Doing Good by Doing Bad – Attorney Misconduct
In seeking a solution to a tightly guarded criminal justice issue, the Innocence Project released a report finding prosecutors across the country are rarely held accountable for conduct that lands innocent people in prison.
The nonprofit legal group examined four years of records and court rulings over five states (Arizona, California, New York, Pennsylvania, and Texas) involving findings of prosecutorial error or misconduct. All told, researchers discovered 660 published findings of prosecutorial error or misconduct. The report notes the inherent difficulties in researching prosecutorial misconduct (e.g. underreporting, unpublished findings) suggests the problem is much more widespread.
Prosecutorial Misconduct:
Prosecutorial misconduct includes any conduct by a prosecutor that violates a defendant’s rights, regardless of whether that conduct was known or should have been known to be improper by the prosecutor, or whether the prosecutor intended to violate legal requirements. The most common types of prosecutorial misconduct are:
- Improper Argument or Examination at Trial (e.g. the prosecutor in closing argument telling the jury “you should have seen the evidence we kept out.”;
- Inflammatory comments in the presence of the jury (e.g. referring to the accused as cowardly, a beast, thug);
- Mischaracterization of Evidence;
- Allowing false testimony to stand uncorrected (i.e. perjury);
- Failure to disclose evidence favorable to the accused or defense lawyer (i.e. exculpatory or impeachment evidence).
The report states, and criminal defense attorneys would likely agree,
“Most prosecutors do not act with intent to conceal exculpatory evidence. Indeed the vast majority of prosecutors perform their duties in good faith with the aim to fulfill their constitutional and legal obligations. . . Like the rest of us, prosecutors are susceptible to the stress of their very demanding jobs, cognitive biases, and a host of other human realities. Mistakes are bound to occur, no matter how experienced or thorough a prosecute may be. And in some rare cases, prosecutors’ eagerness to secure convictions has led them to commit deliberate violations of the law.”
The result, denial of justice for wrongfully convicted defendants and their families, victims and their families, and public safety.
Prosecutors indeed are powerful figures, if not the most powerful, in the American criminal justice system. They decide how to investigate a case, what charges to bring, what plea bargains to offer, what penalties to seek, and what evidence to turn over to the defense. Each decision has an “enormous impact on defendants, victims, their families, and the public at large.”
The legal profession is a stressful profession where practitioners are routinely found atop depression, substance abuse and suicide lists. Over time the pressure and demands can slowly erode a lawyer’s principle. Similar to an actor consuming himself with an upcoming role, any trial attorney will admit they obsess in the pursuit of justice. The criminal defense attorney,seeks justice for the accused and his or her family. The prosecution seeks justice for the victim and the victim’s family. Win-at-all-costs can supersede justice. Evidence is hidden, testimony is perjured, and innocent people find themselves behind prison walls. Ineffective assistance claims hold defense attorneys accountable and subject to appropriate discipline. The reports calls for similar accountability for prosecutors. Discipline for those prosecutors with the twisted belief they are doing good by doing bad.
Isn’t that what appeals are for?
Of the 660 public findings of prosecutorial misconduct, 527 convictions were upheld by appellate courts and 133 convictions were overturned. One prosecutor was disciplined. The project’s study focused on prosecutorial discipline and doesn’t mention how many of the 660 defendants were actually innocent. A 2010 innocent project study, revealed 65 of 225 persons exonerated by DNA challenged prosecutorial misconduct at the appellate level. Only 18% of those wrongful convictions were overturned by the appellate courts.
How does an innocent person lose on appeal?
Appellate courts use a harmless error standard to determine whether an error is serious enough to require reversal of a criminal conviction. To the black robes, harmless error means the error did not change the outcome of the case and absent gross misconduct, act as a rubber stamp to the lower court’s guilty verdict.
Appeals also do not take into account plea deals. Surprising as it may seem even innocent defendants plead guilty. In fact, 10% of the cases later overturned by DNA were guilty pleas.
