Should Prosecutors Who Withhold Exculpatory Evidence Face Criminal Charges?

First, have a look at this video, from last night's episode of 60 Minutes:

Brady v. Maryland was the Supreme Court case that made it illegal for prosecutors to withhold exculpatory evidence from defense attorneys. The problem is that there's rarely if ever any punishment for breaking the rule, even when it has led to wrongful convictions and imprisonment.

Dallas County District Attorney Craig Watkins, featured in the above video, is now publicly advocating that prosecutors who knowingly violate the rule (that is, who knowingly break the law) should face criminal charges, not just professional sanctions (which also rarely happen).

"Something should be done," said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. "If the harm is a great harm, yes, it should be criminalized."

Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

Such ideas could not be more at odds with the win-at-all-costs philosophy that was the hallmark of legendarily hard-line Dallas County District Attorney Henry Wade and, to a lesser extent, of subsequent administrations.

It is rare for a prosecutor to advocate strict penalties for misconduct – even when it's intentional, said Mr. Gershman, a former New York prosecutor. "I couldn't give you five cases in the last 40 years of criminal charges against prosecutors," he said.

The Duke lacrosse case was great in that it brought national attention to the possibilty of wrongful prosecutions and prosecutorial misconduct. But it may have also fostered the misconception that prosecutors like Mike Nifong are routinely punished when they make the same mistakes he made. In truth, it almost never happens. Still, it's fun to watch law-and-order, "the law is the law" prosecutors backpedal when asked why they themselves shouldn't face charges when they violate the law.

Watkins, by the way, is a rock star. Read my interview with him here.

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  • Elemenope||

    Yes.

  • ||

    Should Prosecutors Who Withhold Exculpatory Evidence Face Criminal Charges?

    Yes, Absolutely.

    That was easy

  • Elemenope||

    p.s. This Watkins fella rocks the house. Can we download his personality and make clones of him, you know, for use in other districts?

  • Michael Ejercito||

    They should face vigilante justice.

    Those who practice vigilante justice should be subject to it.

  • Michael Ejercito||

    I wonder if Watkins would support strict criminal liability for prosecutors who happen to prosecute innocent people that subsequently end up convicted.

  • ||

    No. Just take 'em out to the square and give them a good old fashioned public stoning, with the victims and/or families of victims given first crack. I guarantee you that cases of withholding evidence will be substantially reduced and the herd thinned of bad gene stock too.

  • ed||

    Exculpatory evidence...is the opposite of inculpatory evidence, which tends to prove guilt.

    I'm no lawyer, but given the adversarial relationship inherent in our legal system, couldn't you also make a case for prosecuting defense lawyers who withhold inculpatory evidence?

  • Elemenope||

    I'm no lawyer, but given the adversarial relationship inherent in our legal system, couldn't you also make a case for prosecuting defense lawyers who withhold inculpatory evidence?

    No, because the system is inherently asymmetrical. The state is assumed to have the advantage on resources, personnel, and power. Thus, they have special obligations that defense attorneys do not.

    Also, our system presumes ever so slightly that it is better for a guilty person to go free than for an innocent person be convicted. At least in theory.

  • Michael Ejercito||

    Just take 'em out to the square and give them a good old fashioned public stoning, with the victims and/or families of victims given first crack.


    What are we waiting for? Let's do it!

  • ed||

    But if justice is the desired result, why let a guilty man go free?

  • ||

    In the vast majority of criminal cases, the defense gets a honking big packet of paper from the prosecution; the defense doesn't generate evidence by itself.

    And if a lawyer hears the defendant confess, he cannot ethically protest the defendants innocence to the court (thats when he steps aside and gets a new lawyer).

  • ||

    Should Prosecutors Who Withhold Exculpatory Evidence Face Criminal Charges?

    Of course. Anyone who argues otherwise is an asshole.

  • ||

    Ed - Because there is no criminal more dangerous than a government with too much power.
    We put the burden of proof entirely on the state in criminal matters. A defendant need not prove his innocence nor assist the state in proving his guilt. (yes, the burden of proof shifts to the defendant for affirmative defenses like self-defense but that is because such defenses begin by first conceding the state has met its burden)

  • Salvius||

    But if justice is the desired result, why let a guilty man go free?

