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Prosecutorial Misconduct:

Check out the Ninth Circuit's decision in U.S. v. Chapman for a sharp rebuke of the government, including the affirmance of a district court's dismissing an indictment with prejudice — thus barring retrial — because of government misconduct:

The district court did not abuse its discretion in dismissing the indictment. The government egregiously failed to meet its constitutional obligations under Brady and Giglio. It failed to even make inquiry as to conviction records, plea bargains, and other discoverable materials concerning key witnesses until after trial began. It repeatedly misrepresented to the district court that all such documents had been disclosed prior to trial. The government did not admit to the court that it failed to disclose Brady/Giglio material until after many of the key witnesses had testified and been released. Even then, it failed to turn over some 650 documents until the day the district court declared a mistrial and submitted those documents to the court only after the indictment had been dismissed. This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available. Under these facts, the district court did not abuse its discretion in characterizing these actions as flagrant prosecutorial misconduct justifying dismissal. Nor did it abuse its discretion in determining that a retrial — the only lesser remedy ever proposed by the government — would substantially prejudice the defendants.

And from earlier in the opinion:

We are similarly troubled, both by the AUSA's actions at trial and by the government's lack of contrition on appeal. The government attorneys who appeared in the original AUSA's stead on the critical day of the hearing on the motion to dismiss the indictment told the trial court that they "took this matter extremely seriously" and conceded that the government made a "very serious mistake in terms of [its] discovery obligations." Before us, however, these same attorneys have attempted to minimize the extent of the prosecutorial misconduct, completely disregarding the AUSA's repeated misrepresentations to the court and the failure to obtain and prepare many of the critical documents until after the trial was underway. Instead, they claim for the first time on appeal that none of the 650 pages were required disclosures under Brady/Giglio. When the district court first indicated that it was inclined to dismiss the indictment, it noted that it was "concerned [that] any lesser sanction [would be] like endorsing [the AUSA's conduct]." The government's tactics on appeal only reinforce our conclusion that it still has failed to grasp the severity of the prosecutorial misconduct involved here, as well as the importance of its constitutionally imposed discovery obligations. Accordingly, although dismissal of the indictment was the most severe sanction available to the district court, it was not an abuse of discretion.

By the way, note that the panel decision was unanimous, and that the panel consisted of two moderate Clinton appointees (Judges Wardlaw and Hawkins) and a quite conservative Reagan appointee (Judge O'Scannlain).

Mike& (mail):
I'll be curious to see if they identified the prosecutor by name.

Often, courts refuse to identify by name even the most unethical prosecutors.
5.6.2008 7:24pm
PersonFromPorlock:
Can't access findlaw. According to your summary it looks like the government lost its serve. But does this "most severe sanction" include anything like punishment for the prosecutors?
5.6.2008 7:26pm
Mike& (mail):
Will the Nevada State Bar punish the unethical prosecutors?

Here's a link to the non-FindLaw source.
5.6.2008 7:30pm
Jay:
It's on the 9th Circuit website:
here

What exactly is the purpose of Findlaw, anyway?
5.6.2008 7:31pm
R Gould-Saltman (mail):
I'm just trying to conjure what would have likely happened to the unidentified AUSA, had he pulled a similar stunt in a Federal civil trial...
5.6.2008 7:33pm
Mike& (mail):
According to a minute order dated Jan. 23, 2006, Greg Damm and Kimberly Frayn were the Assistant United States Attorneys prosecuting Chapman.

I used the Jan. 23rd minute order because, in the court opinion, Judge Wardlaw writes: "There were, however, early indications that the government had not fully complied with its discovery obligations. On January 23, 2006, one day before the trial was set to begin, the government announced that it would present its case agent, Michael Payne, to testify."

Greg Damm and Kimberly Frayn were the Assistant United States Attorneys prosecuting Chapman, according to this Feb. 3, 2006 minute order.

I was able to find this information via PACER - a specialized service that the general public does not know how to access or use.

This is not fair to the public.