Conclusion:
In restoring the public’s perception of the criminal justice system, the report suggests a collective effort of policies, training, documentation, and monitoring from the district attorney offices, the courts, state bars, legislatures, and even law schools. The report highlights the need to shift the system from a place of secrecy and disregard for error to a place where errors are used to improve the system as a whole. In other words learning from previous mistakes.
The action was initiated from a letter signed by 19 people whose wrongful convictions were secured in part by prosecutorial misconduct. The letter was also sent to the Justice Department, whom never responded.
Most Recent Criminal Defense Case Results (March 2016)
Felony Possession of a Controlled Substance – Dismissed.
Our client was the passenger of a vehicle that was stopped and searched. Both our client and the driver were arrested and charged with criminal possession of a controlled substance. Our attorneys got the prosecutor to agree our client did not intentionally and knowingly possess the drugs and the felony was dismissed.
Felony Possession of a Controlled Substance – Dismissed.
Our client was stopped in his vehicle. Drugs were found, however criminal charges were not presented and filed until three years later. The prosecutor agreed there was a speedy trial issue and the felony drug charges were dismissed.
Possession of Marijuana – Dismissed.
Our client was a passenger in a vehicle where marijuana was found. There were two other occupants in the vehicle, making it difficult to prove who possessed the marijuana. The case was dismissed.
Possession of Marijuana – Dismissed.
After being stopped and searched by officers, marijuana was found on our client. Our criminal defense lawyers presented caselaw supporting the unlawfulness of the stop, search, and seizure and the case was dismissed.
Trespass – Dismissed.
Our client was told to leave a local establishment and did so. Moments later, on his phone in the parking lot, he was arrested for trespass. After a few court appearances, our lawyers were able to convince the prosecutor he was attempting to leave before being arrested and the case was dismissed.
Assault Family Violence – Dismissed.
Our client was accused of assaulting her husband. After a thorough investigation by our legal team revealed this was not the first time the husband had made such a claim, calling his credibility into issue, the prosecutor agreed the case should be dismissed.
DWI – Dismissed.
A hospital blood draw yielded a 0.11. Without the necessary extrapolation facts, and without a valid forensic chemical test, we were able to get the DWI dismissed.
Help Me, Help you – How You Can Help Your Criminal Case
Walk into any criminal courtroom and you will see hundreds of flat, lifeless, 8 x 11 inch file folders. Inside you will find charging instruments, offense reports, witness statements, criminal histories, CDs, DVDs, and other evidence submitted by state agencies attempting to link persons to a crime. To many prosecutors, tirelessly shifting through mounds of paper, the accused is nothing more than a 8 X 11 inch file folder. It is the criminal defense attorney’s job, with your help, to shape that lifeless file into a living, breathing, three-dimensional human being.
So what can you do to help your criminal case? Start by:
- Hiring a qualified criminal defense attorney.
- Not committing another crime while out on bond or violating any bond conditions (e.g. dirty drug test). Few things anger courts more.
- Showing up to Court on time and in proper attire. Court staff takes note of their audience.
- Providing names of witnesses who can give their account of what actually happened on the alleged crime date. (e.g. sobriety witnesses for a DWI, family members for an assault, etc).
- Giving your lawyer proof of employment and/or school transcripts. Prosecutors and judges want to know what your current and future plans are.
- Obtaining character letters from people who know the real you. The character letter should be one page. The first paragraph should identify who the writer is, where they live, and how they are employed. The second paragraph should describe how they know you, how long they have known you, and opportunities to observe you for relevant character traits (e.g. drinking habits, honesty, etc.). The third paragraph should explain specific instances of good character. The fourth paragraph should provide the writer is aware of the criminal charges and that such behaivior is out of character. Lastly, the writer’s should include their contact information.
- Tracking down records of your medical history.
- Providing honors, awards, or achievements earned in the community. If you served and received an honorable discharge, provide your attorney with proof of such.
- Attending relevant classes (e.g. substance abuse class or AA for drug and alcohol charges, theft class for theft charges, anger management class for assault charges).
