Prosecutorial Misconduct, the Michael Morton Case, and Lessons Learned

[Photo of Lady Justice from wikipedia]

Did you see the C.B.S. 60 Minutes segment last week about a wrongly convicted man named Michael Morton?  Well, you should have seen it! This story was incredible! This poor man has recently been freed from a Texas prison, after serving 25 years for a crime he did not commit.  The horrible crime was the murder of his wife. His liberators included criminal attorney Barry Scheck and the Innocence Project, which helped clear Morton through DNA testing which was unavailable when he was convicted. Fortunately, police now also reportedly know who actually committed the murder.

But the point of this post involves one of the primary reasons why Mr. Morton was wrongly convicted in the first place.  According to the news report, back in 1987, when the case was tried, the prosecutor allegedly withheld key investigative reports from the defense.  (This allegation, which is reportedly being made against the former D.A., who is now a judge, is still under investigation).  One of the alleged withheld reports involved an interview of the grandmother of the Mortons' little boy, who was at home when his mom was tragically murdered.  In the report, the young child reportedly told his grandmother that the killer had a mustache, (which Mr. Morton did not have), and that this dad was not home at the time of the murder.  Again, this evidence was reportedly withheld from the defense.  

In fairness to the former D.A., he contends that he told the defense attorney about the report.  In other words, this question (about whether or not the report was turned over), is in dispute.  But don't you see how wrong it was if the D.A., in such a case, did not turn over such exculpatory evidence to the defense?

Here is my proposed solution to this serious problem:  I believe that prosecutors everywhere should generally be required to turn over ALL investigative reports to criminal defense attorneys.  Look, I know this solution can work!  As a former state and federal prosecutor, for over 26 years, I generally always followed an "open file" discovery policy in all criminal cases, (with limited exceptions for confidential informants' identities, or other sensitive matters, such as victims' addresses or telephone numbers).  In short, sometimes the procedural rules may not have required full disclosure, but I preferred to follow a "show and tell" policy of everything in my file.

Prosecutors should realize that, by being more open in discovery, they not only are doing the right thing, but also they will quickly get more guilty pleas, because the defendant will more clearly see you've got them when you show them "what you got!"

But, over the years, I have seen some short-sighted prosecutors who appear to want to hide their files from the defense.  As an Augusta, Georgia criminal defense lawyer, I have learned that obtaining discovery from an overly zealous prosecutor can be like pulling teeth with pliers!  This is wrong!  And it can lead to wrongful convictions, as in the Morton case!

I was an aggressive prosecutor who zealously represented crime victims' rights!  Trust me, I was no bleeding heart!  But I also tried to always remember that, it is the prosecutor's role, as former Supreme Court Justice Sutherland described it, to "strike hard blows, but not foul ones."  In short, if the evidence is on your side, you can still try hard to win, but it won't hurt for the D.A. to help ensure a fair trial, and a level playing field, by turning over ALL the evidence to the defense attorney!  

Then, maybe we wouldn't have to look back, 25 years later, and wonder -- what else should have done to ensure this poor man a fair trial?

What do you think?

OPR: The Office of Professional Responsibility and Why DOJ Attorneys Fear It

[Photo of DOJ Seal from reactf.org]

As a new federal prosecutor, years ago, I quickly learned that most federal prosecutors shake in their boots at even the thought of being investigated by the Office of Professional Responsibility, ("OPR").  Here is why, in a nut shell!

You see, OPR is, for federal agents and prosecutors, what an internal affairs unit is for police officers.  In other words, OPR is the arm of the Department of Justice, ("DOJ"), which is entrusted with the responsibility of investigating and, in some cases, disciplining, federal agents and prosecutors who have been accused of misconduct related to their cases.  Each year, OPR investigates hundreds of complaints made by citizens, or referred to them by federal judges and others.  It is my understanding that OPR employees actually even troll across the internet looking for reports of alleged prosecutorial misconduct.  In short, if they catch you, OPR can get you fired! 

According to the DOJ website, OPR was created in 1975 in response to allegations of prosecutorial abuse committed by DOJ employees during the infamous Watergate scandal.

Fortunately, for me, during my 20 year career as a federal prosecutor, I never had to endure any OPR investigations!  But I knew or heard about federal employees who did.  And trust me, I don't believe it was a pleasant experience!  But I'll bet you will agree that OPR serves an important role in ferreting out government misconduct.

Of course, OPR is not the only vehicle for raising complaints about prosecutorial misconduct.  For instance, complaints can also be raised with state bar associations and with federal judges, in appropriate cases.  But   these are all matters which you should carefully discuss with your own criminal defense attorney.

As for me, now that I am an Augusta, Georgia criminal defense lawyer, and no longer work for DOJ, I no longer have to worry about receiving a call from OPR to "come on down, you are the next contestant!"      

The Roger Clemens Trial and the Problem of Prosecutorial Misconduct

[Photo from Wikipedia]

As a former federal prosecutor for over 20 years, (and currently, as an Augusta, Georgia criminal defense lawyer), I believe that most federal prosecutors, (Assistant U.S. Attorneys, or "AUSAs"), are good, decent, and honorable attorneys.  But in every profession, including among AUSAs, there are a few who will always try to cut corners, or step over the line, in order to win.  Doesn't it seem that prosecutorial misconduct seems to occur more and more frequently, especially in federal trials, around the country?  While I am not suggesting that the prosecutors in any of the following illustrations are in any way corrupt, or "bad apples," allegations of prosecutorial misconduct have certainly been raised in each of the following cases.  You decide about the alleged misconduct in each case.

