Category Archives: Prosecutorial Misconduct

State v. Quaale: Mistrials Happen When Police Officers Offer Opinion Testimony

Constitutional Rights, DUI, law enforcement, misdemeanor, police, Prosecutorial Misconduct, Washington Court of Appeals, , ,

Pushback on Capitol Police chief testimony continues - Roll Call

In State v. Quaale, the WA Court of Appeals wrote an excellent opinion on the issue of whether a defendant’s right to a fair trial was violated when the Prosecutor invited objectionable testimony from the officer.

The defendant was charged with Eluding Police and DUI. At trial, the Trooper  was asked to describe the extent of his experience, explain the Horizontal Gaze Nystagmus and the procedure for testing it, and tell the jury about his administration of the test to the defendant. The prosecutor also asked, “In this case, based on the HGN test alone, did you form an opinion based on your training and experience as to whether or not the defendant’s ability to operate a motor vehicle was impaired?”

Rightfully, the defendant’s lawyer immediately objected that the Trooper was being asked to provide an opinion on the ultimate issue determining guilt. The objection was overruled. The Trooper answered, “Absolutely. There was no doubt he was impaired.”

The Court of Appeals reasoned that impermissible testimony regarding the defendant’s guilt may be reversible error because such evidence violates the defendant’s constitutional right to a jury trial, which includes independent determination of the facts by the jury. Here, and even where expert testimony is helpful to the jury, it is unnecessary for a witness to express belief that certain facts or findings lead to a conclusion of guilt. Opinion testimony should be avoided if the information can be presented in such a way that the jury can draw its own conclusions.

 My opinion? The defense attorney was very smart to object to the Officer’s opinion testimony and preserve the issue for appeal. Opinion testimony should NEVER be allowed at trial. The State’s witnesses – including officers – may only testify to their observations. They are not expert witnesses who can offer opinions.

Before trial, I routinely draft and argue motions in limine expressly requesting the judge to instruct the Prosecutor to not ask questions instructing witnesses/officers to provide opinion testimony. These motions strengthen a standing objection and help preserve legal issues for appeal when they are violated. Great opinion.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Prosecutorial Misconduct Is Rarely Punished, Says New Study

Prosecutorial Misconduct, , ,

Criminal justice - The kings of the courtroom | United States | The Economist

Interesting.  According to a recent report, only a tiny percentage of prosecutors who engaged in misconduct were disciplined by the State Bar of California during a 12-year period.

The report, issued by the Northern California Innocence Project at Santa Clara University School of Law, found 707 cases between 1997 and 2009 in which courts explicitly determined that prosecutors had committed misconduct. It examined more than 4,000 cases.  Among the 707 cases, only six prosecutors — 0.8% — were disciplined by the State Bar of California. Only 10 of the 4,741 disciplinary actions by the state bar during the same period involved prosecutors.

“Preventable Error: A Report on Prosecutorial Misconduct 1997-2009,” issued by the Innocence Project’s Northern California chapter, was written by Ridolfi and Maurice Possley, a visiting research fellow at the project. Possley won a Pulitzer Prize for his reporting at the Chicago Tribune. Ridolfi is a professor at Santa Clara University School of Law.

The report included recommendations for reform. It called for district attorneys to adopt internal policies that do not tolerate misconduct. It also called for the state bar to increase disciplinary transparency.

My opinion?  The study supports what most defense attorneys already know.  I’ve worked cases where prosecutorial misconduct was clear and obvious.  However, after bringing the misconduct to the attention of judges on pretrial motions, I’ve found my concerns routinely overlooked, tolerated, condoned and/or minimized.  Sanctions are rarely given and the matter is swept under the rug.

One could argue that elected prosecutors have a level of political influence with the judges hearing criminal cases.  Very often, judges are former prosecutors.  Prosecutors also exhibit  a “halo effect” among voters which defense counsel does not have.

Although I don’t fully support those arguments (well, maybe just a little), I fully believe that judges simply want to evade mudslinging contests between prosecutors and defense attorneys altogether.  Judges tend to allow the governing Bar Association sort these matters out.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Study Shows How the Innocent Confess to Crimes

Constitutional Rights, Interrogation, law enforcement, police, Police Misconduct, Pretrial Investigations, Privacy, Prosecutorial Misconduct, Race & Law, Search and Seizure, , ,

Criminal Confessions | 7plus

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.

An article in the Stanford Law Review written by Professor Garrett of the Virginia School of Law draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation.

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.   Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

My opinion?  To defense lawyers, the new research is eye opening. In the past, if somebody confessed, that was the end.  You couldn’t imagine going forward.  Although the confession is hearsay, which is generally an out-of-court statement made to prove the truth of the matter asserted, there are over 20 exceptions to the hearsay rule.  Bottom line, a judge typically allows juries to hear confessions.

This new research calls upon defense attorneys to investigate the conditions under which the confession took place.  Was the confession recorded?  How long was it?  Was the defendant rested?  Under the influence?  Did the defendant request an attorney?  Important questions, all of them . . .