- Understanding prosecutors will look at your social media accounts, such as Facebook, twitter, linkedin, etc. Pictures of you partying aren’t going to help your DWI case.
- Emailing your lawyer a picture of you with your family (i.e. the new face for the 8 x 11 file).
With the tools above your attorney can breath life into your file and obtain the best possible result.
One Shining Moment – Are NCAA Pools Illegal in Texas?
Spring in Texas brings Southern California-like weather, crawfish, and March Madness. While collegiate athletes across the country fight for the ultimate prize, husbands, wives, employees, employers, and friends, fight for NCAA bracket bragging rights and often times cash prizes.
But are NCAA pools illegal in Texas? Possibly.
The Texas gambling statute can be found in Texas Penal Code Section 47.02 which states, in part:
(a) A person commits an offense if he:
(1) Makes a bet on the partial or final result of a game or contest or on the performance of a participant in a game or contest;
(b) It is a defense to prosecution under this section that:
(1) the actor engaged in gambling in a private place;
(2) no person received any economic benefit other than personal winnings; AND
(3) except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants.
A NCAA pool seems to meet the elements of subsection (a)(1). However, subsection (b) does provide statutory relief if all three elements are met.
As to subsection (b)(2) it is unlikely any person is receiving or will receive any economic benefit, other than personal winnings. A “rake” is a percentage of the overall entry fees. If your buddy is taking a “rake” on the pool he organized then you need new friends.
In regard to subsection (b)(3), the excitement of March Madness is predicated upon the unknown. Hence the name, March Madness. In other words, the risks of losing and the chances of winning are the same for all participants.
Subsection (b)(1) is where the gray area lies. What is a “private place”?
Texas courts have held a poker room, tucked away in a public restaurant, surrounded by ropes and bouncers, was not a private place. However, an invite only e-mail, to a private online tournament room, could be considered a private place.
So if you received a private email to participate in a bracket pool you may have a valid defense in Texas.
Regardless, the odds of facing criminal charges for participating in a NCAA pool are slim. The odds of a jury actually convicting you are even more slim. In all likelihood the officers and jurors are NCAA pool participants as well. Such has become part of our culture.
The greater concern may be the estimated billions companies stand to lose for each unproductive work hour during the weeks of March Madness.
So while your office pool may technically be illegal, I wouldn’t lose sleep worrying if the police are going to break down your front door and haul you off.
Criminal Defense Attorney – Federal & State – Texas
Criminal Defense Trial Attorneys
Criminal Defense Trial Attorneys
Criminal Defense Trial To Watch:
Criminal Attorney – Recording the Police.
Criminal Attorney – Recording the Police, Dos and Don’ts.
Criminal Attorney – Do: Record.
In Texas you are legally allowed to record police encounters as long as you do not interfere with their work (a.k.a. interfering with public duties). Police may harass you, detain you, or try to intimidate you, but they can not arrest you for merely recording them. Recordings have exonerated many people, and often times is the only available, credible evidence.
Criminal Attorney – Don’t: Share your recording with the police.
You are not legally required to do so.
Criminal Attorney – Do: Respond politely, but firmly to police questions.
Officer: “What are you doing?” or “Stop recording, it’s against the law.”
Response: “Officer, I am exerting my 1st Amendment right to record?”
Texas, for example, is a one-party state. Meaning permission to record is only needed by one-party. You are that party.
Don’t Respond: “Making sure you are doing your job right?” or “I don’t trust you.
Criminal Attorney – Do: “Stand Back.”
If you’re approaching the scene of an investigation or an accident, police will likely order you to move back. While you do have a right to be there, you don’t want to interfere with police investigations. Keep an appropriate distance.
Criminal Attorney – Do: Understand when you have to show your I.D.
Officer: “Let me see your I.D.”
Response: “Officer, are you detaining me, or am I free to go?”
If you are being detained, I.D. yourself. If the officer does not have reasonable suspicion to believe you are involved in criminal activity, and is not detaining you, you do not have to show him identification. You can either leave or hold your ground. But…
Do: Know when to walk away.
Officer: “Shut it off or I’ll arrest you”.