    Because a perfect system (i.e., one in which each and every guilty person is convicted, and each and every innocent person is acquitted) is impossible to actually achieve. Any system will inevitably produce errors.

    Underlying our system is the assumption that the injustice of convicting and punishing an innocent person is more obnoxious than the injustice of letting a guilty person go free. Therefore, the system is (in theory) set up to err on the side of acquitting the guilty, rather than convicting the innocent.

  • Guy Montag||

    Should Prosecutors Who Withhold Exculpatory Evidence Face Criminal Charges?

    Yes, but my page took too long to load for me to answer this way first.

  • ||

    Should Prosecutors Who Withhold Exculpatory Evidence Face Criminal Charges?

    Yup.

    If someone like Neil doesn't show up soon, we're in danger of a rainbow bunny-cluster-hug developing.

  • ||

    So, how long until Watkins loses his job?

  • lunchstealer||

    But if justice is the desired result, why let a guilty man go free?

    Because even if there is evidence pointing to someone, you're never 100% sure that they are the guilty man. Also, even if there is apparently exculpatory evidence, you may still have the guilty party. If you want to have justice, defined by not ever letting a guilty man go, you would probably have to take off and nuke the site from orbit. It's the only way to be sure.

  • Juanita||

    No. Because this would reduce the conviction rate.

  • ||

    I'm no lawyer, but given the adversarial relationship inherent in our legal system, couldn't you also make a case for prosecuting defense lawyers who withhold inculpatory evidence?

    If either instance is knowingly done, then yes. Or, at the very least, professional sanction should be sought. I'm usually not one for equating abuses against the state with abuses of the state, but, in the areas in which government has its authority (i.e. the imposition of justice), both sides should be held accountable to the standards.

  • ed||

    And if a lawyer hears the defendant confess, he cannot ethically protest the defendants innocence to the court

    Really? Defense attorneys never defend individuals who they know are guilty?

  • ||

    Juanita, go make a burrito.

  • Michael Ejercito||


    Yup.

    If someone like Neil doesn't show up soon, we're in danger of a rainbow bunny-cluster-hug developing.


    Strict criminal liability should apply against prosecutors for any prosecution resulting in conviction of innocent person(s). The sentence is three times what the innocent people received.

  • Michael Ejercito||

    And if a lawyer hears the defendant confess, he cannot ethically protest the defendants innocence to the court


    There is a problem with that.

    Revealing the confession would violate attorney-client privilege.

  • ||

    I wonder what world-class asshole Patterico has to say on this subject?

  • ||

    Underlying our system is the assumption that the injustice of convicting and punishing an innocent person is more obnoxious than the injustice of letting a guilty person go free.

    I tend to think in terms of the system rather than the individual cases. Is it worse for the guilty to walk than the innocent to do time? Maybe, maybe not. Is a justice system where it is easy to convict someone more likely to lead to abuse of power and an overall lousy society than one in which it is difficult to convict? Without question.

  • Episiarch||

    I wonder what world-class asshole Patterico has to say on this subject?

    That prosecutors such as himself shouldn't be liable for "mistakes". He has to cover his world-class ass(hole), after all.

  • The Wine Commonsewer||

    But if justice is the desired result, why let a guilty man go free?

    Most libertarians disagree with me when I say the guilty shouldn't go free on a technicality. That's because they figure tossing a case against a felon who was convicted by unscrupulous prosecutors or police is the ONLY weapon we have.

    I would argue that this isn't much of a disincentive anyway given the number of prosecutorial and polezei excesses.

    The purpose of the legal system is to get at the truth.

    And, every government official from the beat cop to the DA should be subject to criminal and/or civil sanctions for violating anyone's rights.

    In the past, that was the case. See: Wyatt Earp's arrest. Although the charges were dismissed, there was an inquiry into the incident at the OK Corral. In addition, a warrant for his arrest in connection with the Stillwell killing was issued forcing Wyatt Earp to permanently leave the state.

