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Abuses of the Forensic Science System Leading to False Convictions:

Radley Balko has been all over this issue, and continues his excellent work here. This is an issue libertarians have largely ignored, but shouldn't.

I've been doing some work on related issues (some of which you can read in this paper), and over time I've become extremely suspicious of prosecutors. Far too many of them seem to value "getting a conviction" over ensuring that the convicted person is actually guilty of the crime charged. I used to feel somewhat contemptuous of defense attorneys, wondering how anyone can defend people they know are guilty, and I still couldn't do it myself.

But we need good criminal defense attorneys. Even with a vigorous adversarial system, prosecutors still all too frequently rely on junk science, withhold exculpatory evidence, and otherwise abuse the system. If not for lawyers willing to defend criminal defendants, guilty and innocent alike, and thus making the prosecutors develop evidence to prove their cases beyond a reasonable doubt, the situation would undoubtedly be much worse.

33yearprof:
When I was doing criminal defense work (as a PD), I thought of myself as an Inspector General for the criminal justice system. It was my job to make certain that the police and the prosecutors did their job, and did it properly.

My focus was on the police and prosecutor. My client's actual guilt or innocence was not relevant to whether the police had probable cause, got a needed warrant, gave a required warning, or whether the prosecutor laid the proper foundation for a question, introduced evidence on every element of the offense, engaged in improper final argument, etc.

Client's used to criticize me because I never asked them if they were innocent. I didn't ask because they got the same vigorous (but honest) defense whatever the answer.
2.18.2008 2:36pm
American Psikhushka (mail) (www):
33 year prof-

My client's actual guilt or innocence was not relevant to whether the police had probable cause, got a needed warrant, gave a required warning, or whether the prosecutor laid the proper foundation for a question, introduced evidence on every element of the offense, engaged in improper final argument, etc.

Client's used to criticize me because I never asked them if they were innocent. I didn't ask because they got the same vigorous (but honest) defense whatever the answer.


I hope you still thoroughly questioned and conversed with the client, because if you didn't you could be overlooking some very valuable and possibly exculpatory evidence, good arguments and ways to undermine the opposition's case, etc.
2.18.2008 2:52pm
neurodoc:
Balko has recounted instances in which people who were almost certainly innocent went to jail because of bogus expert testimony given by forensic pathologist Steven Hayne. I was involved in a case in which the same Dr. Hayne was responsible for keeping an almost certainly guilty woman from being indicted and going to jail. Hayne accomplished it by reporting the death of an infant as related to the childhood immunizations she had received days before rather than as the result of child abuse (shaken baby syndrome). The university physicians who received the baby in a moribund state had no doubt that child abuse explained the findings and everything pointed to the mother as the culprit.

How this is allowed to go on, even in so primitive a state as Mississippi under the unenlightened leadership of Haley Barbour is beyond me. I should think the state medical board would have pulled Hayne's license long ago and the state dental board would have pulled West's license long ago. But that quote from the state supreme court about West's history of being wrong numerous times not meaning he is necessarily wrong every time is truly priceless. Those justices would not even measure up to the late Roman Hruska's standards for judicial appointments. (Is Mississippi one of those state that elects these idiots to the bench?)
2.18.2008 2:58pm
Radley Balko (mail) (www):
Neurodoc --

I think we've spoken on the phone. Isn't that the case where Hayne then testified in a civil suit against the manufacturer of the immunizations?

That's where this guy enters "evil genius" territory. He's got the right on his side because of the way he aids the state's DAs. But he's buttering the other side of his bread with the plaintiff's attorneys.

Not sure about the circuit or appeals courts, but yeah, Mississippi does elect its Supreme Court justices to nine-year terms.
2.18.2008 3:11pm
New World Dan (www):
My wife is a forensic scienctist (DNA/serology) so I get to see quite a bit of the system in action. She's about as neutral and objective as you're going to find, but the system is still rigged toward the prosecutors office. Defense attorneys don't have access to the lab to request additional tests. Still, very few cases that she works on ever go to trial, and most of those are consent cases where her testimony has no practical value.
2.18.2008 3:40pm
theobromophile (www):
Even with a vigorous adversarial system, prosecutors still all too frequently rely on junk science,

To some extent, there is also a methodological problem: you may rely on junk science, but it also takes bad methodology to get that junk science to point to a particular criminal.

Consider hair analysis. If a police department sends off a strand of hair found on the victim and a strand of hair from the potential defendant, the lab isn't going to have to work too hard to figure out what the correct answer will be. (This also allows prosecutors to overstate the case: labs will only say if the hair is "consistent", but cannot provide a definitive match.) Now, imagine a situation in which the police sends a hair found on the victim, a strand of hair from the "person of interest," and five other hair samples from other people. The lab report may come back to say that the hair sample found near the victim is consistent with four of the six samples. Well, try to use that to get a conviction.
2.18.2008 3:55pm
TruePath (mail) (www):
If we had rules requiring that public defenders have just as many resources as prosecutors (including money to hire PIs to balance the usefullness of police) I suspect things would be much better.
2.18.2008 4:08pm
Vinnie (mail):
How about drawing prosecutors and public defenders from the same pool.
2.18.2008 4:20pm
JSwift (mail):
The absolute immunity enjoyed by prosecutors for the duties as an advocate reinforces the "win at any cost" mentality.

The following article urges a reconsideration of this policy.

2.18.2008 4:26pm
bearing (mail) (www):
33yearprof:


It was my job to make certain that the police and the prosecutors did their job, and did it properly.

My focus was on the police and prosecutor.



Thank you so much for that concise statement. I always used to have a little niggling doubt that it was really and truly ethical to defend a known-to-be-guilty client (not sure what I thought would be ethical -- trying to persuade him to confess?) I see now that this is because I thought of the defense attorney's mission to be "to get the client off." When you put the mission as "to force the police/prosecutor to do their job correctly", the rightness of a vigorous defense of every client seems much more obvious.
2.18.2008 4:27pm
JSwift (mail):
For some reason, the link was deleted.

;Reconsidering Absolute Prosecutorial Immunity
2.18.2008 4:32pm
AnonLawStudent:

How about drawing prosecutors and public defenders from the same pool.


At least one arm of the government follows that exact practice: the military.
2.18.2008 4:38pm
John Herbison (mail):
A capable lawyer should be able to present and argue either side of a lawsuit with roughly equal facility. I have worked for twenty years in private practice as primarily a criminal defense lawyer.

I have never felt the desire to prosecute. Oh, I could do so, if I set my mind to it--just because they're fish, and just because they are in a barrel doesn't necessarily mean that we shouldn't shoot them. The unpleasant part, though, would be having that stick implanted up my butt.
2.18.2008 4:43pm
Public_Defender (mail):

I hope you still thoroughly questioned and conversed with the client, because if you didn't you could be overlooking some very valuable and possibly exculpatory evidence, good arguments and ways to undermine the opposition's case, etc.

33yearprof pretty accurately described the job. Our job is frequently a watchdog on the system. Most of my appeals can be summed up as, "they didn't follow the rules, send it back."

But you have a good point: None of us are perfect, and sometimes we don't listen as well as we should (look at studies about how well doctors listen to their patients, for example).

That said, like 33yearprof, I have had clients who insisted that I had to believe they were innocent to do a good job. The reality is that I rarely know what really happened, and if I do know for sure, it's usually bad news for my client. So I just tell my clients that it's my job to give them the benefit of the doubt.

The unfortunate reality is that after trial, actual innocence is one of the weakest claims you can bring. The procedural and evidentiary barriers are almost always insurmountable. Clear DNA evidence is rare

The main lessons of the spattering of DNA acquittals are 1) eyewitnesses are wrong a lot more than people think; 2) my colleagues on the defense bar make far too many mistakes; and (I'm not excluding myself from this); and 3) witnesses, prosecutors, and cops sometimes lie.
2.18.2008 4:45pm
jadmp (mail):
I am a former Army JAG (Trial Counsel/Prosecutor). Trial Counsel are assigned to the command of the General Court Martial Convening Authority while defense attorneys are assigned to Trial Defense Service. We have different supervisors and rating chains, separate offices and support staff. This is done to ensure no ethical problems, real or perceived. We are only drawn from the same pool in the sense we are all military attorneys. But it is not the case that one week you prosecute, the next you defend. If we were drawn from the same pool, I think this would create conflict of interest problems and reasonably raise doubts in client's mind of the confidentiality of information.
2.18.2008 5:27pm
BruceM (mail) (www):
Whether they are guilty or not doesn't matter one bit. Moreover, who am I to decide they are guilty? Assuming the client doesn't tell me that he/she "did it" who are you to determine for yourself that they are guilty?

