Sunday, May 13, 2012

Two suggestions, one radical, one modest, on prosecutorial reform

I ran across two additional, suggested approaches to reduce prosecutorial misconduct: First, here's an interesting idea for prosecutorial reform: Separate conflicting prosecutorial functions.
No one likes to be inspected. Naturally, prosecutors facing trials will be tempted to mobilize the leverage that extra years of incarceration provide to avoid the inspection stage altogether by forcing pleas.

In  Missouri v. Frye the Court  took belated note of this fact, recognizing a right to counsel in plea bargaining in part  because “longer sentences exist on the books largely for bargaining purposes."

“This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial.” the Court continued.

Each year of incarceration that your prosecutor is now deploying to avoid trial inspection costs at least $40,000, and the money comes from the Corrections Commissioner’s budget, not from the prosecutor’s.

Each year in jail amounts to a $40,000 unfunded mandate, and it forces trade-offs in expenditures for education, for health, and for everything else. That isn’t the prosecutor’s problem: he has a blank check which buys as much leverage as he likes.

He can spend your money to avoid his trials.
The proposed "Swiftian" solution: To "divide American prosecutors into two separate and independent offices." The office responsible for trying cases would be dissociated from
an office of solicitors, who handle the misdemeanors, prepare the serious cases and determine how many years of incarceration the taxpayers will fund to punish, incapacitate, and rehabilitate each offender.

If they can dispose of a case for the price they’ve set, they will dispose of the case. If they can’t, they will pass it on to the second office, an office of barristers, who try the felony cases in court when they have to be tried.
For my part, if we're considering such radical reform, I might suggest instead (or perhaps in addition to) following the lead of the British Crown Prosecution Service, where attorneys may serve as prosecutors one day and defense lawyers the next. To me, the problem is not the prosecutorial function so much as an entrenched prosecutorial culture and mindset that leads to tunnel vision and politicized justice.

Second, a reader saw a past Grits post suggesting prosecutorial misconduct reforms including requiring judges to name prosecutors in orders when there are Brady violations or other misconduct. This reader sensibly suggested pursuing a bill that would "Require the clerk - not the judges -to insert on all orders the names and State Bar Card Numbers of all prosecutors and defense lawyers." Our friend continued, "In civil cases, the lawyer who drafts an agreed motion and/or agreed order does this anyway, so it won't be a stranger to anyone in any county clerks' office or district clerks' office." Excellent point.

36 comments:

Anonymous said...

I've suggested the British solution before. That would also address the problem of indigent defense as both sides would then have access to the same resources.

The reason why this will likely never happen is because it would radically change the role of the district attorney. It is so easy now for a DA to campaign on the tough on crime rhetoric there is no way they are going to give that up.

CLH said...

I think we should take it one step further. Instead of having separate entities for the misd./felony courts, we should have separate entities for the plea/trial phase, where prosecutors are rewarded based on recidivism reduction. I would not necessarily be adverse to appointed Judges (who don't have to be elected) being granted the ability to offer pleas in lieu of the prosecutor, either.

Anonymous said...

If 91 cases of "prosecutor misconduct" over the past 5 years (assuming that's correct, since the Innocence Project for some inexplicable reason won't publically release their research) is your justification for comprehensive prosecutor reform in Texas, then that's a pretty poor justification. Considering that there are well over a million crimes prosecuted in Texas annually, that makes the odds of being personally impacted by prosecutor misconduct considerably less than one's odds of being struck by lightning or being a victim of Islamic terrorism. Seems to me that the the real motivation of those attacking prosecutors is a desire to diminish the ability of our criminal justice system to hold criminals accountable for their crimes. But then again, I suppose it shouldn't be surprising that those who prey upon society, and their sympathizers, would feel that way.

Anonymous said...

4:45, you are just sad. Yoo've either got your head in the sand or up your ---. I don't know which. Either way, pull it out and take a look around.

