The Prosecution. Chapter 3

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2 66 Chapter 3 The Prosecution Chapter Objectives As a result of reading this chapter, you will have accomplished the following objectives: 1. Understand the criminal court as an adversarial system seeking to determine the guilt or innocence of defendants charged with crimes. 2. Understand the many dimensions of the role of prosecutors in pursuing cases against criminal suspects. 3. Depict both exculpatory and inculpatory evidence that may be presented in criminal cases. 4. Describe the process of screening and prioritizing cases for criminal prosecutions. 5. Describe the interrelatedness of law enforcement with government prosecutors. 6. Assess the potential for prosecutorial misconduct or discretionary abuses arising from the extensive powers of prosecutors. John Forbes is the district attorney of a large rural county in a midwestern state. He has $300,000 allocated to his office per year for criminal prosecutions. While the county has its share of crime annually, most of it is property crime. Violent crimes make up only about 20 percent of all criminal activity. One of Forbes s responsibilities is to manage the $300,000 budget wisely, pursuing those cases most likely to result in convictions. This year, however, there have already been four murders and several rapes. Two cases of child sexual abuse have been presented to him by police. Almost all of these violent crimes have resulted in arrests of likely suspects, where probable cause exists. Criminal trials are expensive, and one alternative available to Forbes is to encourage various defendants to enter guilty pleas and accept more lenient sentences than if they were to insist on a criminal trial. Unfortunately for Forbes, the rape cases have involved youthful defendants from a few wealthy families, and they are insisting on formal trial proceedings. Furthermore, one child sexual abuse case involves a high-profile television reporter in his 40s who has denied sexually molesting his 12-year-old daughter. Two murders involve the parents of a 17-year-old female, who is the principal suspect. The deceased parents were the owners of a major grocery chain in the state, and thus, the case has received considerable media attention. The public is outraged over all of this violence, and the county wants to see justice served with the convictions of these and other persons charged with such violent offenses. Forbes has two assistant district attorneys to assist him, and his resources will be quickly expended if protracted criminal trials are held in ten or more of these cases. With Forbes s

3 Chapter 3 The Prosecution 67 limited resources, he cannot afford to have all of these cases reach the trial stage. Therefore, he must attempt to strike plea deals with some of these defendants. What criteria should govern his choices? Who most deserves to be prosecuted fully in a formal criminal trial? Jean Langley is the chief prosecutor in Lennox County, Georgia. She has performed her job for eight years, but not without criticism from the media, particularly the Lennox Daily, a paper noted for its scathing editorials. One reporter, Mary Williams, has been especially critical of Langley and how Langley conducts her cases and the seemingly low conviction rate for those charged with serious offenses. Williams has openly advocated that a new prosecutor should be selected to replace Langley. One evening, Williams is pulled over by police for weaving. She is given a breathalyzer test and it is evident that she has been drinking. She admits being at a local bar, and her blood alcohol (BAC) level is.07, slightly under the legal intoxication limit of.08. Nevertheless, the officers charge her with driving under the influence (DUI) of alcohol and resisting arrest, and she is locked up overnight in the county jail following a brief physical struggle to prevent police officers from handcuffing her. Langley becomes aware of Williams s arrest and studies the police report, which details Williams s driving and responses to police, who considered her insulting and uncooperative. Ordinarily, Langley considers DUI arrests, even resisting arrest, to be relatively minor offenses, and she often assigns these cases to her assistant prosecutors. But in the Williams matter, Langley decides to handle this case personally. She files a criminal information against Williams based on the police report. She charges Williams with driving while intoxicated, reckless endangerment because of her erratic driving, and assault on a police officer, because of her struggle to avoid being handcuffed. Williams s lawyer attempts to reach a plea agreement with Langley, with downgraded charges, but Langley rejects any plea offer. The case will go to trial. Eventually, Williams is tried on these charges, and because of their seriousness, a jury hears the case. Subsequently, she is acquitted of assault on a police officer and reckless endangerment. Since her BAC was less than the legal intoxication limit, she is acquitted of drunk driving charges as well. Williams has spent over $20,000 in legal fees in the matter. Has Langley engaged in a malicious prosecution of Williams in this case? INTRODUCTION Criminal courts in the United States are exclusively adversarial proceedings. Adversarial proceedings mean that opposing sides present evidence and arguments favoring their position, either to a judge or a jury, in order to convince them that a particular action should be taken. Depending upon the compelling arguments presented favoring these opposing positions, judges or juries are persuaded to find for or against criminal defendants.