Aren't Assistant United States Attorneys public servants? If so, why are their identities hidden from the public? Shouldn't the members of the public they serve know whom to hold accountable?

Yet courts continue to protect the wrongdoers from public scrutiny.

Why?
5.6.2008 7:45pm
Eugene Volokh (www):
Thanks, updated the link to point to the Ninth Circuit site.
5.6.2008 7:48pm
Dave N (mail):
I think this case is a good lesson to prosecutors (both federal and state, even though this is a "supervisory" case): When preparing discovery in any kind of complex case (that is, a case requiring more than one file folder), prepare a duplicate copy of discovery, prepare discovery log, and bate stamp both the duplicate and the discovery, and get a signed receipt.

That way, if the issue arises, the prosecutor can honestly say, "Yes, Judge, we gave this document on January 17, it is bate stamp number 117 through 118, and here is a file stamped copy of the receipt."

As for witholding discovery, if it was, in fact, deliberate, then the offending attorney should be fired. Period.
5.6.2008 8:05pm
RPS (mail):
http:// www.wethepeoplefoundation.org/ UPDATE/misc2007/Kahre—RICOvDOJprosecutor.pdf

And somewhere Robert Kahre says, "I told you so."
5.6.2008 8:11pm
RPS (mail):
Mike&,

FYI - Greg Damm's name is all over newspaper articles about the case. I also don't understand how his name was "hidden" considering that you found it in publicly available documents.
5.6.2008 8:20pm
Doug Sundseth (mail):
Dave N: "As for witholding discovery, if it was, in fact, deliberate, then the offending attorney should be fired. Period."

How about we correct a few incentives in the system: If a prosecuting attorney willfully withholds exculpatory evidence or discovery, said attorney should receive a jail sentence equal to what he sought for the wronged defendant. (It's fine with me if he gets fired, too.)
5.6.2008 8:22pm
Nancy Gee (mail):
Pacer charges for its services, like the phone company or a cable company. If "the public" want to sign up and pay the fee, I don't think it's secret stuff at all (although it is technical, convoluted, jargon-riddled and not very user-friendly).
5.6.2008 8:26pm
Dave Hardy (mail) (www):
We had a prosecutor here -- I knew him, nice guy -- who was caught withholding Brady material in a death penalty case. The Bar recommended a long suspension. The Arizona Supreme Court upped it to disbarment.

There was another prosecutor who did that, and a number of cases had to be set aside (I think including some death penalty ones) -- he died, and the failures to disclose were found in his files afterward.

They got too far into the mind-set of "we're the good guys, they're the criminals and thugs, and we have to do anything to win."
5.6.2008 8:31pm
hattio1:
Doug Sundseth,
Well, I'm a defense attorney who is unlikely to feel much sympathy for unethical prosecutors, and even I think a jail sentence equal to the sentence sought would be too much. Now, losing their law license for 3 times that amount of time, or 30 years whichever is less. That is something I could definitely sign on to.
5.6.2008 8:32pm
hattio1:
Dave Hardy,
Unfortunately, I think its more than they get too much of the "we're the good guys" mindset. I think, frankly, that most prosecutors have that, at least to a certain extent. They come to believe, often with good reason, that it won't be discovered, and if it is, the judges will bend over backwards to find excuses as to why the lack of disclosure was inadvertent. IOW, they come to believe they are untouchable.
5.6.2008 8:35pm
30yearProf:
Like police, prosecutors seldom get punished for trying to "get" convictions.

After all, they BELIEVE that everyone is a criminal but that some of us "haven't been caught yet." (The quote is from a local police chief describing why "law-abiding, criminal record free, middle-aged citizens" couldn't be trusted.)
5.6.2008 8:36pm
Mike& (mail):
I also don't understand how his name was "hidden" considering that you found it in publicly available documents.


I take it you don't understand what PACER is or how it works.

