Just How Pervasive is Prosecutorial Misconduct?

September 23, 2010 by Marshall A. Mintz · Leave a Comment 

USA TODAY has an important story about misconduct by federal prosecutors. The article is based on an examination of 201 cases in which district court judges found that prosecutors violated laws or ethics rules – such as hiding evidence, lying to judges and juries, and breaching plea agreements.

The Department of Justice won’t disclose whether any prosecutors have been punished as a result of internal ethics investigations, citing privacy rights. However, the DOJ’s attitude might be illustrated by its handling of two federal prosecutors who failed to disclose impeachment evidence about a key government witness. The Seventh Circuit Court of Appeals concluded that the prosecutors “deliberately misled the court and defense counsel.” The DOJ’s response: each prosecutor was suspended for one day.

Prosecutorial Misconduct With No Consequences

March 25, 2010 by Marshall A. Mintz · Leave a Comment 

In United States v. Spivak, 08-6091-cr (2d Cir. March 18, 2010), the defendant was convicted of two counts of distribution and five counts of possession of child pornography.  On appeal, Spivak argued that the government allowed one of its witnesses to testify falsely and made improper comments during summation.

With respect to the witnesses testimony, the Court reiterated that “ prosecutor has a fundamental obligation to ensure that the testimony he elicits is true.”  Citing, Shih Wei Su v. Filion, 335 F.3d 119, 126-27 (2d Cir. 2003).  As such,“allowing the government’s witness to testify falsely in a material way, albeit unknowingly, constituted severe misconduct,” and “eliciting false testimony that Spivack was a pedophile was outrageous.”  Despite that conclusion, the Court found no prejudice – citing the severity of the misconduct, the curative measure taken, and the strength of the government’s case.

The Court was also concerned with the government’s references to Lolita during closing arguments, calling the “problematic” because there was no rational explanation for them “other than to inflame the jury.”  Citing United States v. Modica, 663 F.2d 1173 (2d Cir. 1981).  However, the Court went on to find the comments, “although regrettable” were not “sufficiently egregious to amount to a denial of Spivack’s due process rights.”

Second Circuit Rejects Government’s Attempt to Avoid Briefing

March 18, 2010 by Marshall A. Mintz · Leave a Comment 

In United States v. Davis, 2010 WL 890709 (2d Cir. March 15, 2010), the Second Circuit did not take kindly to the government’s attempt to avoid briefing an appeal by claiming that the appellant “failed to raise any non-frivolous issues  on appeal.” The case is addressed by my friend JaneAnne Murray in her New York Federal Criminal Practice blog, and she summarizes it well.

The Davis decision is important because the government’s argument could be read to imply that Davis’s appellate counsel violated Rule 38 of the Federal Rules of Appellate Procedure, which provides for sanctions if the court finds that an appeal is frivolous (as well as various ethical rules which prohibit attorneys from pursuing frivolous issues).

That implication could be the basis for the Second Circuit’s statement that “overreaching attempts to dismiss appeals as frivolous, like excessively zealous claims that adversary counsel should be sanctioned, will not be accorded a friendly reception by this court.”

1993 murder convictions vacated because the prosecuction let its witness give misleading answers

November 20, 2009 by Marshall A. Mintz · Leave a Comment 

In People v. Colon and People v. Ortiz, New York’s highest court vacated the defendants convictions because the prosecution at the initial trial failed to correct misleading testimony by one of its witnesses

In doing so, the Court of Appeals noted that prosecutors “must deal fairly with the accused and be candid with the courts” People v Steadman, 82 NY2d 1, 7 (1993). This duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness. Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are necessary unless there is no “reasonable possibility” that the error contributed to the conviction. People v Pressley, 91 NY2d 825, 827 (1997); see also Steadman, 82 NY2d at 8-9.

During the trial, the prosecution questioned its witness about any benefits he received in exchange for his testimony. However, the witness’s answer did not recount all of the favorable treatment he had gotten. Rather than correct the testimony, the prosecutor let the answer stand and repeatedly referred to it throughout the case.

This case once again emphasizes that the role of a prosecutor is not simply to win. Rather, the prosecution is tasked with making sure that the proceedings are fair.