I don't know the details of this study either. But, I can say for certain that the study did not look at every criminal case in the state of Texas. Even if it were possible to do so, a lot of prosecutorial misconduct would still go undiscovered. We have seen from case after case after case after case that misconduct can go for decades without being discovered.

You keep throwing out thie "million" other case proescuted each year. Sure, what, about 95% of those are pleas. We know (although until you pull your head out you may not see) that innocent people sometimes plea (we've seen that in cases like the Yogurt shop case and in DNA exonerations even). So, we have no way to know whether misconduct occurs in most of those cases. Next, even when someone goes to trial misconduct may never be discovered. We have no way to look at every criminal case and determine the actual frequence of misconduct.

This study, which, as I said, I don't know anything about, probalby looked at a small sample of cases. Let's just assume they looked at 1,000 cases. As you say, "million"s are prosecuted every year so that would be only a very very small sample. Actually, they probably only used cases that were documented in some way, by an appeals court or someone. So, that 91 figure you keep ranting about is likely based on a minute sampling of cases. I don't claim to be good at math but I bet if someone who did looked at the sample that this number was derived from and extrapolated it based on the "million" cases prosecuted every year it would yield a pretty significant number.

Sure, you are smart enough to figure this out on your own without me explaining it to you. Surely, you can't think that there have only been 91 of these cases in the state. I know you are smarter than that. Unfortunately, sometimes our bias tends to override our intelligence.

If you are as interested in the subject as you say, I suggest you do some research. Here's a start for ya: (I've posted this info before and I know you've seen it before - well maybe you didn't see it because your head is stuck somewhere, or maybe you did and are just to blinded by your bias to comprehend it). I'm posting this in the next post because of the word limit...

Anonymous said...

“[S]hort of visiting every courthouse in the country, there is no way to determine how many cases are dismissed or ruled mistrials by trial judges (and thus never reaching the appellate courts) because of a prosecutor’s misconduct.”
A recent USA Today article looked at the problem at the federal level. The authors documented 201 criminal cases, occurring since the enactment of a 1997 federal law aimed at ending prosecutorial misconduct, in which judges determined that Justice Department prosecutors had violated laws or ethics rules. This conduct was often described by judges as “flagrant” or “outrageous” and included such behavior as hiding evidence, lying to judges and juries and breaking plea bargains. In each of these 201 cases, federal “judges threw out charges, overturned convictions, or rebuked prosecutors for misconduct.” In 2009 the Justice Department internally investigated 61 complaints made by judges about misconduct on the part of federal prosecutors. Despite all of these complaints, state bar records reveal that, in the past 12 years, only one federal prosecutor has been barred from practicing law. , In its investigation, “USA Today found a pattern of ‘serious, glaring misconduct.’” The article quotes an expert on the issue who said, “It’s systemic now, and . . . the system is not able to control this type of behavior. There is no accountability.”

Anonymous said...

