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Rampant Prosecutorial Misconduct

From: domainremoved <Tony>
Date: Wed, 7 Dec 2016 05:51:17 +0000

Rampant Prosecutorial Misconduct
New York Times
In the justice system, prosecutors have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the outcome. That is why it is so important for prosecutors to play fair, not just to win. This obligation is embodied in the Supreme Court’s 1963 holding in Brady v. Maryland, which required prosecutors to provide the defense with any exculpatory evidence that could materially affect a verdict or sentence.

Yet far too often, state and federal prosecutors fail to fulfill that constitutional duty, and far too rarely do courts hold them accountable. Last month, Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, issued the most stinging indictment of this systemic failure in recent memory. “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.”

The defendant, Kenneth Olsen, was convicted of producing ricin, a toxic poison, for use as a weapon. Federal prosecutors knew — but did not tell his lawyers or the court — that an investigation of the government’s forensic scientist, whose lab tests were critical to the case, had revealed multiple instances of sloppy work that had led to wrongful convictions in earlier cases. A state court found the scientist was “incompetent and committed gross misconduct.”

Yet the majority of the federal appeals court panel ruled that the overall evidence of Mr. Olsen’s guilt — including websites he visited and books he bought — was so overwhelming that the failure to disclose the scientist’s firing would not have changed the outcome.

This is the all-too-common response by courts confronted with Brady violations. Judge Kozinski was right to castigate the majority for letting the prosecution refuse to turn over evidence “so long as it’s possible the defendant would’ve been convicted anyway,” as the judge wrote. This creates a “serious moral hazard,” he added, particularly since prosecutors are virtually never punished for misconduct. According to the Center for Prosecutor Integrity, multiple studies over the past 50 years show that courts punished prosecutorial misconduct in less than 2 percent of cases where it occurred. And that rarely amounted to more than a slap on the wrist, such as making the prosecutor pay for the cost of the disciplinary hearing.

Brady violations are, by their nature, hard to detect, but Judge Kozinski had no trouble coming up with more than two dozen examples from federal and state courts just in the last few years, and those are surely the tip of the iceberg. According to the National Registry of Exonerations, 43 percent of wrongful convictions are the result of official misconduct.

The Brady problem is in many ways structural. Prosecutors have the task of deciding when a piece of evidence would be helpful to the defense. But since it is their job to believe in the defendant’s guilt, they have little incentive to turn over, say, a single piece of exculpatory evidence when they are sitting on what they see as a mountain of evidence proving guilt. The lack of professional consequences for failing to disclose exculpatory evidence only makes the breach of duty more likely. As Judge Kozinski wrote, “Some prosecutors don’t care about Brady because courts don’t make them care.”

Courts should heed Judge Kozinski’s call, but it will take more than judges to fix the problem. Prosecutors’ offices should adopt a standard “open file” policy, which would involve turning over all exculpatory evidence as a rule, thus reducing the potential for error.

Fighting prosecutorial misconduct is not only about protecting the innocent. It is, as Judge Kozinski wrote, about preserving “the public’s trust in our justice system,” and the foundation of the rule of law.


16% of the people exonerated<http://bigstory.ap.org/article/24cfa961d3444be49901496fdcaa3fda/trial-or-deal-some-driven-plead-guilty-later-exonerated> of crimes they did not commit since1989 actually plead guilty to the crime they did not commit. 43% of the people<http://bigstory.ap.org/article/24cfa961d3444be49901496fdcaa3fda/trial-or-deal-some-driven-plead-guilty-later-exonerated> exonerated of crimes they did not commit in 2015 actually plead guilty<http://www.foxnews.com/us/2016/11/15/trial-or-deal-some-driven-to-plead-guilty-later-exonerated.html> to the crime they did not commit.

“Our criminal justice system has lost its way,” said David O. Markus,<http://bigstory.ap.org/article/24cfa961d3444be49901496fdcaa3fda/trial-or-deal-some-driven-plead-guilty-later-exonerated> a prominent Miami defense attorney. “For a long time, it was our country’s crown jewel, built on the principle that it was better that 10 guilty go free than one innocent be wrongfully convicted. Now sadly, the system accepts and even encourages innocent people to plead guilty.”

“Record Number of People Exonerated in 2015”<http://www.nbcnews.com/news/us-news/jailed-innocent-record-number-people-exonerated-2015-n510196>

A Case Study in how the Santa Clara County District Attorney and Crime Lab Cover Up the Crimes of Police Officers while Simultaneously Incriminating Citizens with Falsified Evidence; Falsified Videos.


Exposing corrupt prosecutors
On Sunday, the New York Times ran an editorial about prosecutorial misconduct. The paper called the problem “rampant,” particularly with respect to what are known as “Brady violations,” or the requirement to disclose favorable evidence to defense counsel. The editorial came on the heels of a well-publicized, blistering opinion by Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, that not only excoriated prosecutors in a murder case the court was considering, but went on to lambaste prosecutors across the country, and the courts and bar associations that fail to hold them accountable. We appear to now be headed for an overdue, full-blown “national discussion.”

