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April 27, 2011

"Head in the sand over prosecutorial misconduct"

The title of this post is the headline of this recent commentary authored by Erwin Chemerinsky and published in The National Law Journal. The subhead for the piece reads "The Supreme Court has sent a disturbing message that it just doesn't realize there is a serious problem infecting our criminal justice system."  Here is how it starts:

The U.S. Supreme Court is oblivious to a serious problem in the American legal system: prosecutorial misconduct.  Study after study has demonstrated serious prosecutorial misconduct at both the federal and state levels.  For example, early this month, the Northern California Innocence Project at Santa Clara Univer­sity School of Law released a study in which it documented 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct.  Egregious prosecutorial misconduct has occurred in high-publicity cases, such as the prosecution of the Duke University lacrosse players and the conviction of the now late Alaska Sen. Ted Stevens.

ortunately, the Supreme Court has not gotten the message.  Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct.  In both instances, the Court held that the victims could not recover.  Together, these cases send a disturbing message that the Court is shielding prosecutors from liability.  The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct.

April 27, 2011 at 06:01 PM | Permalink

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What prosecutorial misconduct? Oh, you mean like the following:

Connick v. Thompson,131 S.Ct. 1350,1370 (2011)(Ginsburg, J, dissenting) (“throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight.”); Lambert v. Beard, 633 F.3d 126 (3rd Cir. 2011) (murder conviction vacated Brady where prosecution failed to disclose inconsistent statement of its critical witness that named a person other than the defendant as the killer); U.S. v. Kohring 2011 WL 833263 (9th Cir. 2011) (Withheld evidence that key government witness had allegedly sexually exploited minors was material for purposes of defendant's Brady/Giglio claim warranting reversal of conviction); William v. Ryan 623 F.3d 1258 (9th Cir. 2010)(case remanded for evidentiary hearing on whether defendant prejudiced where prosecutor suppressed evidence suggesting an alternate person was the perpetrator which is "classic Brady material."); Stanley v. Schriro 598 F.3d 612 (9th Cir. 2010) (observing “ the increasing frequency with which innocent people have been vindicated after years of imprisonment” citing Samuel R. Gross et al., Exonerations in the United States 1989 through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 523-24 (2004) (noting that from 1989 through 2003 exonerated individuals “spent more than 3,400 years in prison for crimes for which they should never have been convicted . . .”); State ex rel. Engel v. Dormire, 304 S.W. 3d 120(Mo.2010) (kidnapping conviction reversed where state failed to disclose letter suggesting that a prosecution witness had been paid for his testimony); Valdovinos v. McGrath, 598 F.3d 568 (9th Cir. 2010)(murder conviction vacated because "a pattern of non-disclosure permeated the proceedings against [petitioner]" which deprived petitioner of due process.); Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010)(murder conviction vacated where prosecution suppressed material impeachment information concerning its key witness); U.S. v. Johnson 592 F.3d 164 (C.A.D.C.,2010) (conviction for possessing heroin with intent to distribute vacated because of government's failure to disclose evidence that heroin found in defendant's bedroom was actually owned by his cousin); Cone v. Bell, 129 S.Ct. 1769 (2009) (Remand was required on petition for habeas corpus from Tennessee murder conviction and death sentence for review of the effect of prosecution’s suppression of evidence); Simmons v. Beard, 590 F.3d 223 (3d Cir. 2009) (murder conviction and death penalty vacated where prosecutor failed to disclose that witness was pressured to cooperate and that a second witness committed perjury); Wilson v. Beard, 589 F.3d 651 (3d Cir. 2009) (murder conviction and sentence of death vacated because of prosecutor’s suppression of favorable information regarding witnesses criminal convictions and providing money to witnesses); Montgomery v. Bagley, 581 F.3d 440 (6th Cir. 2009) (murder conviction and death penalty vacated because of prosecutor’s failure to disclose exculpatory report from ‘witnesses who would have cast serious doubt on the State’s case.” ); U.S. v. Price, 566 F.3d 900 (9th Cir. 2009) (conviction reversed where prosecutor violated his due process duty under Brady to learn the results of investigation into criminal past of government witness); U.S. v. Reyes, 577 F.3d 1069 (9th Cir. 2009) (government violated due process by not disclosing favorable evidence discovered in parallel SEC proceedings); Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009) (murder conviction and death penalty vacated because of due process violation where prosecutor failed to disclose promise to key witness); Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009) (murder conviction vacated because where prosecutor knew witness was testifying falsely); Harris v. Lafler, 553 F.3d 1028 (6th Cir. 2009) (murder conviction vacated because of due process violation where prosecutor suppressed promise to key witness); U.S. v. Robinson, 538 F.3d 1265 (10th Cir. 2009)(conviction reversed because of district court’s refusal to disclose informant’s mental health records to defense which violated Due Process).

