Prosecutorial misconduct

On 23 September 2010 USA Today published a front page piece about federal prosecutors.

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

USA Today has an opinion piece in today’s paper which is a rebuttal.

USA TODAY’s cover story about our nation’s federal prosecutors is misleading in several fundamental respects and fails to honor the exemplary service of thousands of dedicated men and women who work tirelessly to enforce our criminal laws (“Prosecutors’ conduct can tip the scales,” Cover story, News, Sept. 23).

I think that the tenor of the rebuttal is fair. I’m quite certain that many prosecutors do their best to act professionally – as do defense counsel. However, it seems both sides go too far in the argument. The cases discussed in both articles are significant cases and have drawn attention. What is lost are the many cases which do not get publicity, which do not draw a complaint, and which aren’t investigated. So while only 201 cases appear to be addressed, why are they not just the tip of the iceberg. Taking satisfaction that only 201 cases were “identified” misses the point. Self-satisfaction merely enables the less notorious instances of problems.

You will recollect from prior postings about issues with prosecutorial misconduct. I had a fairly extensive post on 8 March 2010 which also mentioned the USA issues, and more generally on 21 August 2009. On 17 April 2009 I posted about prosecution closing arguments. And on 21 December 2009 I posted about prosecutor soundbites crossing the line.

So as the USA Today editorial hit my in-box, I also received a piece from the San Francisco Chronicle.

A state appeals court has overturned the murder conviction of a Castro Valley man accused of choking an acquaintance and pushing him off a cliff. The First District Court of Appeal in San Francisco said this week that an Alameda County prosecutor improperly instructed jurors in the trial of Andrew Vance to imagine the victim’s terror before he was killed.

Here is a link to the 3-0 decision in People v. Vance, No. A12277 (29 September 2010). And here is the teaching point for something I see from time to time in courts-martial.

There is a tactic of advocacy, universally condemned across the nation, commonly known as “The Golden Rule” argument. In its criminal variation, a prosecutor invites the jury to put itself in the victim‟s position and imagine what the victim experienced. This is misconduct, because it is a blatant appeal to the jury‟s natural sympathy for the victim. (See People v. Lopez (2008) 42 Cal.4th 960, 969-970 and decisions cited.) . . .

Many issues appear to have been raised. But here is the nub of the decision.

We conclude that the prosecutor made a sustained Golden Rule closing argument so blatant that it alone requires reversal, particularly when conjoined with improper references to what was in plain effect victim impact evidence, and a snide and utterly unwarranted attack on defense counsel‟s valiant attempts to halt the flood of misconduct. An unfortunate factor in aggravation was the trial court‟s refusal to give the admonition requested by the defense.

A reading of the full opinion leads to the conclusion that but for the prosecutor and judge in the trial this case would have been affirmed on appeal. There is an inference that the judge stepping in and giving a curative instruction might have saved the day. The case disposition was:

The judgment of conviction is reversed. Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), a copy of this opinion will be sent to the State Bar for such disciplinary action, if any, it may deem appropriate.

Here are two articles of potential interest courtesy of the CrimProfBlog.

Ellen Yaroshefsky (pictured) (Benjamin N. Cardozo School of Law) has postedForeword – New Perspectives on Brady and Other Disclosure Obligations: What Really Works? on SSRN, and she and Jennifer Blasser (Benjamin N. Cardozo School of Law) have posted New Perspectives on Brady and Other Disclosure Obligations: Report of the Working Groups on Best Practices on SSRN.

Note Yaroshefsky has also published: Military Lawyering at the Edge of the Rule of Law at Guantanamo: Should Lawyers be Permitted to Violate the Law?