The Center for Public Integrity found 2012 cases in which “individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges at trial, reversing convictions or reducing sentences . . ..” “In 513 additional cases, appellate judges offered opinions—either dissents or concurrences—in which they found the prosecutorial misconduct serious enough to merit additional discussion . . ..” “In thousands more cases, judges labeled prosecutorial behavior inappropriate, but allowed the trial to continue or upheld convictions using a doctrine called ‘harmless error.’”
“The Center analyzed 11,452 cases in which charges of prosecutorial misconduct were reviewed by appellate court judges. In the majority of cases, the allegation of misconduct was ruled harmless error or was not addressed by the appellate judges, and the conviction stood. The relative rarity of reversals makes these opinions useful from an empirical standpoint: Any prosecutor who has more than one reversal to her credit belongs to a select club.”
“In January 1999, the Chicago Tribune published a five-part series of articles that found, in the paper’s own words, ‘nearly 400 cases where prosecutors obtained homicide convictions by committing the most unforgivable kinds of deception. They hid evidence that could have set the defendant’s free. They allowed witnesses to lie. All in defiance of the law. Prosecutors swear to seek the truth but instead may pursue convictions at any cost. The premium is on winning, not justice.’” “The series . . . documented 381 cases, going back to 1963, in which courts reversed murder convictions because prosecutors presented evidence they apparently knew to be false, or concealed evidence suggesting innocence, or both.” “[I]n November 1999, the Tribune published another in-depth series . . . that examined murder cases in which Illinois prosecutors . . .had charged a defendant with a capital crime and asked for the death penalty. The journalists identified 326 reversals attributed in whole or part to the conduct of the prosecutors.”
Researchers and authors have been studying and writing about the problem since 1932.
One frustrated Florida court spoke at the frequency and pervasiveness of the problem:
“In spite of our admonishment in [a prior case reversing a death penalty conviction] and despite subsequent warning that prosecutorial misconduct will be subject to disciplinary proceeding of The Florida Bar, we nevertheless continue to encounter this problem with unacceptable frequency. . . . In addition to finding that the conduct at issue ‘crossed the line of zealous advocacy by a wide margin and compromised the integrity of the proceeding,’ the court also cited xis prior death penalty cases that it had been compelled to reverse because of prosecutorial misconduct.”
One writer spoke about the scope of the problem in these words:
John Thompson, the Duke defendant, Randy Weaver, Rolando Cruz, James Streba and former NBA star Jayson Williams have two things in common. They have each been the target of a criminal investigation or the subject of a criminal prosecution and they have each been the victim of pervasive prosecutorial misconduct. Prosecutorial misconduct has reached epidemic proportions and, like a disease, cuts across geographic and socio-economic boundaries to infect the criminal justice system.

Anonymous said...

Just one more time for emphasis - 4:45

Prosecutorial misconduct has reached epidemic proportions and, like a disease, cuts across geographic and socio-economic boundaries to infect the criminal justice system.

Now pull your head out.

Anonymous said...

201 instances of federal prosecutor misconduct since 1997? 1997? 15 years ago? You consider that an epidemic?

Anonymous said...

4:45 / 5:36 - I give you too much credit.

I guess I'll have to break this down into terms you can understand.

Employing your logic, you can look at the number of people arrested and the crimes they were arrested for and assume that includes all of the crimes ever committed.

Let's say next week law enforcement in a particular county arrest 50 people for possesion of drugs. Employing your logic, there were only 50 people ever in possession of drugs in that county.

But, now stay with me, if your brain isn't overloaded yet, we know that there are many more crimes committed that go undetected.

Now, as far as crime goes, we have a lot of resources out there to catch and punish criminals and yet we still don't get them all. We have virtually no resources committed to catching and punishing prosecutorial misconduct. Well, I'm trying but I feel that I'm still not making this simple enough for you.

Here's the bottom line, any study done on prosecutorial misconduct is going to be limited for several reasons. One, as I previously said, its impossible to look at every criminal case and, even if you did there would still be incidents of misconduct that you would not be able to discover. So, any study looks at a small sample of cases, usually cases where misconduct has been discovered in some way. This is still very limited though because there is no sysematic way to report and document misconduct (unlike crimes).

Now, I've tried to be nice, but only a moron would take the number from the innocence project (91) and assume there have only been 91 cases of prosecutorial misconduct. I know I'm wasting my time trying to explain this to you because you don't want to see the truth. But, most people with any sense at all have sseen this is a serious and pervasive problem. BTW, the epidemic quote was not my words. It was quoted from someone who wrote an entire treatise on the subject. Judges and many others have said similar things. The only people who cannot see the extent of the problem are probably those who are part of the problem. To a criminal, crime really isn't a problem, is it?

Anonymous said...

One more thing, 4:45, employing your logic, we no longer need police or prosecutors because we've caught and locked up all the criminals.

Anonymous said...

