Get Mad and Get Even – Prosecutorial Misconduct
"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97 (1963)
“There is an epidemic of Brady violations abroad in the land,” Judge Kozinski wrote in dissent from a ruling against a man who argued that prosecutors had withheld crucial evidence in his case. “Only judges can put a stop to it.” New York Times Editorial, Rampant Prosecutorial Misconduct, January 4, 2014.
What is prosecutorial misconduct and why does it matter? Prosecutorial misconduct is one of the most frequent causes of wrongful convictions. Many prosecutors do not engage in this conduct. But many do. How did those people we knew in law school take such a wrong turn?
Prosecutors are charged with dual roles – prosecuting offenses and, in their role as government officials, ensuring that the case is handled fairly. ("These cases, together with earlier cases condemning the knowing use of perjured testimony, illustrate the special role played by the American prosecutor in the search for truth in criminal trials. Within the federal system, for example, we have said that the United States Attorney is ‘the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 ." Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 1948 )
These roles often come in conflict. A prosecutor wants to win, and depending on the office where she is employed, may face extreme pressures to obtain convictions on top counts. Perhaps her job depends on it. Yet these same individuals are supposed to provide us with the very material that may both cause them to lose the case and sometimes jeopardize their status and even jobs. They are supposed to let us and the courts know when their witnesses are lying. They are supposed to make evidence useful to the defense available to the defense. And they're even supposed to make an affirmative effort to learn of this information. ("(T)he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567 )
Often, whether through deliberate action, deliberate inaction or ignorance they fail miserably. That is why Brady material (evidence material to guilt or sentencing and favorable to the defense) is such a hotly contested area of law. Heck – we can't even agree on the definition of Brady material. How many times have you heard prosecutors (and judges) describe it as exculpatory? But it does not have to reach that level to be Brady. ("We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97 )
And when prosecutors don't meet their obligations, trial courts are supposed to fix it. But too many trial judges are former prosecutors, and/or fearful of unfavorable press damaging reelection prospects. Too many employ law clerks who are also former prosecutors eager to assist their former colleagues. Many don't have any understanding of a defense perspective on proof. Time after time, as we fight the Brady fight, judges repeat the same old (inaccurate) phrase – "The prosecutor knows his Brady obligations and will continue to comply." Sometimes judges' frustration that they are actually being asked to judge a real conflict, and we are making it hard for them to decide it wrong, gets them more frustrated with us. But don't back down.
In my jurisdiction numerous reversals on appeal in recent years demonstrate that not only do courts often fail in their obligations, but the police and prosecutors have set up systems which appear to shield the trial assistants from information they would be obliged to turn over. In a case I handled a few years ago, city police were using a cooperating federal informant in case after case in state prosecutions, and yet the state prosecutors claimed ignorance of the significant benefits we learned that informant was going to receive. See also, e.g., People v. Gayden, 975 N.Y.S.2d 295, 296 (N.Y.A.D. 4 Dept.,2013), a case decided by the appeals court in our jurisdiction which notes the prosecution claim they didn't know of the cooperation agreement.
So day in and day out we complain about the prosecutor playing dirty. But what do we do to ensure that if they are playing dirty, the trial court or appellate court will have enough information to do something about it? There are concrete steps we must take to make this process part of the record. This starts from the first day you handle the case and continues through the life of the case. Our work encompasses both the Brady fights and the other fights – prosecutors' opposition to admissible favorable evidence, their intimidation of defense witnesses, their improper arguments and objections made to interfere with legitimate testimony, to name a few.
Entry into the case – initial investigation and efforts to preserve information
Often our investigations turn up information that will lead to favorable evidence. And often that evidence may be information we will have difficulty obtaining. But the prosecutor may have it, or be able to get it. So our early efforts may focus on learning of the information in order to develop a basis for particular Brady requests and putting parties including the prosecution on notice that we are seeking to have information preserved When you first enter the case and meet your client, try to learn everything you can about the scene, the event and other parties. Among the things you will first want to learn are: Is the incident in a location where there were cameras? These include street cameras run by the police, red light traffic cameras and store cameras. Often video recordings are only preserved by private entities and public, such as police departments, for a limited time. If your investigation or meeting with the client supports a conclusion the recordings would be helpful, get an investigator out to any private companies, such as stores, to see if you can get the video. And start writing letters to the prosecutor, police agencies and other entities requesting they preserve the recordings. (This is the set up for later Brady applications, asking for the information you sought to preserve.) But remember, on this as in other efforts to preserve evidence – careful what you wish for. If you believe this information may be harmful, it might be best to let preservation of the evidence slip away.
Serve subpoenas if your jurisdiction permits it at that stage. If the prosecutor or other parties object, use this to firm up your later argument that you cannot get the information and the prosecutor must make it available.|BACKS|
Has your client or another source told you a witness has a history of drug or alcohol abuse, mental illness or prior false complaints? If so, begin investigating that information so you can seek records from the prosecution (or perhaps by subpoena).