4 68 Chapter 3 The Prosecution Persons charged with one or more crimes, defendants, are prosecuted by the government. The interests of defendants are represented by defense counsels, whose job it is to convince judges or juries that insufficient evidence exists to conclude that the defendants are guilty of committing a crime. Criminal proceedings against defendants may be conducted at local, state, or federal levels, and in each case, one or more prosecutors represent the government s interests in pursuing prosecutions. This chapter opens with a description of the adversarial system of American courts, which is characterized by opposing sides who want to win. In some respects, this adversarial system is like an athletic contest or sporting event, complete with rules of conduct and different strategies calculated to advantage one side or the other in winning the contest. The outcome of a criminal trial is far different from the outcome of an athletic event, however. One or more lives are at stake, and one s freedom within the community may be in jeopardy. Prosecutors present inculpatory evidence to judges and juries. Such evidence shows defendant guilt. In contrast, defense counsels present exculpatory evidence that shows defendant innocence. Usually both sides have such evidence and present it to bolster their arguments for why judges or juries should decide in their favor. The conduct of any criminal case in court, as well as the introduction of both exculpatory and inculpatory evidence, is governed by rules of criminal procedure and evidence. Both state and local court systems have codified these procedures so that trials are uniformly conducted and everyone understands what is and is not permitted. The following section describes the prosecutorial role. The role of prosecutors at all levels local, state, or federal are very similar. One consistent feature of all prosecutors is that they have many duties and responsibilities. Prosecutors must screen cases for prosecution and decide whether to bring criminal charges against particular suspects. As the opening chapter scenarios suggest, prosecutors must prioritize the cases they prosecute. Not everyone who deserves to be prosecuted can be prosecuted, given present system economic constraints. Beyond screening cases to be prosecuted, prosecutors must devise effective strategies that they believe will enable them to obtain convictions against criminal defendants. In many cases, the inculpatory evidence against many suspects is overwhelming and the prosecutor s role is greatly simplified. The prosecutor often drafts a plea agreement wherein a defendant enters a guilty plea to one or more criminal charges in exchange for some form of sentencing leniency, which is usually initiated by the prosecutor and approved by the judge. The plea bargaining process is discussed at length in Chapter 8. Although fewer than 10 percent of all criminal cases proceed to trial, this does not mean that there are few criminal trials. There are many thousands of criminal trials annually. In fact, the incidence of criminal trials is such that there are serious case backlogs in more than a few jurisdictions. Interestingly, because there are so many criminal trials to conduct and a limited time period