Posted by: Michael R. Levine | Apr 27, 2011 6:35:13 PM

It just goes on an on. How some corrupt prosecutors bring the entire system into disrepute--and make us question EVERY verdict. While I support the death penalty in principle, this list of cases is the best and most powerful argument against its imposition in practice.

Posted by: anon14 | Apr 27, 2011 6:50:16 PM

I concur with anon14. This is a disgrace. You would think that the honorable prosecutors themselves (and I was one) would be the first to demand that their wayward brethren be disciplined. Instead we receive profound and deafening silence.

Posted by: Dave from L.A | Apr 27, 2011 6:55:24 PM

Dave from LA --

I don't know whose silence you're referring to, but on this blog and on Crime and Consequences, I have repeatedly and loudly denounced the prosecution's gross misconduct in the Duke lacrosse rape hoax; the Ted Stevens political prosecution (which conveniently ended only after Eric Holder's Democrats won his seat); and the Blackwater case.

And where, exactly, might I look for your denunciation of defense misconduct? Or is it your view that there is no such thing as defense misconduct?

Posted by: Bill Otis | Apr 27, 2011 7:11:19 PM

With prosecutors hiding the ball, and suppressing evidence, why should I support the imposition of the death penalty? How can I trust the state's arguments?

Posted by: Tom | Apr 27, 2011 7:29:10 PM

Don't change the subject. There's lots of defense misconduct. There's also lots of cheating in professional sports and in union elections. Nobody has to denounce those things in order to be taken seriously when they express concerns about prosecutorial misconduct and ask whether there are adequate disincentives for that misconduct.

Posted by: arfarf | Apr 27, 2011 8:43:27 PM

"For example, early this month, the Northern California Innocence Project at Santa Clara Univer­sity School of Law released a study in which it documented 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct."

Having read many of the appellate opinions that NCIP uses to justify its claims of prosecutorial misconduct in my county (not LA), I can say that it has in some cases overstated or outright misstated the findings of the court of appeal. If the few cases in my county are any representation of the whole, then they have greatly overstated the amount of court findings of misconduct in this state. At the very least, their numbers are suspect.

No serious prosecutor objects to discipline of their ranks when actual misconduct occurs, but the difficulty is in defining what falls within that range. Obviously, there are many areas that are quite obvious, but there are areas that are not so obvious.

Posted by: David | Apr 27, 2011 8:51:02 PM

"Instead we receive profound and deafening silence."

I have been involved in uncovering Brady violations in 4 death penalty cases. In three out of four, the offending prosecutor is now a judge and disciplinary counsel does nothing.

In another case, after knowingly withholding Brady material and wrongfully convicting an innocent defendant all the offending chief assistant AUSA got was a lateral transfer to the civil division. The Office of Professional Responsibility does an outstanding job of protecting their own.

There is no "silence", just rewards for the prosecution.

In the case of defense counsel screwing up they get their just rewards -- reprimands, suspensions, and disbarment.

Posted by: ? | Apr 27, 2011 8:51:22 PM

"And where, exactly, might I look for your denunciation of defense misconduct? Or is it your view that there is no such thing as defense misconduct?"

Right here loud as can be but just for the record when was the last time that you can cite misconduct by the defense causing someone to be imprisoned for years or being put to death for a crime they did not commit. And before you get up on your death penalty stump, I support it in general.

Posted by: Thomas | Apr 27, 2011 10:07:56 PM

Tom --

"With prosecutors hiding the ball, and suppressing evidence, why should I support the imposition of the death penalty?"

By examining the evidence for yourself and concluding that it's been earned.

"How can I trust the state's arguments?"

By examiming them too, case by case and line by line. In some instances you will find them defective. In others you won't, and in those there is no reason not to support the DP.

In my experience, litigation is not done in bulk. It's done one case and one set of facts at a time. When you have a Timothy McVeigh, whose guilt was more than ice-cold, there is simply no reason to refrain from imposing the penalty he has earned because in a completely different and unrelated case years before or after, the outcome was, to some, doubtful.

Posted by: Bill Otis | Apr 27, 2011 10:45:17 PM

I'm a prosecutor and I would be in favor of a limited exception to immunity for intentional misconduct such as deliberately withholding Brady evidence when actual innocence is established.

Posted by: domino | Apr 27, 2011 10:52:16 PM

Mr. Otis:

The next time Timothy McVeigh is convicted, I assure you I will vote to impose the death penalty.

Posted by: Mary from Conn. | Apr 27, 2011 10:54:36 PM

Seriously, I would appreciate a simple list of declarative sentences that justify any immunity for either prosecutors or judges.

