Provide at least one example of exceeding appropriate authority for the prosecution. For the defense. What are the available remedies when appropriate a

CJUS 330

Discussion Assignment Instructions

You will complete 2 Discussions in this course. You will post one thread between 300 and 350 words by 11:59 p.m. (ET) on Thursday of the assigned Module: Week. You must then post 2 replies between 200 to 250 words by 11:59 p.m. (ET) on Monday of the assigned Module: Week. For each thread, you must support your major assertions with course materials applying at least 2 citations in APA format. Each reply must incorporate course materials applying at least 1 additional citation in APA format in additional to relevant Scripture/biblical support. Any outside sources cited must have been published within the last ten years. (Required sources include the textbook, lecture material, and the Bible. In addition, you may also include scholarly peer-reviewed articles.)

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CJUS 330

Lecture Notes: Legal Actors – Prosecutors and Defense Attorneys

“And you experts in the law, woe to you, because you load people down with burdens they can hardly carry, and you yourselves will not lift one finger to help them.”

Luke 11:46, NIV

I. Introduction: If the courts are the stage for our play, then the prosecutors, defense attorneys, juries, witnesses, and the judges are the actors. The next three Lecture Notes will deal with these actors. These actors are on a quest for justice in each individual case. However, sometimes there are lapses in the criminal justice system that led to wholly innocent defendants being convicted of crimes, and this lecture note will deal with how prosecutors and defense attorneys contribute to this problem.

II. Prosecutors: In order to get a realistic understanding of a day in the life of a prosecutor, pay special attention to the account rendered in your text.

A. Ethical Responsibilities: “The state’s attorney represents all of the people, including the defendant. His duty is not only to secure convictions, but to see that justice is done. He is a public servant whose sole allegiance is to the people” ( In re Guardianship of Angell, 167 N.E.2d 711, 714 [Ill. App. 1960]). The ABA also states that a prosecutor has the duty “to seek justice not merely to convict” (ABA Model Rules). “The prosecutor is simultaneously responsible for the community’s protection, victims’ desire for vengeance, defendants’ entitlement to a fair opportunity for vindication, and the state’s need for a criminal justice system that is efficient and seems fair” (Vollen, p. 50 quoting Vanderbilt Law Review). In short, the prosecutor is charged with finding justice in the case and pursuing it. Once a prosecutor is convinced of a defendant’s guilt, he/she should attempt to secure a conviction. However, this duty must be tempered by fairness, meaning that the prosecutor has a “duty to remain under appropriate restraint and to avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of the fair trial to which he or she is entitled” (Joan C. McKenna, 63C Am. Jur. 2d Prosecuting Attorneys § 23 [2005]).

B. When Things Go Wrong: According to a 2003 study, “Local prosecutors in many of the 2,341 jurisdictions across the nation have stretched, bent or broken rules to win convictions…. Since 1970, individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences in over 2,000 cases. In another 500 cases, appellate judges offered opinions—either dissents or concurrences—in which they found the misconduct warranted a reversal. In thousands more, judges labeled prosecutorial behavior inappropriate, but upheld convictions using a doctrine called ‘harmless error’”[footnoteRef:1] ( Breaking the Rules). The vast majority of the prosecutors work toward justice in each case; however, there are a number of pressures put onto prosecutors. In some states, the head prosecutor in each county (called the Commonwealth’s Attorney in Virginia) is elected, as is Attorney General of the Commonwealth of Virginia. The public typically wants to see bad guys go to jail. You can see how this might led a prosecutor to want to bring charges quickly, and then convict the person who they charge. In addition, prosecutors are faced with daunting caseloads. Talk to any prosecutor and you will be told of times when he/she had not even had a chance to read the entire file before going to court (in all fairness to prosecutors, typically this happens with low level violations such as reckless driving). In order to deal with the dual responsibility of dealing with lots of cases and then keeping conviction rates up, sometimes prosecutors engage in questionable conduct. This misconduct includes: [1: Just think how many more cases of prosecutorial misconduct there would be if all jurisdictions were part of this survey.]