Moreso, what does guilty mean in that context? Factually guilty? Legally guilty? Charged with selling powder cocaine but tells you that it was heroin, not cocaine - guilty?

I once had a client who shot and murdered someone with whom he had a long-standing argument in broad daylight. He said the other guy pulled a gun on him, first. The 3 witnesses said otherwise. But he wanted to assert self-defense and testify in his own defense. Frankly, I did not believe him. But I'm not the jury. Why should I not defend him as best I can? Maybe I'm wrong, maybe he really did shoot in self defense. I'd be a total jackass, and should be disbarred, if I refused to represent clients based on my subjective determinations of their guilt.

As for the clients who are guilty and admit it, the scope of representing them comes down to trying to work out the best plea bargain possible, with the threat of jury trial as my one bargaining chip with the state. In my experience, prosecutors are lazy and have lots of cases and don't like trials. I can see how some people would have a hard time trying to work out a plea deal for someone who admits he raped a child. But I think about how horrible prison must be, and how long one year actually is, and I feel sorry for them when the bargaining comes down to a certain number of decades.
2.18.2008 5:31pm
whit:
"1) eyewitnesses are wrong a lot more than people think; 2) my colleagues on the defense bar make far too many mistakes; and (I'm not excluding myself from this); and 3) witnesses, prosecutors, and cops sometimes lie."

i notice you mention that defense attorneys sometimes make MISTAKES but witnesses, prosecutors, and cops sometimes LIE

you don't mention that defense attorneys can lie too. why does that not surprise me?

amazing the bias inherent in the system here :)

fwiw, any good cop (or anybody involved in the legal system) knows that ANYBODY can (and does sometimes) lie.

ime with prosecutors, they are a bit too willing to believe alleged "victims". they need more cynicism.

i've seen that over and over again. as soon as the victim tag is placed on somebody, prosecutors have incentive to believe them
2.18.2008 6:14pm
Vinnie (mail):
I think this would create conflict of interest problems and reasonably raise doubts in client's mind of the confidentiality of information.


I don't know. With random assignments of prosecute/defend a merit system strictly based on win loss. I would prefer that to the vast disparity in public defenders resources.
2.18.2008 6:16pm
AnonLawStudent:
jadmp,

Correct me if I'm wrong, but the assignment changes on a per-tour basis, i.e., the same JAG will prosecute, defend, and handle civil matters at various points in his career. In other words, there isn't a talent or resource differential depending on the table at which he is sitting, because a career military lawyer will do all-of-the-above. That was my point.
2.18.2008 6:28pm
jadmp (mail):
Vinnie,

I understand the point, but think the problems such a solution creates does more harm than good. Especially in a military environemnt where you have a chain of command, having prosecutors and defense attorneys working under the same superior officer would certainly raise doubts as to the zealousness of the representation and if it is even possible to keep information confidential. The perception would be that the result will be "whatever the General wants it to be." (This is a criticism of the military system, where all the jurors work for the Court Martial Convenin Authority and are personally picked by him or her, as do the witnesses in most cases).

The better solution is, as you suggest, to equalize resources.

As an aside, while not devoid of such concerns, the military is less prone to keep track of conviction rates or outcomes in the way many civilian agencies are. I can't back this up with any hard evidence, but it was often stated by my bosses that we recommend prosecution if it is the right thing to do rather than if we can promise a win. (I will not weigh in on whether it was always the "right thing to do," but the pressure to win at all costs was not there).

Anon,

It is possible that a career will cover all paths. But it is far more common for someone in Crim Law field to either gravitate toward prosecution or defense work. Tours as a prosecutor tend to have more flexibility as Trial Defense Service (TDS) prefers a commitment of several years. This is because they actually have more comprehensive training than Trial Counsel get (which may be a neccesity because in some instances the defense counsel may be geopgraphically separated in a small office with less direct support immediately available).

You actually point to what in my opinion is a weakness in the JAG Corps. Officers tend to come in and in their first assignment do 6 months or a year in Legal Assitance (wills, creditor problems, minor legal problems), then may move to Administrative Law for another 6 months to a year. After showing their mettle, they may go and serve 1-2 years as a Trial Counsel, or if they will sign on longer, go to TDS. But they do not have to and may go to another non-Crim Law job. Shortly thereafter, they have to go for a year of advanced schooling (in a field of military law of their choosing). The follow on assignment may be in Claims, Operational Law, Contracts, Fiscal Law, Environmental Law, or Criminal Law. This assignment is usually in a supervisory capacity. So, after 5-6 years in, they may have had a little as a year or so of experience in any one area and may be supervising junior attorneys with very little experience. My point is you tend to get a breadth of experience, but it is relatively rare to have much depth until you are very senior (say 14-16 years in). It is possible to specialize and stick with one field but this is somewhat unusual. If you do, you are viewed as trading off chances for promotion for your chosen field of interest.

Another interesting thing is that the salaries for all are standardized and paid by the service. So there are no issues with resource differential there. Remember, the military has no regularly sitting trial courts. Each court martial is created by order of the Convening Authority and has jurisdiction only over the offenses charged. The consequence of this is that the Government must provide the court room, the court personnel, the court reporter, etc. And the entire defense resources come from the government, too. So, if defense counsel wants an investigator, the government will have to detail one. Expert witnesses are paid for by the government. And production of all witnesses are paid for by government. The Trial Judge (who is also paid out of the Service's pay accounts and like TDS is part of a separate command) will rule on all denied funding requests after a motion by defense counsel. While not a sure thing that defense will get what it wants, they tend to get all reasonable requests. The result is that you often times have agreements worked out early do to the expense the government projects it may save under a palatable deal (remember, the commands budget is fixed). So, generally speaking, there is less of an issue with resource differentials (though, they may suffer from worse accomodations, infrastructure, office space, etc., as that is provided by the post and I do think they tend to do worse with that stuff).
2.18.2008 7:24pm
Fred the Fourth (mail):
Following up on 33yearprof's comments:
My father, a non-lawyer, once explained the criminal defense attorney's role this way (to a 15-year old kid): "to see that the defendant's rights are protected."
I still think that's basically correct, if you really think about what's covered under the word "rights".
2.18.2008 8:27pm
whit:
the job of a defense attorney is, first and foremost if possible, to get the case dismissed, and secondarily to get his client off.

cmon.

frankly, i don't even see something necessarily wrong with that, but that's how it is. the job (not that they always do this properly) of the prosecutor is to get a conviction WHEN they believe the facts support a conviction.

also, in my jurisdiction (in relation to disparities between defense and prosecutors) public defenders are paid more than prosecutors. i always found that interesting. maybe that's because private defenders are (generally) paid WAY more.
2.18.2008 8:37pm
SusanK:
The attorney's salary isn't relevant to disparity in resources. A prosecutor has the full investigative force of the law (and lots of officers, etc.) to gather evidence for trial.
No public defender or private defense attorney's client in the world is likely to have the resources available to the state.
2.18.2008 8:49pm
John R. Mayne (mail):


Far too many of them seem to value "getting a conviction" over ensuring that the convicted person is actually guilty of the crime charged.



I'm suspecting you mean "accused" (because once they're convicted, I confess that I stop investigating the case, though I'd turn over any Brady material. I can't see post-conviction follow-up as normal given the pre-conviction work).

At any rate, "Far too many" is.... what exactly? Do you know the denominator here? What percentage are we talking about; it must be high to be "extremely suspicious" of prosecutors.

As to the conviction-hungry prosecutors, this just isn't my experience. It happens, to be sure. There are high profile cases where prosecutors have done bad things. But the day-to-day work of prosecutors is dominated by people trying to do the right thing. I've personally dismissed at least 50 cases that were issued because evidence developed that caused me to have substantial doubt about the defendant's guilt. (I expect the number is a lot more, actually, but I don't keep count as to dismissals and reasons for them.) I've rejected hundreds of cases sent in by law enforcement for prosecution.

