We've lot our moral compass and we're out of countrol . . . This stuff is really starting to get old:

Prosecutor Misdeeds a National Trend

Just for comparison purposes, I was a junior in high school at the end of the Dallas County example's prosecutorial career, but I must have a problem too.

The first paragraph says it all.

"State and local prosecutors stretched, bent or broke rules so badly in more than 2,000 cases since 1970 that appellate judges dismissed criminal charges, reversed convictions or reduced sentences, according to the first national study of prosecutorial misconduct."

It was the first study, therefore, a trend was observed.

2,000 cases since 1970, out of how many total?
My little jurisdiction had nearly 2,000 cases last year.

Cases were dismissed, reversed or reduced by appellate courts. So the system works.


This kind of reporting helps a great deal. NOT!

Isn't a case only ripe for being busted on appeal if the trial court assented to or failed to correct the "trendy" prosecutorial mischief? Does this mean we're not only confronted with a "trend" of prosecutorial misconduct, but also a "trend" of judicial incompetence? The implications make one's head swim! Note also that, of the evil prosecutors in the study, none hail from the enlightened climes of the Northeast or the West Coast. It's only in the backwoods of the South and the Midwest where we cavalierly trample the rights of innocent defendants. Perhaps that's a sub silentio comment by the study authors (at least one of whom is "on leave" from his home in academia) on the quality of the criminal defense bars in the Northeast and West Coast versus those of the South and Midwest. This points once again to the need for prosecutors to cultivate an effective, cohesive voice to respond to and rebut this rhetoric.

This complaint is one, which in my experience, can be leveled at virtually ALL defense attorneys. A few years ago, I was trying a drug case, where the defendant sold dope to a C.I. I had to get the C.I. out of drug rehab to testify (yeah, the jury LOVED that!) and she did an adequate job. The tape from the microphone she wore was worthless to us. The apartment she went into had a couple of screaming kids and a very loud television blaring, so all we heard on the tape was screaming kids and the TV. You could tell there was a conversation between adults, but the words were so muffled by the other sounds, you could not discern what was said. We did not offer it, because it showed nothing. We gave it to the defense attorney & told him, we can't hear anything on the tape & we're not using it.

Well, he did offer it & we did not object, figuring, it's worthless to us, but also harmless, because all it shows is that the place where the transaction took place was very noisy.

On closing argument, the defense attorney told the jury, "Heck, the state didn't want you to hear that tape!"

I was so angry with the defense attorney over this. It was absolutely dishonest. He knew very well we did not seek to keep that tape from the jury, but he was free to micharacterize the process by which the jury ended up hearing the noisy tape.

Incidentally, the jury acquitted the defendant - not because of the tape, but because they found the C.I.'s credibility doubtful. Interestingly, the defendant was on probation for dope and the court had called the A.R.P. (Application to Revoke Probation, as we call them here) simultaneously with the new dope case. After the acquittal, the judge found the allegation that the defendant violated her probation by selling dope "True" and he revoked her.

Here's a link to the report itself, for anyone who's interested:

"Harmful Error"

(don't you just love that title? gimme a break ...)

Once again I am compelled to give an F to this journalistic effort. If journalists were held to the rather relaxed standards that attorneys are held to, the reporter who wrote this piece and his foolish editors who let it go out over the wires, would be disbarred from journalism for this gross example of journalistic malpractice.

The AP makes a big deal about a "report" which--as any schoolboy can see--obviously manipulates the statistics and misstates various facts in order to arrive at a conclusion it wants to reach--namely that the criminal justice system is very suspect because of prosecutorial dishonesty.

For example, the "study" covers over 30 years. It claims there are 30,000 local prosecutors in the US, but the number of people who are or were prosecutors during the third of a century time- span it looked at is far, far greater than 30,000. And yet, inspite of the great number of prosecutors who have served during that time, if the report is to be believed, very few have acted dishonorably. Yet the Report, and the article it is based on, turn this around to make it sound like the reverse is true.

