C’est la vie. You were patently wrong when you said “Prosecutors are frequently known for spouting off to the press and mis-characterising very shaky evidence as being convincing proof.” And, as long as you recognize that prosecutorial misconduct happens in a vast minority of cases, you can stand by your “many”.
Come back when you learn reading comprehension.
:rolleyes:
Do you think prosecutorial misconduct occurs only in cases where it is cited as a factor in dismissing charges, reversing convictions or reducing sentences?
I honestly don’t know how common it is, but to limit its occurence to when people actually get called on it seems a little optimistic to me.
Forgive me if I’m misremembering the following…
I think it’s fair to point out that Hamlet either is or was himself a prosecutor at one point, which obviously doesn’t affect the truth of falsity of the statements at issue but does indicate some personal knowledge of the issue.
Of course, it may also give rise to the inference of bias. So let me add that during the years I worked as a defense attorney, my observations agree with Hamlet’s – such conduct was extremely rare. I had my own gripes about certain practices by certain prosecutors, but I don’t know a defense attorney that didn’t, and those gripes didn’t extend to the kind of conduct we’re discussing here. (On the other hand, I must admit I wasn’t defending headline-making cases, so my own experience might be discounted).
No need to limit it to that. On the other hand, any assertions about how often it actually happens need to be backed up by facts to carry any weight.
From the same cite I used in post 17, here is another page.
This was a review of 11,452 convictions that were appealed because of claims of prosecutorial misconduct – there may have been other grounds for appeal as well, but all made this claim.
Of these, 2012 convictions were overturned or sentences reduced by rulings that cited prosecutorial misconduct. There were “thousands” more in which judges cited misconduct that apparently did not rise to the level of seriousness that merited a reversal. Is it unreasonable to say that is another 2000 or more?
Which means that judges agreed there was some degree of misconduct by prosectors on more than 30% of cases appealed on those grounds.
This does not include any convictions that were not appealed, or any appealed on other grounds, or mistrials, or any that didn’t result in a conviction in the first place. The Duke case would fall in this last category – or maybe not, since a more reasonable prosecutor probably would not have filed charges. Any way you look at the Duke case, however, it would not be included in a study with this methodology.
So, yes, I would say misconduct is frequent, if not a large percentage of the total cases tried in American courts.
Hamlet also scoffed at my comment that such misconduct happens every week. Well, this study covered a 33 year period, and counted up 4000 instances of prosecutorial misconduct. That works out to more than twice a week.
And I would argue that there are probably many cases of misconduct that never found their way into this study – and probably never could, as the research involved in reviewing trial transcripts would be too big a task.
A little more research at the website for the Center for Public Integrity shows me that I have WAY underestimated the number of “harmless” episodes of misconduct. Their number is 8709, compare to my estimate of 2000.
So make that a rounded 10,000 cases in 33 years. That works out to about 6 per week.
Even if you only count actual reversals or sentence reductions, it’s still more than one per week.
And doesn’t count mistrials, findings of innocence, blahblahblah…
Actually, Bricker or other lawyers, I have a question. I had no idea an appeal could result in a reduced sentence rather than a reversal. How would that work? I can’t imagine the appeals judges would make a ruling like “That behavior is good for x years off your sentence.” I thought the convictions were either overturned or affirmed.
IANAL, but one possibility is that the appeal says, in effect, “I don’t dispute the trial or verdict, but I was given a sentence not appropriate for my crime.”
Abso-fraggin-lutely. This is a mockery of justice. :mad:
Hold on! This study classifies “Courtroom misconduct” as “making inappropriate or inflammatory comments in the presence of the jury; introducing or attempting to introduce inadmissible, inappropriate or inflammatory evidence; mischaracterizing the evidence or the facts of the case to the court or jury; committing violations pertaining to the selection of the jury; or making improper closing arguments.”
That’s a pretty wide brush. The prosecutor who attempts to introduce evidence and is overruled has not committed misconduct in the ordinary way the reader thinks of the term, yet he seems to be covered by this definition. even if he’s NOT overruled, he’s covered by the definition:
Consider a trial at which the prosecutor seeks to admit evidence of a prior molestation conviction against a man accused of molestation. The judge rules that the prior act is sufficiently similar to the charged one to show a “common plan, scheme, or motive,” which is the correct standard for 404(b) evidence. Conviction ensues. On appeal, the appellate court decides that the trial court was wrong: as a matter of law, the prior act did NOT have sufficient similarity to the charged act to count as a 404(b) exception.
This study seem to call that prosecutorial misconduct.
I absolutely disagree that the prosecutor has done anything wrong.
There are two possibilites.
First, an appeal may complain that the trial judge improperly admitted or considered evidence at sentencing. For example, suppose the judge at sentencing says something like, “And in addition to committing the crime, you didn’t have the decency to plead guilty – you insisted on a trial! Now you’re going to pay for wasting my time and the jury’s time.” That suggests the judge is basing his sentence not on permissible factors, but on his ire that the accused exercised his right to a trial.
Or (much more realistically) the judge may refuse to hear mitigating evidence, or improperly admit aggravating evidence. An appeals court may find no fault with the trial, but rule that the court improperly considered evidence at sentencing. To cure this, it may remand for sentencing before the same judge… or even before a different judge, if the error was of a nature that asking the same judge to correct it does not seem judicially prudent.
Secondly, and this comes up in federal practice much more than state practice (at least much more than MY state’s practice) the trial judge may have made a computational error in sentencing guidelines. The federal system has a truly byzantine system of points and sentencing levels, and an error in computing the proper credits, levels, and so forth can simply be fixed by the appellate court.
That may be, but the study claims that their inclusion is based on the rulling of the appeals courts. Misconduct was cited in the decisions by the appellate judges, not merely inferred by the Center’s case reviewers.
Here is what the study cites as misconduct:
Note that this does NOT include much of the behavior attributed to Nifong – the leaked press stories, and mischaracterization of the evidence to the press, among others. He seems to have mis-represented evidence to a judge, and withheld evidence from the defense as well, and had this gone to trial and a conviction resulted, that behavior would presumably have landed him among the type of cases cited in the study.
I would like to hear your interpretation of what DOES constitute prosecutorial misconduct.
That is a good point, and I’m not entirely certain how this study would handle it. But my interpretation of their methodology is that if the appeals judge ruled it was some form of judicial error that allowed this evidence in, it would not be in the study, and would only be in the study of the appeal judge cited improper behavior by the prosecutor.
The website includes a databse listing the citations of every one of the thousands of cases. If you as an attorney would have easy access to find and read a smattering of these opinions, I would welcome some more feedback.
You know, I’m not trying to claim here that the justice system is corrupt and riddled with abusive prosecutors. All I said was that abuses happen pretty often. And I get somewhat riled when people like Hamlet come along and post things like “Your statments are little more than an inflammatory pile of crap.”, and “you’re still pathetically wrong.…” and “You were patently wrong…”
Talk about statements being inflammatory piles of crap… There is no need for attacks like that, right from his first post. I will not respond in kind, but I am not kindly disposed to what amount to personal insults.
Ten questions from K C Johnson’s blog, Durham-in-Wonderland, reprinted with permission.