The failures of the courts, bar associations, and professional groups to hold misbehaving prosecutors accountable is a problem unto itself—a problem I explored in a long-form piece last spring. But in nearly all of America, local prosecutors are elected. You might think that even if the profession fails to adequately police itself, voters could punish excessive misconduct at the polls. And indeed, that’s starting to happen. Several years ago, voters in Colorado rejected a couple sitting judges for retention because of their roles in the wrongful conviction of Timothy Masters when they were prosecutors. And the recent defeat of Brooklyn District Attorney Charles Hynes came after damning investigations of his record by media outlets like ProPublica, and an subsequent campaign by criminal justice activists to oust him from office.

But these are relatively new developments. And so far, they’re fairly isolated. There are a number of reasons for this. The main reason overly aggressive prosecutors aren’t punished at the polls is that crime only really motivates voters when they’re in fear of it. Public opinion may be shifting on our incarceration rate, prisons, juvenile justice, the drug war, and even some policing issues, but not to the point where a significant number of people will actually vote on those issues. Put another way, we tend to get politically motivated by what is happening to us, not what isn’t. We notice when crime is up. When we aren’t afraid of criminals, we vote on the issues that are immediately affecting us. Consequently, prosecutors have lots of professional incentive to rack up convictions, but little to fear for going too far. (Another consequence of this is a ratchet effect when it comes to crime policy.)

This isn’t to say that all prosecutors are corrupt, or that all of them engage in misconduct. It is to say that all of the incentives point in the same direction. Ask yourself this: Let’s say you’re a fair-minded, conscientious prosecutor. You only charge those you both are certain are guilty, and for whom you have more than enough evidence to convict. But you’re running for reelection. When you’re writing up your campaign literature, are you going to boast about the times you didn’t charge someone with a crime because there wasn’t sufficient evidence, or because you didn’t believe doing so was in the interest of justice? In most jurisdictions, that won’t win you many votes. The wiser strategy is to boast about all the bad guys you’ve put in prison.

As I noted earlier, polling data suggests public opinion is starting to shift on some of these issues. But any real voter accountability is going to be held up by a more fundamental information problem. If you want to see how many times an appeals court has cited an incumbent DA or his or her staff for misconduct, you’re going to have a difficult time. Even when courts find misconduct—even egregious misconduct—they rarely name the offending prosecutor. In fact, prosecutors’ names rarely appear on court decisions at all. Likewise, most state bar investigations of prosecutor misconduct are also kept confidential. That may seem sensible, given that the allegations may turn out to be baseless. But that of course stands in stark contrast to the fact that the people prosecutors accuse of crimes aren’t afforded the same courtesy. Even when a prosecutor is found to have committed misconduct and is sanctioned in some way, some states still keep the entire affair confidential. You could make a convincing argument that prosecutors are better protected from wrongful misconduct allegations than citizens are from wrongful convictions.

At the federal level, the Department of Justice usually conceals internal investigations of federal prosecutors. As a journalist, this is frustrating because it makes it difficult to suss out repeat offenders. In the end, we’re reliant on professional organizations to sanction their own, and there’s ample evidence that these organizations just aren’t up to the task.

Now for some good news: A nonprofit reform group called the Center for Prosecutor Integrity (CPI) has just launched a new registry of prosecutor misconduct. It’s searchable by name, case, date, and several other variables. It also looks to provide some interesting data breaking down misconduct by infraction, region, and so on. So far, the database only includes 200 recent incidents from federal cases, but CPI “plans to expand the Registry to include all known cases of prosecutorial misconduct.” They’re currently looking for partners in individual states to help populate the database with new cases.

It’s clear at this point that the courts, state bars, and federal government have little interest in bringing any transparency to this problem. If it’s going to happen, it will probably need to come from private actors. The new registry seems like a good start.

What Happened To Mitrice Richardson?
Los Angeles Magazine

The suspicious circumstances surrounding the disappearance and death of Matrice Richardson.
Matrice Richardson mysteriously disappeared from the custody of the Malibu/Lost Hills Sheriff’s Station.
A year later her body is found not too far away. The crime scene and recovery of her body was contaminated by officers conducting the investigation.
Video footage of Richardson in the Sheriff's station has been edited.
No explanation as to why the video footage has been removed and Richardson's family has been denied access to the missing video footage.
This after the Sheriff initially falsely stated to the public and Richardson's family that no video existed when in fact there was one.
Several other questionable acts were perpetrated by the authorities in particular is Michael Gennaco's investigation of the incident.
Mr. Gennaco heads the Office of Independent Review that conducts investigations of complaints made against police officers
and sheriff's deputies. Based upon all of the evidence and Mr. Gennaco's inaccurate and incomplete report on the Richardson case it appears that there is a cover up going on.

"In our second meeting Gennaco couldn’t explain why so many details had been left out of the report that he’d approved and signed off on. He didn’t conduct the inquiry or write the document, he said. (The report’s author no longer works for the OIR; he didn’t respond to interview requests.) I mentioned the family’s concerns about the withheld video and the deputy in the footage. “Yeah, sure,” Gennaco said. Could the deputy and his partner, he continued, have “abducted Richardson on the road, taken her to a secluded area, dumped her, and then three days later taken her up to where she was eventually found? Anything’s possible. I mean, aliens coming down are possible!" Michael Gennaco

Is the Police Auditor Up to Par?


Tony Ciampi

Palo Alto, CA

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Received on Tue Dec 06 2016 - 21:55:54 PST

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