I've seen murder cases dismissed because real doubt crept in pre-trial. Prosecutors who develop their own doubts about cases should - and usually do - investigate to try to cure those doubts, and then dismiss if those doubts remain.

In reviewing your 702 paper, I don't see a systemic review of what percentage of prosecutors are more concerned with getting a conviction than actual guilt. Did I miss it? Or is "Far too many" one percent of prosecutors? Certainly, even one bad prosecutor can do a lot of harm, but tarring prosecutors with such a broad brush seems misguided to me.

The percentage of people in the system who are wrongfully convicted is miniscule.

I agree that defense attorneys (especially public defenders) are vital to the system working well; most of the very bad results are assisted by an abdication by the defense attorney. I hate to see that.

But if you're going to be "extremely suspicious" of prosecutors, you ought to have thought that out. I'm unconvinced both by my experience and by the evidence you give.

--JRM, not speaking for my employer, nor am I speaking about any active case.
2.18.2008 9:38pm
Dave N (mail):
As a prosecutor, I know that there are good and bad among both prosecutors and the defense bar. My state has special ethical obligation for prosecutors--and that is to seek justice.

My rule is that I have to be convinced in my own mind that a person is guilty before I even charge him or her. If I charge someone I am not sure is guilty, I believe I am acting unethically.

That said, I also believe I have an ethical duty to diclose exculpatory evidence and be fair in my dealings--and to resist junk science and all that entails.
2.18.2008 9:42pm
whit:
"No public defender or private defense attorney's client in the world is likely to have the resources available to the state."

riiiight

the bias here is amazing. first the statement that defense attorney are sometimes mistaken. no mention that they sometimes lie. but prosecutors, cops and witnesses are mentioned to lie.

cmon

you think the OJ defense team didn't have the resources available to the state? how about claus von bulows.

and generally speaking, like DUI's (i've investigated hundreds) - defense often has WAY more resources - time, money, etc. than the state does.

you often have junior (and clueless) prosecutors, with little case prep compared to defense attorneys who make hyooge $$$ doing ONLY dui's.

as usual, when people want to make a point, and come at it from a biased position, they only see "their side".

on a murder trial with a poor client, i totally agree. but making this across the board claim is pretty silly. i've testified as witness for both prosecution and defense and seen the relative levels of resources and prep they have for many cases. the idea that the prosecutor's office is some sort of super rich, limitless resource juggernaut and the defense as poor, unprepared fighters for good who have little to no access to resources in many cases is flat out absurd.
2.18.2008 9:48pm
whit:
"I've seen murder cases dismissed because real doubt crept in pre-trial. Prosecutors who develop their own doubts about cases should - and usually do - investigate to try to cure those doubts, and then dismiss if those doubts remain"

as with cops. cops routinely look for (and find) evidence that exonerates somebody, or takes the focus off them, etc.

the vast majority of those on the proscutor side do not want an innocent convicted. otoh, very many on the defense side do want to see dismissals/not guilty even when their client is guilty. after all, which defense attorneys get higher fees? those who routinely get their clients off, even when they are "obviously guilty" or those who don't?

even if i was innocent, but accused/charged, i'd go for the defense attorney with a history of getting not guilty's on the obviously guilty to work for me. who wouldn't?
2.18.2008 9:57pm
CaseyL (mail):
Whit - I hope you're not arguing that OJ and Von Bulow are typical defendants with typical defense attorney resources. You must surely know they're not.

Most, the vast majority of, criminal defendants get Public Defenders, not high-priced Dream Teams; and those PDs simply do not, as has been pointed out, have access to the institutional resources as the Prosecutor.
2.18.2008 10:16pm
lyarbrou (mail):
For insight into the criminal justice system and its malfunction I suggest reading the new nonfiction book by John Grisham.

The Innocent Man: Murder and Injustice in a Small Town

Then do a Google search of "Gilchrist Oklahoma DNA" without the quotes and scan some of the results.
2.18.2008 10:27pm
whit:
"Whit - I hope you're not arguing that OJ and Von Bulow are typical defendants with typical defense attorney resources. You must surely know they're not. "

no. i am arguing that it is true that many poor people charged with crimes have attorney with vastly less resources than the prosecutors.

i am also saying that many others charged with crimes have resources greater than the prosecutors (and experience greater and...) such as any # of dui cases i routinely see and other type cases.

prosecutors have budgets, and the idea that the prosecutor is some sort of all powerful deep pocketed machine is simply not borne out by my experience - time and time again.

another interesting phenomenon i have witnessed (in two jurisdictions thus far) is that lower court (misdemeanor) judges tend to err WAY on the side of the defense in various motions, etc. i think this is largely because it's an easy way to dismiss cases. most prosecutors do not appeal these decisions for a silly misdemeanor. i've seen this on miranda issues, search and seizure issues, etc. miranda SHOULD NOT be stricter on a misdemeanor case than a felony, but in reality it is. in the latter case, the prosecutors are much more likely ot actually know the law, prepare a good brief, etc. and the judges are not as likely to just accept defense motions on their faces.

i have just worked with the court system way too long to believe this skewed viewpoint that many have proposed exists here in prosecution vs. defense.
2.18.2008 11:10pm
BruceM (mail) (www):
Whit: with all the wealth and resources OJ had, it was not anywhere in the same ballpark as the resources of the state. It never is. The state has unlimited amounts of money, thousands of officers and investigators, the most sophisticated forensic testing (which is "free" to prosecutors but not defense lawyers - not even public defenders). In some cases, the state can and does get help from the federal government (FBI, DEA, ATF, etc.). Now you have the full power of the federal government behind the prosecutor. Of course, in federal prosecutions it's always that way.

The state is allowed to wiretap witnesses. The defendant is not - not even after he's charged may he get wiretaps on state witnesses. The defendant does not get to listen to all the prosecutor's phone calls to his witnesses, but if the defendant is in jail the prosecutor gets to listen to every phonecall he makes - even those that have nothing to do with breaking more laws. There was recently that case where a defendant said something insensitive on the phone at jail, and it was used against her at punishment. Defense attorneys are not allowed to bring perjury charges against state witnesses, but the prosecutor can threaten every defense witness with perjury charges.

I have long felt that all defense attorneys (but not pro se defendants), as officers of the court, should have the same right as the prosecutor to indict or secure an indictment from a grand jury (if required) for perjury a witness in his client's trial. Prosecutors cannot be relied upon to prosecute lying cops who secure convictions for them and advance their prosecutorial careers. Why should only one side be allowed to threaten the other side's witnesses with prosecution for "not telling the truth"?

Anyway, to equate the resources of the government (state or federal) with those of even the wealthiest defendant with the most powerful team of lawyers is simply insane.
2.18.2008 11:14pm
DavidBernstein (mail):
John R. Mayne:

I admittedly don't have any way to quantify it. But just about every time I read in detail about a "miscarriage of justice" case, it seems that the prosecutor engaged in either illegal behavior (like withholding exculpatory evidence), inappropriate behavior (relying on obvious "junk science") and/or incompetent behavior (becoming so focused on a defendant's guilt that he ignores what in retrospect seems like an obviously more plausible alternative theory). And don't get me started on the mass-hysteria day care child abuse prosecutions of the 80s and early 90s, which involved gross misbehavior and equal parts of stupidity by a series of prosecutors in vastly different jurisdictions all across the country. The fact that these witch hunt trials took place everywhere from sophisticated urban areas to backwater rural jurisdictions suggests a systematice problem, not just a few bad eggs.
2.18.2008 11:41pm
Prosecutorial Indiscretion:
The biggest check on prosecutorial abuse is always going to be the prosecutors themselves. Better defense attorneys can help, but under our current criminal justice system putting people with better judgment and character into prosecutorial positions will almost certainly be the single most effective action to maximize just outcomes.
2.18.2008 11:41pm
DavidBernstein (mail):
P.S., and as my paper points out, with regard to forensic science, the system puts few checks on the misuse of such evidence, unfortunately, leaving it up to the self-restraint of prosecutors, who don't exactly always restrain themselves.
2.18.2008 11:42pm
John R. Mayne (mail):
David:

Thank you for your response.

