defendant admitted he knew nothing about the crime in question.
That prosecutor failed to mention that the co-defendant’s statements completely exonerated that defendant. The defendant in that case, Abel Tavera, was convicted at trial for a conspiracy to distribute Methamphetamine. That trial was prosecuted by the same man that knew fully well that Tavera was innocent.
How Mr. Tavera’s defense attorney found out about the co-defendant’s statements is not fully known. What IS known, however, is that the prosecutor found another co-defendant to testify that Tavera knew all about the drugs in question.
For his testimony, that co-defendant received a significantly-reduced sentence for his own participation in distributing meth. Tavera, after the appeals court threw out his conviction, was not as lucky.
The prosecutor wouldn’t accept a loss, and only dismissed the meth charges against him if he pleaded guilty to federal criminal charges of being an illegal immigrant, and to “misprision of a felony” (knowing about a felony and not reporting it to the authorities).