Apparently 4:45 / 5:36 you can't read too good. I hope you're not a prosecutor, one would expect them to have at least an 8th grade reading comprehension level. Here's the part about the 201 cases so you can read it again. Try reading slowly and get someone to help with the big words.

“[S]hort of visiting every courthouse in the country, there is no way to determine how many cases are dismissed or ruled mistrials by trial judges (and thus never reaching the appellate courts) because of a prosecutor’s misconduct.”
A recent USA Today article looked at the problem at the federal level. The authors documented 201 criminal cases, occurring since the enactment of a 1997 federal law aimed at ending prosecutorial misconduct, in which judges determined that Justice Department prosecutors had violated laws or ethics rules"

THat does not say there were only 201 cases. It says the authors of this study looked at 201 cases in which judges determined that proseuctors violatd the law or ethics. So, again, this is a limited sample. Now, if you can't understand that concept...just keep your head stuck where it is at.

Anonymous said...

In case you're interested in actually educating yourself on the subject (I'm sure you're not - you are only interested in info that confirms your bias) here is the source of the epidemic comment:

JOSEPH F. LAWLESS, PROSECUTORIAL MISCONDUCT 1-3 (Matthew Bender & Co. eds., 4th ed. 2008).

If you are really interested in the subject, I'd be happy to provide you with additional resources to look at, just ask.

Anonymous said...

I can understand the motives of the Mafia, but crooked prosecutors? As a group of supposedly well educated, elected individuals they behave like children. Maybe they got their lunch money stolen too many times in school? It is sick to wake up every morning with a calculated plan to incarcerate the innocent and keep them warehoused, hide or fight to keep others from seeing all the evidence. Solely to enhance your power, conviction rate, because you can? What motivates such a monster? In instances exposed by the press, the outcome is correct... Tuff on crime or smart on crime? Convictions or justice? Your future races toward you, Watkins or Bradley?

Anonymous said...

I don't know what planet you people live on, but in Texas, most prosecutors I know barely have the time and resources to prosecute the criminals who are clearly guilty. And believe me, there are plenty of them. In most larger DA's offices, it's not uncommon for a single felony prosecutor to have an active caseload of 150-200 cases at any given time. And y'all think these prosecutors are out there eagerly looking for innocent people to prosecute? Give me a freakin break! Even Barry Scheck has publically stated that he doesnt believe there's an epidemic of prosecutor misconduct. The statistics show one thing: that intentional prosecutor misconduct is extremely rare. That is precisely why it makes big news when it happens. Do mistakes happen? Sure they do. And Texas has already taken some very progressive measures to address them, e.g., expanded DNA testing, eyewitness ID reforms, compensation for the wrongly convicted, etc.. As a group though, prosecutors in Texas are among the most dedicated public servants that there are. They go to work daily with one objective: to seek justice. They do as much as they can to try to help make victims whole and make their communities safer places to live. Thankfully, the law abiding public in Texas still understands this. On the other hand, I'm sure this bothers the criminal element greatly.

Attorney 1 said...

Two suggested reforms to add to your list. Move a per diem for jail and for prison to the DA budget, so that tuff on crime DA's will have to explain their budget at election time.

Second, put a devil's advocate unit, appointed by the district court, into the system, with full access to the police and ADAs, files, etc, to review cases to be sure that due consideration is give to the possibility of overcharging and pursuit of longer than necessary or appropriate sentences. It should consist of 1 attorney and one investigator per 10 ADAs.

Anonymous said...

The statistics show one thing: that intentional prosecutor misconduct is extremely rare.

BAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA.........

BAHAHAHAHAHAHAHAHAHAHAAHHAAHHAHAHAHAHAHAHAHAHAH!!!!!!!!!!!!!!

Anonymous said...

"In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct..."

The 91 cases were cases that the people doing the study found where courts decided that misconduct occurred. How do you find these cases. You have to dig through court cases. Thus, it is likely they didn't even find all of the ones where courts found misconduct. How many cases result in no written judicial opinion that would address this? Furthermore, this only considers cases where courts found this. We know judges often turn a blind eye, and, like Judge Skeen in Smith County, some judges participate in misconduct. Heck, I bet this study didn't even include the Mineola Swinger case in Smith County that included tons of misconduct.

