Ethical Misconduct in the Courts and Responses Notes

Ethical Misconduct in the Courts and Responses Wrongful Prosecutions Clarence Brandley - only AA suspect James Curtis Giles Jeffrey Deskovic Kevin Fox - all examples of wrongful prosecutions Defense Attorney Misconduct Major complaint is they don’t communicate with clients Ineffective counsel One of the most often cited reasons for false convictions Legal standard for what constitutes ineffective counsel set quite high State appellate court said that if a lawyer wasn’t sleeping during a crucial part of the trial, it wasn’t ineffective counsel Defense Misconduct in Capital cases Use of cocaine & heroin during trial Letting defendant wear same clothes described by victim Admitting lack of knowledge of law and facts of case Not being able to name a single death penalty case Being wasted drunk each day of trial Prosecutorial Misconduct The types range from minor lapses of ethical rules to commission of criminal acts Most prosecutorial misconduct occurs in the furtherance of the case; however, there are some examples where it appeared that the prosecutors involved did not take their duty as public servants seriously Chicago tribune investigation - 1963 to 2002, there were 381 homicide convictions thrown out because prosecutors concealed evidence or presented false evidence Cincinnati inquirer and Veritas Initiative also found instances of prosecutorial misconduct Innocence Project has undertaken similar studies The Cali DAs association has criticized these finding 1. 2. 3. 4. Kirchmeiers 4 types Withholding exculpatory evidence Misusing pretrial publicity Using false evidence in court Using peremptory challenges to exclude minority jurors despite ruling in Batson v. Kentucky and 4000 pounds of flesh contest (prosecutors had a bet about how many defendants it would take for their weight to exceed 4000 pounds) Sam Krone - Park County Suborning Perjury and Jailhouse Informants Model Rule 3.3.(a) forbids an attorney from knowingly allowing false evidence to be admitted: some argue that “knowingly” is too strict a standard because prosecutors have argued that they did not “know” that the evidence was false Some argue that an objective negligence standard should be used instead When a prosecution witness perjured himself or herself, the prosecutor has an affirmative duty to bring it to the attention of the court Jailhouse informants present ethical issues - this conduct would be bribery if committed by the defense Misconduct Involving Expert Witnesses Occurs when prosecutors intentionally use scientific evidence that they know to be false Prosecutors may bolster a witness’s credentials or allow him or her to make gratuitous and unsupported claims on the witness stand, such as to state “unequivocally” that the fingerprint, hair, or lip print was the defendant’s Prosecutors have had experts suppress information that was favorable to the defense and not put it in their report or not conduct tests that might be helpful to the defense Eg. Joyce Gilchrist - OK (head of crime lab), Michael West, Fred Zain Brady Violations Most common charge leveled against prosecutors, failure to disclose evidence, stems from a duty to reveal exculpatory evidence to the defense There can be a Brady violation/legal error even if the prosecutor truly did not know or remember the evidence existed Judicial Misconduct Rare, but does occur Neutrality is questioned when judged voice strong opinions on issues or cases A judge may recuse him/her self if he/she has a vested interest in the issue or one of the parties involved Often the mere appearance of impropriety is sufficient to warrant recusal Lack of courtroom decorum could, in extreme cases, represent judicial misconduct Biased Decisions Like POs and Prosecutors Misconduct is alleged when judges do not recuse themselves and/or act in ways that give some preferential treatment Attorneys and judges are prohibited from discussing a case outside the presence of the other attorney, called EX Parte communication In some cases, neutrality is questioned when judges voice strong opinions on issues or cases Talking to the media is rare, but now some judges have decided it is acceptable to express their views, take a stand, and act as advocate Some questions judges’ motives in allowing cameras in the courtroom Judges, for the most part, are like POs and Prosecutors Failing to inform defendants of their rights, coercing guilty pleas, exceeding sentencing authority, exceeding bail authority, denying full and fair hearings or trials, abusing the criminal contempt power, ignoring probable cause requirements, denying defendants rights and penalizing defendants for exercising their rights Judges have a duty to conclude judicial processing with reasonable punctuality working a full day, if not more, but done don’t do this Factors in Wrongful Convictions Mistaken eyewitness testimony Perjury by informants Police and prosecutorial misconduct False confessions “Junk science” Ineffective assistance of counsel Racial bias Confirmatory bias Mistaken Eyewitness testimony Memory is not as accurate as some believe In some cases, improper