5 Chapter 3 The Prosecution 69 within which to conduct them, this is a major reason why prosecutors must screen their cases and prioritize them for prosecution. It is simply not possible to prosecute everyone who deserves to be prosecuted for a crime. The screening process used by prosecutors to prioritize their cases will be examined and explained. In larger cities where a much larger volume of criminal cases is generated, government prosecutors, sometimes known as state s attorneys, district attorneys, or U.S. attorneys, will have several assistant prosecutors to handle larger caseloads. Thus, the prosecutor has the responsibility of assigning cases to various assistant state s attorneys or assistant district attorneys, or assistant U.S. attorneys, and these persons become responsible for prosecuting the cases they are assigned. Among the different responsibilities of prosecutors is interviewing witnesses and conducting depositions that will enable them to build compelling cases against criminal defendants. Prosecutors also work closely with law enforcement officers who made arrests and/or collected important incriminating evidence. These persons will eventually testify in court or provide information about a defendant s guilt. These interactions between witnesses, law enforcement officers, and prosecutors will be described and explained. All attorneys, regardless of whether they are prosecutors or defense counsels, are expected to abide by a code of ethics that prescribes a particular conduct that places these persons above reproach. However, more than a few attorneys have and continue to violate one or more of these ethical codes by engaging in prosecutorial misconduct. Like any type of misconduct in any profession, there are degrees of misconduct that may occur. Like misdemeanors and felonies, there are less serious and more serious forms of misconduct. Several types of prosecutorial misconduct are examined. One type of misconduct is encouraging deceit from witnesses who testify against criminal defendants. Most prosecutors do not ask witnesses to lie under oath or commit perjury. But many prosecutors encourage witnesses to slant their testimony in ways that make criminal defendants look like they might be guilty. In many jurisdictions, prosecutors rehearse their witnesses prior to trial, reviewing the types of questions the prosecutors will ask, as well as the kinds of questions defense attorneys might ask. Suggestions are given by prosecutors as to what witnesses might say or how they might respond. While rehearsing witnesses before trial is not unethical, it may raise questions about how such testimony might be interpreted by jurors. Some witnesses may exaggerate the significance of their testimony, and prosecutors may allow juries to draw their own conclusions about these exaggerated remarks. Of course, it is expected that good defense attorneys will clarify for jurors what certain witnesses say and how such information should be interpreted. Another type of prosecutorial misconduct occurs behind closed doors in confidential grand jury proceedings. About half of all states use grand juries to determine whether sufficient evidence exists against particular defendants in

6 70 Chapter 3 The Prosecution order for the case to proceed to trial. Grand jury proceedings are one-sided affairs, where prosecutors present only evidence that they want grand jurors to see. Thus, prosecutors are in absolute control concerning the particular evidence a grand jury will see against a criminal suspect. If the prosecutor knows of any exculpatory evidence that favors the defendant, he/she may withhold such evidence from the grand jury. This is the prosecutor s decision. If the prosecutor has strong feelings about the case and wants the grand jury to indict the defendant, excluding exculpatory evidence from the grand jury will improve the prosecutor s chances of securing an indictment. Ultimately the exculpatory evidence will come to light in court when the trial is conducted. In the meantime, however, the defendant, who may be innocent, remains charged with a crime through the indictment. Although indictments do not mean that indicted defendants are guilty of anything, many citizens interpret being indicted as tantamount to guilt anyway. The trial process will result in a finding of guilt or acquittal in any event. The process of prosecutorial bluffing will be described. Prosecutors may attempt to bluff their way through a case prior to trial, leading some defendants to believe that they have inculpatory evidence against them when they have no such evidence. Many guilty pleas have been entered by innocent defendants because of prosecutorial bluffing. If defendants believe that the jury will likely convict them of a crime and their sentence will be severe, these defendants may decide to accept a plea agreement offered by the prosecutor, which usually involves considerable leniency in punishment compared with what a judge may have imposed through a jury verdict of guilt. Several types of prosecutorial bluffing will be described, and the implications of prosecutorial bluffing for defendants will be indicated. More serious forms of prosecutorial misconduct include deliberately withholding exculpatory evidence from defense counsels prior to trial. Another form of misconduct is pursuing a case against a criminal defendant where no basis exists for the criminal charges that have been filed. As one of the opening scenarios of this chapter suggests, sometimes prosecutors may file frivolous charges against defendants where such charges have little or no basis in truth. These malicious prosecutions against innocent defendants are clearly inexcusable, although proving malicious intent on the part of the prosecutor is often difficult. Although it is not technically a form of misconduct, prosecutors almost always attempt to select jurors who are most likely to convict the defendant. Some prosecutors hire professional jury consultants to assist them in making such juror selections (Clark 2004b). Both prosecutors and defense counsels have several peremptory challenges and an unlimited number of challenges for cause, whereby they can strike any particular prospective juror from sitting on the jury. Defense counsels also attempt to select jurors who will react favorably toward their clients. They also hire jury consultants to assist them in juror se-