For instance, no matter what you may think about the jury's verdict, you will recall that, in the recent Casey Anthony trial, the prosecutor was seen laughing, or smirking, during the defense lawyer's closing arguments.  In my opinion, there is no excuse for such misbehavior in the courtroom by prosecutors, but it happens more than you might realize.  Of course, I have no idea whether or not it had any impact at all on the jury's verdict.

Also, you will recall that the federal fraud conviction of Alaska's Senator Ted Stephens was thrown out, based upon prosecutorial misconduct.  In that case, the allegations centered around the government's withholding exculpatory evidence and witnesses from the defense, which, if properly revealed, might have resulted in a not guilty verdict for Stephens.  In my opinion, this type is an example of prosecutorial misconduct at its worst.

Finally, just this past week, a federal judge declared a mistrial in the perjury and obstruction trial of former baseball great, and seven-time Cy Young winner, Roger Clemens.  Once again, the mistrial was based upon possible misconduct by federal prosecutors.  In this case, Clemens is accused, among other things, of lying at a Congressional hearing about whether or not he had ever used performance-enhancing drugs.  According to news reports, another former baseball pitcher, Andy Pettitte, is expected to testify that Clemens had allegedly admitted to him that he had used human growth hormone.  Supposedly, Pettitte had told his wife, Laura, about the alleged admission.  But, as to Laura, that would be hearsay, so the federal judge in Clemens' case had previously ruled that prosecutors could not use her hearsay testimony to bolster Andy Pettite's testimony. 

However, according to news reports, what the judge had forbidden is exactly what federal prosecutors did this week!  Specifically, the government played a videotape for the jury of a congressional hearing in which a congressman referred to Laura Pettitte's hearsay statement!  Understandably, the judge reportedly got upset!  He excused the jury and declared a mistrial!

A hearing has been scheduled by the judge for September to decide whether or not Clemens can be re-tried after the government's mistake.  Naturally, Clemens' criminal defense attorneys will claim that the prosecutorial misconduct was either grossly negligent, or intentional.  His defense team will also raise double jeopardy as a defense against a retrial.  The government will, no doubt, claim that the mistake was unintentional and ask for another chance.  It remains to be seen how the judge will rule.

Again, I believe that most prosecutors, including most AUSAs, are good, decent, and honorable public servants.  But I also know that prosecutors are human and that mistakes occur.  Moreover, I also believe that some prosecutors are willing to step over the line, in order to win a criminal case.

What do you think?   

White Knights, Wet Hens, and Roof Tiles!

This is a blog written by a former federal prosecutor who is currently a criminal defense lawyer in Augusta, Georgia. In this blog, I try to post (hopefully) interesting articles about fraud, public corruption, and other types of white collar crime. I also attempt to describe what our criminal justice system is really like--on the inside -- at the sausage factory!

In this blog, I have always avoided discussions about any clients or about any pending criminal cases. And I will stick to that policy here now, too.

But that doesn't mean that I can't vent a little bit, in general, about the proper role of prosecutors! You see, as a former prosecutor, I've been there, done that! I know how prosecutors are supposed to act. But today, folks, (without discussing any criminal case in particular!), I am as mad as a wet hen about the way some prosecutors act! I am so upset that I could jump and bite a roof tile in half!

You see, I strongly believe in our adversary system of justice. Each side -- prosecution and defense -- has a proper role to play. I also believe that it is appropriate, as Justice Sutherland once said, for prosecutors to "strike hard blows, but not foul ones." But sometimes, it seems that a few prosecutors have the "white knight" syndrome. They appear to believe that they are entitled to strike hard, foul blows, in the cause of justice! But they are wrong to act this way! And, in my opinion, our adversary system, along with the cause of justice, suffer when this occurs.

I realize that I didn't really explain here exactly why I am so upset, or precisely how the government has struck a foul blow today. After all, I must adhere to my policy! But please allow me this forum and this opportunity to vent about an injustice! And please know that, while I will not stop believing in our adversary system, I will not give up the good fight against injustices either! There, I feel better!

Do you know of any examples of injustices in our court system? Do you believe our criminal justice system gets it right most of the time?

Ethics Investigations of Federal Prosecutors: O.P.R.

Did you know that federal prosecutors have someone to fear, if they violate your Constitutional rights? Of course, they fear a federal judge or an appellate court zapping them for denying a defendant a fair trial. And they should also fear that their state bar may sanction them, too. But there is another person who federal prosecutors fear even more! It is an attorney-investigator from the Office of Professional Responsibility, (or OPR), of the Department of Justice.

Each year, OPR investigates ethics complaints made against federal prosecutors around the country. In a recent year, according to the OPR website, there were over 869 complaints made against government attorneys, including a wide range of prosecutorial misconduct allegations. The complaints included such things as prosecutors withholding evidence favorable to the defense, prosecutors improperly coercing witnesses, and prosecutors misrepresenting facts to the court. Fortunately, not many federal prosecutors violate ethics rules and not many are disciplined by the Attorney General based on these OPR investigations. In a recent year, for example, out of 869 complaints, only 18 federal prosecutors were actually fired or otherwise disciplined.

In my career as a federal prosecutor, I have seen a relatively small number of actual ethics violations. But I know they do occur! For example, I have seen one prosecutor improperly subpoena a defendant to testify before a grand jury. Another prosecutor threatened grand jurors if they failed to indict a case! I could tell you other "war stories!" Believe me, federal prosecutors are not immune against violating defendants' Constitutional rights. It happens! So, in my opinion, I am thankful that OPR exists, just to make the bad apples -- the unscrupulous federal prosecutors --have someone to fear; that is, at least if they get caught!