If they lose immunity, then 1) ...; 2)...; 3) ...

I cannot think of any reason that is lawful, fair, justified by policy, nor good for the public interest.

Posted by: Supremacy Claus | Apr 28, 2011 12:08:20 AM

domino --

Agreed.

Posted by: Bill Otis | Apr 28, 2011 12:42:03 AM

Mary from Conn. --

When McVeigh was convicted, many thought it was the most horrible mass murder we would ever see.

Then came 9-11.

It is virtually always a mistake to assume you've seen the worst that can happen. The future does not so easily tip its hand.

But for however that may be, the McVeigh case by itself is sufficient reason to reject the position that we should NEVER have capital punishment.

Posted by: Bill Otis | Apr 28, 2011 12:50:46 AM

personally i think immunity for ANY govt employee is a crime and a fruad against this country and it's citizens.


Sorry it all evolved from soverigh immunity...last time i looked we don't have and have NEVER had a soverign in the last 20+ years

we have EMPLOYEES and again i'm sorry no employee of MINE has immunity from ME!

Posted by: rodsmith | Apr 28, 2011 1:04:35 AM

plus of course since our govt and its' toadie judges have blocked every avenue of justice for these individuals who have been proven to be factualy innocent and have been shafted by teh state at every lvl. They have every LEGAL right to remove the individuals involved at EVERY lvl of govt anyway they can!

Posted by: rodsmith | Apr 28, 2011 1:06:03 AM

Henry of Bratton justified sovereign immunity by saying, the Sovereign spoke with the voice of God. This is a committable, psychotic delusion.

Posted by: Supremacy Claus | Apr 28, 2011 3:21:48 AM

Come on, is there any justification that is not psychotic for any immunity of the judge or prosecutor. What do they do that a welder does not? One effect of liability or immunity is to grow the entire enterprise. We sure have seen the growth of government under this immunity effect.

Posted by: Supremacy Claus | Apr 28, 2011 9:03:11 AM

Gotta love it when a question is ignored by Bill Otis. Must mean that he has no answer or just can't figure out a way to distract or divert the conversation.

Posted by: Thomas | Apr 28, 2011 10:58:44 AM

Thomas --

You say I don't respond enough. At least three others who share your down-the-nose opinion of me say I respond too much and should be banned.

You guys talk it over and let me know what you decide.

P.S. When you do, please advise of the generally applicable theory of mandatory response, since I'd like to invoke it too when people repeatedly refuse to say whether a person should be able to be the judge in his own case, whether the killer of Dylan Groene should be executed, and a bunch of other questions I have asked that await answers.

Or is it you alone who hold to power to demand answers? You must be a uniquely important person.

Posted by: Bill Otis | Apr 28, 2011 2:09:05 PM

"You guys talk it over and let me know what you decide."

Don't need to talk it over as, true to form, as is typical, you choose to play the distraction and diversion game. Rather than answer a fair question you, once again, choose to divert the issue and avoid the question by attempting to belittle those that question you.

I'll play your game. Show me the post where I said anything about you responding too much, made any reference to banning you, or posted a concurrence to someone who did. Should I wait?

And while you are looking, the question was "when was the last time that you can cite misconduct by the defense causing someone to be imprisoned for years or being put to death for a crime they did not commit." The question was asked because the topic of this article is "prosecutorial misconduct which you tried to divert into a conversation about defense misconduct. Correct me if I am wrong but is it not true that, unlike prosecutors, defense lawyers have no judicial created immunity and that they are, unlike prosecutors, subject to being suit six ways from Sunday for their misconduct?

And finally in response to your snarky "You must be a uniquely important person" not necessarily so but certainly just as important as you are.

Posted by: Thomas | Apr 28, 2011 6:02:58 PM

There the ever partisian Otis goes again. The topic was prosecutorial misconduct and he instantly jumps to defense misconduct as if that excuses the ethical breaches of prosecutors.

Posted by: Steve Prof | Apr 28, 2011 6:42:16 PM

aww, Thomas, you hurt Billy Boo-Boo's feelings!

Posted by: --- | Apr 28, 2011 6:55:06 PM

Steve Prof --

"The topic was prosecutorial misconduct and he instantly jumps to defense misconduct as if that excuses the ethical breaches of prosecutors."

I stated and believe nothing of the kind. You're lying.

Posted by: Bill Otis | Apr 28, 2011 7:08:06 PM

Thomas --

"Show me the post where I said anything about you responding too much..."

Of course I never claimed you did. But others did, as you full well know. Why do your wishes to hear more from me count more than theirs to hear less?

"And finally in response to your snarky 'You must be a uniquely important person'..."