  • Dave B.||

    I noticed something in the video that always bugged me on shows like Law & Order. What's up with parole boards insisting that people admit their guilt before getting parole? They have to know that some people in prison are legitimately innocent.

  • ed||

    I've heard it said that defense attorneys are not defending the accused...they are defending the system...the adversarial system. That's a good way of putting it, but I'm still bothered by a system that allows a guilty man to go free based on the assumption that it's less egregious than an innocent man doing time. If justice is our goal, then shouldn't all evidence see the light of day?

  • ||

    The purpose of the legal system is to get at the truth.

    I disagree. The purpose of our legal system is what we consider 'law and order.' Justice and truth are hopefully the result, but not always.

  • ||

    couldn't you also make a case for prosecuting defense lawyers who withhold inculpatory evidence?

    Nah. The accused has a constitutional right to a fair trial, which is violated in the prosecution withholds evidence. The State has no constitutional rights at all, so its rights aren't violated if the defense sits on evidence.

    You can run the same analysis with the right not to incriminate yourself.

    Further, having the defense disclose evidence to the prosecution would likely violate the attorney-client privilege. There is no comparable privilege that attaches to evidence held by the prosecution.

  • ||

    Oh, and when Watkins was up for election a few years ago, I totally misjudged him. He's turned out really well. My bad.

  • ||

    Juanita,

    My love, I have tried with all my being
    to grasp a form comparable to thine own,
    but nothing seems worthy;

    I know now why Shakespeare could not
    compare his love to a summer's day.
    It would be a crime to denounce the beauty
    of such a creature as thee,
    to simply cast away the precision
    God had placed in forging you.

    Each facet of your being
    whether it physical or spiritual
    is an ensnarement
    from which there is no release.
    But I do not wish release.
    I wish to stay entrapped forever.
    With you for all eternity.
    Our hearts, always as one.*



    *Anthony Kolos

    I beg you, e-mail me.

    Your tortured admirer,
    J sub D

  • ktc2||

    Luchstealer,

    LOL. Really did. Good one, just watched the special edition of that last night.

  • ktc2||

    And to answer the question YES!

    Again, this is place where the death penalty can rightly be applied. Only politicians and government agents should be subject to execution by the state, that way it's voluntary.

  • ||

    What's up with parole boards insisting that people admit their guilt before getting parole? They have to know that some people in prison are legitimately innocent.

    I'll take a crack.
    Because the parole board isn't a jury or an appeals court judge, and assumes that the legal system has run its course and meted out justice, finding the person in front of them guilty.
    The parole board has to (rightly) assume that the system got its (wo)man. There are other avenues for appeals that weigh evidence for or against guilt (loaded as that system is for the prosecuction), and the parole hearing ain't one of them.

  • Lawyer||

    What Adamness said. The main purpose of the legal system is to prevent fighting in the streets, i.e., forestalling Hatfield & McCoy, Capulet & Montague stuff. That end is more likely to be achieved when the outcomes produced by the legal system are factually correct (or, more accurately, perceived by most people as factually correct), so getting at the truth could be seen as a secondary purpose.

  • Michael Ejercito||


    That prosecutors such as himself shouldn't be liable for "mistakes".


    They should be strictly liable.

    Send an innocent person to prison, serve three times the sentence.

  • Michael Ejercito||

    The main purpose of the legal system is to prevent fighting in the streets, i.e., forestalling Hatfield & McCoy, Capulet & Montague stuff.


    If the legal system loses credibility, then would that result in more fighting in the streets?

  • robc||

    If you really want justice to be served (and assuming you could trust any human), you would only need one lawyer. He would act as both prosecutor and defender, using all the evidence available. He would question all the witnesses, point out all the evidence pointing towards guilt and also point out the weaknesses in that evidence that the jury should consider.

    For some reason, I doubt any of us would consider actually using that system.

  • Zeb||

    I don't think justice really is the goal of the so called "justice system". The criminal courts should be called the penal system. You would be hard pressed to find two people who even agree on the meaning of "justice", let alone how to bring it about. The point of the court system and criminal law is to deter or prevent people from doing bad things. This may be part of justice, but it sure isn't sufficient for what I would call "justice".

