Thursday, September 23, 2010

Prosecutorial Misconduct

USA Today has an interesting article that is receiving attention around the blogosphere, including here and here. According to the article, USA Today has documented 201 criminal cases since 1997 in which federal prosecutors violated laws and ethical rules. According to sources interviewed for the article, this is just "the tip of the iceberg."

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

Judges have warned for decades that misconduct by prosecutors threatens the Constitution's promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses.

Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation's most elite and powerful law enforcement officials — themselves violated laws or ethics rules.

In case after case during that time, judges blasted prosecutors for "flagrant" or "outrageous" misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said others had broken plea bargains...

Sniffing out misconduct can be a matter of serendipity — or luck, as Lyons' attorneys discovered.

The evidence that eventually set Lyons free came to light only because of one sentence buried in a 40-page draft of a probation officer's sentencing report. Those drafts are dense and at times ignored, but this one offered a tantalizing clue: an account by one of Lyons' accusers, a federal inmate, that differed from his testimony during the trial.

That stuck out to Robert Berry, one of Lyons' attorneys, who wondered what else he hadn't been told. His digging led to hundreds of pages of other evidence prosecutors had never disclosed.

"If it wasn't for that one sentence, he would be in prison right now, probably for the rest of his life," Berry said. "The scary part is it probably does happen every day and nobody ever figures it out."

One reason violations may go undetected is that only a small fraction of criminal cases ever get the scrutiny of a trial, the process most likely to identify misconduct. Trials play a "very important" role, said former deputy attorney general David Ogden, because they force judges and attorneys to review a case in far more exacting detail.

The number of people charged with crimes in federal district courts has almost doubled over the past 15 years. Yet the number whose cases actually go to trial has fallen almost 30%, to about 3,500 last year, USA TODAY found. Last year, just four defendants out of 100 went to trial; the rest struck plea bargains that resolved their cases quickly, with far less scrutiny from judges.

"We really should be more concerned about the cases we don't know about," said Levenson, the Loyola professor. "Many of the types of misconduct you identified could happen every day, and we'd never know about it if defendants plead out."

The complete USA Today article can be found here.

Tuesday, September 14, 2010

Abdulmutallab and Plea Bargaining

The Wall Street Journal Law Blog has an interesting article today entitled "Why Not Just Let Abdulmutallab Plead Guilty?"

On Monday, the accused Christmas Day bomber, Umar Faroukh Abdulmutallab, told Detroit federal judge Nancy G. Edmunds that he wanted to represent himself.

He also asked Judge Edmunds whom he should talk to if he wanted “to plead guilty to some counts.”

But Judge Edmunds didn’t just accept Abdulmutallab’s request. She peppered Abdulmutallab with questions about his understanding of U.S. law and criminal procedure. She told him it was unwise to move forward without a lawyer, though she said she’s ultimately let him do that. She also said she wouldn’t accept a guilty plea now.

So why not? Why would a judge put a defendant like Abdulmutallab through the wringer before granting what appear to be reasonable requests?

We did a little reporting in pursuit of this answer yesterday — click here for the sidebar that ran in the WSJ.

The federal court system makes it hard to chuck your lawyers and plead guilty for several reasons. For starters, judges want to make sure defendants are pleading guilty willingly and knowingly — partly to rule out that they made the decision under duress or threat of coercion. There’s a practical reason, too. A judge’s failure to press the defendant could lead to a plea unraveling down the line if the defendant changes his or her mind.

In recent months, a number of other terrorism suspects have pleaded guilty at least partly out of a seeming desire to protest U.S. foreign policy. Judges in these cases often ask exacting questions of the defendant in order to test the defendant’s knowledge of the plea. For instance, in June, New York federal judge Miriam Cedarbaum repeatedly interrupted Faisal Shazad, the mastermind of the attempted Times Square bombing, with questions about the plot during his plea hearing.

But isn’t there something wrong with this picture? Isn’t the legal system getting in the way of itself? Well, yes, said Wayne State law professor Peter Henning. “The legal system gets in the way of itself all the time, but that’s what it’s designed to do. If you let this guy plead guilty, he’ll likely spend the rest of his life in jail.”
Click here for the full article.

Podgor on Pleading Blindly

Ellen S. Podgor (Stetson Law) has posted an interesting article on SSRN entitled "Pleading Blindly."

In the criminal area, discovery violations are a continual concern. Recently, the Department of Justice (DOJ) was caught with discovery violations that reflected prosecutorial misconduct and improprieties. To its credit, the DOJ issued three Memos that sought to affirmatively promote office compliance with discovery obligations. The three Memos of former Deputy Attorney General David W. Ogden, however, fall short in an important area, discovery for defendants prior to entering into plea agreements.

This Essay places this discussion in the backdrop of existing legal scholarship and existing precedent, most importantly the Supreme Court opinion in United States v. Ruiz, that provides little support for mandating discovery to defendants prior to entering into a plea agreement. Protecting the importance of a voluntary and knowing plea cannot be overlooked in assuring an efficient system of justice. Unique concerns are also noted when the government is entering into a deferred prosecution agreement with a corporation or other entity. This Essay advocates for a more forceful response than merely having DOJ guidelines to remedy discovery violations that may influence the entering of a plea.
Click here to download the article.

NYT Article Regarding Innocent People Confessing to Crimes

The New York Times has an interesting article regarding innocent people confessing to crimes they did not commit.

Eddie Lowery lost 10 years of his life for a crime he did not commit. There was no physical evidence at his trial for rape, but one overwhelming factor put him away: he confessed.

At trial, the jury heard details that prosecutors insisted only the rapist could have known, including the fact that the rapist hit the 75-year-old victim in the head with the handle of a silver table knife he found in the house. DNA evidence would later show that another man committed the crime. But that vindication would come only years after Mr. Lowery had served his sentence and was paroled in 1991.

“I beat myself up a lot” about having confessed, Mr. Lowery said in a recent interview. “I thought I was the only dummy who did that.”

But more than 40 others have given confessions since 1976 that DNA evidence later showed were false, according to records compiled by Brandon L. Garrett, a professor at the University of Virginia School of Law. Experts have long known that some kinds of people — including the mentally impaired, the mentally ill, the young and the easily led — are the likeliest to be induced to confess. There are also people like Mr. Lowery, who says he was just pressed beyond endurance by persistent interrogators.
New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.
The full article can be found here.