CrimProf Blog

The Key Prosecution Witness is Dead. Can The Prosecutor Negotiate A Plea?

I got into a very interesting discussion last night at the Morris K. Udall American Inn of Court meeting, taking the position, as a legal and disciplinary matter, that the death of an indispensable prosecution witness did not preclude a prosecutor from negotiating a plea, even without first disclosing that the witness has become unavailable.  The leading case is the unanimous People v. Jones, 375 N.E.2d 41(N.Y.), cert. denied, 439 U.S. 846 (1978), which begins: "We hold that defendant was not denied due process when the District Attorney's office did not disclose during plea negotiations that it had received information that the complaining witness had died."  Brady does not apply: death of a witness was not "exculpatory evidence i.e., evidence favorable to an accused where the evidence is material either to guilt or to punishment."  In addition, the court found no cases faulting "the failure of a prosecutor before trial or during plea negotiations to disclose nonevidentiary information pertinent to the tactical aspects of a defendant's determination not to proceed to trial."  Does anyone know of any cases to the contrary?  I found none.

So if there is no defect in the judgment of conviction, is there at least an ethical impropriety?  Surely a prosecutor should unilaterally dismiss a prosecution if there is insufficient admissible evidence to proceed to trial, if the prosecutor knows that without a plea dismissal is the only option.  But under positive law ethical rules, this is not so. Arizona Ethical Rule 3.8(a), like the ABA Model, provides that a prosecutor must "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause."  There is no greater evidentiary requirement.

If the ethical rules do not require dismissal, how about the more aspirational ABA Criminal Justice Standards, Prosecution Function, which offer many "shoulds," indicating good practice, beyond the "musts" of the disciplinary rules? In addition to requiring probable cause, Standard 3-3.9(a) provides: "A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction."  This might be read to suggest that a prosecutor should unilaterally dismiss when the key witness dies. But the Official Comments reject this interpretation: "This Standard takes no position on this question."

Of course, a prosecutor cannot make false or misleading statements, or violate other rules.  For example, Arizona Ethics Opinion 94-07 holds that it is unethical to negotiate a plea with if the prosecution's material discovery obligations are unfulfilled, so a witness list must be updated to show that the key witness will not be called.  But in the bustle of fast pleas and form pleadings in in a misdemeanor court, it is easy to imagine that accurate disclosure would not be closely examined in the face of a sweet plea.

At first, I thought that even if non-disclosure was legal and would not subject a prosecutor to discipline, it was bad practice, because other lawyers in the community would feel deceived.  But then I wondered whether it was appropriate to protect a lawyer's own reputation at the expense of potentially convicting a dangerous felon.   Maybe it is not unjust if a plea offer unaccompanied by factual misrepresentations or discovery violations leads a defendant with a lawyer, in open court, to truthfully admit their criminal offense and take responsibility for it.  What am I missing?

Jack Chin

Evidence Discovered of Prosecutor Wanting to Downplay Evidence in Innocent Man's trial

From jacksonville.com: Only weeks before Chad Heins' murder trial in 1996, a Jacksonville prosecutor sent a memo asking a state crime lab supervisor to downplay findings that stray hairs found on the victim's body came from an unknown person.

"I need to structure your testimony carefully so as to convince the jury that the unknown hairs are insignificant," Assistant State Attorney Stephen Bledsoe wrote in a letter recently obtained by the Times-Union.

In December 1996, a jury convicted Heins of the first-degree murder of his sister-in-law in her Mayport apartment. He was sentenced to life in prison until new DNA tests led to his release last month.

Bledsoe's letter was among thousands of pages of documents examined by Heins' lawyers after a judge allowed re-testing of DNA in the case. Although the attorneys don't believe it affected the outcome of the case, the letter shows a "cavalier disregard for the actual evidence," said Jennifer Greenberg, policy director of the Innocence Project of Florida, which worked for Heins' release.

