The Perils of Prosecutorial Misconduct

June 3, 2009

The reversal of the conviction will ensure Stevens does not spend any time in jail for a crime he did not commit, but it can do nothing to replace the Senate seat he lost as a result of the conviction.

June 03, 2009 /24-7PressRelease/ -- The Perils of Prosecutorial Misconduct

Article provided by Paul D. Cramm, Attorney at Law
Visit us at http://www.kansascity-criminal-attorney.com

On April 1, the US Department of Justice took an unprecedented step and requested the reversal of former Alaska Senator Ted Stevens' conviction for ethics violations. Why did the Justice Department ask the federal courts to drop the charges against a man they worked so hard to convict? Because the federal attorneys in charge of prosecuting the case failed to turn over key 'exculpatory' documents to Stevens' defense attorneys.

The reversal of the conviction will ensure Stevens does not spend any time in jail for the alleged offense, but it can do nothing to replace the Senate seat he lost as a result of the wrongful conviction.

Regrettably, the Stevens case is not unique and prosecutorial misconduct happens with an alarming frequency, threatening the integrity of the criminal justice system.

What is Prosecutorial Misconduct?

Prosecutors have a special role to play in the criminal justice system. They represent the government in legal actions filed against citizens accused of violating the law. Before bringing charges, they must have sufficient evidence that someone has committed a crime. They must recognize and uphold the rights of the accused. Among other things, this requires ensuring that defendants are granted a fair trial. The job of the prosecutor is not to guarantee convictions, but to guarantee the fair and just adjudication of the law against those accused of violating it.

Unfortunately not all prosecutors play by the rules when carrying out their responsibilities. Some prosecutors are more interested in securing high conviction rates than insuring the integrity of our system of justice.

The conduct of prosecutors is governed by a set of rules and procedures, including ethical standards, rules of evidence and local court rules. When government attorneys disregard or circumvent these rules, they commit prosecutorial misconduct.

Some examples of prosecutorial misconduct include:

• Withholding, destroying or changing evidence
• Failing to preserve evidence
• Making prejudicial comments about the defendant during opening and closing arguments
• Coercing guilty pleas from defendants
• Intimidating defense witnesses
• Obstructing defense attorney access to prosecution witnesses

Withholding evidence is one of the most common types of prosecutorial misconduct. Prosecutors have a duty to disclose exculpatory evidence and evidence that can be used to impeach prosecution witnesses without the defense making a specific request for it. Evidence need not absolutely exhonorate the defendant to be deemed "exculpatory." Exculpatory evidence is evidence that casts doubt on the government's case. Prosecutors also must turn over evidence requested during discovery by the defense.

Under the law, misconduct by prosecutors only results in a reversal of a conviction if the conduct unfairly prejudiced the defendant to the point that he or she was denied a fair trial. This can be a very difficult standard to prove. If the defendant is able to meet this high standard, then the state has the option of bringing a new trial.

Local Prosecutorial Misconduct

Federal prosecutors are not the only ones abusing the power of their office. In the Kansas City area, there have been several recent cases of prosecutorial misconduct. For example, an Assistant Prosecutor in Jackson County, Missouri, is accused of withholding hundreds of pages of evidence in the Matthew Davis case. Davis was convicted in 2005 for drug possession and abandoning the body of a woman in his car after she died from a drug overdose.

Local defense attorneys have brought motions in court against other prosecutors for failing to turn over evidence critical to the defense, including 911 call recordings and medical examiner reports.

Similarly, former Rep. Kenny Hulsof was sharply criticized in a recent ruling in the post-conviction hearing of a Southeast Missouri man convicted 15 years ago in a college student's murder. Upon hearing the defendant's most recent petition for post-conviction relief, a Circuit Judge ruled that Joshua Kezer, who was 17 at the time, was wrongly convicted in the 1992 death of 19-year-old Angela Mischelle Lawless. The Judge ruled that Hulshof, who traveled the state prosecuting high-profile murder cases in small towns, improperly withheld several key pieces of evidence from Kezer's defense attorneys during the initial trial.

"There is little about this case which recommends our criminal justice system. The system failed in the investigative and charging stage, it failed at trial, it failed at post-trial review and it failed during the appellate process," the Judge said.

This type of misconduct can result in innocent people serving sentences for crimes they did not commit. This is time with their friends and families they will never get back. It also means that the people responsible for committing these crimes are still living in the community and may hurt others.

Prosecutors charged with misconduct may be sanctioned by a written admonishment, temporary suspension of their license to practice law, or even disbarment. But these punishments do little to alleviate the injustices they committed against defendants who did not receive a fair trial and who may have been wrongly convicted of a crime.

Protecting the Fairness of the Criminal Justice System

The prosecutor's role in the criminal justice system is not to ensure convictions. The prosecutor's role, much like the role of the criminal defense attorney, is to ensure a fair trial for the accused. This does not include using the power of the prosecutor's office to determine which evidence should be withheld from the defense or to use any means necessary to secure a jury conviction.

Those charged with crimes have important rights that everyone in the criminal justice system must protect. Defendants have the right to a fair trial. They have the right to legal counsel. They have a right to confront and cross-examine witnesses and to examine the evidence against them. The prosecutor must be able to prove the defendant is guilty beyond all reasonable doubt. When exculpatory evidence is withheld from the defense - or worse - our system of criminal justice becomes a "rubber stamp" used to artificially validate convictions. And as a result, we all suffer a loss of our collective integrity.

Article provided by Paul D. Cramm, Attorney at Law
Visit us at http://www.kansascity-criminal-attorney.com

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