I suppose if you published something in Latin, it would be "publicly available." That doesn't mean I could read it.
5.6.2008 8:43pm
M:
What is the accepted way to pronounce Giglio in this context? I know how to pronounce it in the proper Italian, but lawyers I know always pronounce it differently.
5.6.2008 8:44pm
Dave N (mail):
M,

Since it is a written opinion, my short answer is "however you want." As far as how to pronounce a difficult name in an oral argument, my general rule with any unusual case name is to simply do my best and to follow the grammar rules for that name's language as I understand them. For example, in German, "ie" is pronounced with a long "E" and "ei" is pronounced with a long "I" sound.

In law school, family law professor was Lee Teitelbaum, then the dean of the University of Utah College of Law. Teitelbaum had also written the casebook for this class.

One day in class during a discussion, a student commented, "As Teetelbaum wrote in his book. . ."

Without missing a beat, the professor quietly said, "I think he pronounces it 'Titlebaum'."

Your question inadvertently brought back a memory of one of my favorite professors, who died too young in 2004 at age 63.
5.6.2008 9:18pm
Elliot123 (mail):
"As for witholding discovery, if it was, in fact, deliberate, then the offending attorney should be fired. Period."

What would happen to a witness or defendent who perpetrated such a fraud on the court? How about someone ordered by the court to produce a set of documents, but they instead cherry pick what they submit, and destroy the rest? How about a material witness who purjures himself and provides testimony that sends a man to prison? Would all these be so gently handled?
5.6.2008 9:19pm
lostmycookies (mail):
I thought the US Attorney was one of the 18 dismissed by the Bush administration under Gonzalez (or whoever ran the misnamed Department of "Justice" last year).

Btw, the case was particularly amusing, since the gov's main witness (Peter Berney) was alleged to have been the mastermind behind the crime - and got immunity for ratting on those below. Nice work if you can get it.
5.6.2008 9:22pm
Dave N (mail):
By the way, I agree that in extreme cases, the willful witholding of evidence merits disbarment. And I am a prosecutor.
5.6.2008 9:23pm
hattio1:
"extreme cases?" how can willful witholding NOT be extreme


Why the hell should willful witholding result in disbarrment only in extreme cases?

And besides, what makes willful witholding more extreme in one case than another? The degree of crime? The importance of the evidence? How clear it is that they are witholding the evidence to convict an innocent person?
5.6.2008 9:32pm
M:
Then I will pronounce it zhee-lee-oh in my head when reading and wait to be corrected by someone condescendingly when I say it out loud.

Any lawyer who does not keep track of what he or she is producing to the other side is not a very good lawyer. The government should know that it has to do better than that. It has to play by the rules no matter how despicable the defendants. The only thing holding up the entire system is a thin web of public confidence in the integrity of those empowered to administer justice and keep order. Those who violate that confidence should be punished.
5.6.2008 9:33pm
Oren:
If a prosecuting attorney willfully withholds exculpatory evidence or discovery, said attorney should receive a jail sentence equal to what he sought for the wronged defendant.
Did anyone else read this footnote and wince, or was it just me?
2 Despite finding that the AUSA acted "flagrantly, willfully, and in bad faith," the district court judge also stated that he "refuse[d] to believe . . . the government would intentionally withhold documents . . . ." Drawing a somewhat confusing distinction, he "found that the government did not act intentionally" but also "did not find that the government acted unintentionally."
I know it's sort of cliche to accuse judges of talking out of both sides of their mouths, but this seems just grammatically impossible. If it was willful, it was intentional. If it was unintentional, it cannot be willful. What the hell is going on here?
5.6.2008 9:57pm
Oren:
By the way, I agree that in extreme cases, the willful witholding of evidence merits disbarment. And I am a prosecutor.
I think we can all agree on the principle, but what is the operative test of willfulness?
5.6.2008 10:00pm
Mike& (mail):
Oren: That's your typical pro-prosecution bias. There is a reason most judges are referred to as "prosecutors in robes."

Here, you had a clear-cut case of document hiding. Yet the judge "refused to believe" what was before his very eyes.