· Courtroom misconduct (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);

· Mishandling of physical evidence (hiding, destroying or tampering with evidence, case files or court records);

· Failing to disclose exculpatory evidence;

· Threatening, badgering or tampering with witnesses;

· Using false or misleading evidence;

· Harassing, displaying bias toward, or having a vendetta against the defendant or defendant’s counsel (including selective or vindictive prosecution, which includes instances of denial of a speedy trial);

· Improper behavior during grand jury proceedings;

· Improper exclusion of jury members because of race, gender, etc.;

· Improperly blocking the testing of DNA evidence that could possibly exonerate a defendant.

(Truth in Justice–Prosecutorial Misconduct Study. Portion of the above list found at http://truthinjustice.org/misconduct.htm)

The problem with prosecutorial misconduct is two-fold. First, it can lead to wholly innocent[footnoteRef:2] individuals being convicted of crimes they did not commit. In the prosecutorial misconduct study mentioned above, in 28 cases, involving 32 separate defendants, prosecutorial misconduct was cited for the wrongful conviction of an innocent person. (Breaking the Rules). In a different study of the first 70 wrongful convictions overturned because of DNA evidence, it was found that in 34 cases prosecutorial misconduct played a role in the wrongful conviction. (Vollen, p. 50) Second, prosecutorial misconduct can lead to guilty defendants “getting off” because of the prosecutor’s conduct. Sometimes these guilty defendants cannot be recharged because of double jeopardy (in the lingo of attorneys, “jeopardy has attached”). As mentioned above, prosecutors are supposed to uphold justice. It is an affront to justice for innocent people to go to prison for crimes they did not commit. Many of these wrongfully convicted defendants serve substantial time before they are released. [2: By wholly innocent, I mean defendants who had nothing to do with the crime. This is more than technical or legal innocence, which can mean that they did the crime it just could not be proven. I am discussing wrongfully convicted individuals that actually did not commit the crime they were accused or convicted of.]

One of the most complicated areas of prosecutorial misconduct to expose is the prosecutor’s failure to turn over evidence that could possible be exculpatory.[footnoteRef:3] In the Supreme Court case Brady v. Maryland, 372 U.S. 83 (1963), “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution” ( Brady, 372 U.S. at 87). According to the Brady rule, the prosecutor must disclose all potential exculpatory evidence regardless of the defendants request for such evidence. Am. Jur. § 1270. When a prosecutor does not provide the defense with such evidence, the very notion of a fair trial under the due process clause is offended. See Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968). In order for justice to be served, it is obvious that the defense should have access to possibly exculpatory evidence. As noted in the article Breaking the Rules, it is difficult for this prosecutorial failure to be brought to light because only the prosecutor knows about evidence that he/she did not turn over to the defense. Following is one of the numerous cases where a defendant was wrongfully convicted of a crime he was wholly innocent of because, at least in part, the prosecutor failed to disclose crucial evidence. [3: The word exculpatory is defined as “evidence in a criminal trial that serves to justify, excuse, or introduce a reasonable doubt about the defendant's alleged actions or intentions .” Legal Information Institute, http://www.law.cornell.edu/wex/exculpatory. ]