Yet, someone says this shows misconduct is rare. This must be a prosecutor. Who else would look at such a small smidgen of evidence and jump to such a huge ( and innacurate conclusion). That's what sometimes happens in cases, doesn't it? Based on some little something the police and prosecutors assume guilt and then stubbornly refuse to ever acknowledge even the possibility that they may be wrong.

Rare, huh? Let's see the big cases that come to mind are Kerry Max Cook, Michael Morton, Anthony Graves, the Mineola Swingers Club cases, there's that case in Houston now where the lady was convicted of killing the kid with salt, its well known that misconduct was common in the Dallas DAs office under Henry Wade, its well known that misconduct has been common in the Smith County DAs office for at least 30 years (I could list several cases just from there), there's the Tulia drug cases, ...if I keep going I'm going to go over the word limit here.

All one has to do is look at case after case after case to realize there is an epidemic of prosecutorial misconduct, not just in Texas but the country. From other states we have Mike Nifong, McGhee v Pottawattamie County, Thompson v. Connick, the criminal case from New Orleans that was just before SCOTUS that I can't recall the name, the Senator Stevens case ... you get the picture.

Yes, I will admit that the majority of prosecutors probably try hard to follow the rules. But, anytime you give someone that kind of power with no accountability (i.e. absolute immunity) you are going to have problems. Absolute immunity just invites misconduct. If we decided to no longer prosecute burglary what do you think would happen to the burglary rates? Yes, absolute immunity has created an epidemic of misconduct and too many good prosecutors look the other way when their colleagues do it.

Btw...come 4:45, you're John Bradley, admit it.

Anonymous said...

"As a group though, prosecutors in Texas are among the most dedicated public servants that there are."

Again - BAHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAH!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Anonymous said...

I was a victim in a Criminal Mischief case, a misdemeanor, and the police officer told me to drive my estimate of the damages up because "that's what the DA's Office likes us to do so they will get a bigger charge out of it." And, never once did they ever ask me to furnish any estimates. Is that about justice? Even as a crime victim, I think that is unethical and can't help but wonder how much crime is pushed upwards and the criminals are essentially "victimized" by the system. What say you, 7:55?

Gritsforbreakfast said...

4:45, first, just because you're too lazy to ask for the information yourself doesn't mean the people who compiled it won't release it. For some reason you seem to expect me to drop everything to research your questions, even when you pose them amidst insults and overt misrepresentations of my views. Your ignorance (not to mention the myopic worldview constraining your understanding) is simply not my problem. In this case, though, just to stop your incessant whining, at least momentarily, here's the list of cases.

That said, it's a false, incredibly disingenuous spin to say there were only 91 cases of prosecutorial misconduct during that period. Those are just a small subset identified through a very limited research methodology. In fact, the reason for the second suggestion is that in most instances when prosecutor misconduct is identified by the courts, it's impossible to even tell from court records who was involved. As Milton wrote, "They who have put out the people's eyes reproach them of their blindness."

Firnally, the statisticis in that report do NOT even attempt to document the FREQUENCY of prosecutor misconduct, which is impossible to estimate given currently available methodologies. The question that analysis sought to answer is, WHEN prosecutor misconduct is identified by the courts, is it punished by the state bar? The answer to that question is an unequivocal "No."

JH said...

The interesting thing is that many of the cases on the list were reversed for improper argument or examination. Just glanced through the list quickly, but didn't see reversals for Brady/Giglio/Jencks violations or Batson. They are out there, but they can be tougher to locate. Most prosecutors are good people, however, there are a few bad ones in many jurisdictions who pursue a win at all costs mentality. In those cases, Brady errors may go unrealized for years.