Is there any question why Mike Nifong did what he did? It's quite obvious that prosecutorial misconduct is tolerated. Even where, as here, the misconduct itself is noted, the prosecutors are not actually punished.

I have absolutely no doubt that Nifong would have escaped punishment if the Duke case had not been so widely publicized.
5.6.2008 10:08pm
Kirk:
Drawing a somewhat confusing distinction, he "found that the government did not act intentionally" but also "did not find that the government acted unintentionally."

Very illuminating. It reminds me of the syndicated health column that appeared in our local paper yesterday: "Legionnaire's Disease Not Common or Rare".
5.6.2008 10:11pm
NickM (mail) (www):
California just had a similar situation come down in a death penalty case. The evidence withheld: someone else's confession! One of the 3 attorneys responsible is now quite famous: Judge Lance Ito.

Nick
5.6.2008 10:12pm
Anderson (mail):
Where's Whit?
5.6.2008 10:51pm
BruceM (mail) (www):
It just amazes me how prosecutors routinely get away with this unlawful, unethical, unconstitutional behavior. Aww they lost their precious indictment. Their "punishment" is getting to freely whine to the media that the court let a violent evil felon go free - back on the streets to endanger your cute little white, blond haired, blue eyed children. The defendant will be harassed by cops for the rest of his life, or until such time as they find something else to arrest and convict him for.

None of these AUSAs will be fired. None will be disciplined. None will be disbarred or sanctioned or fined in any way. They just don't get one more notch on their conviction belt... at least until this decision is reversed by the SCOTUS, sanctioning the behavior of the AUSAs and saying the remedy was too extreme, as the indictment could (thus should) have been dismissed without prejudice. After all, the government finally claims it turned over all Brady/Giglio evidence, so surely there's no harm in retrying the defendant. You know, for the children.

And thus it continues, and will continue until unethical prosecution is a felony of the same grade as the crime being unethically prosecuted. I'd love to see some prosecutors get lethal injection for withholding brady evidence in a capital case. And cops who violate a defendant's 4th Amendment rights should be sent to prison for the same amount of time as the defendant, if convicted on the illegally seized evidence - instead of the exclusionary rule. This would give some teeth to the 4th Amendment (though I'm afraid courts would quickly yank all of those teeth to protect the precious cute police officers from being locked up for "doing their jobs").
5.6.2008 11:52pm
BruceM (mail) (www):
-- or reversed on rehearing/rehearing en banc (not necessarily by the scotus).
5.6.2008 11:57pm
Dave N (mail):
Oren,

To me, "willfully" is synonymous with "deliberately."

I am philosophically against any rule that is automatic--but certainly a judge who discovers that a prosecutor has deliberately or willfully suppressed Giglio or Brady material should be referred to the state bar for possible discipline, up to and including disbarment.
5.7.2008 12:03am
Dave N (mail):
By the way, the defendants in this case were mostly attorneys. So much for professional courtesy.

On a separate note, this case may be among the reasons the U.S. Attorney for Nevada, Dan Bogden, was fired.
5.7.2008 12:12am
David M. Nieporent (www):
By the way, I agree that in extreme cases, the willful witholding of evidence merits disbarment. And I am a prosecutor.
Er, wouldn't "willful withholding" by definition be extreme? The non-extreme version would be negligent withholding.

But I think this case -- with the AUSA making a desperate hail mary claim on appeal that the material wasn't Brady material -- also serves to illustrate the problem with the Brady approach. All jurisdictions should move to the North Carolina open discovery approach. Prosecutors should not be in the business of deciding what to turn over. (It was that open file discovery that allowed the Duke lacrosse defendants to uncover Nifong's perfidy.)
5.7.2008 12:36am
Gaius Marius:
I didn't know that Nifong was practicing in the 9th Circuit.
5.7.2008 2:05am
Jay:
"On a separate note, this case may be among the reasons the U.S. Attorney for Nevada, Dan Bogden, was fired."