"It actually made my stomach turn," Greenberg said Tuesday. "This is not a game. This is justice. These are people's lives and they matter and the truth matters." Rest of Article. . . [Mark Godsey]

Con Law Prof William W. Van Alstyne Questions Domestic Spying and Suspending Habeas Corpus

William & Mary Lee Professor of Law William W. Van Alstyne, one of the nation’s foremost constitutional law scholars, has signed two collaborative briefs written with other legal scholars and former government officials. The first is for a case pending in the Sixth Circuit Court of Appeals and concerns President Bush’s authorization of the domestic spying program. The second is for a case pending in the Fourth Circuit Court of Appeals and addresses joint presidential and congressional efforts to suspend the writ of habeas corpus.

On Jan. 9, 2006, Van Alstyne co-signed a letter to Congress expressing concern about the National Security Agency’s domestic spying program, a program secretly authorized by the President that allowed the agency to conduct electronic surveillance without warrants of anyone in the United States. Co-signers of the letter included a former director of the FBI, a former acting solicitor general, two lawyers who worked in the executive branch and the deans or former deans of Yale, Stanford and the University of Chicago law schools. The letter stated that the Bush administration should have pursued a legislative amendment to the Foreign Intelligence Surveillance Act (FISA) before moving forward with the spying program.

Shortly afterward, Van Alstyne and the group wrote a second letter to Congress, dated Feb. 2, 2006, in response to a Jan. 19 memoradum issued by the Justice Department.

Van Alstyne joined with the same group that wrote the letters to file a brief in a case currently pending in the Sixth Circuit Court of Appeals. Van Alstyne said he was motivated to collaborate on the brief because he has “a genuine concern as to whether or not the program was permitted under the Constitution and was inconsistent with certain acts of Congress.”

In this Sixth Circuit case, the government is appealing a federal district court decision holding, as the letters to Congress that Van Alstyne co-signed suggested, that the executive order authorizing domestic surveillance without going through the court for a warrant was invalid. The case was argued earlier this year and the parties are awaiting the court’s decision.

In a separate case, Van Alstyne joined in a brief with colleagues from Harvard, Duke, Stanford, and the University of Virginia addressing efforts to suspend the writ of habeas corpus that people who are being held in custody can invoke when they want the courts to determine if there is any legitimate reason for them to be held. The jointly-authored brief was filed with the Fourth Circuit Court of Appeals in early 2007.

In examining the extent to which Congress can make habeas corpus unavailable, Van Alstyne said, “Habeas corpus is a fundamental part of the Constitution. This is a very important issue of American justice and human rights.” The filed brief concludes that Congress has not removed authority of courts to hear these types of cases, as the President has suggested, and that they should be heard.

Rest of Article. . . [Mark Godsey]

Fed Ct Says Detainees Cannot Challenge Detention

From NPR.com: A federal appeals court in Washington, D.C., rules that detainees at the U.S. military prison at Guantanamo Bay, Cuba, have no right to challenge their detention in U.S. courts. The case is expected to move on to the U.S. Supreme Court. Listen. . . [Mark Godsey]

Montana's First Mental Health Court is Up and Running

billingsgazette.com: The Montana's lone court specifically for mentally ill people accused of crimes is now in full operation here, after a startup that began with initial funding in 2003.

Without the Missoula Mental Health Court, many of the defendants who pass through it would languish in jail.The court works with prosecutors, defense attorneys and treatment agencies to help people accused of crimes that appear linked to mental illnesses.

"People noticed that drug treatment courts (for addicted offenders) were having positive results, so they began to look at other populations in the criminal justice system that were defined by very specific aspects of the offenders' lives," said Theresa Conley, coordinator for Missoula's mental-health court.

The goal is to divert nonviolent offenders, who have significant mental disorders, into treatment programs rather than keeping them in jail.

Proponents say treating mentally ill defendants less as criminals and more as people who are sick stands to better meet their needs, ease jail crowding and save money. A judge presiding over mental-health court might allow a person convicted of a nonviolent crime the option of participating in counseling or receiving medication, rather than serving jail time.