Another problem is that the report pretends that every reversal for inadmissible evidence being allowed in, or for prosecutorial misconduct such as failure to advise defense counsel of exculpatory evidence, or an inflamatory statement made before a jury, is evidence of moral slackness.

Most of the time, reversals for such reasons have nothing to do with moral slackness. For example, a prosecutor may seek to admit evidence which the trial court agrees is admissible, but which the appellate court disagrees is admissible, and reverses the case. The reason for the reversal is rarely because the prosecutor and trial judge were trying to pull a fast one--it's just an honest difference of opinion, and often the appellate courts (or the legislature) later come to reverse the decision that keeps out such evidence.

Most Brady evidence reversals are quite innocent: the prosecutor considers the "evidence" to be so absurd that it doesn't register with him that it is Brady material that he must disclose to the other side.

The inflamatory statements problem is rarely due to conscious prosecutorial misconduct--its just something that comes out in the heat of a hotly contested trial. Sometimes its not even that. I remember reading a case from about 15 years ago--the Dark Ages of Texas appellate criminal law--where the appellate court severly chastised the prosecutor for stating the following highly inflamatory statement: "I believe the defendant is guilty." The court said it would have been ok for the prosecutor to say "the evidence shows the defendant is guilty," but interjecting his personal opinion was so grossly prejudicial that they had to reverse.

No normal person would consider such a statement prejudicial or wrong, but probably that reversal is in the Report's statistics as an example of wicked prosecutorial wrong doing.

No competent journalist would write a story about such an obvious piece of political agitprop. But the AP is completely bamboozled by the report, and makes a fool of itself by reporting about the "study" as if it were a serious piece of scholarship.

[This message was edited by Terry Breen on 06-27-03 at .]

I noticed also that in the report itself, which apparently seeks to portray this prosecutorial malfeasance as epidemic, that the statistics themselves (incidents of misconduct compared to the number of jurisdictions) indicate that there are FEWER THAN ONE incident of misconduct per jurisdiction over the time period. Given the hundreds of thousands of prosecutions, perhaps millions, which occurred in the jurisdictions over the 30 years, I'd say that's pretty good!

And, were we to filter out the innocuous stuff Terry Breen points out, it would be even fewer than that!

I believe it's just the media's anti-law enforcement bias - good cops & prosecutors don't make for headlines, only the bad ones. Notice the glee with which they report any incident of misconduct by law enforcement officials. They love it, because it fits into their world-view.

Gang: I need some help on this. We are taking apart their research that is posted on the web, case by case, to prepare a response. they list 225 Texas cases, (even though they claim that nearly 700 cases since 1970 involve prosecutorial misconduct).

Our most excellent law cleak, Eric, is reading every single one of them and charting the results in a spread sheet which compares what happened in the case to what they SAY happened in the case. so far, as youy might imagine, we are looking pretty good.

But it is slow going. Do any of you have the time, energy, or law clerk who can pitch in and do 20 or 30 or 50 cases? Seems to take about an afternoon to do 30 or so cases....

Thanks, rob

Thanks to Barry Macha, who has loaned us the efforts of some summer interns to help Eric out....we should get this done pretty quickly...

I'm proud of you Rob for systematically deconstructing this piece of nonsense. I hope you hold a press conference, go on the national TV news, NPR, etc. etc. with your findings, and make a Certified Big Deal out of their false allegations.

Maybe we need to make a comparison as to how many cases get overturned because of ineffective assistance of counsel. The defense bar needs to take some of the media heat. After all it is the prosecutors duty to defend the defense bar when a claim of ineffective assistance of counsel is alleged on appeal. The defense bar gladly joins in with the media slant against prosecutors, but I would think they would want prosecutors on their side to defend against ineffective assistance of counsel, which in my experience is alleged far more frequently than prosecutorial misconduct.