7 Chapter 3 The Prosecution 71 lection. Since the jury selection process is not an exact science, it is questionable whether accurate forecasts can ever be made about how particular jurors will vote once the evidence from both sides has been presented. Another form of prosecutorial misconduct involves backdooring hearsay evidence. Prosecutors and defense counsel are both barred from making certain kinds of statements in front of jurors. But both sides may make occasional improper utterances or statements anyway, only to have the judge instruct the jury to disregard these statements. But once jurors have heard statements they shouldn t hear, it is difficult, if not impossible, for them to forget that they heard these statements. It is impossible to determine how much these improper statements influence juror opinions and voting during juror deliberations. Different types of backdooring hearsay will be described. The chapter concludes with an examination of the ethical norms and guidelines presently in place to regulate prosecutors and their conduct. Only during the last few decades have prosecutors been more carefully scrutinized by the legal profession and others. Prosecutorial codes of conduct or ethics will be described. THE ADVERSARY SYSTEM When a crime is committed, law enforcement officers frequently arrest a suspect who is believed to have committed the crime. Criminal suspects become defendants charged with one or more crimes. While all criminal defendants in the United States are entitled to the presumption of innocence before their guilt is established in court beyond a reasonable doubt, they are also entitled to counter the charges against them. Therefore, defendants are represented by defense counsel, whose job it is to defend their clients against these criminal charges. Presumably, defense counsel who represent clients in court are more or less effective according to their training, expertise, and practical trial experience. The system of alleging criminal charges against defendants and defending them against such charges is known as the adversary system (Emmelman 2003). This adversarial system is not exclusively a U.S. creation. It is found and used frequently in other countries, such as England, Yugoslavia, Italy, and Australia (Ambos 2003). Also, it is found in both adult and juvenile proceedings (Schmidt, Reppucci, and Wollard 2003). The adversarial nature of the criminal court is evident by paying attention to the different roles of the prosecutor and defense attorney. The prosecutor s aim is to prove that the defendant committed a crime, and that the level of such proof should rise to beyond a reasonable doubt. The defense attorney contests any criminal allegations made against his/her client and seeks to dissuade the court or a jury from thinking that the defendant is guilty of a criminal offense. In 2004 for instance, Scott Peterson, a California resident, was tried on charges of murdering his pregnant wife, Laci, 27, and dumping her body in the

8 72 Chapter 3 The Prosecution ocean. Portions of her body washed ashore some months following her disappearance ten days before Christmas in December Subsequent circumstantial evidence led to Scott Peterson s conviction in December Peterson was sentenced to death in early Between the time of Laci Peterson s disappearance and Scott Peterson s conviction, Scott Peterson retained the services of several high-profile criminal defense attorneys. His trial lasted for several months during 2004, while both sides presented evidence to an impartial jury. Scott Peterson claimed he was out of town fishing at the time of his wife s disappearance. Coincidentally, her body washed ashore just a few miles from where Peterson claimed he had been fishing when she had disappeared. Although there was no direct evidence of Scott Peterson s guilt, there was substantial circumstantial evidence, including his prolonged involvement with another woman. The jury was ultimately convinced that he had committed the murder of his wife in order to seek a future life with the other woman. Both sides in this adversarial proceeding provided compelling arguments for and against Peterson s guilt. Following the trial, Peterson s attorney said that the jury was persuaded by the location of Laci Peterson s body in close proximity to where Scott Peterson claimed to have been fishing when she disappeared (Associated Press 2005). Comparing the criminal court to a game being played out from beginning to end is not new. The gamelike nature of the courtroom is reinforced by using court-relevant terminology, such as sides and prosecutorial or defense strategy. Prosecutors are on one side and use a particular strategy that they believe will enable them to win the game. For prosecutors, a win is a conviction against the accused. For the defense side, a win is the defendant s acquittal. Prosecutors and defense counsel are often labeled as players by different writers who seek to characterize courtroom procedures in certain ways. The more skillful player using the better strategy will win the game by defeating the other player (van Koppen and Penrod 2003). The adversarial system of justice in the United States is rooted in the tradition of English jurisprudence dating back several centuries (Ambos 2003). In U.S. courts, the key players, prosecutors, defense attorneys, and judges, are the courtroom work group (Hoskins, Ruth, and Ruback 2004). They are bound to observe standardized Rules of Criminal Procedure as well as a well-defined ethical code (Birzer and Tannehill 2003; Boyle, Newman, and Schmidt 2003). Thus, there are specific rules governing the order in which a case is presented against a defendant and the response from defense counsel (DiCristina 2004). Besides following a predetermined pattern or protocol for presenting a case against and for a defendant, other rules exist that govern the nature and types of evidence and witnesses who may be called for either side. Each side attempts to manipulate the evidence presented in ways that enhance their respective arguments. Witnesses are examined and cross-examined by the different sides in an effort to bolster their arguments. Ideally, the side with the most persua-