This last statement should cause a bit of cognitive dissonance for some commenters, but I'm not holding my breath.
5.7.2008 10:07am
Uncle Fester (mail):
I don't know why such a prosecutor should not go to jail for the same term as for the crime he was prosecuting. It's exactly the same outcome applied to him.

Somebody else wondered about the operative test of willful. Wilfullness (is that a word) is litigated all the time by prosecutors.

We need to imprison a few prosecutors to encourage the others (apologies to Voltaire).
5.7.2008 10:33am
Anderson (mail):
All jurisdictions should move to the North Carolina open discovery approach. Prosecutors should not be in the business of deciding what to turn over.

Amen to that.
5.7.2008 10:35am
BruceM (mail) (www):
Well in criminal litigation, prosecutors ARE NOT in the business of deciding what to turn over.

One thing I've never understood is the "you can look at it but you can't copy it" policy that nearly all state DA's have here in Texas with respect to the offense report and other papers. I can sit there and hand-copy it but I cant get a xerox? And since every state (elected) judge is a former prosecutor they dismiss my complaints about it as they all enforced the same policy.

Explain it to me, and if there's some logic maybe I'll accept your proposition. Take me down your slippery slope, please. I've got my helmet on.
5.7.2008 10:43am
eric rasmusen (mail):
BruceM: I agree that they should allow copying (isn't there some Freedom of Info *requirement* about that?). But nowadays there's an alternative for small amounts of copying: use a digital camera to take photos and then print them if need be.

On the general topic: As has been noted, in response to this prosecutorial flouting of rules, the judges punished the citizens, not the prosecutor. They let the criminals go. The prosecutors do get their dishonesty exposed in public, but that might even be an advantage in their next jobs--"Judges confirm that this criminal defense lawyer is willing to commit ilelgal acts to win!"

Even without a statute, can't the judges punish the prosecutors using contempt powers? What is it that happens to a tort defendant who hides relevant materials from discvoery?
5.7.2008 11:01am
John P (mail):
As a former AUSA I was shocked at the behavior exhibited by the Government in this case.

I think prosecutorial misconduct should be scrutinized by the relevant state bar. I know in Texas, prosecutors have been sanctioned for ethical violations. Additional deterrence is also available under the court's supervisory powers to sanction attorneys for misconduct.

With respect to identifying the AUSA in the opinion, AUSA's and federal circuit judges know that naming an offending prosecutor in a published opinion automatically generates an ethics investigation by DOJ's Office of Professional Resonsibility (OPR). However, naming the attorney is not required for OPR action - and I suspect that, given the facts of this case, OPR will be initiating an inquiry.
5.7.2008 11:42am
Roscoe (mail):
I think some of the comments here about intentional fraud, or the prosecutors going to jail are a bit overdone. I am not excusing a failure to turn over exculpatory evidence, but I saw very little in the opinion showing this was done intentionally. To the contrary, the failure to disclose came to light when the AUSA was attempting to introduce evidence about his own witnesses' prior conviction. This indicated that he believed the other side knew about the conviction. If the AUAS had been intentionally concealing this information, he (or she) wouldn't have then raised it.

So I think this was just the sort of mistake that happens sometimes, when one is getting ready for a big trial and trying to get a zillion different things done at once.
5.7.2008 12:26pm
RDB (mail):

By the way, I agree that in extreme cases, the willful witholding of evidence merits disbarment. And I am a prosecutor.


I'm not a lawyer, just someone who has to live under the threat the current "justice" system presents.

Willfully witholding evidence of innocence should result in the prosecutor being drug from the courtroom and hung from the nearest lamppost, with the body left to rot as an example for all future prosecutors.

Thanks to examples like the story linked here :
I don't trust any prosecutor, and more and more people are joining me. Our society can't continue to remain free and peaceful if trust in it's institutions is destroyed.
5.7.2008 12:52pm
RDB (mail):
Sorry, link didn't post correctly.

http://freedominourtime.blogspot.com/
5.7.2008 12:54pm
Lior:
Dave N and John P: why do you think that fraud on the court by tje prosecutor should be adjudicated by a private professional guild, while fraud on the court by a defendant (by lying on the stand, destroying evidence, etc) should be a criminal offense?
5.7.2008 1:02pm
willis (mail):
"Their "punishment" is getting to freely whine to the media that the court let a violent evil felon go free - back on the streets to endanger your cute little white, blond haired, blue eyed children."

