Monthly Archives: February 2017

Boston Globe: “Less Power For Prosecutors

The Boston Globe cites Fordham professor John Pfaff’s research, discussed in a previous blog, to call fro a reduction on prosecutorial power to solve the problem of mass incarceration. In an editorial titled “Why we should free violent criminals,” the Globe staff cites Pfaff’s upcoming book,  Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform: “We put all of our attention — almost all of our attention — on things that aren’t nearly as important as the things we ignore.” Pfaff’s research shows that the war on drugs is not the primary driver of  America’s huge prison growth over the last several decades; less than 20 percent of the country’s 1.5 million prisoners are serving time for such offenses. Free them all tomorrow, and the United States would still have the largest prison population in the world — larger than Russia, Mexico, and Iran combined. Nor are mandatory minimums the biggest problem. The issue is prosecutors becoming more and more aggressive about seeking jail time. In the mid-’90s, prosecutors filed felony charges against about one in three arrestees. By 2008, it was more like two in three. The push to file more felony charges, according to Pfaff, is the single most important factor in the growth in prison admissions since crime started dropping in the early-’90s.


Prosecutorial Misconduct in Oakland

The 1st District Court of Appeal reversed the murder conviction of an Oakland man, finding the Alameda County DA had presented material false evidence, and that fact together with defense counsel’s failure to investigate and present relevant evidence and failure to object to that prosecutorial misconduct combined to deprive the defendant of a fair trial.

Specifically, the court found that the prosecutor had argued facts not in evidence during his closing argument, disputing testimony given by a police officer as to a measurement of distance that might have supported the defendant’s theory of the case with his own assessment of the distance based on the length of a typical city block. In making repeated references to this unsupported assertion, the prosecutor implied that the alternative suspect in the case was simply too far away to have been the shooter. Other comments by the prosecutor about the shooter’s height and the defendant’s clothing during closing were also problematic.

The DA also  failed to correct false evidence at trial, including  testimony that gave the false impression that an alternative suspect had been ruled out after a thorough investigation by police, and false testimony from a key eyewitness that she had identified the defendant at a police “show-up” shortly after the crime, when in fact she had not.

The opinion highlights the ways in which prosecutors can use their uniquely powerful position to skew a set of complex and murky facts in order to present a straightforward case for guilt to a jury: such testimony, ‘although worthless as a matter of law, can be “dynamite” to the jury because of the special regard the jury has for the prosecutor…’”

Florida in 2020….

Florida’s official report on “non-valid” voting, required by law since the infamous hanging chad debacle of 2000, found nearly 65,000 Florida voters left their ballot blank, also known as an “undervote,” while more than 82,000 wrote the name of someone who did not qualify to run for president in Florida. The total, 161,000 votes, is more than Donald Trump’s margin of victory – 131,000 — in the state. Secretary of State Ken Detzner’s office concluded the spike in “non-valid votes” was not the result of voter confusion or problems with voting equipment.

Taken with the extraordinary rate of disenfranchisement in the state – some 1.7 million Florida citizens, or 10.43% of the state’s voting-age population, are disenfranchised because of a criminal conviction – its food for thought looking ahead to 2020. See: Floridians for a Fair Democracy

Second Amendment Insanity

Or, who are you calling crazy? Congress votes down common-sense regulations requiring background checks for people with mental health diagnoses for which they are receiving SSI. The House by a 235-180 vote on Thursday eliminated regulations that required the Social Security Administration to report people who receive disability benefits and have a mental health condition to the FBI’s background check system. The NRA and other critics of the rule objected that the regulation could unnecessarily  interfere with the Second Amendment rights of people with minor mental health issues such as eating disorders or mental disorders that prevent them from managing their own finances. That position begs the question of how to keep guns away from people with mental disorders like schizophrenia and severe anxiety.

Get Rid Of The Brady Rule

Thomas Sullivan and Maurice Possley recommend replacing the Brady rule with “open-file” discovery in a recent article,  “The Chronic Failure to Discipline Prosecutors for Misconduct: Proposals for Reform,” 105 J. Crim. L. & Criminology (2015). The article describes the consistent failure to discipline prosecutors, even in cases where knowing misconduct has resulted in wrongful convictions, points to the responsibility of others in the system, especially defense attorneys and judges, to report ethical breaches by prosecutors, and proposes a number of specific reforms:

(1) substituting for the Brady rule a verifiable open-file pretrial discovery requirement on prosecutors;

(2) requiring reversal of convictions if serious prosecutorial misconduct is proven;

(3) identifying errant prosecutors by name in trial and appellate opinions;

(4) providing prosecutors with qualified instead of complete immunity from civil damages for misconduct;

(5) authorizing the Department of Justice’s Office of Inspector General to handle investigations of alleged misconduct by federal prosecutors, and encouraging attorney disciplinary bodies to more effectively discover and sanction misbehaving prosecutors.