YOU are going to get into a discussion of snarkiness???!!!

"...not necessarily so but certainly just as important as you are."

I am perfectly willing to assume the status of equals for purposes of this blog, which I do with the great majority of people I address here.

Which brings me to what is actually the first order of business. Before I discuss any substantive subject with you, it is necessary to be clear about the groundrules for the discussion.

I propose the following. First, that it be in a businesslike tone, without rudeness or a superior attitude. Second, that we understand that there is no such thing as a right to demand a response. Each poster here responds as he chooses. Absolutely no one here responds to the majority of entries or anything close to it. As it happens, I am by a considerable margin the most responsive commenter, a fact you could not and do not contest. But I should scarcely need to observe that I am not your servant. You are not mine either.

If you want a reasonably respectful discussion, you can get one, as I give to many, many people on this blog with whom I strongly disagree. But my life is too short, and the opportunities for pleasant and informative exchanges with others too numerous, to become engaged with someone who is deliberately rude, and that I am not going to do, as no sane person would.

Do you agree to these groundrules?

Posted by: Bill Otis | Apr 28, 2011 7:38:45 PM

Bill prefers to talk about the Duke case and a minute number of other instances in which the misconduct is so blatant and outrageous it can't be shielded or sanctioned...not even in a system that reflexively signals cops and prosecutors virtually anything they do to win convictions is fine and dandy...not even by Bill Otis.

Far more numerous are the cases that never come to public light. The ones in which prosecutors leverage their unlimited resources and terrifying powers to trample defendants -- a small number of whom occasionally get help from innocence projects and, undoubtedly, lots of others who don't.

These folks seldom complain publicly for at least two solid reasons: 1. society has been conditioned to disparage folks who claim the authorities screwed them and 2. there's the extortion clause the government wields against citizens who "fail to take responsibility" for whatever it was they were accused of doing...regardless of whether they actually did it.

Posted by: John K | Apr 28, 2011 7:45:51 PM

John K --

"Bill prefers to talk about the Duke case..."

And you prefer to avoid talking about it, because the root of the prosecutor's misconduct was that he was a liberal Democrat running in a primary where anti-white bigotry was at a premium, so he accused whites knowing virtually from the getgo that they were innocent. It was a cesspool of anti-white race-baiting that runs through a segment of your favorite party. So you don't talk about it, but I have and will continue to, you bet.

Do you honestly think something like that should be brushed off?

"...not even in a system that reflexively signals cops and prosecutors virtually anything they do to win convictions is fine and dandy...not even by Bill Otis."

I don't quite understand what you're saying here. Is it that I pulled "virtually anything to win convictions?" What specifically do you have in mind, and can you supply a case citation?

If, on the other hand, you do not intend a personal accusation, please clarify.

"Far more numerous are the cases that never come to public light."

Yes, well, for those of us to whom documentation matters, that would make a difference.

Now that you bring it up, though, I asked you a while back to provide the actual documents, case numbers, and filings in a trial you said you attended and in which, in your view, various agents and police lied. This was an invitation, in other words, for you to bring this otherwise unidentified abusive case "to light." But you declined to furnish any specifics at all. Will you now?

"These folks seldom complain publicly for at least two solid reasons: 1. society has been conditioned to disparage folks who claim the authorities screwed them and 2. there's the extortion clause the government wields against citizens who "fail to take responsibility" for whatever it was they were accused of doing...regardless of whether they actually did it."

The reason most people do not believe the post-conviction rantings of inmates about how innocent they are is that the rantings are almost always demonstrably false. It's not about social conditioning. It's about evidence.

By the "extortion clause," I assmue you're refering to the Guidelines' provsion for a two or three point reduction for acceptance of responsibility.

It's been a while, but that provision has been upheld by every court of appeals to which it has been presented, which is probably all of them by now. Are they all wrong, but you're right?

And if a point be made of it, which sentencing system does better at providing justice: A system that rewards a criminal for showing some understanding of the wrongfulness of his behavior, or a system that doesn't care how unrepentant and snarling he remains? And which sort of criminal is more likely to have a successful rehabilitation and a better future for himself, not to mention the rest of us?

Posted by: Bill Otis | Apr 28, 2011 8:31:05 PM

John K --

I should add that I saw that you were one of only two liberals here who explicitly renounced the ban-conservatives idea. I appreciate that and thank you for it. I just don't get the point of running McCarthy out of town only to bring him back now.

And yes, I am, as you said, the villain. I was a villain to meth dealers, crack dealers, heroin dealers, swindlers and strongarms galore. I wear such "villiany" with pride. I was a part of helping give them what they earned. Innocent they were not. They wanted a fast buck by trading on other people's suffering; there just wasn't a whole lot more to it than that. I would not trade my career for anyone's.