  • Lawyer||

    The main purpose of the legal system is to prevent fighting in the streets, i.e., forestalling Hatfield & McCoy, Capulet & Montague stuff.

    If the legal system loses credibility, then would that result in more fighting in the streets?


    Yes. Please read the rest of my post.

  • ||

    One thing I would like to add because I don't think it get said enough here:

    Most accused are, in fact, guilty. And a lot of criminals are genuine menaces to society.

    That in no way excuses police/prosecutor abuses, but it should be said that most of the time the justice system works pretty well.

  • The Wine Commonsewer||

    The purpose of the legal system is to get at the truth.

    I disagree. The purpose of our legal system is what we consider 'law and order.' Justice and truth are hopefully the result, but not always.



    If the purpose of the legal system is not to get at the truth, what is the point? It is a simple proposition:

    Did the guy rob the bank?

    Did the contract say you have to do five shows?

    Did the deed say you own the land?

    Can't get much simpler than finding the truth, which is how you arrive at justice.

  • The Wine Commonsewer||

    And, I might add, the better the prospect of justice being served, the less likely anyone is to "take it to the streets".

  • TXLimey||

    Purposefully withholding evidence is not a "mistake". It's a crime, and should be prosecuted.

    Purposefully withholding evidence in order to send someone to death row is twisting the justice system to commit murder, and should be prosecuted as such.

    Honest mistakes need not be prosecuted, but should be investigated and if they are due to incompetence on the part of the prosecutor, professional sanctions are appropriate.

  • ||

    If the purpose of the legal system is not to get at the truth, what is the point? It is a simple proposition:

    Did the guy rob the bank?

    Did the contract say you have to do five shows?

    Did the deed say you own the land?

    Can't get much simpler than finding the truth, which is how you arrive at justice.


    Did OJ kill his wife? Yes. But the jury said otherwise. That wasn't justice, but what alternative was there in this case? Throw out the jury's results? No, instead, justice was not served, but we kept intact our system to preserve law and order.

    The legal system was upheld while justice basically fell by the wayside. I don't think many people would agree with or like that, but again, there isn't really an alternative. A legitimate system may not always be 100% accurate, but keeping the system and keeping law and order seems to trump 100% accuracy.

    That's why it's good to have these 'innocence projects' for when the system fails justice. Government should be concerned with the system, while the people should be concerned with accuracy.

    Keep in mind that vigilantes could be considered agents of justice, but that's far from law and order.

  • The Wine Commonsewer||

    What's up with parole boards insisting that people admit their guilt before getting parole?

    I have a better question.

    Why is there parole in the first place?

    Jail time should be commensurate with the crime and should be served.

    Course, that's part of the game in today's system. Everybody knows that a 20 year sentence isn't really a 20 year sentence. But it's like grade inflation except it's sentencing inflation. We sentence the guy to a longer term than he deserves to make sure he serves the time he does deserve.

    WTF is that all about?

    [answers his own question]

    Full employment for a whole 'nother tier of government drones.

  • ||

    That's a good way of putting it, but I'm still bothered by a system that allows a guilty man to go free based on the assumption that it's less egregious than an innocent man doing time. If justice is our goal, then shouldn't all evidence see the light of day?

    So you're OK with the cops kicking down your door in the middle of the night, ransacking your house, and if they find anything at all that doesn't fully comply with the law, off to jail you go, because all evidence, no matter how many civil rights were violated in obtaining it, should count?

    Really?

  • ||

    Why is there parole in the first place?

    Because some incarcerated people turn out to be worse badasses than others?

    Because sometimes public opinion changes about laws, and those old convictions for marijuana possession or sodomy don't seem quite as pressing a problem as they used to?

  • T||

    Did OJ kill his wife? Yes. But the jury said otherwise.

    No, the state could not convincingly provide proof of his quilt to the jury. There's a big difference.

  • The Wine Commonsewer||

    That wasn't justice, but what alternative was there in this case? Throw out the jury's results?

    Different issue.

    The point of the botched trial was (or should have been) to determine the truth of the allegations. Did OJ kill his wife?