Another possible solution: establish an office of professional responsibility - similar to the DOJ. You could even do it through the CCA like the State Prosecuting Attorney Office. Allow them to assist the state bar disciplinary folks in investigation and bar actions. Just a thought.

Anonymous said...

So out of the 91 cases, there were only FIVE involving failure to disclose evidence? No wonder they haven't publicized this study. Looks like the overwhelming majority of cases of "prosecutor misconduct" involve mistakes made during the heat of trial. And most of those appear to have been found by the appellate courts to be harmless error. Incidentally, it's kind of hard to contend that prosecutor error which occurs in the middle of a public trial and on the record is hidden, isn't it? By the way, does the abbreviation USSD and USWD mean those are cases involving federal prosecutors? Don't they kind of operate under a different set of laws and guidelines than state prosecutors?

Anonymous said...

5/13 @7:55pm

OMG, there is enough fertilizer in your post to fertilize the Sahara.

If such a committed group, support reform legislation that will require regular, accurate statistical reporting to prove the level of committment.

Anonymous said...

I'm not sure I follow the logic of the post here. You suggest that the cost of incarceration is essentially a blank check that the prosecutor uses to negotiate. If I understand that, you mean the prosecutor threatens the defendant with his willingness to spend whatever the incarceration will cost to put the defendant in prison for as long as possible (because the prosecutor doesn't have to spend the money). The defendant lacks leverage in that situation because his attempt to get the prosecutor to reduce the sentence in order to save money on incarcerating him doesn't concern the prosecutor who doesn't have to pay the money. While I agree that is true as far as it goes, I'm not sure why that justifies the "solution" proposed.

The leverage that a defendant does have is that he can take the case to trial. That does cost the prosecutor money. It also risks, depending on the case, either an acquittal or a lessened sentence to that offered as a plea. I'm not sure what process you're suggesting a solicitor's office would use to evaluate a case, but it seems to me that if jury verdicts in similar cases are a proper gauge, then the post suggests that most prosecutors are actually offering plea bargains for less than the cases are worth (since the article claims that trial defendants get harsher sentences than their plea bargaining counterparts).

Therefore, the article seems to suggest that under the current system, prosecutors are saving the system money by offering defendants less than their cases are worth in terms of incarceration, and the defendants who go to trial are the only ones who really pay the penalty that the community feels they deserve.

Presumably, this alternative system's sole "advantage" would be to require that costs of incarceration be given greater emphasis and thus reduce incarceration terms. The disadvantage, of course, is that now you have a different lawyer negotiating the case than the one who will actually have to try it if negotiations fail.

If I had to, I would bet that the vast majority of the prosecutorial misconduct cases with which the other posts are concerned deal with conduct engaged in by prosecutors who did not have to handle their own appeals. When someone else has to bear the burden of your mistakes, you are less careful to avoid making them.

When the costs of incarceration become too great for the state to bear, it would be much more effective, and easier, to adjust the penalty ranges and parole laws than to create a radically different system that embraces a similar lack of accountability to that which it purports to address.

john said...

Well, swell slap fest.
Look, the systemic problems are wide-ranging, and tough prosecutors mean they brag on that when running for judge. But the million crimes are mostly non-crimes by any common law or common-sense standard. IT'S JUST THAT THEY WANT THE LOCAL FINES, AND THE LEVELS WANT THE FEDERAL PER-CAPITA FUNDING TO TRICKLE DOWN. And of course they want to ensure their job security!!!! Then everybody in the "lawyers' union" donates more to legislators to make more laws and define more crimes. It's systemic, (above at 5:11)"the system is not able to control this type of behavior. There is no accountability.”
Oh, crapya, it's longer & longer CAPTCHA! Ow, try again!

Anonymous said...

I would never want to take a case to trial that somebody else "prepared." They'll blame any failure on you, and any complaints about the prep work will be viewed as whining. Plus, different lawyers will see the same case differently. You can't strap a trial lawyer with the work done by a desk-weenie.