Of course, when you read about miscarriages of justice, they will often have prosecutorial error or misconduct as part of it. But that leaves us without the denominator; the cases you don't read about, that occur every day in every jurisdiction.

I'm quite familiar with the satanic-cult child abuse prosecutions; I've read the very long appellate court case about one of the most famous in California, and I (barely) know some of the people involved.

I'm aware of the errors and misconduct that occurred in those trials. I agree entirely that those involved very bad judgment at best, and wholesale misconduct at worst.

But what percentage of prosecutorial offices were involved in the satanic-ritual abuse cases? A few offices ran a large number of cases - but most avoided them entirely. The lessons of McMartin were not lost on most offices. The fact that these trials took place everywhere from urban areas to rural areas indicates that bad judgment can be everywhere.

Perhaps I am wrong, but I detect the whiff of a sentiment that if a large urban prosecutorial office can be fooled, what chance do the poor bumpkins in Rural County, America have to get it right? Else, it's simply a few offices out of very many who got it very badly wrong.

I think your conclusions do not logically follow. I concede that there are still places where the always-believe-the-victim meme exists, but I think there are far fewer prosecutors and offices which blindly believe than those who try to unravel the truth. I think you've underestimated the denominator problem; the good work is largely unseen by an academic view of misconduct.

I appreciate your willingness to address the issues I raised.

--JRM
2.19.2008 12:39am
BruceM (mail) (www):
Prosecutorial Indiscretion: how do you suppose we do that? The more ethical a prosecutor is, the more likely he is going to dismiss a case. Prosecutors who do the "right thing" and dismiss cases because they feel there is insufficient evidence to convict or sufficient evidence to support an affirmative defense do not advance in their careers at the DA's office. In my experience, prosecutors justify their decisions to prosecute bad cases on the unethical pretext of "if there's doubt, let a jury decide it." That was Chuck Rosenthal's motto for years (disgraced Harris County, Texas DA) until recently a Harris County grand jury indicted a member of the Texas Supreme Court and fellow Republican. He had his office dismiss the indictment, saying he felt there was insufficient evidence to support the charge. What happened to letting juries decide such cases?

The best solution is for prosecutors to have to spend one year in prison every time they try a case which leads to an acquittal. It should be the crime of improper prosecution. There should be negative consequences for choosing to prosecute someone when there is insufficient evidence to support conviction other than the slight embarassment of "losing" a trial. You put every prosecutor who charges someone who is eventually acquitted into prison for a year (even 6 months - make it a misdemeanor) and the notion of prosecutorial ethics and discretion will be reborn overnight. Only worthwhile cases will be prosecuted.

Either that, or judges will conspire to have every defendant convicted so that their friend and former co-worker the prosecutor won't get in trouble. That's one possible negative consequence of implementing this. Even if the consequence were something less than criminal charges, there needs to be a serious consequence to prosecuting someone who is ultimately acquitted.

An acquittal means the justice system is working properly, but the prosecutor's office is not. If prosecutors only prosecuted the right cases, there would never be acquittals. All the evidence is there. Prosecutors should never lose. And they should be charging half the number of people they currently are. Unfortunately there's no way to take into account the improperly charged cases that result in guilty verdicts, for whatever reason. That's where prosecutorial ethics will always be a factor. But that would happen much less often if there were consequences for losing. The marginal cases would not be prosecuted - as they shouldn't.

David: One problem is when the state's junk science expert is allowed to testify, but the defendant's expert called to rebut it is thrown out on Daubert grounds. For every expert there is an equal and opposing expert; however, the state is more likely to convice a judge of an expert's qualifications than is a defendant, especially for newfound forensic methods. If it's wacky enough it might be very hard to find an expert who specializes in testifying against it, so you'd have to call someone in another field to testify. But the state's expert (and proponent of the evidence) will have written a peer-reviewed paper about it, will have done it before, and will be able to explain to a lay person why it's not junk science. Not so with the defense expert called to rebut the newfound forensic method. How do you rebut an expert who says he can match bullets to marks on bone, so as to show a certain gun made marks on a certain bullet and that bullet made marks on the bone, thus he can say with reasonable scientific certainly that x gun fired y bullet? It's so nutty, who could you even call? A bone doctor? A bullet expert? They have not written a peer reviewed paper saying such a nutty idea cannot work, so a lot of judges would say they're not qualified to testify against it.

I'm not saying that's a proper application of Daubert and its progeny, just what I've seen and would expect from a lot of judges.
2.19.2008 12:51am
AnonProsecutor:
I am a prosecutor on the state level. I wish I had the massive resources some out there think I have. On many cases, the police respond to a call, take a few statements, and then write a report. I may get a little follow up, but I am not going to get much. That's all I have to work with. Furthermore, the defense attorney gets everything I have. A defendant of middle-class status willing to spend money can easily out gun me. For your run-of-the-mill case, I don't have the time or money to swat flies with nuclear bombs.

I also have a massive caseload. Often times defense attorneys will approach me and ask me about a case they are entering an appearance in. I tell them that I need to go look at the file before I can talk to them. I tell them this because I have no clue what the case is about. I have so many cases, I can't remember them all -- especially when a case is of the plain-vanilla variety. I read each file thoroughly before filing charges, and I follow up as needed before filing charges, but once I decide to file and draft a charge, I dare not let the grass grow beneath my feet -- there is stack of files waiting to be reviewed. I wish, like the Wizards of academia and the appellate bench, I had time to analyze each case to death. But I don't. I am a human and not a Wizard.

And like an earlier commenter, I too, am always looking to see justice done. I try hard to weed out bad cases before they ever see a courtroom, i.e., not file them. I am not afraid to nolle a case when that is what justice requires. Do I want to see the guilty convicted? Yes. Do I want to see the innocent convicted? No. I work hard and try to do the right thing. When I fight, I fight honorably. At the end of the day, I hope justice is done.

But, people are right -- the state has a massive amount of resources that could be unleashed in any given case. The truth of the matter is, however, that the vast majority of cases will not see even a fraction of the state's might.
2.19.2008 1:13am
neurodoc:
Radley Balko, yes, we did discuss that case, in which Hayne first "exculpated" the probable murdress with his utterly bogus and unsupportable medical conclusion, then turned around to serve as her expert in a her compensation case based on his determination that the baby's death was vaccine-related. No, the mother didn't sue the vaccine manufacturer, she sought compensation from a federal program.

Anyway, there seems to be no end of outrageous Steven Hayne cases. So why hasn't he been stopped by now? Is he not an embarrassment to the state of Mississippi, or do the "responsible" medical and legal authorities there have no shame? I don't believe they could be so stupid as to not realize what a lying whore this doctor is.

[Not to go too far afield, but while on the subject of forensic pathologists, what about the Arkansas one that may have helped shield Bill Clinton's anesthetist mother from a negligence claim, sending someone to prison who probably shouldn't have gone because of the doctor's suspect testimony. And oh yes, the doctor was a Clinton political appointee.]
2.19.2008 1:23am
BruceM (mail) (www):
AnonProsecutor: not every case (esp. on the state level) is worthy of massive resources. In the run of the mill case there's not much to do but have a few statements taken. You have the power of the police and full executive branch at your disposal. Defendants can get private investigators to ask people to give statements, you can get cops with badges and guns and handcuffs hanging on their belts to GET statements from people.

And if you ask for something, you'll get it. Have you ever asked for DNA testing to be done on a particular peice of evidence and been told no, it's too costly?

I'll take your word that you're an ethical prosecutor, and I thank and praise you for it. If you really wouldn't have a problem dismissing a case when you feel it's required, I'm glad you're a prosecutor. In my experience, that's not the average case. One adjoining county I sometimes practice in has a "no dismissal" policy per edict of the elected head D.A. I once had a case that was clearly B.S. and the ADA conceded to me that he'd dismiss it if he could, but he didn't have the authority and the head DA would not do so once a case was indicted. I think both of them acted unethically and both should be disbarred, even though the ADA was doing the best he could and gave my guy deferred adjudication on a 2nd degree felony with a deadly weapon (my guy was already ON probation for DWI 3rd). I think he should be disbarred (or at least disciplined) for continuing to practice in that DA's office... sucks to be in that situation, but by practicing there he is furthering the unethical conduct of the DA.