    For whatever reason the jury said no, which is going to happen sometimes.

    When I say the point of the legal system is to determine the truth, I mean it in the simplest terms.

  • T||

    Er, guilt. I imagine proof of his quilt would be much easier to come by.

  • The Wine Commonsewer||

    So you're OK with the cops kicking down your door in the middle of the night, ransacking your house....

    Prole, I know you're not responding to my comment but, NO, I'm certainly not okay with that. The cops should be fired and/or jailed. The problem is that under the current system they aren't. We need to work toward changing that.

  • jp||

    Er, guilt. I imagine proof of his quilt would be much easier to come by.

    Don't confuse OJ with Rosie (Grier, that is).

  • ktc2||

    Again, justice is irrelevent to any discussion of our current legal system. It is NOT a justice system. I think men created laws and law enforcement as a tool to achieve justice but now our legal system is completely divorced for that goal. It serves now only it's own ends and those of our self declared "masters".

  • The Wine Commonsewer||

    Because some incarcerated people turn out to be worse badasses than others?

    Because sometimes public opinion changes about laws, and those old convictions for marijuana possession or sodomy don't seem quite as pressing a problem as they used to?


    Maybe on item 1, definitely not on item 2, although parole can be used for that purpose.

    My point, again, was that sentencing should be proportional to the crime. Putting people in jail for getting a blow job isn't proportional to the crime because there is NO crime.

    And, even in our sullied system, the jail time in Georgia for fornicators is pretty lite. Nobody is going to prison for 10 years for smoking the White Owl.

  • The Wine Commonsewer||

    our legal system is completely divorced for that goal. It serves now only it's own ends and those of our self declared "masters".

    From the back of the choir loft.....

    Hallelujah, Bro.

  • Ali||

    Should Prosecutors Who Withhold Exculpatory Evidence Face Criminal Charges?

    Yes, but who gets to prosecute the prosecutors? Other government prosecutors or private firms (lawyers?)? If so, why have prosecutors in the first place?

  • ||

    Criminal liability for knowingly withholding exculpatory evidence? Sure.

    Strict criminal liability for any not-guilty verdict? Uh, no. That's crazy talk. Good luck finding prosecutors.

    Of course, as Ali points out, prosecuting prosecutors is not so simple. Fundamentally, a shift in public sentiment is required before this would be possible on a large scale.

  • ||

    Just for a good laugh, here are the actual rules prosecutors are required to follow:

    Model Rules of Professional Conduct
    Advocate
    Rule 3.8 Special Responsibilities Of A Prosecutor
    The prosecutor in a criminal case shall:
    (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
    (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
    (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
    (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
    (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
    (1) the information sought is not protected from disclosure by any applicable privilege;
    (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
    (3) there is no other feasible alternative to obtain the information;
    (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

  • ||

    Thanks for continuing to cover stuff like this Radley.

    Cheers

  • ||

    robc said:

    "If you really want justice to be served (and assuming you could trust any human), you would only need one lawyer. He would act as both prosecutor and defender, using all the evidence available. He would question all the witnesses, point out all the evidence pointing towards guilt and also point out the weaknesses in that evidence that the jury should consider.

    For some reason, I doubt any of us would consider actually using that system."

    I actually love this idea! The only people outside of the prosecuting party and the defendant(s) that have anything to gain from a trial are the prosecuting and defense attorneys. The jury are merely spectators who have a civil (and sometimes moral) obligation to deliver the appropriate verdict. The judge merely assures the law is followed because the jury doesn't know everything about the appropriate process. To have one attorney for defense and prosecution would take away the desire for that attorney to "win". They will simultaneously win and lose every trial, so there's no point in either conviction.

    Sure, there may be kinks to work out, but ideologically, this is brilliant!

  • ||

    My point, again, was that sentencing should be proportional to the crime. Putting people in jail for getting a blow job isn't proportional to the crime because there is NO crime.

