Tuesday, February 17, 2015

Federal Prosecutorial MIsconduct


Federal Prosecutors Misconduct Subject of new Federal Lawsuit

 

By Derek Gilna

 

            Congressional initiatives, such as the Smarter Sentencing bill, Sentencing Commission action, such as the two-level reduction for drug offenders, and Presidential pardons, under the authority of the executive’s clemency powers, have gotten most of the publicity, but what about the weak link in the chain, addressing the inappropriate, unethical activities of unscrupulous(or politically-motivated) local federal prosecutors?

            A writ of certiorari was recently filed to address an especially egregious example of prosecutorial misconduct in New Orleans regarding Brady (discovery) violations by federal prosecutors that contributed to many wrongful convictions.  Truvia v. Harry F. Connick, U.S Supreme Court, 2015. (See also Connick v. Thompson, 131 S. Ct. 1350 (2011), which I wrote about for Prison Legal News.)

            To be fair, Attorney General Holder and his designated successor have helped introduce and advance many needed reforms into the Department of Justice to get the local federal prosecutors to remove some of the obvious injustices.  Condemning the use of needless enhancements to garner guilty pleas (often from innocent people), as well as a reform of the pardon office, were positive developments.  However, Holder has not dared to address an often more serious problem prosecutorial misconduct.

            As federal case law currently stands, most federal prosecutors are shielded from the full effect of their misconduct.  I have reviewed hundreds, if not thousands of cases, and if there is one common thread running through their fact situations, it is the often subtle practice of federal prosecutors using the power of their position to frustrate diligent defense attorneys in performing their constitutionally-critical duties of properly defending their clients. (See the prosecution of Senator Ted Stevens, who was wrongfully prosecuted and convicted, and driven from office, but later exonerated.  His prosecutors remain unpunished.)

            Don’t misunderstand me.  There are many ethical prosecutors out there. They work hard for often modest pay, in relation to other attorneys.  However, the unchecked unethical behavior of some prosecutors, combined with the tremendous advantage in prosecutorial resources available to the federal government, combines to often mock the ideal of American judicial justice.  Judges often wink at all but the most obvious examples of prosecutorial abuse.

            Yes, diligent defense attorneys can often uncover these abuses, and take remedial action even after one has been convicted. However, even when the prosecutorial wrongdoing has been exposed, no action is taken against the offending prosecutor.  In fact, some of them even get promoted to federal judgeships! (I personally know of at least three instances of this, and no, I won’t name them here-yet.)

            Federal prosecutors should be held accountable, as are all defense attorneys, for all questions of unethical behavior, to level the playing field, and make the term “American Justice,” more than just a bad punch line.  Federal prisons will be  much less-crowded places if that takes place.