Posted by: Bill Otis | Apr 28, 2011 8:57:37 PM

"Thomas --"Show me the post where I said anything about you responding too much..."
"Of course I never claimed you did."

Really Bill? Do you forget your comments so quickly? I quote"

" Thomas,You say I don't respond enough." @ Posted by: Bill Otis | Apr 28, 2011 7:38:45 PM

Did I quote you correctly?

"YOU are going to get into a discussion of snarkiness???!!!"

Absolutely. Contempt breeds contempt.....snarkiness breeds snarkiness. Let he who is without snarkiness cast the first snark.....so to speak.

"I am perfectly willing to assume the status of equals for purposes of this blog"

How wonderfully gracious of you Bill. Am I to assume that for purposes other than this blog that you do not consider either me or the "great majority of people" you address here to be your equals? Never mind, I think we know the answer to that one.

"I am by a considerable margin the most responsive commenter, a fact you could not and do not contest."

To the contrary, I can and do contest your OPINION that you are a "responsive" commenter. You post a great many opinions but when challenged or questioned you consistently resort to your tried and true tactic of non-responsive long-winded distractions but very few straight up answers. This is a discussion about "Prosecutorial misconduct" which you have tried very hard to turn into a condemnation of defense misconduct.

"Do you agree to these ground rules?"

Not a chance in hell because, just as you have with this lengthy rant that is yet another feeble attempt to distract, you would never be able to adhere to them.

BTW, I would still just love to know, "when was the last time that you can cite misconduct by the defense causing someone to be imprisoned for years or being put to death for a crime they did not commit."

Oh, and about that judicially created immunity that prosecutors hide behind but is denied to the defense attorney................

Posted by: Thomas | Apr 28, 2011 9:48:50 PM

i'm still viewing and thinking about the article~

Posted by: replica rolex watches | Apr 28, 2011 10:47:11 PM

No personal accusation, Bill. The wording was clumsy. Meant the "not even" Bill Otis thing to play off the previous "not even" construction to suggest the misconduct in Duke and the other few cases you cited was so bad not that Bill Otis could defend it. Yes, it was a cheap shot.

I don't avoid talking about Nifong. To me he's a typical prosecutor, not an outlandish outlier. I could care less about his politics. The power and lack of accountability that goes with the prosecutor's job corrupts without regard to political affiliations.

Nifong wasn't a D-bag because he was a Democrat. He was a D-bag because he apparently believed his power and the system's inclination to wink at thuggish prosecutors would see him through any potential misadventure. He just had the bad luck of going after some all-American boys whose parents had friends and resources and the will to fight back.

Posted by: John K | Apr 28, 2011 11:57:38 PM

...was so bad that not EVEN Bill Otis could defend it.


Posted by: John K | Apr 29, 2011 12:03:19 AM

Q: "Do you agree to these ground rules?"

A: "Not a chance in hell..."

So be it. Without elementary ground rules, any debate worth having becomes impossible. As noted, my life is too short, and my opportunities for pleasant and informative exchanges with others too numerous, to become engaged with someone who is deliberately rude.

Posted by: Bill Otis | Apr 29, 2011 12:25:35 AM

John K --

Thank you for the clarification.

"I don't avoid talking about Nifong. To me he's a typical prosecutor, not an outlandish outlier."

There might be a very few others who share that view, but scarcely any, since it's so obviously wrong. Nifong charged defendants he knew to be innocent to gain an advantage in his primary election -- a Democratic primary -- because the political culture surrounding the primary was viciously anti-white. He was a dimestore Al Sharpton. He knew that Sharpton had become a player in national Democratic politics, not in spite of, but because of, his anti-white racism. This is a stain on the Democratic Party. I cannot imagine that JFK or FDR would have tolerated such a person.

"I could care less about his politics."

But you SHOULD care about them, because they are poisonous. Do you disagree?

"The power and lack of accountability that goes with the prosecutor's job corrupts without regard to political affiliations."

Since criminals use power, those who would counteract them must have power. What's the alternative?

As to accountability, prosecutors are members of the executive branch and must either directly or indirectly face the electorate, which in a democracy properly calls the shots. You and those who believe as you do should run for LA district attorney and put your message before the voters. If you win, more power (so to speak) to you. And that is not sarcastic.

"[Nifong] just had the bad luck of going after some all-American boys whose parents had friends and resources and the will to fight back."

I just don't know how you can say that. It had absolutely nothing to do with luck. It was Nifong's choice, and a deliberated and evil choice. Nor was its defeat due merely to resources and will, although in litigation, as in everything else in life, those things help a good deal.