Just guessing here, but I doubt that you fit this description as a child.
5.7.2008 1:05pm
Fub:
John P wrote at 5.7.2008 10:42am:
With respect to identifying the AUSA in the opinion, AUSA's and federal circuit judges know that naming an offending prosecutor in a published opinion automatically generates an ethics investigation by DOJ's Office of Professional Resonsibility (OPR). However, naming the attorney is not required for OPR action - and I suspect that, given the facts of this case, OPR will be initiating an inquiry.
This peripherally raises another general difficulty for effective oversight. Here not only would the executive branch be investigating itself, but the same department of the branch (DOJ) would be investigating itself.

I've never understood why such inherently chummy structural arrangements were ever considered sufficient or even likely to be effective to prevent or adequately punish misconduct by government actors. In the case of prosecutorial misconduct, even the open discovery statutes referred above by David M. Nieporent at 5.6.2008 11:36pm could be much more effective deterrent, if the judicial branch applied them strongly. At least that would move the oversight power to another branch.

Ultimately the question "Quis custodiet ipsos custodes?" may be intractable, but surely some approaches are more inherently flawed than others.
5.7.2008 1:16pm
cjwynes (mail):
I don't wanna get sanctioned for not running an NCIC check if I really am compelled to do it, but I also don't want to get in the habit of basically doing the defense attorney's work for him unless that's really mandated by rule. I can't find that in our state rules.

It's obvious in this case that the AUSA had these materials in his possession, since he examined a witness about a prior conviction, so obviously that's discoverable because he has it in his files. But the court seems to suggest that there's an affirmative obligation for the gov't to seek out this information.

Also, in the small office where I work, I couldn't possibly conceive of going to trial and not knowing that one or more of my witnesses had gotten a sentencing recommendation in exchange for their testimony. But in a larger office, could that happen?
5.7.2008 1:22pm
Bill Poser (mail) (www):
The idea that prosecutors who engage in misconduct should be subject to the same penalty as the wrongfully convicted defendant is not without precedent. In the Chinese legal system up to 1911 the magistrate, who in criminal cases was also the prosecutor, was in fact subject to the same penalty as the criminal if found to be in error due to willful misconduct or serious negligence.
5.7.2008 1:33pm
byomtov (mail):
Dave N and John P: why do you think that fraud on the court by tje prosecutor should be adjudicated by a private professional guild, while fraud on the court by a defendant (by lying on the stand, destroying evidence, etc) should be a criminal offense?

Excellent question.

The lack of accountability prosecutors enjoy, especially considering the potentially very serious consequences of their misbehavior, is a disgrace.
5.7.2008 1:39pm
cjwynes (mail):
BTW, this comment-thread is starting to sound like an NACDL cocktail party

I've never seen so many scare-quotes around the word "justice" in a single text this side of DailyKos. (I put quotes around it just now! But that was a use-quote or mention-quote or something that only Grammar Nerds could tell you.)
5.7.2008 1:46pm
Richard Aubrey (mail):
So if I'm called for jury duty and the prosecution asks if I read VC, will they automatically excuse me on account of I'm on to them?
5.7.2008 2:14pm
BruceM (mail):
willis: true, I have brown hair.

Bill Poser: that's great, I never knew that.

eric rasmusen: nope, I tried that and tried using a small page-scanner. They will warn you not to do it and tell you they'll close their file if you try again.
5.7.2008 4:28pm
Lior:
cjwynes: there's a difference between a prosecutor making a false statement due to negligence (say, truthfully saying he was not aware of an agreement regarding a witness testimony, implying there was no such agreement contrary to fact), and a prosecutor knowingly making a false statement (say, saying there was no agreement after personally signing the agreement). Instances of the first kind are understandable, and should be dealt with administratively. Instances of the second kind are on par with the suspect knowingly making a false statement to the police and should be handled the same way.