police or prosecutor behavior influences witnesses to identify the wrong person. POs may repeatedly ask victims if they were sure that the suspect was not the person, or using “show-ups” that present only one person to the witness instead of a line-up Supreme Court rejected argument that judicial review of eyewitness testimony was necessary False Confessions False confessions are so powerful that juries have convicted an individual even when there is exculpatory DNA evidence introduced at trial Why do people confess falsely? They are coerced by police, they “give in” believing the police will not let up Racial Bias A prevalent factor in false confessions is a more subtle form of racism Tend to prejudge the guilt of the accused, especially if they are black men Pervasice stereotypical belief that all defendants are guilty, and a disproportionate number of defendants are black Distorts decision making of prosecutors who may sift and use evidence in a way that will support predetermined beliefs Also noted as a higher rate of error in cross-racial identification, stereotyping Lack of resources among minority defendants Confirmatory Bias Confirmatory bias is when someone ignores evidence that is contrary to what they believe Prosecutors may ignore evidence that refutes their theory May lead to the noble cause corruption Prosecutors ben and even break the rules when they are sure the defendant is guilty Explanations of Prosecutor Misconduct Prosecutors have immunity from lawsuit for their decisions, so there is little deterrence to bad behavior Various SCOTUS decisions have upheld prosecutorial immunity The presence of confirmatory bias Selective information processing (only recognize evidence to fit one’s theory) Belief perseverance (believing one’s original theory of the case despite evidence to the contrary) Avoidance of cognitive dissonance (adjusting beliefs to maintain existing selfperceptions) Explanations for Misconduct of Judges The immunity of judges insulated them from the effects of their decisions Difficult for attorneys to challenge judges’ actions Some judges may believe they are invulnerable Judges have immense power State judicial commissions rarely sanction judges, and voters tend to be fairly oblivious to the reputation of judges Responding to Misconduct ABA offers formal and informal opinions when charges of impropriety have been made State bar can sanction offending attorneys in private or public Only 3% of investigations by state disciplinary committee result in public sanctions Only 1% of investigations end in disbarment Better Training, Better Supervision Prosecutors do not get sufficient training on Brady obligations Require prosecutors to work with innocence commision There should be clear and public policies in each prosecutors office concerning the use of jailhouse informants and turning over exculpatory material - Kirchmeier Other suggestions Conviction integrity units Innocence project affiliates are growing Mandatory DNA testing DNA has been the vehicle by which many innocent prisoners have obtained their release from prison Some states have mandated DNA testing of old cases Labs and enhanced due process procedures More than half of all labs in the country report directly to a LENFO organization Bias is subtle (cognitive bias) Increase accuracy of identifications (EG sequential photo arrays, double0blind examiners) Eliminate use of jailhouse informants because of the high probability that they are lying in order to gain some benefit Sullivan and Possley Instituting and open-file pretrial discovery requirement on prosecutors (similar to the Morton Act in Texas) that could even substitute for the Brady Rule Abandoning the harmless error test for reversing convictions; even if there is sufficient evidence of guilt, serious prosecutorial misconduct should be met with reversal Identifying errant prosecutors by name in trial and appellate opinions Stripping prosecutors of full immunity and give them qualified immunity instead as protection from civil damages for misconduct Authorizing the department of justice’s office of Inspector General to handle investigations of alleged misconduct by federal prosecutors Judicial Independence and the Constitution Judges wield great discretion that should be used without bias Like the rest of us, judges are grounded in their personal ethical belief system Implementation of law (as with creation of law) can be a political process (note, firing for US attorneys) The judiciary is supposed to be separate from the executive or legislative brand of the gov, but it is? Judicial Activism “Conservative” judges - strict constructionists - support individual rights specified in the constitution or created by some other recognized legal source “Liberal” judges - interpretationists - support rights that the framers might have recognized or that should be recognized due to “evolving standards” Natural Rights To be free To be treated equal to other groups To be able to make decisions about personal matters without gov interference To be free from torture and punishments that degrade the human spirit To have some protections against state power