    Agreed in principle, TWC, but the problem is that legislators have a perverse incentive to have sentencing that is disproportionately harsh relative to the crime. And, if you don't have parole, incarcerated people have little or no incentive to sort of behave in prison. Give 'em 20, out in 7 forces prisoners who want out in 7 to not be total badasses, whereas if it became give 'em 7, serve 7 no matter what, guess what happens to conditions in the prison?

  • ||

    Sure, there may be kinks to work out, but ideologically, this is brilliant!

    Yes, let's implement stuff that sounds good on paper and not worry too hard about unintended consequences.

    Now, get out there and collective those farms!

  • Ayn R. Key||

    Yes, prosecutors who withhold exculpatory evidence should face charges. All government agents who commit crimes should face criminal charges. Unless we actually implement THIS then the next best proposal would be "shall prosecute" laws to accompany the "shall sentence" laws.

  • ||

    "Joseph Stalin",

    "Yes, let's implement stuff that sounds good on paper and not worry too hard about unintended consequences.

    Now, get out there and collective those farms!"

    Haha... I get your point. But that's why I said there'd be kinks to work out, not huge kinks to (Oh well!) leave in there.

    I'm saying it's worth looking into how it could actually be implemented. Do you really see problems with this system, J. Henshaw? Or did you just want to make a joke? :)

  • ||

    For some reason, I doubt any of us would consider actually using that system."

    Actually, we do use that (only one lawyer) system. It's called the Grand Jury. It has proven problematic, but we keep it anyways.

  • Old Blind Black Preacher||

    "Outside the limit of our sight, feeding off us perched on top of us from birth to death are our owners. They have us, they control us, they are our masters. Wake up! They're all about you and all around you!"

  • ||

    Warren,

    After reading extensively on the topic (okay, I just browsed Wikipedia) I saw that a lot of the criticism seems to be that the Grand Jury idea has strayed too far from its origin.

    Really, though, doesn't it sound like a better system where the attorney(s) have no desire to "win at any cost"? If you are afraid of attorneys losing desire completely to take part in criminal trials, I'd argue that the ones doing it for the right reasons will stick around doing the same as they've always done, and the system would weed out those out solely for personal gain.

    Oh, and Grand Juries only decide on whether something is worth going to a trial. Essentially they are there only to dismiss cases where there isn't enough evidence or other reason to prosecute. Really, they may only acquit, not condemn, any defendant.

  • robc||

    Danny,

    The obvious problem with the system I suggested is that the "adjudicator" (I cant call him prosecutor) would use the position to get elected to higher office. And what would allow you to move up? A high prosecution rate. Yeah, in a perfect world a high correctness rate would be the goal, but I wouldnt even suggest this system be implemented on rainbow puppy island. Thats how far from workable it is.

  • ||

    If you really want justice to be served (and assuming you could trust any human), you would only need one lawyer.

    Nah. No matter how trustworthy and impartial any given individual is, you will get better results if you have somebody pursuing and arguing each side, so your trustworthy/impartial individuals don't get all tunnel-visioned on you.

  • ||

    "The obvious problem with the system I suggested is that the "adjudicator" (I cant call him prosecutor) would use the position to get elected to higher office. And what would allow you to move up? A high prosecution rate. Yeah, in a perfect world a high correctness rate would be the goal, but I wouldnt even suggest this system be implemented on rainbow puppy island."

    Why would that have to be the goal? Why can't the goal be justice and we just be satisfied with that? I don't think that would be inherent in the system, but rather inherent in our current system.

    Then again, our current system is supposed to be about justice... How ironic?

  • Michael Ejercito||


    Strict criminal liability for any not-guilty verdict? Uh, no. That's crazy talk. Good luck finding prosecutors.


    Strict criminal liability works flawlessly for statutory rape. Why can't it work for sending innocent people to prison?

    Of course, as Ali points out, prosecuting prosecutors is not so simple. Fundamentally, a shift in public sentiment is required before this would be possible on a large scale.


    Innocent people going to prison should be enough.

  • ktc2||

    Strict criminal liability for prosecutors would be fine for wrongful imprisonment, execution, etc. based on a conviction of a proven innocent.

    But not just for prosecuting someone who is not convicted.

    In fact it would be a HUGE step in the right direction.