"We have inadequate mental-health care in Montana," said Standing Master Brenda Desmond, judge for the Missoula court. "We're a far cry from solving the problem, but incarceration is certainly not the solution." Rest of Article. . . [Mark Godsey]

Federal Defender Publishes YouTube Video to Aide Guantanamo Detainee

William Teesdale, an attorney with the Federal Public Defender's Office in Portland, Oregon has been seeking the release of a Guantanamo Bay detainee and has turned to YouTube to get the message out about his client. Here's the description of Teesdale's Guantanamo Unclassified video, from Legal Pad:

Teesdale has released a short documentary video in which, on a beach in Guantanamo bay, he explains that hospital worker and teacher Adel Hamad has been held for years in detention and denied release even after a member of the military tribunal reviewing his case called his incarceration “unconscionable.” The video includes interviews with Hamad’s coworkers from Afghanistan, where he’d worked for a hospital supported by a charity that the CIA seems to think might have counter-American ideals. Watch the video here. . . [Michele Berry]

The Patriot Act, the President, and Prosecutors: Whose Agenda is it Anyway?

From NPR.org: The Patriot Act allows the president to appoint new U.S. attorneys without confirmation hearings when a vacancy arises. Some former U.S. attorneys say the flexibility puts pressure on prosecutors to pursue Washington's agenda instead of using their own judgment. Listen to the story here. . . [Michele Berry]

SCOTUS: Victim Buttons Don't Deny Fair Trial

From BNA.com:  Today, in Carey v. Musladin, No. 05-785, the court held that a state court did not unreasonably apply  established federal law when it ruled that the wearing of buttons depicting a murder victim by members of the victim's family in front of the jury did not deny the defendant a fair trial. The court noted that while it has previously held that some government-sponsored practices, such as compelling an accused to wear jail garb in front of the jury, may infringe on fair trial rights, it has never directly dealt with whether conduct by private spectators such as the wearing of buttons or ribbons in the courtroom is potentially so prejudicial as to implicate those concerns. 

The Right to Remain Silent Lost its Bite in NJ

From nj.com: Michael Tucker got life in prison for killing his mother at her Piscataway home.

Lawrence Brown was convicted of assaulting a Phillipsburg man with a beer bottle so savagely the victim required 900 stitches and lost part of his ear.

A jury found Ahmed Elkwisni guilty in the gunpoint robbery of Bob's Market in Garfield.

All three men say they invoked the right to remain silent while the crimes were under investigation, but the right was violated -- and they were denied a fair trial -- because once the case was before a jury, prosecutors questioned the silence or suggested it implied guilt.

Tomorrow, the New Jersey Supreme Court is scheduled to take up this trio of cases, which could help define what silence is and how it can, or can't, be used at trial. The cases are being closely watched by a divided legal community and could have national implications, experts say.

"The fact that they've taken these three different cases will give them the opportunity to really lay out the parameters of how far we are going to go to protect the right to silence in New Jersey," said Alison Perrone, who represents Tucker.

Defense attorneys say defendants are not obliged to prove their innocence. They have an absolute right not to incriminate themselves because it is the state's burden to prove their guilt. Their silence -- even if it means staying quiet about certain details or not coming forward with an explanation -- is still silence and cannot be used in court. Rest of Article. . . [Mark Godsey]

SCOTUS Hears Arguments on "Victim Buttons"

Today the Supreme Court heard arguments on whether a crime victim's family has the right to sit in court wearing buttons with pictures of the victim. The accused murderer's conviction was thrown out because the buttons may have had a prejudicial effect on the jury. Listen to commentary on NPR.org. . . [Michele Berry]

Jury Sends Message to Detectives: Stop Coercive Interrogations

washingtonpost.com: A civil jury in Prince George's County awarded nearly $6.4 million yesterday to a man who spent more than eight months in jail after he was interrogated for over 38 hours by homicide detectives, who then charged him with murdering his wife based solely on statements he allegedly made during the marathon interviews.

The award to Keith Longtin after the two-week trial is believed to be the largest ever made by a jury in a civil case involving abuse by Prince George's police. Longtin, now 50, was released from jail only after DNA evidence found in his slain wife was matched with a serial rapist. The sexual offender was later convicted of the murder.