In 2002, Juan Melendez was released from death row after serving 17 years for a crime he did not commit. Delbert Baker was found murdered in 1983. Based upon a confidential informant’s statements, Melendez and another man, John Berrien, were arrested and charged with Baker’s murder. During interrogation, Berrien—who Melendez knew socially—was threatened with the electric chair. Berrien made a deal with prosecutors where he agreed to testify against Melendez in exchange for the charges of first-degree murder and armed robbery to be dropped to accessory after the fact. Under this deal, Berrien would be sentenced to 2 years imprisonment (which he already served) and 2 years of probation. There was no physical evidence that Melendez committed the murder; nevertheless, he was convicted of the murder based on the two above mentioned witnesses’ testimony. A decade and a half after the original trial, Melendez was given a new attorney who got a court order for all of the prosecutor’s files concerning this case. The attorney found a transcript of an interview with a man who confessed to the crime one month before Melendez’s trial started, as well as evidence that corroborated that confession. The attorney also found evidence that the witnesses had changed their statements about the crime several times, and that the detective on the case may have used questionable practices to get the charges against the informant dropped. One would wonder way the confidential informant implicated Melendez if he did not commit the crime. In this case, the confidential informant was facing charges of home invasion, which were dropped after he testified against Melendez, and he received $5,000; but why did he implicate Melendez? In this case, it was revenge. Melendez and the confidential informant’s father had a disagreement about payment for some odd jobs Melendez had done. The father claimed that because of Melendez’s negligence some of his farm animals died. So, this confidential informant testified that he overheard Melendez confessing of the murder. This defendant spent 17 years of his life on death row for a crime he did not commit because of prosecutorial misconduct.

III. Defense Attorneys: Defense attorneys play a very significant role in the process of obtaining justice in each case. Many people do not recognize what an important role these attorneys play in safeguarding justice. These attorneys make sure that the Constitutional rights of a defendant in a particular case are upheld.

A. Constitutional Rights: The right to counsel is one of a defendant’s most important rights. As noted in your book, several Supreme Court cases have defined this right. Here are a few of the most important cases:

· Gideon v. Wainwright, 372 U.S. 335 (1963): Provides that in all criminal proceedings indigent[footnoteRef:4] defendants have a 6th amendment right to counsel appointed. [4: Indigent refers to defendants who are too poor to pay for a lawyer and therefore entitled to one for free.]

· Douglas v. California: Provides an indigent’s right to counsel for the first appeal.

· In re Gault: This case extends Gideon to juveniles.

· Argersinger v. Hamlin: Limits indigent’s right to counsel only in cases that may lead to imprisonment.

· Strickland v. Washington, 466 U.S. 668 (1984): This is the key case to determine whether a person has received effective representation of counsel. In short, this case applies a reasonableness standard to effective counsel. Under Strickland, counsel is ineffective if (1) counsel’s performance “fell below an objective standard of reasonableness” and (2) the deficient performance prejudiced the defendant.

· Faretta v. California: This case deals with self-representations stating that defendants need not have the skills and experience of a lawyer for self-representation.

B. Constitutional Rights in Action

· Funding: Each state strives to make sure that every defendant has his/her constitutional rights upheld; however, the cost of providing a defense for all indigent defendants can be insurmountable. Often times each state or each county within a state is left to institute indigent defense programs, and determine how to fund those programs. Kit R. Roane, When the Poor Go to Court, U.S. News & World Report (January 23, 2006).

· Right to Self-Representation (Pro se): “The person who represents himself has a fool for a client.” Does this old adage hold true in the Bundy case? The Faretta case explains that you do not need to have any legal training to be able to assert your right to represent yourself. However, the judge needs to make a determination that the defendant has the mental capacity to make an intelligent waiver of his right to be represented by an attorney. Each jurisdiction has its own set of questions that the judge asks the defendant to determine if he meets this requirement. Examples of some of the categories that the judge should inquire about are defendant's age, education, ability to read and write, influence of drugs or alcohol, and defendant’s mental state. In short, in order for a defendant to represent himself he is required to understand the charges, and to make a competent, knowing, intelligent, and voluntary waiver of his right to counsel.