Harris County prosecutors are all in it solely to climb the latter and be "promoted" all the way to District Judge - the highest position in the Harris County DA's office (every single one of the 22 district judges in HC is a former HC prosecutor). I had a case last year where the cops lied about having certain evidence, which the DA later conceded to me was "lost" (I know they never had it to begin with, and the police report was false in that regard). When she was telling me that they'd dismiss the case (no choice w/out that evidence), she couldn't even say the word "dismiss" to me... it was kinda funny.

She stuttered saying: "Well, since we don't have that evidence, we'll have to... you know... um.. like.. dis.. um.. yeah dism... dism... get rid... "

Me: Dismiss it...?

Her: Yeah that.

Funny in retrospect. At least they dismissed it, but it should have never been charged in the first place. And if you believed the state's case, you'd be surprised to learn that every single videocamera at Houston's GHW Bush International Airport (IAH) was broken on the day of the offense. Scary thought for you homeland security buffs.
2.19.2008 2:42am
Public_Defender (mail):
BruceM Writes:

Harris County prosecutors are all in it solely to climb the latter and be "promoted" all the way to District Judge - the highest position in the Harris County DA's office (every single one of the 22 district judges in HC is a former HC prosecutor).


We have a joke where I practice:

Q: What do you call a prosecutor who cheats case after case?
A: "Your Honor."

Most prosecutors are honest, but enough thrive through dishonesty that the system needs defense attorneys to curb the worst abuses.

You are also right to point to the problem of line prosecutors not having authority to dismiss or reduce charges when the facts require it. Often, the prosecutors who indict cases indict as high as they think the case can theoretically go.

But then if the facts don't turn out to be as bad, too many line prosecutors aren't authorized to do anything accept any plea accept a plea to the entire indictment. Others can't offer a misdemeanor when the case has been indicted as a felony. Even asking for authority to reduce charges is a sign of weakness that the line prosecutors are loath to show.

My rule is that I have to be convinced in my own mind that a person is guilty before I even charge him or her. If I charge someone I am not sure is guilty, I believe I am acting unethically.
2.19.2008 5:20am
Public_Defender (mail):
Sorry about the double post, but I hit "Post Comment" too soon.

BruceM Writes:

Harris County prosecutors are all in it solely to climb the latter and be "promoted" all the way to District Judge - the highest position in the Harris County DA's office (every single one of the 22 district judges in HC is a former HC prosecutor).


We have a joke where I practice:

Q: What do you call a prosecutor who cheats case after case?
A: "Your Honor."

Most prosecutors are honest, but enough thrive through dishonesty that the system needs defense attorneys to curb the worst abuses.

You are also right to point to the problem of line prosecutors not having authority to dismiss or reduce charges when the facts require it. Often, the prosecutors who indict cases indict as high as they think the case can theoretically go.

But then if the facts don't turn out to be as bad, too many line prosecutors aren't authorized to do anything accept any plea accept a plea to the entire indictment. Others can't offer a misdemeanor when the case has been indicted as a felony. Even asking for authority to reduce charges is a sign of weakness that the line prosecutors are loath to show.

Bruce N writes:

My rule is that I have to be convinced in my own mind that a person is guilty before I even charge him or her. If I charge someone I am not sure is guilty, I believe I am acting unethically.

One problem is that in many larger jurisdiction, indictments and trials are handled by two different prosecutors. In theory, that could acts as a check. In reality, office politics requires the line prosecutor to find a way to fully prosecute an indictment he or she did not write.
2.19.2008 5:29am
Radley Balko (mail) (www):
So why hasn't he been stopped by now? Is he not an embarrassment to the state of Mississippi, or do the "responsible" medical and legal authorities there have no shame? I don't believe they could be so stupid as to not realize what a lying whore this doctor is.

No, they know. Just about every institution in the state has failed to rein the guy in. Courts, legislature, executive, press, and professional organizations. I think the main reason is that the people in power are getting exactly what they want from him.

The only people getting screwed are the innocent people sent to prison and the families of the poor people whose murders aren't worth investigating.

The tide may finally be turning, though. Two exonerations this month, and I think more are on the way. Sooner or later, they're going to have to start paying attention.
2.19.2008 7:32am
BruceM (mail) (www):
Public_Defender: what about a rule of ethics that says all prosecutors must have the ability to dismiss cases on their own, without authority of approval from anyone else in the DA's office? They can confer with other prosecutors about whether or not to dismiss the case, but at the end of the day, they commit an ethical violation if they practice law as a prosecutor where they do not have the individual ability to dismiss a case when they determine it is proper to do so.

I'd certainly support such a rule.
2.19.2008 9:27am
PD in Fla.:

I used to feel somewhat contemptuous of defense attorneys, wondering how anyone can defend people they know are guilty, and I still couldn't do it myself.


i'm somewhat suprised that someone in the legal profession who studies and teaches the constitution for a living would have such a view. i expect such a comment from an average juror...but law professor? wow.
2.19.2008 9:52am
Charlie (Colorado) (mail):
<blockquote>
Far too many of them seem to value "getting a conviction" over ensuring that the convicted person is actually guilty of the crime charged.
</blockquote>

The root cause here is that we measure prosecutors on their win/lose ratio. Observe this from above:

<blockquote>
An acquittal means the justice system is working properly, but the prosecutor's office is not. If prosecutors only prosecuted the right cases, there would never be acquittals. All the evidence is there. Prosecutors should never lose.
</blockquote>

The point he's making is actually a good one --- prosecutions shouldn't proceed unless the prosecutor has all their waterfowl single-file. But if we say "prosecutors should never lose", the pressure on the prosecutors to make <i>sure</i> they never lose is great.

I don't know enugh about the practice of law to know how to change this. One possible idea is to make it "prosecutions to guilty verdicts should never be reversed" but that seems like it might just increase the payoff for losing evidence right after a conviction.
2.19.2008 10:44am
JimT (mail):
My friend Alan Kaplan died last year. He spent most of a long career as a defense attorney. He once summed up his profession to me by saying that when he goes into court the cops "know" his client is guilty, the prosecutor "knows" his client is guilty, the judge is inclined to believe his client is guilty, and the jurors feel that the cops wouldn't have arrested his client if he wasn't guilty. "I'm the only person in the whole room who is on his side."

Talk about unbalance!
2.19.2008 10:47am
Kenvee:
Bruce
And if you ask for something, you'll get it. Have you ever asked for DNA testing to be done on a particular peice of evidence and been told no, it's too costly?


Yes, actually. DAs are state agencies and have budgets like anyone else. Where you got the idea that forensic testing is "free" to prosecutors, I have no idea. Ours comes straight out of our budget, and we have to pick and choose what we're going to test. If you have ten hairs to test, then you pick the one best hair and test it. If the defendant's DNA shows up in the victim's vagina, then you don't waste money testing the sheets. Etc. The DA is accountable to their county governments for their budgets, and accountable to the people on election day. "Fiscal responsibility" is a huge buzzword in elections, you know.

The idea that prosecutors should NEVER get acquittals is frankly absurd. I heard a saying when I started prosecuting -- anyone who says they've never lost a case isn't trying the right cases. A lot of cases are hard, and it's impossible to say in advance what's going to happen at trial. This is particularly true in cases of child abuse or other situations where you have a traumatized victim who sometimes is able to talk to you clearly about what happened and other times is going to be crying so hard she can't speak a word. Depending on which way she is in court, you may get a conviction and you may not. But that case absolutely should be tried.

You may think that "let the jury decide" is a cop-out or insincere, but we rely on the jury system for a reason. We decided as a country to let juries of ordinary people make the tough calls, not elected officials or overworked and underpaid career attorneys slogging it out somewhere. You yourself said "who am I to decide if they are guilty?" If your client gives you a story and wants you to present it to the jury, then you do so and let the jury decide. That's exactly how it should be on both sides. If we have a victim who reports a crime, should we just pat them on the head and send them on their way? We investigate, we get the best evidence we can, and then we put it in front of the jury because they're the ones who are supposed to make that decision. Sometimes we think they get it wrong, sometimes it's proven they get it wrong later (and that goes just as much for wrongful acquittals as wrongful convictions, but you don't hear much about those), but in the end, it's the system we have and the one we purport to support as attorneys. Prosecutors have an obligation not to present a case that isn't supported by probable cause. Whether you get from there to BRD with a jury is going to depend on a lot of different factors, and most of them have nothing to do with whether the defendant is guilty or innocent, or whether the case should be tried in the first place.