The jury found that county detectives engaged in a pattern of violating the rights of defendants, said Cary J. Hansel, one of Longtin's attorneys. "We hope this signals the end of lengthy, coercive police interrogations in Prince George's County," said Timothy F. Maloney, Longtin's other attorney.

Rest of Article. . . [Mark Godsey]

9th Circuit Reverses Dope Case based on Jury Consultation With Attorney

A lot of times instructions are hard to understand, yet, evidently, jurors have no right to call friends who are attorneys for clarification.  Opinion here.

CA Court of Appeals: Reversal of Pedophile Priest Conviction based on Prosecutorial Misconduct in Closing

Story here; opinion here. 

9th Circuit: Can't Punish Homeless for Sleeping on Streets.

Howard Bashman coverage here; opinion here.

2d Circuit Grants Habe Based on Informal Plea Allocution

Story here. Opinion here. The plea, in an inferior court, did not require the defendant to say that he was pleading guilty. [Jack Chin]

GA: Pro se Litigant Wins Murder Reversal

A defendant who pleaded guilty to murder 21 years ago in exchange for a life sentence won a new trial, while reprsenting himself.  The guilty plea was bad in that it did not identify the rights waived as a result of the plea.  Story here; opinion here.

Pot Club Attorneys Argue "Selective Prosecution"

From The Recorder: To get federal marijuana charges against their clients thrown out, some San Francisco defense attorneys are using a "selective prosecution" argument (based on Yick Wo v. Hopkins, 118 U.S. 356), claiming that the government has unfairly targeted Asian-American run pot dispensaries.  According to these defense attorneys, among San Francisco's many pot dispensaries, the feds only raided the city's three Chinese-American run pot clubs.  Lawyers claim the government targeted their clients to portray the case as one against Asian gang members and guard against "political fallout" that might have arisen had they gone after Caucasian-run pot dispensaries. Read more from Law.com. . . [Mark Godsey]

No More Secrets in Florida

From Law.com: Daily Business Review: Last month, a three-judge panel of the 11th U.S. Circuit Court of Appeals chastised judges of the Southern District of Florida for completely hiding cases from public view by placing the cases on a secret court docket. "We … exercise our supervisory authority to remind the district court that it cannot employ the secret docketing procedures that we explicitly found unconstitutional," the panel said in its unusual reprimand.

Defense attorneys, civil liberties groups and the news media celebrated the panel's words, which came in the course of upholding a drug lord's conviction and sentence of more than 30 years in prison.  [In spite of the panel's reprimand, some observers believe the Southern District of Florida may still be supersealing cases.]..."How would you know?" asked Randall Marshall, legal director of the ACLU of Florida, which filed an amicus brief in the 11th Circuit case. "There could be others, definitely."

There is also another reason for concern about whether the federal courts have come clean on the secret dockets issue. In its 84-page ruling in U.S.A v. Juan Nicholas Bergonzoli and Fabio Ochoa-Vasquez, released Oct. 20, the 11th Circuit panel failed to acknowledge that the appellate court itself was deeply implicated in secret docketing.

The opinion was written by U.S. District Judge B. Avant Edenfield, a visiting federal judge from Savannah, Ga. Judge Frank M. Hull concurred. Judge Rosemary Barkett, who is based at the court's Miami branch, wrote a lengthy separate opinion in which she partly concurred and partly dissented. Two years ago, the 11th Circuit kept secret a docket and opinion in the habeas corpus case of a young Algerian waiter living in Deerfield Beach, Fla., Mohamed Kamel Bellahouel, who was detained in a terrorism-related investigation.

U.S. District Judge Paul C. Huck in Miami originally had sealed the case and ordered it kept off the public docket -- without ever issuing an order to explain the compelling government interest for doing so. Bellahouel appealed. The 11th Circuit's computer records then were altered to remove any information about the case. And an 11th Circuit panel in Miami closed its courtroom to the public and the news media in March 2003 to hear arguments in the supersealed case -- even keeping the names of Bellahouel's attorneys under wraps. The case only came to light because 11th Circuit clerks mistakenly allowed information about the case to briefly appear on the court's computer record. "There are some ironies to this," said G. Richard Strafer, a Miami appellate attorney who represents Ochoa. "[The 11th Circuit judges] certainly don't address their own use of secret dockets and opinions."...