At this point you are risking arrest in order to test the boundaries of free speech. If police say they’ll arrest you, believe them. It may not be a lawful arrest, but that hasn’t stopped police before.
If you keep recording, brace yourself for arrest. If you are arrested, don’t resist. As with any arrest, you have the right to remain silent until you speak with a criminal attorney. Contact your criminal attorney as soon as possible.
Do: Understand the 1st Amendment.
Officer’s may try and trick you into believing the 1st amendment -right to record – only applies to mainstream media journalist. It doesn’t.
As with many police encounters your attitude can make the difference in whether you will soon be required to post bond. Understand your rights and understand how to assert them.
Texas Criminal Defense – Police Warrants.
Texas Criminal Defense and Police at your Home:
There is no greater protection to police searches and seizures than in your home. Understanding how to exercise those protections is crucial to prevent unwanted and unnecessary intrusions.
The police are at my door, what should I do?
You have a few [good] options:
1) With the door remaining closed, ask “How can I help you ?”; or
2) Crack the door open and ask them “How can I help you?” through the door-lock opening; or
3) Don’t answer the door and they should eventually leave, unless they have a warrant.
The police may be there because they need assistance with a matter unrelated to you. Asking them “How can I help you?” will assist in learning the officer’s objective.
The police say they want to come into my house?
The short response is no. Not without a warrant. If the police say, “If you don’t let us in, we will go get a warrant”, then tell them go get a warrant. Until they show you a valid warrant, you shouldn’t allow them into your home.
The police are at my house with a warrant, do I have to let them in?
Yes. If you haven’t already, now would be a good time to call your Texas criminal defense attorneys.
Can officer’s lie to try and get information?
Yes. Legally, officers can and do lie to gain evidence. Many times officer’s do not have probable cause to arrest you. They ask questions, hoping you will gift wrap the probable cause they need. Knowing your rights will help prevent your words from getting twisted around and landing you in the back of a police car. Remember you have the right to remain silent. Request your Texas criminal defense lawyers. Be Firm.
What are some common things officer’s say to get information?
“Just cooperate with us and we will let you go.”
“If you tell us [what they want you to tell them], you will get out of here quicker.”
“We can ensure you get a good deal.”
“We have evidence that contradicts everything you just said.”
“That is not what [other person] said, tell us the truth.”
“What are you trying to hide?”
“You don’t need a lawyer, unless you are guilty.”
Can your roommate consent to a search of your home?
It depends on whether you are home or not.
If you are NOT home:
As a general rule, police can obtain consent to search from anyone with control over the property. If your roommate has a key or his name is on the lease he can give consent to a police search.
If you are home:
If your roommate consents to a search, you can object to the search and prevent the police from entering (unless they have a warrant). Simply state, “I do not give consent for you to search my home.” If the officer says he has a warrant, ask to see it. If the officer has a valid warrant, call your Texas criminal defense attorneys.
Can my landlord give consent?
Courts have held during a lawful tenancy a landlord cannot give officer’s consent to enter and search the tenant’s room.
What can I do to protect myself from a search of my room?
To maintain your expectation of privacy, keep your room locked, while maintaining control over your personal space. If your room is off-limits to roommates and friends, then it is off-limits to the police. If your room is the party room, then the police are going to treat it as such.
Texas Criminal Defense and Police at your Office:
The police are at my office, what should I do?
CALL YOUR TEXAS CRIMINAL DEFENSE ATTORNEYS.
With your Texas criminal defense lawyers on the phone ask them, “How you can help them?”
The police may be there because they need assistance with a matter unrelated to you. Asking them “How can I help you?” will assist in learning the officer’s objective.
But…
The police say they want to search my office?
The short response is no. Not without a warrant. If the police say, “If you don’t let us in, we will go get a warrant”, then tell them go get a warrant. Until they show you a valid warrant, you shouldn’t allow them into your office or allow them to search your office.
The police are at my office with a warrant, do I have to let them in?
Yes. If you haven’t already, it would be a good time to call your Texas criminal defense attorneys.