You've given a lot of examples of bad prosecutors and police. I could give you an equal number of examples of dishonest defense attorneys who've manipulated and outright lied to help their clients get off. That's not the point. There are problems on both sides, but I still firmly believe that the majority of both prosecutors and defense attorneys are working as honestly in the system as they can. They're doing their jobs. I don't paint all defense attorneys with the same brush after I see one lie, cheat, and steal his way to an acquittal, so please grant prosecutors the same courtesy.
2.19.2008 11:35am
Kenvee:
Charlie
One possible idea is to make it "prosecutions to guilty verdicts should never be reversed" but that seems like it might just increase the payoff for losing evidence right after a conviction.

I do appeals, and the State wins something like 98% of the time, so that's already pretty close to the case. But a lot of the errors alleged in the appeal don't have anything to do with errors by the prosecutor. There are errors by the judge, errors by the jury (bringing in outside evidence, etc), errors by defense counsel (ineffective assistance, anyone?), and errors by witnesses (blurting out information when you've told them not to or that you had no idea they'd say), to name a few. Maybe say "no case should ever be reversed for insufficient evidence," but in that case I'd like to have a lot more consistency in how our courts actually decide sufficiency.
2.19.2008 11:40am
Radley Balko (mail) (www):
I don't think prosecutors shouldn't try hard cases.

But they absolutely should only try cases where they personally believe the defendant is guilty, and where they personally believe they have the evidence to convict.

I'm reporting right now on a case where an assistant U.S. attorney actually said out loud at trial (the jury was out of the room) that it doesn't matter if he believes the evidence he's putting on--it only matters what the jury believes.

I was pretty surprised (and horrified) that a federal prosecutor could actually believe that.
2.19.2008 11:45am
PersonFromPorlock:
BruceM's plan to jail losing prosecutors is a little hyperbolic, but requiring the state to make a winning defendant whole (paying his legal fees, compensating for lost income, lost time, emotional stress etc.) might appeal to the public on 'simple justice' grounds and could discourage frivolous prosecutions.

The danger, of course, is that prosecutors and police would conspire to manufacture convictions in order to avoid being blamed when the case went wrong, and judges would let them because preserving the aura of state authority is very much in judges' interest. That, rather than simply presenting a losing case, would deserve jail time.
2.19.2008 11:53am
hattio1:
To the various prosecutors and LEO out there;
You are correct that MOST prosecutors/LEO don't want to prosecute the innocent. There are some dishonest prosecutors, and I believe it is far, far higher than the one percent someone suggested. But the bigger problem is that once a prosecutor/LEO convinces themselves that someone is guilty, they have to have a holy vision from on high to unconvince themselves. And that is definitely not one percent of prosecutors. It's probably far closer to 99%.
The other problem is prosecutors/LEO who don't think it matters if they are guilty of THIS crime if they are guilty. IOW those who will charge felony assault, when they know damn well it's a misdo case. Or will refuse to dismiss even when they beleive the person is innocent this time because they believe they are guilty of unreported crimes. This is extremely common in DV cases. And, frankly, I would say MOST prosecutors will over-charge, and close to a majority will refuse to dismiss if they merely think they have a guilty person for the wrong crime.
BruceM's plan to jail prosecutor's for losing is a bit radical for me. But, I do think I have a solution that would work. Fire 1/2 the prosecutors and immediately move them all up to the top salary for their agency (including new hires). Reduce their salary by one percent (of top salary, not current salary) for every case they lose. I've also thought for quite a while that we should have 1/2 the LEO's who are paid twice as much. Unfortunately, if that was implemented the LEO's who have been around the longest (which IME usually means the dirtiest) would keep the jobs rather than the guys right out of the academy.
2.19.2008 12:34pm
33yearprof:
We don't make this up, you know. The evil that bad prosecutors do far, far exceeds that bad that incompetent DC can achieve.

An Ingham County prosecutor and a detective knew before trial that video evidence showed Claude McCollum was in another building when a Lansing Community College professor was killed, according to a state police report obtained by the Lansing State Journal.

Still, prosecutors went ahead with the case, and McCollum was tried and convicted of murder.

McCollum, whose conviction was thrown out last year, is suing multiple agencies for damages. County prosecutors have always maintained they did not know of a 2005 report that described exonerating video evidence until after the trial began.

Even if true, how is this a defense of the prosecutors' behavior? Evidence surfaces showing that prosecutors got the wrong guy, but because they've already started the trial, they go ahead and convict him anyway?

From www.theagitator.com
2.19.2008 12:37pm
BruceM (mail) (www):
Kenvee:

If your client gives you a story and wants you to present it to the jury, then you do so and let the jury decide. That's exactly how it should be on both sides.

No, because the prosecutor's duty is to achieve justice while the defense attorney's duty is to zealously represent his client. So, it should not be the same for both sides. If a victim's claim is totally unbelievable, you should not bring the charge to begin with, rather than charging the defendant and leaving it up to a jury to sort out. I absolutely disagree.

As for budgets, yes I'm sure you are not supposed to use tax dollars to acquire cumulative evidence. No need to test ten hairs when one will suffice. But I don't believe a criminal defendant has ever not been charged in your county because forensic evidence was too expensive for the DA's office to get. Most states have a state FBI of sorts. Texas has the DPS, for example. Any prosecutor or law enforcement agency can send evidence in to the DPS lab to have tested for free (at state taxpayer's cost). Certainly the various US Attorneys' offices do not have to pay the FBI to test evidence for DNA, fingerprints, etc. Most US attorneys have their own FBI (or DEA, IRS, ICE, ATF... whichever is appropriate for the case) agents to help them prepare cases and get them whatever evidence they need.


How can you show a defense attorney lied to help get his client off. I hear that claim made by prosecutors all the time, but I have yet to hear an example of it. The client may very well lie when he takes the stand, which is unfortunate but as long as the defense attorney doesn't know his client is committing perjury it's not the defense lawyer's problem. However it is a prosecutor's problem when her witnesses lie - it goes against the goal of seeking justice rather than convictions.

I know lots of cops lie on the stand because I catch them in their lies all the time. Yet I've never seen one prosecuted for perjury. That's why I find it fundamentally unfair that I, as an officer of the court, do not have the power to convene a grand jury and seek a perjury indictment against a lying witness just like a prosecutor can do. When only one party can threaten the other's witnesses with perjury prosecutions, the adversarial system falls apart and the trial is fundamentally unfair. I should be able to seek charges on my own and act as a special prosecutor to try the perjury case against the lying state's witnesses. Why do you get to tell my witnesses that if they lie, you'll personally prosecute them for perjury to the fullest extent of the law (telling them what the maximum punishment is), but I can't tell your witnesses the same thing? I'm supposed to tell the state's witnesses that if they lie, my opponent will prosecute them? Yeah, that's effective.... Your witnesses, whether cops or crying victims, know they can lie their asses off without recourse because they're on the "good side" and are doing the "right thing" to put a "scumbag" in prison where he belongs. Perjury is always the lesser of two evils when the other is a criminal defendant.


Radley: It depends on what you mean by "hard cases." A 40-count federal RICO indictment is a "hard case" in terms of the large quantity of complex evidence and the large number of witnesses, both lay and expert. But if the facts are there then a competent prosecutor should have no problem securing a guilty verdict. If by "hard case" you mean the evidence of guilt is weak or the evidence in support of an affirmative defense is strong, then the prosecutor should ask whether the evidence, in the most negative light, would prove the charges beyond a reasonable doubt. If not, then charges should not be brought. If they are brought, and the defendant wins, the prosecutor should be punished. I know it's extreme, and I'm sorry, but it's the only way to hold prosecutors accountable.