Secret docketing makes it virtually impossible for anyone not involved in such cases to know of their existence. Even parties involved in the cases sometimes could not obtain copies of certain matters or access the docket so they could assure themselves as to what documents actually were filed with the court.

Criminal defendants lose the protection of public knowledge of their case. Without court information, there is no way for the public and the news media to hold the courts, prosecutors and parties accountable for their actions. And the public and the news media are deprived of information that could trigger public discussion of important public policy issues, such as the appropriateness of government national security actions.

While there are established procedures in the federal system for sealing information in a publicly docketed case on an individualized basis, there is no procedure for removing a case from the public docket and placing it in an alternative, deep-cover docket. [Mark Godsey]

Maryland-Baltimore Law Clinic Works to Educate Defendants About Their Pretrial Rights

University of Maryland-Baltimore School of Law:  Students in the Access to Justice Clinic and Doug Colbert, JD, their professor in the School of Law, have taken a radical approach in their efforts to help low-income detainees in the pretrial release system obtain a fair bail review-they have written the pamphlet, "Law Students' Guide to Maryland's Pretrial Release System: Things You Should Know." Colbert and his students unveiled the pamphlet at a news conference at the law school on Nov. 2.

Set for distribution to pretrial detention centers across the state of Maryland, the pamphlet is intended to provide access to justice for defendants when they first enter the criminal justice system. It attempts to fill a glaring gap in the state system, which does not provide counsel to lower income defendants when they first appear before a court commissioner and when they next appear at most bail review hearings. Indigent defendants are left to speak for themselves. A 2004 Maryland Court of Appeals ruling unanimously found that statements from an unrepresented defendant, who was not given Miranda warnings, are admissible at trial, despite a Maryland statute that provides for a public defender's representation at all stages of a criminal proceeding.

The pamphlet has been in the planning stages since the fall semester of 2004. Law students Dana Boston ('06) and Rommel Loria ('06) were surprised to learn that defendants are not automatically provided with counsel.  "When clients are represented in the early stages of the trial process, it does make a difference," said Boston.

Defense attorney Warren A. Brown lauded the students' efforts. "We are concerned about the protection of the individual," he said. Brown said that many detainees will, if they do not make bail, plead guilty even if innocent, in the hope of getting out of jail.

Colbert says the long-term goal behind the pamphlet is to ensure that indigent defendants' right to counsel extends to the bail stage and "to require the State to provide a lawyer when an accused first appears before a District Court commissioner and bail review judge."

During the drafting process, the students consulted with and received support and approval from Mary Ann Saar, secretary of the Maryland Department of Public Safety and Correctional Services; Ben C. Clyburn, chief judge of the District Court of Baltimore City; Patricia C. Jessamy, state's attorney for Baltimore City; and the defense bar.

The pamphlets are being distributed to all Maryland detention centers and will eventually be translated into Spanish.

"Go to Hell"--No Grounds for Foreman's Removal

From Law.com: (Fulton County Daily Report): "The Court of Appeals of Georgia has ruled that a jury foreman should not have been removed from a case for telling jurors to "go to hell" during deliberations, so the defendant is entitled to a new trial on drug-dealing charges in Lowndes County, Ga.  The appeals court ruled 4-3 on July 7 that Southern Judicial Circuit Chief Judge H. Arthur McLane abused his discretion when he dismissed the foreman solely for using vulgar insults....The jury deadlocked at 10-2 in favor of conviction...The foreman was one of the two supporting acquittal, and after McLane removed him, the jury returned with a conviction in 16 minutes later...[T]he foreman did not threaten jurors physically, and McLane had not tried a less drastic approach, such as admonishing the deadlocked jury to deliberate with civility.  'While we certainly do not condone the use of vulgar or coarse language among jurors, 'total placidity is not in the nature of jury deliberation,'" wrote Bernes, quoting from U.S. v. Tallman, 952 F2d 164, a 1991 decision of the 8th U.S. Circuit Court of Appeals." Story... [Mark Godsey]