I think that, being a good prosecutor, and being involved in a system that works, you are not concerned enough with the lack of controls over the system you are part of. Sovereign immunity, prosecutorial immunity, the rubber-stamping of warrants and (as in the case at hand) the lack of criminal sanctions for acts that would have been considered criminal had the perpetrator not been a policeman or prosecutor create a very unstable combination. As long as the justice system works (which is the case almost all the time), these factors enable it to operate very smoothly. However, in the rare cases when something might go wrong, there is little control to prevent the bad acts a-priori, and there are severe limits on the wronged parties' ability to get redress a-posteriori.
5.7.2008 7:20pm
teqjack (mail):
This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available.


Agree.

dismissal of the indictment was the most severe sanction available to the district court


Which is true, but I hope the Bar looks at sanctions against, at the very least, the head of the branch office of the Justice Department, possibly including disbarment.
5.7.2008 11:23pm
John P (mail):

Dave N and John P: why do you think that fraud on the court by tje prosecutor should be adjudicated by a private professional guild, while fraud on the court by a defendant (by lying on the stand, destroying evidence, etc) should be a criminal offense?


Three points:

1. The Defendant is committing his violations to keep a bad guy (himself) from going to jail; the prosecutor is committing his violations to ensure that the bad guy is locked up and removed from decent society. Does it make sense to punish both equally?

2. A much better question would be, why aren't criminal defense attorneys locked up for their gross negligence and intentional acts. Example: despite federal rules requiring reciprocal discovery upon request, as an AUSA I never saw a single page of pre-trial discovery from the defense. Coincidence?

3. As a prosecutor (and an amateur economist), I would be happy to take on the risk of going to prison for misconduct, but you'll have to compensate me for that increased risk ($100,000 per trial, like many defense attorneys earn, should suffice quite nicely).
5.8.2008 10:42am
hattio1:
John P says,

1. The Defendant is committing his violations to keep a bad guy (himself) from going to jail; the prosecutor is committing his violations to ensure that the bad guy is locked up and removed from decent society. Does it make sense to punish both equally?


Thank you for the superb demonstration of why there should be very harsh, very personal sanctions on prosecutors who break the rules. You believe you have the ability to tell the guilty from the innocent and therefore are justified in breaking the rules to "get" the guilty. But you can't, and by breaking the rules you are setting up a Kangaroo court system. Maybe I should reconsider my opposition to jail time for prosecutors who withold evidence willfully.
5.8.2008 3:01pm
John P (mail):

You believe you have the ability to tell the guilty from the innocent and therefore are justified in breaking the rules to "get" the guilty. But you can't, and by breaking the rules you are setting up a Kangaroo court system.


1. It's my JOB to make an honest determination of whether there is sufficient admissible evidence to initiate a criminal proceeding.

2. Please don't presume that I commit these violations - I'm simply explaining why such misconduct is committed on rare occasions. As far as I'm concerned, if a prosecutor has to withhold Brady/Giglio information in order to win, the case should never have been brought in the first place.
5.8.2008 4:50pm
hattio1:
John P,
It is your JOB to make an honest determination of whether there is sufficient admissible evidence to initiate a criminal proceeding....and if you decide there is to initiate a legal proceeding and follow ALL the requirements that are put on you as a prosecutor. If you, or a nameless prosecutor, decides to willfully hide evidence, then you are most definitely NOT doing your JOB.

As to your second point. You never said you would commit these violations. But even in your explanation, you seem to hold harmless the folks who do. Sorry, doesn't cut it. You want a system where your decision doesn't get questioned, feel free to move to another country and become a prosecutor there. As long as your in the USA, and sworn to uphold the constitution, if you are willing to willfully ignore it, you shouldn't have your job, or your law license.
5.8.2008 6:34pm