Maybe having the prosecutor personally liable for the acquitted defendant's legal bills and expenses is better than locking the prosecutor up in jail for a year. Maybe. I'd certainly be open to discussing it. But most prosecutors could not personally afford the legal fees and would merely be forced into bankruptcy. To require the state to pay for the defendant's legal fees would not help the problem any more than the state paying my traffic fines would cause me to drive slower. Plus, in a large portion of cases, the state already paid for the defendant's legal fees to begin with (indigent defendant / appointed counsel). I suppose it could be allocated from the DA's budget rather than the fund for appointed defense counsel. But that would merely raise the cost of prosecution and the taxpayers would be the ones to suffer, not the unethical prosecutors.

Similarly, I believe when someone acting on behalf of the government violates a defendant's Fourth Amendment rights, instead of suppressing the evidence at trial, the police officer should be sentenced to the same prison term as the defendant whose rights he/she violated. Except for death. If a 4th Amendment violation is introducted at trial and a death penalty results, the police officer should only have to serve life. This will end unlawful searches and seizures overnight, while also ending the problematic suppression remedy.

Why is it that of the million things that are criminal offenses in this country, violating constitutional rights to secure evidence is not one of them?
2.19.2008 12:57pm
jadmp (mail):
Radley,

I think the AUSA is correct that it does not matter what he thinks, so long as their is a basis in law or fact for putting forth the evidence:

"Rule 3.1 Meritorious Claims And Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."

Once he has a good faith basis, inquiry into his state of mind is irrelevant. Note that this is very different than if he said, "I don't believe the evidence." If he said that, then, yes, I would say that his efforts to admit evidence would be questionable/unethical. But once he has that good faith basis, he is duty bound to represent his client, the US Government's point of view to the best of his ability.

All,

I served as a prosecutor for a little more than two years in the Army. Almost by definition, the only cases that are tried are serious cases, so I was basically handling felony offenses (rapes, embezzlement, drug cases for the most part) as a first chair. I can't speak to others experiences either in the military or out, but I was fortunate to work in a jurisdiction where I had a collegial relationship with the defense bar. Both sides tried to "do justice" and had no hard feelings about the outcomes in cases. For my part, I felt no pressure to do anything but what I felt was right. I don't know what to attribute this difference in experiences from what I have read here (though, I do know of other offices where there was bitter, might I say unprofessional rivalry between the government and defense bar. Both in and out of the military). It might be the fact that there are no elected officials involved, that the JAG Corps is a small community in the first place and reputations count, or it may have something to do with the difference between military accused and civilian defendants (the vast majority of military accused have no prior criminal justice involvement, are more educated than their civilian counterparts; there is no such thing, for the most part, as a career criminal in the military. Once caught and convicted, they are sentenced and usually discharged/dismissed from the service).

I do think there are problems with unfettered prosecutorial discretion generally(another interesting thing, in the military, there is very little discretion. You make recommendation to the Convening Authority, a General Officer who is a non-lawyer. Most times the CA follows the advice, but it is his/her call). But I tend to think more resources for the defense bar is a better answer than most of the solutions I have read here.
2.19.2008 1:02pm
Dan Weber (www):
But most prosecutors could not personally afford the legal fees and would merely be forced into bankruptcy.

Speaking of which, Nifong has declared bankruptcy, listing potential debts of $180 million.
2.19.2008 1:21pm
33yearprof:
I know lots of cops lie on the stand because I catch them in their lies all the time. Yet I've never seen one prosecuted for perjury. That's why I find it fundamentally unfair that I, as an officer of the court, do not have the power to convene a grand jury and seek a perjury indictment against a lying witness just like a prosecutor can do. When only one party can threaten the other's witnesses with perjury prosecutions, the adversarial system falls apart and the trial is fundamentally unfair.


One big advantage of the Military Justice system is that "any person subject to the Code" can prefer charges.

That includes Captain Schmuck, the DC. And if the charge sheet gets shoved in the bottom desk drawer, an Article 138 complaint can follow up. So, a non-career DC, who has a date of separation (as I did from my second week of active duty), can indeed file criminal charges against the Investigator for false official statement, falsifying evidence, and two counts of perjury. I know, I did.
2.19.2008 1:48pm
Kenvee:
Bruce,
If a victim's claim is totally unbelievable, you should not bring the charge to begin with, rather than charging the defendant and leaving it up to a jury to sort out. I absolutely disagree.

Actually, we agree on that one, because if a victim's claim is "totally unbelievable", then the prosecutor doesn't have probable cause and shouldn't be prosecuting the case. But for the most part, you're talking about someone who might be believable, might not be -- frankly, like the vast majority of defense witnesses, most of whom are Mom &Dad willing to say anything to get their baby off. You have the obligation as an attorney not to present testimony you know is perjured, but as long as you have a good faith basis that it's true, then you should present it to the jury and let them decide.

How can you show a defense attorney lied to help get his client off.

Very easily, in my line of work. I do appeals, so I can give you a very long list of attorneys who've based entire appeals or writs based on something a witness supposedly said, when the record shows that it absolutely didn't happen. Or when one of your witnesses comes to you to say that the defense attorney has been threatening them not to testify or change their story, claiming legal consequences that flat-out don't exist. Or, oh, a certain person in California forging affidavits from jurors to get someone pardoned?

However it is a prosecutor's problem when her witnesses lie - it goes against the goal of seeking justice rather than convictions.

Yes, which is why it's the law that a prosecutor's case based on perjured testimony will be thrown out on appeal. (And, incidentally, it's in the canons of attorney ethics that NO attorney knowingly present perjured testimony, so it IS your concern if defense witnesses are lying.) But again, that's dealing with perjury, when earlier we were discussing witnesses that the jury may or may not believe. That's WHY the jury exists. If I know a witness is lying, I can't put on their testimony, but if their story seems credible and may or may not be believed by the jury, that's a whole different kettle of fish.
2.19.2008 1:55pm
Kent G. Budge (mail) (www):
So I'm hearing some very plausible suggestions for reform here:

Let defense attorneys bring perjury charges against cops who lie on the stand. Reasonable and customary fees paid by the state.

Give defense attorneys access to the same experts and forensic laboratories as prosecutors, with the same rules of discovery. Let the cost come from a separate budget from that of prosecutors. I'm hoping here that the danger of a defense request for a laboratory test giving back incriminating, rather than exculpatory, results will be enough to avoid a tragedy of the commons.

Require proper controls on forensic investigations. It should begin with double-blind protocols, if possible. I realize there may not always be three skeletonized corpses available to have the laboratory test, but it sounds like double-blind protocols aren't being used even where they are a lot more practical.

Some things cannot be changed. Prosecutors and law enforcement officers will continue to be human beings. The state will continue to provide considerable resources to its police and prosecutors. The defendant will continue to come into a court where most of the people present assume there's a good reason he's there. That last really is unavoidable; if the prosecutor is doing his job right, he won't bring the case unless he really is convinced of guilt, and the judge is going to have to be superhuman to ignore the fact he has a good prosecutor who doesn't bring questionable cases. That's the reality of a criminal court: It takes a person whom the State has already concluded is guilty, and gives him a decent chance to demonstrate otherwise to a jury of his fellow citizens, who can override the State's conclusion. In a way, this is really amazing.

I like the inspector-general analogy: If the prosecutor is doing his job, the people he charges in court will usually be guilty -- but the defense attorney is there to ensure the prosecutor is doing his job.
2.19.2008 4:23pm
BruceM (mail) (www):
Kenvee,

I did hear about the case in California where a defense lawyer forged affidavits from jurors (or a juror, i forget). How can someone base an appeal on a statement, without citing to that statement in the record? Are you saying you've seen an appeal (by a lawyer) where the appelate brief claims a witness stated "X" in open court, without citing to the transcript in the appellate record where X was said? I have a hard time believing any lawyer would be that stupid. I'd like to think the appellate court would kick the brief back and demand a citation to the record in support of the statement, per the rules. I've never heard of a case where a defense attorney threatened a witness to change a story. Not saying it's never happened, but I can't imagine it's common. Most state witnesses have a vested interest in the state winning at trial and might be offended by the defense attorney asking to speak to them. They might even go so far as to make up something improper to tell the prosecutor about. I bet that happens far more often than a defense attorney risking his bar card by threatening a witness. Why would they do that? I mean, at leat get a 3rd party to do it if you're hell bend on having a witness threatened.

