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April 7, 2010

"Vigilante Justice: Prosecutor Misconduct in Capital Cases"

The title of this post is the title of this new paper (with four co-authors) appearing on SSRN.  Here is the abstract:

This Article examines categories of prosecutor misconduct that may occur in capital cases, and it discusses suggestions to help prevent and remedy such misconduct.  The prosecutor’s role is especially important in death penalty cases because the prosecutor is a determining force in the decision of whether a defendant will live or die.  Thus, even though prosecutor misconduct is an important concern for all types of cases, it has a special impact in capital cases.

Instances of prosecutor misconduct may occur prior to trial during discovery, during jury selection, and during trial and post-trial.  In Part One of the Article, we discuss situations where prosecutors withhold exculpatory evidence from defendants in capital cases.  In Part Two, we discuss the problem where prosecutors improperly use pretrial publicity to achieve convictions and death sentences in capital cases.  Misconduct may occur during jury selection, and in Part Three, we examine situations where some prosecutors have improperly used peremptory challenges to exclude prospective jurors based upon race.  Under Batson v. Kentucky, 476 U.S. 79 (1986), this type of prosecutor misconduct may rise to constitutional significance.  Next, in Part Four, we consider the trial itself and discuss situations where prosecutors improperly used false evidence or statements in capital cases.

In Part Five, we consider methods for addressing misconduct in capital cases.  The Article considers three different categories of ways to deter instances of prosecutor misconduct in capital cases: (1) institutional and systemic methods of preventing prosecutor misconduct; (2) punishment of individual prosecutors responsible for egregious misconduct; and (3) remedies for defendants who are victims of misconduct.  After giving an overview of various suggestions, the Article concludes with five specific proposals that should be the first steps toward deterring and remedying prosecutor misconduct in capital cases.

April 7, 2010 at 04:40 PM | Permalink


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Because the Supreme Court has given them absolute immunity, even from negligent training, violence has good moral and intellectual justification. In the case of capital trials, there should be an affirmative defense of self-preservation.

The end of immunity should begin with the Supreme Court. An Amendment should get enacted to make them liable for the harms their decisions do. I am not talking about anyone slipping on the ice on their steps. I am talking about a class action complaint by all viable babies whose death warrants they have repeatedly lawlessly signed, as an intentional tort. They should be tried in regular state or Washington DC court. Their personal assets and not those of the hapless taxpayer should be on the line.

These horrible cult criminals and tyrants should really be arrested by a courageous executive, put on fair trial lasting an hour, for insurrection against the constitution, and summarily executed in the courthouse basement. There would be no charge of collateral corruption, such as bribery or conflict of interest. Their big crimes are their appellate decisions, shredding the constitution. Read a couple of passages, and that is sufficient evidence of treason. The evidence for their crimes against humanity is far clearer, better documented, and compelling than that against the judges at Nuremberg. In the meantime, those who believe in prayer, pray for their slow, humiliating and painful deaths. Every day they breathe on earth, another crime victim and a viable baby has to die.

The crimes of the Nazi Party violated German law. These judges came under the influence of the German Free Law Movement, to release the law from its restrictive writing and to enable the seizures and the eradication of the Jews and their assets. Before the vermin in our country get too smug, there was another spawn of the German Free Law Movement. The sister was named, Legal Realism. The German LLewelyn taught it to Commie sympathizer Cardozo, a Jew, ironically. The American judiciary's dominant philosophy is a sibling to that of the Nazi Judiciary.

Posted by: Supremacy Claus | Apr 7, 2010 6:03:04 PM

Claus, you are beyond insane. you are beyond wacko; you are beyond loony. you are seriously deranged.

Posted by: anon 1 | Apr 7, 2010 9:45:36 PM

Anon: I am not the one that believes in mind reading, in future forecasting. Not even the Medieval church believed man could do that. They believed those were supernatural powers of God.

I am not the one that believes twelve strangers off the street can detect the truth by using gut feelings, after excluding any with knowledge. I am not the one who sets standards of behavior according to those of a fictional character with the personality of Mickey Mouse. Why must the standard bearer of prudent conduct be fictional? To make his conduct objective, of course.