And have prosecutors switch roles to defense lawyers? They'd tank cases on purposes.

Guar-ooooonnn-teeeeeeed.

/end Justin Wilson voice

Rage

Kerrville Commentary said...

Grits I admire your stamina and forbearance;; it's threads like this one that beg for an end to anonymous posting. Be a stand up guy or keep quiet.

DLW said...

john said at 10:25: "Then everybody in the "lawyers' union" donates more to legislators to make more laws and define more crimes."

That simply isn't true. I challenge you to find me 5 new crimes created in say the last 25 years that were supported by the Criminal Defense Lawyers. You want to know where new criminal laws come from you need to look at the business lobby and the victims lobby.

Someone feels aggrieved. They go to the local Law enforcement including the DA's and find out that there either is no law criminalizing the conduct in question or that the penalty is "too light". They then go to the friendly state representative and get him to carry a bill. It's tough on crime so others vote to go along and BANG. You have a new criminal law.

Phillip Baker said...

Those are 2 serious options for reform. Aside from the infestation of a gutless anonymous just being stupid (like a teenager?), the posts show that misconduct is NOT all that rare. There have been 47 exonerations in Texas alone. OK, the fact that "millions" of cases are tried, that does not change the fact that 47 innocent human beings went through hell illegally so some DA could be "tuff on crime" and uphold "the law".We see how that's working out. The problem is and will remain that there is effectively NO check on the power of DA's. Since our whole system is based on balancing powers with checks on that power, letting such a powerful player as a DA go unexamined, unchallenged, and left immune is just a recipe for abuse and corruption. There is clearly a level enough of misconduct- and NO accountability- to warrant serious reconsideration of the current system. Millions of innocent people take a plea to escape the over-charging by the DA they face. The power inequity in court is a scandal. God forbid you find yourself accused and have to rely on an appointed lawyer. When "your" lawyer doesn't even meet you till just before trial, you really do not have legal representation except on paper.With that kind and quality of defense, who wouldn't just swallow innocence and take a plea I continue to say that our criminal justice system badly needs reform from top to bottom and back: cops, elected prosecutors, even defense attorneys, elected judges, a barbaric prison system, no effective State Bar nor Judicial Qualification Commission, an appellate system so vastly costly that few can even take a shot there, and an appellate court system riddled with activist judges whose ultraconservative agenda precludes "justice" most every time. Oh, and lest I forget the mythological Board of Pardons and Paroles - which is so dysfunctional it needs to be sunsetted out (OK. I made that word up) and replaced by a real board that actually does due consideration of cases before it.

The idea of shifting the cost of the convictions (prison, probation,etc) onto the county that brought the charges has merit. Politician prosecutors and judges would then actually have to justify their records at election time. This needs to be explored.

Thomas R. Griffith said...

Hey Grits, if those two suggestions qualify as radical and modest then the following will seem frigin stupid and or outlandish.

Despite that, I offer it up under my name and as a (VOTS) Victim of the System - I can assure you that the watered down & sugar coated nick name attached to the criminal act in which it is AKA: “Prosecutorial Misconduct" occurs and exist via enablers (Presiding Judges). You can’t get away with cheating in a court of law without the Judge being in on it. Juries on the other hand are comprised of hand-picked dumbasses and or voters that voted a certain way in past elections. I propose we call it what it is – Criminal Justice System Corruption and dispense with the weak-ass “misconduct” label. We can all grow a pair and yes, that includes the better halves or we can continue to be lead by our noses and wallets.

Combine the workable and sensible suggestions offered by yourself &
a few GFB readers above with - Total Elimination of the Plea Bargain process once a jury has been picked. The guilty can plea the hell out and the innocent can go to trial all the way to verdict and the taxpayers can pick up the tab of $100K per year, plus, plus on wrongful convictions or vote to make egregious criminalistic errors the responsibility of those shown to be corrupt. Easy-Pizzy. Thanks.

Anonymous said...