Is any witness cooperating in exchange for a benefit? This may be more likely if the witness has a lengthy legal history, recent arrest, involvement in the incident without being charged, or is being prosecuted federally. Be aware – individuals convicted in federal court can get astonishing post-conviction reductions of lengthy sentences under Rule 35b. Prosecutors in state courts routinely fail to disclose this information. Information about cooperation is some of the most difficult information, but also the most important, to obtain. Snitch testimony is one of the major contributors to wrongful convictions. (See Snitching: Criminal Informants and the Erosion of American Justice, Alexandra Natapoff NYU Press, 2009)
Witnesses – prior convictions, prior statements
As you investigate your case you may learn of prior statements given by witnesses to the police that have not been provided to you. You may learn of 911 calls that have not been turned over. If these statements are inconsistent with other statements, you should specifically request them from the prosecution. Even simple inconsistencies of a prosecution witness can be Brady material. Smith v. Cain, 132 S.Ct. 627, 630 (2012).
The Preliminary Hearing
If you are in a jurisdiction that conducts preliminary hearings on felonies, make sure you explore the potential areas of Brady material by questioning witnesses to establish all of the prior statements they made and ensure you have received them, or will be getting them. Brady requests Although cases do not always require a Brady request be made for the prosecution to be required to provide the material (see Strickler v. Greene, 527 U.S. 263, 271, 119 S.Ct. 1936, 1943 ), you should always make a Brady request. That will highlight the issue to the court and put your case in a better position for appellate review. Brady requests should include standard requests for inconsistencies, other suspects and information about compensated witnesses as well as the particular information you believe exists and have been unable to obtain through your investigation.
Motions for Brady – the Setup
When the prosecution has failed to provide you with Brady material, you should file a motion. This motion should set forth as much as possible the reason you believe this information exists, and include the letters seeking preservation of the information and your Brady requests. It may include the history of your subpoena efforts. If your judge is unfamiliar with Brady law, cite cases. There are tons of materials on the web that summarize this area of law. Try to include cases from your jurisdiction, especially if the prosecutor's office has been cited before for its Brady failures. Make sure you argue any Brady issues in court on the record, and get a ruling from the court. Let the judge know this is not going to disappear from the record. If records are then ordered and the prosecutor fails to comply, put the case down for argument again, and again argue it on the record. When the problem becomes apparent at trial, remind the judge of how you sought those records on numerous occasions. (For more trial tactics, see below.)
Court intervention before trial
There are times a prosecutor may advise witnesses not to cooperate with the defense. If that has occurred, perhaps it is time to seek a ruling from the court that the prosecution shall not interfere with the defense investigation (as long as the defense is acting within the bounds of lawful, ethical criminal defense). At times prosecutors may threaten witnesses by claiming their conduct will cause the prosecutor to be obliged to contact Child Protective Services or file charges of contempt or perjury. If the witness is eligible for assigned counsel, request the Court assign counsel to the witness to protect that witness from the prosecutor’s threats and abuse.
At trial there may be times you learn of Brady violations, either when you obtain trial discovery or during testimony of witnesses. Make sure you develop the record. Request an opportunity to address the matter outside the presence of the jury on the record. Make sure you explain what the evidence was and why it was favorable to the defense. The judge or appellate court doesn't know your case like you do, so explain it as if you were telling someone who knew nothing about your case. Consider the relief you want – a hearing? The material and an adjournment? An opportunity to question the witness outside the presence of the jury? A do-over (mistrial)? A special prosecutor? Dismissal? Be creative in your requests, and consider asking for them in a top down fashion – start with the most extreme solution – dismissal of charges or a mistrial, for example, and if that is denied move down the list. Of course, there are times the case has come in so well that you may not want the mistrial, so think before you speak.
What about the improper arguments or comments made by a prosecutor during trial? First, you must become familiar with trial objections. Then you must make them, preferably as specific objections rather than general objections. Be especially vigilant about references to evidence the court has precluded and burden shifting arguments. (“The defense has not presented any evidence that…the defense failed to establish…etc. Sometimes they’re more subtle.) If the prosecutor comments on it or elicits it, what is the relief you are seeking? Sometimes these are situations where dismissal is an appropriate sanction, though that is more likely in lower level offenses. Certainly you can request that the comments be stricken and curative instructions be given. Consider writing out your request for a curative instruction, marking it and making it part of the record before the judge freelances, perhaps making the error worse.
What happens when you learn a prosecutor has threatened to take a prosecution witness's children away or prosecute them for perjury if they change their testimony? Again, this must be noted on the record. Perhaps request counsel be assigned to the witness. Ask for a hearing. Seek relief such as dismissal or preclusion of the witness.
What happens when a witness is clearly lying on the stand in a manner in which it is clear the prosecution knows it? Consider asking to approach, noting the reason the prosecutor knows this, and seeking a court instruction to the jury that the prosecutor has acknowledged the statement was untrue. Or perhaps, seek to have that witness's testimony stricken.
There are times that prosecutors may attempt to block admissibility of favorable evidence. If the evidence is legally admissible, have the law available at trial. Consider a motion in advance of trial seeking a ruling on admissibility (if the evidence is not a surprise to the prosecutor). Or consider having a memo prepared in advance and submitting it when the issue arises, making sure it is marked and part of the record.
If there is a question as to whether the evidence is admissible – perhaps it does not meet some of the technical rules for admissibility – argue that the court should receive it anyway, as part of your client’s right to due process and a fair trial. There are cases that support these arguments.
There are times that we learn of the prosecutor's transgressions after trial. At that point, you must investigate, establish why you could not have obtained this information prior to trial, and file a post-conviction motion.
The more you read and develop your knowledge about prosecutorial misconduct, the better prepared you will be to recognize it in your cases and battle it when it occurs.