December 3, 2008
Sanction For Prosecutorial Misconduct
A hearing board in Illinois had recommended a 30 day suspension of the State's Attorney of Wayne County for ethical violations in a criminal prosecution. The board found:
In this case, the Respondent not only failed to disclose information favorable to the defendant in pre-trial discovery, but he also failed to correct false testimony during trial, and then he made false statements in closing argument. The Respondent's misconduct pertained to the credibility of a crucial witness and, thus, deprived the defendant of a fair trial. The Respondent made it appear to the jury that Brian Asher had no self serving motive to testify on behalf of the State when, in fact, Asher had entered into an agreement with and had received a benefit from the State. Asher was permitted to pled guilty to a Class 4 felony, and a Class 1 felony charge against him was dismissed; Asher's sentencing hearing was continued until after Sutton's trial and Asher was to receive a maximum sentence of no greater than three years if he cooperated with law enforcement officials, which included the Respondent; and Asher was released on his own recognizance following his guilty plea and agreement to cooperate. In fact, at Asher's sentencing hearing, the Respondent recommended a sentence of "30 months of probation," and pointed out that Asher had cooperated by testifying at Sutton's trial. The jury was entitled to know about "any understanding or agreement" the Respondent had with Asher but the Respondent's conduct kept this important information from the jury and improperly enhanced the credibility of Asher.
One board member favored a censure rather than suspension. (Mike Frisch)
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The number of prosecutorial misconduct disciplinary cases certainly has increased in recent years. On the whole, I think this is a good thing. Prosecutors are “ministers of justice” and this tends to show that the judicial system is more willing to police itself.
But this trend does have the side-effect of turning criminal appeals alleging prosecutorial misconduct into a disciplinary proceedings. One can imagine that a prosecutor facing such a proceeding will fight even harder to prevail and be less likely to concede the point where appropriate.
Posted by: FixedWing | Dec 4, 2008 4:45:08 AM