What they had was evidence. That's what set things right. That and North Carolina's chief -- how shall I say this? -- PROSECUTOR. It was the North Carolina Attorney General who ran Nifong out of his job and the profession.

Posted by: Bill Otis | Apr 29, 2011 1:00:04 AM

"Q: "Do you agree to these ground rules?"
A: "Not a chance in hell..."
So be it. Without elementary ground rules, any debate worth having becomes impossible. As noted, my life is too short, and my opportunities for pleasant and informative exchanges with others too numerous, to become engaged with someone who is deliberately rude."
Bill Otis | Apr 29, 2011 12:25:35 AM

Is that it Bill? Why didn't you post the rest of the "Not a chance in hell" sentence that continued, "because, just as you have with this lengthy rant that is yet another feeble attempt to distract, you would never be able to adhere to them. Is it because this much shorter response is yet another distraction from the real issue?

I have no problem with ground rules but why should I or anyone else adhere to yours. Either we play by your rules or you take your bat and ball and go home. Here are my ground rules. "Answer the legitimate on subject question questions." There is no "debate" here, at least on my part. I only want an honest answer to a legitimate question regarding the main topic, prosecutorial misconduct.

You see, if you participate on blogs like this you can't just sit up on top of your ego and expect everyone else to accept your pontification at face value. Well.....yes you can and you do but not many will go along with it. Every now and again, someone is going to challenge you and when they do, you have a few choices. You may (a) answer the question, (b) ignore the question (which may create another question) or you may (c) attempt to cover up the thread of comment with distractions in order to cover up the fact that you either (1) can't or (2) won't answer the question. I think that it is pretty well known that you are the master of distractions when you wish to minimalise another commenter's remarks or questions That is what you have attempted in this thread by attempting to belittle my responses/questions as not "worthy" (my choice of words) of your time, calling my comments rude or anything else that you can think of to divert attention to the fact that......see reasons (1) & (2) above. You attempted, through your distractions to divert the conversation away from the original topic of prosecutorial misconduct to one about defense misconduct.

To your attempt to divert this thread (see (c) above) to a discussion of defense malfeasance rather than prosecutorial misconduct, you asked the question "where, exactly, might I look for your denunciation of defense misconduct?" to which I respectfully replied, "Right here loud as can be" then continued with an on point question "when was the last time that you can cite misconduct by the defense causing someone to be imprisoned for years or being put to death for a crime they did not commit."

So, I will ask again, ""when was the last time that you can cite misconduct by the defense causing someone to be imprisoned for years or being put to death for a crime they did not commit" and "respectfully" request that, without all of the distractions, diversions, accusations, ground rules and pontification, that you simply answer, I can't or I won't answer that question.

Or, you may choose again to ignore a legitimate question that goes directly to the heart of Professor Berman's original topic. I really expect nothing less as once again, as you often do; you have distracted and digressed long enough for this thread to have pretty much passed shelf life.

Posted by: Thomas | Apr 29, 2011 2:15:51 PM

Bill, why don't you get a life? Nobody but you cares what you think.

Posted by: Steve Prof | Apr 30, 2011 10:59:45 AM

Bill, you say I am lying but you did jump from prosecutorial misconduct to defense misconduct when that had not a wit to do with anything in the original post ..,. so explain why u made that silly unrelated leap ???

Posted by: Steve Prof | May 1, 2011 11:14:10 AM

Steve Prof --

1. "Bill, you say I am lying but you did jump from prosecutorial misconduct to defense misconduct when that had not a wit to do with anything in the original post."

Your claim was not principally that I jumped from prosecutorial misconduct to defense misconduct, but that I argued defense misconduct "excuses the ethical breaches of prosecutors."

I made no such claim and never have. Your statement that I did, Steve Prof | Apr 28, 2011 6:42:16 PM, was and remains a lie.

2. "...so explain why u made that silly unrelated leap ???"

While prosecutorial misconduct is a perfectly valid subject, there is no rule of logic or posting ettiquette that requires me to omit mention of other sorts of misconduct that also contribute to miscarriages of justice.

For example: In discussing the DP, Doug will sometimes put up a post about this or that study claiming that the DP has a deterrent effect. In response, abolitionist posters have said that, "But the whole problem is that the DP is barbaric," without saying beans about deterrence.

I suppose one could characterize that as a "silly unrelated leap," but I have never done so, for at least two reasons.

First, the subject matter of the entry is sufficiently related to overall worthiness of the DP to merit commenter discussion other facets. Whether or not the DP is or is not barbaric is a quite important issue, and the fact that it does not relate directly to deterrence is hardly an offense against the good order of the debate.