  • Zoe Brain||

    So you're OK with the cops kicking down your door in the middle of the night, ransacking your house, and if they find anything at all that doesn't fully comply with the law, off to jail you go, because all evidence, no matter how many civil rights were violated in obtaining it, should count?

    Yes.

    Immediately after the trial and punishment of the cops for their illegal acts. And as representatives of the state, with the powers they are given by that, their punishment for misuse of their authority should be extremely severe.

    An armed burglar breaking in like that might get 10 years. An armed burglar with the authority of the state behind him should get at least 20. 10 for the armed burglary, 10 for the misuse of power.

    The only reason for quashing tainted evidence is to encourage the authorities to obey the law, as they are essentially immune from prosecution for their crimes. This arguably does not work very well, the price is too great. Instead, we need to remove this de-facto and sometimes de-jure immunity, while still allowing cops and prosecutors to do their jobs without the fear that an inadvertant mis-step will result in unjust punishment. A neat trick, but we have to manage it, as the system at the moment is broken.

  • CJ-in-Weld||

    Again with the strict liability? Does everyone here know what that means? It means that no culpable mental state - not even negligence - need be proven. So under Michael Ejercito's regime, a prosecutor acting in good faith, who actually believes in the guilt of the accused, and who believes he has complied with all discovery requirements, would be guilty of a crime if it later developed that the police withheld evidence from the prosecutor. (It happens.)

    Maybe I'm misreading things, and what some of the folk want here is merely to do away with prosecution of anybody. If that's what you want, why not say so?

  • ||

    John-David, you need to get out more. Your world is several orders of magnitude too small.

  • ||

    We've come a ways from Frankish law (trial by oath, combat, & ordeal) but I don't think we're there yet. The nature and popularity of Judge shows on TV indicate that the appeal is to the sports crowd. Trials are a competitive event with a bit more nuance than football or mixed martial arts. Look up "forensics" in the dictionary. (Hint: it does not mean "science.")
    Regarding the concern about a lack of respect for the law leading to the return of vendetta - those days are here and now. People who survive in the crucible of our slums (not ghettos, dammit) don't trust the police and when they perceive a threat to their reputation their code requires them to resort to violent revenge.

  • ||

    Shoulda, woulda, coulda. "Should Prosecutors Who Withhold Exculpatory Evidence Face Criminal Charges?" I believe so. Both sides in the argument between those who feel the function of our legal system is to arrive at the truth or whether it is a "Law and Order" competition miss the mark. Court has always been at the center of society. Our society is based on the stated perception that it "... derives its just powers from the consent of the governed." Immunity for the prosecution but not the defense certainly appears unjust to me.

  • ||

    Yes, they should face criminal liability for intentionally withholding exculpatory evidence. And they should face personal financial liability as well. There is no reason for a prosecutor to have absolute immunity (like that judges have created for themselves), and I have some question about whether they should enjoy qualified immunity (another judicially created fiat).

  • ||

    Put them in the darkest hole you can find. It's about justice not some dopey prosecutor's conviction record.

  • ||

    "Nah. The accused has a constitutional right to a fair trial, which is violated in the prosecution withholds evidence. The State has no constitutional rights at all, so its rights aren't violated if the defense sits on evidence."

    Forgetting the victims aren't you? The victims of a crime have a right to a fair prosecution of a criminal. They have as much right to justice as a criminal does.

  • ||

    Would like to see Watkins head south to Harris County (Houston) to stand for DA here.

    November election offers us a feckless former police chief boob and a public teat feeder who doesn't quite earn the accolade of 'party hack'.

  • ||

    I have a couple of problems with prosecutors who have a "win at all costs" mentatlity. 1st, the purpose of our criminal justice system is to protect the public. The accused is a member of the public until convicted. 2nd, when an innocent person is put in jail the obvious reality is that the perpetrator is free to commit more crimes. That makes the prosecution team both an accessory to the original crime and guilty of abuse of office and unlawful detention if not kidnapping.

  • ||

    Of course it is criminal. And the sentence should be equal to the sentence received by the victim of the malfeasance (if victim imprisoned) or the average statewide sentence for the same crime (if no victim imprisonment).