Someone needs to call England, because I don't think they do it like that anymore. They have Crown Prosecutors and a Public Defence Office. Of course they don't allow jury trials for petty, jailable offenses either, and try most cases before a panel of three lay judges, or Magistrates.

Blue_in_Guadalupe said...

And here's another case in Texas of misconduct that cost an innocent man his life. http://www.huffingtonpost.com/2012/05/15/carlos-de-luna-execution-_n_1507003.html

Carlos Deluna executed in 1989 for a murder committed by someone he knew but was too afraid to name. And misconduct isn't just in the prosecutors office. It occurs with the police as well. "Fingerprints taken from the knife and cigarette pack found at the crime scene were sent to a former Scotland Yard investigator for comparison with Hernandez's prints. But the evidence had been so poorly collected by police, Liebman said, that the results were inconclusive." If you do sloppy evidence collection that is misconduct as well.

Anonymous said...

I am not knowledgeable in this area, just conducting a search for help/answers!

As a family member, how do we go about getting an investigation started if we feel "prosecutor misconduct" has occurred? I come from a SMALL west Texas town and a certain DA has had a personal vendetta against my brother since 2002. He was sent to prison in 2003 for 7 years for Arson as he caused less than $700 worth of damage to car. He had just turned 18. Upon his return home, we were all ill prepared for the adjustment phase. He suffers from bipolar disorder and ADHD and fell victim to self-medicating. He and his girlfriend had a drug problem and were pulled over with 12 grams of cocaine, which were in her possession. A lot of details to this story, but the reason I feel misconduct has occurred is because the DA took this case full force, charging him with manufacturing and intent to deliver, even giving more attention to this than sexual abuse cases in the area and a nationally known missing child (Hailey Dunn) case. She had no witnesses, including the gf, to say that he had ever attempted to sell anyone any drugs. He was found guilty (the jury selection was another question). During the punishment phase of the trial she brought in character witnesses (mostly other drug addicts) to testify against his temper. All the witnesses discussed and accused him of situations that he had neither been charged with or found guilty of. Is this legal??? I have no idea, maybe some of you can help me. During her closing statement the only mention of him dealing drugs was to his gf, who had a drug problem before and after him. The rest spoke to his temper and the events he hasn't been found guilty of. This was his first drug charge, ever. Never a possession charge of any kind. No witnesses discussing his dealing drugs. The DA asked for the jury to sentence him to 99 years (She is on the Texas drug task force committee, could this have influenced it?) not sure. Anyway, they returned with a sentence of 80 years!!!! I just feel like we were not given a fair trial. Is this something we can fight? Can anyone here point me in a direction or at least say if this was fair?? I want to believe in our system but this seems ludicrous. I know my brother has been in the wrong and is not an innocent victim. He has made mistakes but was trying to get his life back on track and we were trying to help him find a rehab and doctor to begin meds again. But he isn't a drug dealer, nor do I believe his crime requires an 80 year sentence when 2 consenting adults were hurting themselves and not others. I just feel I witnessed small town feelings of power take precedence over true justice.

mirmoni said...
This comment has been removed by the author.
mirmoni said...

Ok, I figured I should post my name so that maybe someone could contact me with help, the previous "anonymous" comment was mine...

Also, on the topic of the plea, he was offered a plea bargain of 25 years, which was discussed once with him when he had a court appointed lawyer and he refused it. He thought it was an outrageous amount of time when he feels he is innocent of the crime he's been charged with. So he took a chance that the system would work, he didn't realize how badly she wanted this case and now the 25 year sentence would be a God send :(

FleaStiff said...

Financial incentives? We already have police seizing vehicles due to asset forfeiture rewards programs. We already have drug prosecutions solely because of The War On Drugs.

If we take the cost of incarceration out of the prosecutor's budget do we take the cost of a lifetime's care of a diapered vegetable out of the highway budget or out of the parks and recreations budget for accidents that take place in such locations?