I've overheard prosecutors telling their cop witnesses what they "need" in court, and the cops nod their heads and say "yeah okay, sure that's what happened." The difference between a dismissal and life in prison might come down to the truth of a cop's statement that someone consented to a search. You're telling me that cop is telling the truth about what happened? Any time a cop testifies that someone had "glassy eyes" (and was thus intoxicated) they should automatically be held in contempt and immediately charged with perjury. What the hell does "glassy eyes" mean? It sounds suspicious. But eyeballs are shiny since they're smooth and moist. Most people can't tell a glass eye from a real eye. Alcohol may very well cause HGN and other signs, but "glassy eyes" is a meaningless lie. I've seen enough DWI videos to know that cops lie about "smell of alcohol on breath, slurred speech, and glassy eyes" to prove up DWI.

I don't know how it is in your jurisdiction, but in Houston cops have a financial incentive to arrest innocent people for DWI. They get paid a fortune (a lot of DWI cops make over $200,000 per year) in "overtime" fees from testifying in court. The more questionable the case, the more likely it is to go to trial (when the DWI video leaves no doubt the person was drunk, the case always pleads out). The more likely the case is to go to trial, the more likely it is the cop will have to come testify and get paid overtime. Even worse, the courts here have held that defense lawyers cannot bring this incentive to lie up at trial (under Rule 403 - "too likely to confuse a jury, and while relevant, not very probative since cops are honest, good people and could get in trouble if they lie in court" -- seriously, that was the court of appeals' reasoning). But any incentive the defendant or a defense witness may have to lie is most certainly admissible.

33yearProf: I did not know that about the UCMJ. That's fantastic. I've never worked on a UCMJ case, but I've heard from lawyers who have that it's a very good system. Of all the ideas I've proposed, letting both sides in criminal cases initiate perjury prosecutions against opposing, lying witnesses is the one most dear to my heart. I don't think pro se defendants should be able to do this, but defense lawyers, as officers of the court, bound to the same ethical rules as prosecutors, should be permitted to do so.

jadmp: there is a different rule just for prosecutors. Rule 3.1 is a general rule for all lawyers. I can't think of the cite off the top of my head, and I'm too lazy to go look it up.
2.19.2008 4:42pm
jadmp (mail):
Bruce,

Rule 3.8, Special Responsibilites of a Prosecutor, is what you are thinking of, I don't think it adds much regarding prosecutors belief in the evidence. It appears to only implicate the charging decision, not the evidence presented:
"The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;"

At some point, Candor toward the Tribunal would creep in, but I think once you are over the hump of having a basis in law or fact to present the argument, you have met your ethical obligation.

I think it's great that 33yearProf preferred charges. I would have killed to have been a fly on the wall in the Staff Judge Advocate's office when they got the charge sheet. But, remember, preferal of charges is only the swearing to of the charges. A commander has to, more or less, ratify that charge sheet, by referring the charges to a court martial. So, under the UCMJ, it is not the case that defense attorneys can "charge" someone in the sense of signing an information or presenting the case to a grand jury.

33yearprof,

Kudos to you for doing it, though! Do you know if it was referred to a CM?
2.19.2008 6:52pm
33yearprof:
Do you know if it was referred to a CM?


No but a "deal" was worked out. He got an all "1"s APR, lost his security clearance, was barred from reenlisting for his last term (losing his retirement), and was assigned (overnight) to a very shi**y E-1 level job at a very shi**y base for the remainder of his current enlistment (with another rotten APR to come).
2.19.2008 7:22pm
PersonFromPorlock:
BruceM:

To require the state to pay for the defendant's legal fees would not help the problem any more than the state paying my traffic fines would cause me to drive slower.

But requiring your boss to pay your traffic fines would slow you right down if you wanted to keep your job, and that's the analogous situation here.
2.19.2008 7:47pm
BruceM (mail) (www):
But requiring your boss to pay your traffic fines would slow you right down if you wanted to keep your job, and that's the analogous situation here.

Not if my boss is an agent of the state who can justify any expendature of taxpayer dollars by saying the money is needed to put away dangerous criminal and protect the children. The cost of acquittals would simply be factored in to the various DA's budgets. The comparison is my boss would simply factor in the cost of my speeding tickets into his next budget (assuming my boss gets his funding from the taxpayers, otherwise the comparison completely falls apart). I would fear we'd simply end up with taxpayers funding the costs of acquittals instead of the prosecutors. They could try to make a rule that says the acquittal fees must be kept separate from budget requests, but they'd never do that, and they'd never enforce it nor prosecute themselves for committing fraud by lying about it. I'd be willing to try it, though. It's less severe than sending prosecutors to prison.
2.19.2008 8:37pm
Patterico (mail) (www):
And if you ask for something, you'll get it.

You say that with such confidence!

Have you ever asked for DNA testing to be done on a particular peice of evidence and been told no, it's too costly?

Heh. Has any prosecutor *not* run into budget constraints like that?
2.20.2008 1:53am
Richard Aubrey (mail):
How many people--as a percentage--are wrongfully convicted?

The exonerations from rape charges by DNA testing are an interesting case. Most rape convictions are not stranger rape. So DNA doesn't count, there. The sex act is generally stipulated, while the conditions are in question.
With stranger rape, DNA can include or exclude a suspect.
That's where DNA counts.
So the exonerations from rape by DNA are from a small proportion of the convictions for rape, not from the entire population of those convicted of rape.
I believe that's not an insignificant percentage.
Anybody know for sure?

And if it's that way for stranger rape, what would differentiate that from other crimes in terms of certainty of guilt?
2.20.2008 10:37am
hattio1:
Richard Aubrey asks;

And if it's that way for stranger rape, what would differentiate that from other crimes in terms of certainty of guilt?


What's similar about stranger rape is that victims and witnesses can be absolutely certain they have the right person, and that such a traumatic event would increase their ability to remember a face, even though neither one is true. What's different about stranger rape cases is that the poor schmucks now have some possiblity of proving their innocence. What about those who are accused of muggings, armed robberies, etc? They are just as likely to be stangers, likely to be further away from the victims than a rapist, and likely to be there for less time. Maybe we should take the lessons of stranger rape DNA cases and re-examine our over-reliance on eyewitnesses. Especially where proper eyewitness procedures have not been followed.
2.20.2008 12:57pm
BruceM (mail) (www):
Patterico, I simply refuse to believe that your office is not charging people with crimes (most likely violent ones) because you can't afford a forensic test to be done. Yes, if you ask for the rape kit to be tested 20 times so you can say it was tested 20 times and each time it turned out to be the Defendant's DNA, I'm sure they'd probably (probably) say no. But you're never going to be told it's too expensive to DNA test a rape kit. Give me an example of a forensic test in a case you were denied getting due to financial reasons.
2.20.2008 1:10pm
Vinnie (mail):
2. Local labs also lack resources. Evidence collected from many
crime scenes sits in crime lab freezers unprocessed. Implications
are significant
i. Many rape kits are unopened. Oakland processes fewer
than half.
ii. LA has backlog of 5000 unopened rape kits.
iii. 6-8 months to open a rape kit.

2.20.2008 4:46pm
Vinnie (mail):


2.20.2008 4:50pm
BruceM (mail) (www):
Vinnie, I'm sure it does take a while, and many cases probably plead out before the evidence is even processed. In that case, it just sits in storage, or may even be destroyed. In many other cases, it may take a while, but after a few months they'll process it and possibly ID someone. I'm sure it makes a difference expediency wise if someone is in custody, whether they're pleading guilty or not, and whether they have no idea who committed the crime. Gotta prioritize.

Meanwhile, if my client wants DNA tested, he's gotta shell out a ton of money to a private lab. Hell, I did a rape trial once where I subpoenaed someone from the state's forensic lab as witness (she was the one who did the DNA testing in the case... long story). I later got a bill from the state for $1,500 for her time testifying in court that one day. Why should my client have to pay for something the prosecutor gets for free?
2.20.2008 6:08pm
Patterico (mail) (www):
Patterico, I simply refuse to believe that your office is not charging people with crimes (most likely violent ones) because you can't afford a forensic test to be done.

Me neither. But that's not the proposition I was defending.

I'm not giving specific examples of anything because I'm not discussing specifics of my job on a blog. But anyone who thinks the government has unlimited resources is a) unfamiliar with the system or b) a defense attorney who knows better but likes arguing that to juries.
2.20.2008 10:21pm