Ninth Circuit Reverses Conviction Due To Prosecutor's Closing Statements

From BNA.com:  "A prosecutor who argued to the jury that government witnesses who were police officers risked their jobs if they did not tell the truth, and who later admonished the jury to convict the defendant in order to reduce crime generally, committed misconduct that requires the reversal of the defendant's conviction, the U.S. Court of Appeals for the Ninth Circuit held in United States v. Weatherspoon, 9th Cir., 03-10551. In this close case, the improper arguments deprived the defendant of his due process right to a fair trial, the court decided.  At the defendant's trial for being a felon in possession of a firearm, some of the witnesses for the prosecution were police officers who linked the defendant to the gun. During closing arguments, the prosecutor told the jury that, if the officers' testimony against the defendant was false, the officers "risk losin' their jobs, risk losin' their pension, risk losin' their livelihood. And on top of that if they come in here and lie, I guess they're riskin' bein' prosecuted for perjury."  Additionally, the prosecutor told the jury that convicting the defendant "is gonna make you comfortable knowing there's not convicted felons on the street with loaded handguns," and that "finding this man guilty is gonna protect other individuals in this community.""  Decision here.  [Mark Godsey]

9th Circuit Grants Coram Nobis on Ineffective Assistance Re: Deportation Advice

In United States v. Kwan (9th Cir. May 12, 2005) (Fletcher, Noonan, Paez), the Ninth Circuit vacated a fraud conviction using the rare writ of error coram nobis.  Ordinary collateral remedies were unavailable because Kwan was not in custody, having served his sentence.  The basis of the argument was that Kwan was a lawful permanent resident who was told that that deporation was "not a serious possibility" when in fact the crime was an "aggravated felony" making deportation almost automatic. Opinion here. [Jack Chin; thanks to Margy Love]

MO Public Exposure Statute Invalidated

A former Catholic priest convicted of exposing himself to male teens successfully challenged the statute; 4-3 the Missouri Supreme Court held that the statute was vague. The problematic language makes criminally liable a person who: "(1) Knowingly exposes the person's genitals to a child less than fourteen years of age in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than fourteen years of age." Story here; opinion here. [Jack Chin]

Ninth Circuit False Evidence Case

The en banc Ninth Circuit last week held that a defendant was entitled to a new trial because the lawyer for the key witness against him made a deal with the prosecutors, but did so in such a way that the witness could truthfully testify that no deal had been reached.  The judge, jury and the witness himself were not told that the conseqence of the incriminating testimony would be that charges against the witness would be dropped.  Story here, opinion here.

Dual Juries

Santa Clara CrimProf Gerald Uelman and Stanford CrimProf George Fisher are quoted in this article about a request for dual juries in a California case where two defendants are jointly being tried for rape and murder.  Evidently, the defendants may point the finger at each other.  When I read the headline, I thought that a single defendant was going to ask for two juries for his own antagonistic defenses, so that he would be acquitted if Jury A accepted the alibi defense OR if jury B bought self-defense. [Jack Chin]

U.S. Argues Evidence Obtained Through Torture Can Be Used in Military Tribunals

In a hearing in federal court in a suit brought by 550 prisoners held in Guantanamo Bay, Cuba, challenging their detentions by the U.S. in its "War on Terror," U.S. District Judge Richard J. Leon asked if "a detention would be illegal if it were based solely on evidence gathered by torture, because 'torture is illegal. We all know that.'  Principal Deputy Associate Attorney General Brian Boyle replied that if the military's combatant status review tribunals (or CSRTs) 'determine that evidence of questionable provenance were reliable, nothing in the due process clause (of the Constitution) prohibits them from relying on it.'

Leon asked if there were any restrictions on using evidence produced by torture.

Boyle replied the United States would never adopt a policy that would have barred it from acting on evidence that could have prevented the September 11, 2001, terrorist attacks even if the data came from questionable practices like torture by a foreign power."  More . . .  [Mark Godsey]