  • Michael Ejercito||

    Again with the strict liability? Does everyone here know what that means? It means that no culpable mental state - not even negligence - need be proven. So under Michael Ejercito's regime, a prosecutor acting in good faith, who actually believes in the guilt of the accused, and who believes he has complied with all discovery requirements, would be guilty of a crime if it later developed that the police withheld evidence from the prosecutor. (It happens.)


    Why is this wrong?

    Strict liability already applies to statutory rape in many jurisdictions. A man can be guilty of statutory rape even if he honestly believed that the girl he had sex with was of legal age.

    If underage sex is so bad that strict liability should apply to statutory rape, how much more for sending innocent people to prison?

  • CJ-in-Weld||

    Whether strict liability is warranted for statutory rape has nothing to do with whether it is warranted for the crime being proposed here, which we could maybe call "criminal discovery violation." If strict liability for statutory rape is wrong, then the thing to do is to amend the statute to make knowledge of age an element the prosecution has to prove.

    As an aside, in my jurisdiction, mistake of age is a defense for victims 15 to 17, but not for victims under the age of 14. That's right - my state places a duty on its adult citizens to make sure their sexual partners are not 14 or younger. That probably strikes most people as pretty reasonable.

    Even though I'm a prosecutor, I have no beef making discovery violation with intent to prevent a fair trial a crime. I'd be willing to consider a reasonable proposal for criminalizing "knowing" violations, a lower standard than "intentional" under the law. Arguments can be made for criminalizing "reckless" violations and "negligent" violations. Maybe you could have a tiered structure, with "criminal discovery in the first degree", "in the second degree", etc.

    But strict liability? Give me a break. That would essentially deter all prosecution. The public cost is too high for the good gained. Unless...your goal really is to eliminate government-based prosecution. If so, say so.

  • ||

    """If underage sex is so bad that strict liability should apply to statutory rape, how much more for sending innocent people to prison?"""

    I understand the problems with strict liability as CJ notes. However, I can't disagree with the above. If it is ok to use strict liability for bad crimes against the citizenry, I see no problem using it against prosecutors. If they prosecutors don't like strict liability, don't use it against others.

  • CJ-in-Weld||

    Just a reminder - prosecutors don't impose strict liability, legislators do. The question of when strict liability is ever appropriate is an interesting one, but it has to be decided by lawmakers as to each statute enacted.

    There are really very few major crimes where strict liability applies. Statutory rape is one, in some jurisdictions. Felony murder (where someone engaged in a predicate offense like burglary or robbery is criminally liable for a death caused even by a co-defendant) is another. Off the top of my head, I'm not thinking of any other common ones.

    The thing they have in common, is that the perpetrator is already engaged in morally dubious activity, at least by the standards of the elected legislators when the statute was enacted: sex with an obviously young person in the one instance (duty imposed: make sure they're not too young), some other predicate crime in the other (duty imposed: make damn sure that your already-serious felony isn't compounded by the death of an innocent).

    This doesn't apply in the scenario I spun above. Under the rules of criminal procedure, the prosecution has discovery obligations that extend beyond their personal knowledge. If the police have exculpatory evidence, the prosecution is responsible to provide it to the defense even if the prosecutor doesn't personally know about it. So strict liability doesn't really make sense in this context. It's not designed to deter wrongdoing, in other words, because the underlying activity - prosecution - isn't in and of itself an inherently illegal or immoral or dangerous activity like sex with people who might be children or burglarizing houses or robbing banks.

    Unless you disagree with that premise. I'm beginning to wonder.

  • Ayn R. Key||

    I have a couple of problems with prosecutors who have a "win at all costs" mentatlity. 1st, the purpose of our criminal justice system is to protect the public. The accused is a member of the public until convicted. 2nd, when an innocent person is put in jail the obvious reality is that the perpetrator is free to commit more crimes. That makes the prosecution team both an accessory to the original crime and guilty of abuse of office and unlawful detention if not kidnapping.



    Good point MMS. That means that the prosecutor could easily face additional charges if it is found out he supressed exculpatory evidence, not just the charge for the supression.

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