Nor am I the one that has put every goal of every law subject into utter failure. Nor am I the one responsible for every social and every economic problem of our nation.

Cuckoo. Cuckoo. Cuckoo. With hand carved birds swirling.

All you have are personal remarks. You have no rebuttal, nor any explanation. You got nothing except goons with guns to impose your sick Scholasticist doctrines. The lawyer is freak from the Twilight Zone.

Posted by: Supremacy Claus | Apr 7, 2010 10:53:16 PM

"The crimes of the Nazi Party violated German law."

Wrong. The Nazis enforced the law.

Posted by: George | Apr 7, 2010 10:54:33 PM

This article is about a narrow, technical contract legal doctrine. Yet the same arrogance, tyranny, lawlessness goes into it that went into the change in the Nazi judiciary to break German law. These laws were only revised in 1943. So prior Nazi acts were illegal without judicial review by the Nazi Judiciary.

The professor reviews the analogy between the arbitrary, lawless revision of the parol evidence rule by the California Supreme Court and the unbinding of German law from the restrictive writing giving due process to victims of government seizure and eradication by the Nazi judiciary. There is a remarkable similarity, and devastating harm when abortion is counted.

Question. Who here would oppose the assassination of Adolf Hitler, his officers, the families that sponsored him, and his compliant judiciary at any time from 1933 to 1945? Recall that Hitler was lawfully elected.
Stephen J. Lubben
Chief Justice Traynor's Contract Jurisprudence and the Free Law Dilemma: Nazism, the Judiciary, and California's Contract Law, 7 S.Cal. Interdisc. L.J. 81 (1998).

Posted by: Supremacy Claus | Apr 7, 2010 11:19:20 PM

Anon 1.

I like to poke fun at the great Claus but I don't think he is loony or deranged. He reminds me of Swift without the humor. In that sense I actually agree with many of his points. Where he and I diverge is on the basis of what is to be done about it all. He wants revolution and I think it's more about the art of muddling through.

Posted by: Daniel | Apr 8, 2010 12:50:14 AM

Daniel: You are swimming in it. Once you are pulled out to air and land, you will be grateful, wealthier, and esteemed by the public 10 times more than now. Why? Your work will be worth 10 times more, being based on empiricism and results, not Scholasticism.

Posted by: Supremacy Claus | Apr 8, 2010 8:56:23 AM

The article needs exploration and the folks who fend with SC, and SC who fends with the other folks, need to explore the article. This blog is a great thing and we need to not nudge one another so much as we might exchange ideas.

By the way SC, the laws of February 1936 repealed the civil laws which previously protected Germans. I cannot put my hand on the exact nomenclature but it was approximately February 1936 when the s hit the fan. Kind of like some of the provisions of the Patriot Act. Anyone opposed to the Patriot Act is a ...? Sinner? Treasonis person? What a name to put on an Act.
Tell me what you think of that SC? You have good points, but not always. But you seem to have some appreciation of the history of the Third Reich.
Getting back to prosecutorial misconduct in capital cases-- none of us want to see the government have the leap of power exercised by the Third Reich prosecutors and none of us believe that prosecutors should not be accountable for excessive use of power. Or do we? SC, chime in.

Posted by: mpb | Apr 8, 2010 11:43:36 PM

we are YEARS too late for that mpb they HAVE that power now and have had it for decades...it's just that now they NO LONGER care if the people know becasue the last 30years of public school has turned the average american into a easily lead IDIOT!

Posted by: rodsmith | Apr 9, 2010 2:46:52 AM

MPB: Here is a nice review of what happened to the law.


Posted by: Supremacy Claus | Apr 9, 2010 4:03:53 AM

SC. Would you believe that none of those things you mention as incentives appeal to me? It's true.

I agree with Frost, "Revolutions are the only salves/but they are things best done by halves."

Terrible rhyme aside; he's correct.

Posted by: Daniel | Apr 9, 2010 10:25:03 AM

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