Second, commenters are in no position whatever to demand that other commenters either (a) discuss, or (b) refrain from discussing, anything they wish. If DOUG wishes to impose a limitation-to-specific-post rule, that is solely within his discretion as the blog owner. But the notion that Commenter A gives an order to Commenter B to discuss any particular question, or not to discuss it, is facially preposterous.

Attorney misconduct by counsel for either side is deplorable. This is so obvious it's just silly to go over it. But if we're going to go over it anyway, it's hardly improper in any sense to note that there is, in fact, misconduct on both sides.

If you think I'm wrong about that, you can chime in with your allies to ask Doug to ban me. Among the powers that I, as a commenter here, do not have, is the power to forbid the Liberal McCarthyite faction from pressing its censorship wishes. And if I had the power, I would not exercise it.

Posted by: Bill Otis | May 1, 2011 1:41:10 PM

I speak as a former prosecutor and current defense attorney. In principle I am not opposed the death penalty. Some killers fall into the "mad dog" category. These peopole, in my view, are no longer human. They have forfeitd their right to live. Like mad dogs they must be put down for the safety of the community after having been found guilty in accordance with due process of law and having had the death penalty imposed in accodance with due process of law.

In practice, however, I'm met with the list of cases cited by Mr. Michael Levine at one of the earliest posts on this thread. As noted by other commentators, if the prosecutor hides evidence favorable to the defense, how can we say that even these mad dogs have been convicted and sentenced to death in accordance with due process of law? We can't.

It is true, as pointed out by Mr. Bill Otis, that no doubt defense lawyers also on occasion engage in misconduct. That seems to me to be irrelevant to this thread which is prosecutorial suppression of evidence. Moreover, defense lawyer are indeed sanctioned by the courts and by the bar for such misconduct. As also pointed out, prosecutors are rarely sanctioned.

that's my 2 cents

Posted by: Peter from Texas | May 1, 2011 3:14:11 PM

Peter from Texas --

"As noted by other commentators, if the prosecutor hides evidence favorable to the defense, how can we say that even these mad dogs have been convicted and sentenced to death in accordance with due process of law? We can't."

Sure we can, if you take it one case at a time. Where any sensible person could perceive any reasonable prospect that the prosecution has hidden evidence relevant either to guilt or punishment, don't execute IN THAT CASE.

Where, as happens in the huge majority of capital cases in the modern era, a sensible person could not form that perception, there is no reason to fail to go forward with the execution.

I accept your "mad dog" theory, but my own principal reason for supporting the DP is not that we need to "put down" wild-eyed killers for safety's sake. They're not all mad dogs; indeed most of them aren't. It's less that they're crazy than that they're evil, and that there are dozens if not hundreds of cases in which incarceration simply does not fit as just punishment.

Posted by: Bill Otis | May 1, 2011 3:51:29 PM

Mr. Otis,

Thank you for your response. I understand you were a distinguished U.S. Attorney for many years. Congratulatons for your many years of service. Relying now on that experience, can you give some practical suggestions to the offices of prosecutors in my state and in other states as to how to train prosecutors to comply with Brady. How do prosectuors, in their zeal to win and convict those they perceive to be guilty, resist the temptation to suppress evidence? Or resist the temptation to convince themselves that a certain piece of evidence is not Brady. Or resist the temptation not to demand of the police or other agents that they turn over such evidence. How should prosecutorial offices deal with the prosecutor who always interprets the evidence against disclosure when you would say: "no, that must be disclosed."

Thanks in advance for your thoughts.

Posted by: Peter from Texas | May 1, 2011 6:07:24 PM

Bill Otis..lighten up dude... you take yourself far to seriously ...must have been a poor prosecutor if you let folks get under your thin skin so easily ...maybe the subject of misconduct rings too close to home and that's why you instantly changed to complete topic to attack defense lawyers :) ...I would never want you banned ...you generate far too many laughs from you self-righteous posts ...

Posted by: Steve Prof | May 1, 2011 6:48:48 PM

Steve Prof --

You said point-blank that I argued defense misconduct "excuses the ethical breaches of prosecutors."

I made no such claim and never have. Your statement that I did, Steve Prof | Apr 28, 2011 6:42:16 PM, was and remains a lie.

Now you say that I take your accusations too seriously. Well, here's a remedy for you: Tell the truth.

"[M]ust have been a poor prosecutor if you let folks get under your thin skin so easily."

I see you're not bothered in the slightest by making a false accusation; it's just "getting under my skin."

Well, OK, if you take what you say so lightly, maybe the rest of us should too.

As for my record as a prosecutor, look it up for yourself. Since I use my real name, it's easy.

Posted by: Bill Otis | May 1, 2011 9:51:14 PM

Peter from Texas --

"...can you give some practical suggestions to the offices of prosecutors in my state and in other states as to how to train prosecutors to comply with Brady."