C. Jailhouse lawyers: The right to counsel does not extend to all appeals. Many times convicted inmates are in jail without representation to file requests, or appeals. This is especially problematic for wrongfully convicted defendants. In order to file appeals or habeas corpus writs, many inmates turn to jailhouse lawyers to help them. Although in general, a layperson cannot act as an attorney, certain inmates have become so proficient in the law that they began to help other inmates with legal filings. These are known as jailhouse lawyers. Jailhouse lawyers are mostly self-taught, but some had training in the law before being incarcerated. The Supreme Court upheld the right of one inmate to help another write and file court documents.[footnoteRef:5] However, the jailhouse lawyer cannot argue motions in court (John R. Kennel , 72 C.J.S. [Corpus Juris Secundum] Prisons and Rights of Prisoners § 107 [2006]). [5: Specifically Johnson required that “Even in the absence of such alternatives, the State may impose reasonable restrictions and restraints upon the acknowledged propensity of prisoners to abuse both the giving and the seeking of assistance in the preparation of applications for relief: for example, by limitations on the time and location of such activities and the imposition of punishment for the giving or receipt of consideration in connection with such activities. But unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation such as that here in issue, barring inmates from furnishing such assistance to other prisoners.” Johnson v. Avery, 393 U.S. 483, 490 (1969) (citations omitted).]

D. Innocence Projects: When wrongful convicted inmates run out of money to pay attorneys fees, they often run out of options and hope. A student chaplain in a New Jersey prison, began Centurion Ministries (http://www.centurionministries.org) which was the first group dedicated to freeing the innocent. (Vollen, pg. 256). Centurion Ministries gets thousands of requests for representation each year.

In 1992, the first Innocence Project was established,[footnoteRef:6] since then several more such Projects have been established, some have been established within law schools, and others operate independently.[footnoteRef:7] These Projects are established to free the wrongfully convicted. Innocence Project attorneys have assisted in most of the 289 successful DNA exonerations as of 2012. [6: http://www.innocenceproject.org/ ] [7: http://www.truthinjustice.org/ips.htm ]

E. When things go wrong: Defense attorneys can exhibit unethical behavior in two ways: 1) going too far in their zealous representation or 2) not going far enough to represent their client zealously. Defense attorneys are not immune to suppressing evidence or in other ways manipulating the system to in order to get their client off. However, there is also a significant problem with defense attorneys not doing everything they can to zealously represent their client. True, when this happens a defendant can argue ineffective assistance of counsel on appeal. Nonetheless, courts have ruled that only a very narrow segment of cases actually constitute ineffective assistance of counsel. For example during a death penalty case, a court appointed lawyer fell asleep several times, and the Texas Court of Appeals refused to grant a new trial because the defendant did not show prejudice ( Ex parte Burdine, 901 S.W.2d 456 [Tex. Crim. App.], cert. denied, 515 U.S. 1107 [1995].0[footnoteRef:8] [8: Note that eventually the Fifth Circuit did grant the defendant in the case, Calvin Burdine, a new case. However, there were more problems in the case. Texas refused to certify the attorney who won the case as a capital attorney. So Burdine was again given a court appointed attorney. The judge tried get the case heard only 96 days after this new attorney was appointed.]

IV. Sources

· Truth in Justice, Harmful Error: Report on Prosecutorial Misconduct Released http://www.truthinjustice.org/index.htm

· The Center for Public Integrity , Harmful Error: Investigating America’s Local Prosecutors http://www.iwatchnews.org/accountability/harmful-error

· Legal Information Institute, http://www.law.cornell.edu/wex/exculpatory

· Am. Jur. § 1270

· Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968).

· Brady v. Maryland, 372 U.S. 83 (1963).

· Vollen, Lola, and Eggers, Dave, Surviving Justice, America’s Wrongfully Convicted and Exonerated.

· In re Guardianship of Angell, 167 N.E.2d 711, 714 (Ill. App. 1960).

· Joan C. McKenna, 63C Am. Jur. 2d Prosecuting Attorneys § 23 (2005).

· John R. Kennel , 72 C.J.S. (Corpus Juris Secundum) Prisons and Rights of Prisoners § 107 (2006).

· National Associations of Criminal Defense Attorneys, http://www.criminaljustice.org

· Centurion Ministries, http://www.centurionministries.org/

· Innocence Project, http://www.innocenceproject.org/

· Client of "Sleeping Lawyer" Gets Another Raw Deal, (2002) http://www.talkleft.com/new_archives/000481.html

· Kit R. Roane, When the Poor Go to Court, U.S. News & World Report (January 23, 2006).

· http://www.jud10.org/faretta.htm

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