Please contact my office if you, a friend or family member are charged with Assault, DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Sutherby: Great Case Regarding Improper Prosecution and Ineffective Assistance of Counsel

Assault, Constitutional Rights, Ineffective Assistance, Prosecutorial Misconduct, Rape, Sentencing, Sex Crimes, Unit of Prosecution, Washington Supreme Court, , ,

Malicious Prosecution Cases in South Carolina - King Law

In State v. Sutherby, the WA Supreme Court threw out a Rape of a Child conviction for improper prosecution and ineffective counsel. Shortly before Christmas 2004, the Sutherby’s five-year-old granddaughter (“L.K.”) stayed with them for two nights at their Grays Harbor home. Based on the girl’s accusations, Mr. Sutherby was arrested and charged with multiple sex offenses to include first degree rape of a child and first degree child molestation.

A subsequent search of his personal computer found child pornography, and he was charged with 10 counts of possession of depictions of minors engaged in sexually explicit conduct. He was convicted by a jury on all counts and appealed.

The Court here considered two issues: “(1) what is the proper unit of prosecution for possession of child pornography under former RCW 9.68A.070 (1990), and (2) did Sutherby receive ineffective assistance of counsel due to his trial attorney’s failure to seek a severance of the child rape and molestation charges from the possession of child pornography charges?”

Sutherby argued that he should have been sentenced on only one count of possession of child pornography under the criminal statute, formerly RCW 9.68A.070, rather that separate counts for each image. The court noted that the U.S. and Washington constitutions both protect a defendant from being punished more than once for the same offense. The statute provided “[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.”

The court said that “any” is vague, and determined defendants who possess multiple images should only be charged with a single count of possession. The court remanded the sentencing of Sutherby for a single count of possession.

Sutherby also sought reversal of his convictions for child rape and child molestation based on his trial attorney’s failure to move for severance of the child pornography counts from these charges. As the court noted, severance of charges is important when there is a risk that the jury will use the evidence of one crime to infer the defendant’s guilt for another crime or to infer a general criminal disposition.

The case against Sutherby for possession of child pornography was strong, and could have influenced the jury on the rape and molestation charges. The court agreed that Sutherby demonstrated ineffective assistance of counsel based on his trial attorney’s failure to seek severance of the charges. The Supreme Court reversed Sutherby’s convictions for child rape and molestation and remanded for retrial.

My opinion?  Yes, society HATES sex crimes; especially when children are possibly involved.  Here, however, the Supremes correctly looked beyond the nature of the crime and addressed how the case was botched by the Prosecutor and defense attorney alike.  Clearly, the Supremes sent a message: stacking charge after charge is, simply, unconstitutional.  Multiple images does not = multiple charges!  We creep into the realm of  unlawful Double Jeopardy.

Additionally, State v. Sutherby teaches defense attorneys about ineffective assistance of counsel.  Oftentimes, prosecutors will try adding additional charges on totally unrelated events before trial.  This tactic, if successfully done, makes juries suspicious that the defendant “must be a bad person, otherwise they wouldn’t have acquired all these criminal charges.”

In other words, the juries become prejudiced toward the defendant, and might decide the cases accordingly.  This type of outcome kills justice.  Defense attorneys must avoid sloppiness and BE CAREFUL.  We cannot allow the State to unfairly prejudice our clients at the 11th hour before trial.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

 

State v. Brooks: WA Court Rightfully Dismisses Criminal Charges Because Prosecution Withheld Evidence

Constitutional Rights, Discovery, Dismissal, Due Process, Evidence, felony, Jury Trial, Prosecutorial Misconduct, Washington Court of Appeals, , ,

Prosecutorial Misconduct / Mishaps In FCPA Cases - FCPA Professor

In State v. Brooks, the WA Court of Appeals dismissed a criminal case due to prosecutorial mismanagement and withholding  of evidence.

My opinion?  It’s about time!  The prosecutors, God bless ’em, usually have the upper hand with judges.   Typically, judges won’t sanction prosecutors or dismiss cases due to prosecutorial misconduct, mismanagement, or withholding of evidence (trust me, I’ve tried).

This opinion opens the door for judges to exercise more discretion in dismissing poorly managed cases.  In this case, the prosecutor withheld a a 60-page victim statement from the defense until the day of trial.   Unbelievable!

Imagine this: your attorney has geared up for trial.  They agonizingly prepped the case from start to finish.  Attorney has their theme, theory, motions in limine, opening statement, closing statement, voir dire questions, direct exam questions, and cross exam questions fully prepared before entering the court.  All of the sudden, prosecutor plops a huge pamphlet of papers in front of defense attorney’s face.

“Sorry you have no time to review this new statement, but go ahead and cross examine my witness on this.”  Unbelievable.  We have no idea what the statement contains.  If admitted to evidence, this unread statement could, by itself, utterly throw your case theory out the window.

The Court of Appeals has boldly decided these “Hide the Ball” shenanigans are going to get cases dismissed.  That governmental mismanagement materially affects a defendant’s right to a fair trial.  Good.  I understand that prosecutors work hard.  Their caseloads are huge.  But hey, let’s be real, people’s lives and liberty are at stake.  Constitutional rights are at risk.  Consequently, cases should be dismissed when poorly handled and/or mismanaged.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.