Adopt an open file policy, which is what I used.

"How do prosectuors, in their zeal to win and convict those they perceive to be guilty, resist the temptation to suppress evidence?"

By understanding that criminal litigation is not a game. It would be my preference that this be understood by ALL its practicioners. Justice is better served if the lawyers at both tables are forthcoming start to finish.


"Or resist the temptation to convince themselves that a certain piece of evidence is not Brady."

By adopting a standard practice of placing that decision before a senior and respected colleague who is not involved in the case. It happened that, not infrequently, the question came before me as the head of appeals. I had a standard answer: "If you're troubled enough to be in here asking, you already know what you need to do."

"Or resist the temptation not to demand of the police or other agents that they turn over such evidence."

You let your agents know from the getgo that disclosure decisions belong to you, not them. This may not make you popular, but it will make you respected, and it will clear the air.

"How should prosecutorial offices deal with the prosecutor who always interprets the evidence against disclosure when you would say: "no, that must be disclosed."

I didn't run across anyone like that, because such a person would become an outlier and find himself responding to successive in forma pauperis habeas petitions rather than doing real cases. But if I had run across such an attorney, I would have apprenticed him to someone known to the district judges to be above reproach.

If that still didn't work, he goes to the civil division.

Since you were at one point a prosecutor, and now work as defense counsel, let me suggest that the board might find useful your own assessment of whether the people you used to work with in the DA's office are anything like the thugs and cheaters they are routinely portrayed as being by some of the commenters here.

P.S. I appreciate your kind remarks. I thought it was a great job, and have remained friends with my politically-appointed pals from both parties.

Posted by: Bill Otis | May 1, 2011 10:19:38 PM

great response bill. hit it all perfect!

only thing i would change is this!

"By understanding that criminal litigation is not a game. It would be my preference that this be understood by ALL its practicioners. Justice is better served if the lawyers at both tables are forthcoming start to finish."

to this

By understanding that criminal ligitation is not a game and that hiding evidence that is legally required to be disclosed is in fact a CRIME and will result in prosecution if your caught at it!"

other than that it's perfect!

Posted by: rodsmith | May 1, 2011 10:50:36 PM

Well said Rodsmith!

Now we have to educate the DOJ, DHS, FBI, TSA along those principles.

It may be too late. Politics, current judges (who are very likely from the prosecutorial branch), will somehow bastardize Bill's, Pete's and Rod's recommendations} and we will remain not a nation of rule of law but a nation of abuse by law.

Posted by: albeed | May 1, 2011 11:22:43 PM

Ohhh Bill..there you go again, in my opinion stretching the truth, lying again and re-telling your lie...I said it is "as if" you were trying to justify proecutorial misconduct not that you did...the only reason and the plain meaning of what you did is to justify it otherwise there was no reason to bring up a totally different topic ...but please keep stretching the truth you are so amusing

Posted by: Steve Prof | May 2, 2011 11:23:23 AM

Steve Prof --

I'll repeat exactly what you said, word for word: "There the ever partisian Otis goes again. The topic was prosecutorial misconduct and he instantly jumps to defense misconduct as if that excuses the ethical breaches of prosecutors."

There is no sensible way to read that other than as an accusation that I view defense misconduct as if it were an excuse for prosecution misconduct. I take no such view and never have. Your attributing it to me is a lie.

Posted by: Bill Otis | May 2, 2011 3:05:58 PM

rodsmith and albeed --

Thank you, gentlemen.

Posted by: Bill Otis | May 2, 2011 3:33:04 PM

Bill,
If you didn't view it that way why did you switch the subject instantly away from prosecutorial misconduct. It is not unreasonable to conclude what many of us did..you just don't like our conclusion so you call us liars ...

Posted by: Steve Prof | May 2, 2011 7:07:33 PM

Steve Prof --

It has nothing to do with whether I "like" your conclusion. It has everything to do with whether it is true to conclude, as you did, that I view defense misconduct "as if it were an excuse for prosecution misconduct." I don't, never have and never said or implied that I do. Your contrary statement is not true. When a person deliberately says something that is not true, he's lying.

The reason I brought up defense misconduct is to introduce a modicum of balance and reality into the discussion. As you can't help seeing from this post, Bill Otis | May 1, 2011 10:19:38 PM, I am perfectly willing to discuss prosecutorial misconduct IN DETAIL and to suggest numerous, specific remedies for it -- more than you have, I might note. But I am unwilling to go along with the silent and erroneous suggestion that that's the only sort of misconduct that produces injustice, and I am not obligated just to white out what the other sources are.

Posted by: Bill Otis | May 3, 2011 8:14:51 AM

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