9 Chapter 3 The Prosecution 73 sive and compelling argument, either against or for the accused, wins. Juries decide the facts in the case before them, and their deliberations most often favor either guilt or acquittal. On rare occasions, juries may not be able to reach agreement as to which side, the prosecution or defense, has the more persuasive argument. In these instances, juries are deadlocked or hung, and mistrials are declared. Subsequently, the adversarial process begins anew with another trial. In each trial proceeding, it is expected that both sides will adhere to an accepted ethical code and conduct themselves accordingly. Throughout the criminal trial, evidence is presented by both sides for its persuasive effect. Prosecutors usually present inculpatory evidence, or testimony or other forms of evidence that tends to show the guilt of the defendant. For instance, the defendant s fingerprints might have been found on the murder weapon, or eyewitnesses may have seen the defendant pull the trigger of the gun that killed the defendant. This evidence would be considered inculpatory, because it shows the guilt of the accused. In contrast, defense counsel introduces exculpatory evidence, or testimony and other forms of evidence that show the innocence of the defendant. For example, one or more persons may testify that the defendant was with them at the time the murder was committed. Theater ticket stubs in the defendant s possession may indicate that the defendant was watching a movie when the crime occurred. Thus, alibis and other relevant information may show that the defendant couldn t have been the one who committed the crime when it occurred (Cossins 2003). THE PROSECUTION Besides the judge who makes important rulings in criminal cases and oversees trial proceedings, the prosecutor is perhaps the most powerful position in the criminal justice system (Schoenfeld 2005). Prosecutors are either elected or appointed officials who pursue criminal cases against those charged with crimes. Prosecutors are held to the same standards of ethical conduct as defense counsel (Connell 2004). Depending upon the jurisdiction, prosecutors are known by different names. In Tennessee, for example, prosecutors are known as district attorneys. Their assistants are called assistant district attorneys. In North Dakota, prosecutors are called state s attorneys or assistant state s attorneys. Many other jurisdictions use such designations for their prosecutors. In the federal system, each U.S. district court has a United States attorney s office. The United States attorney in each federal district is appointed by the president of the United States with the advice and consent of Congress. The attorney general of the United States, also a presidential appointee, appoints one or more assistant U.S. attorneys (AUSAs) to serve in each of these district offices. The number of AUSAs varies from district to district, depending upon the civil and criminal caseload (Houston 2005; U.S. General Accounting Office 1999).

10 74 Chapter 3 The Prosecution The Roles of Prosecutors The primary roles of all prosecutors in criminal courts are to represent the government s interests and pursue criminal charges against those alleged to have committed crimes. For state s attorneys or district attorneys, their roles are similar throughout the different U.S. jurisdictions. A summary of these roles is as follows: 1. To screen cases for prosecution 2. To determine the best strategy for prosecuting cases 3. To make case assignments to assistant district attorneys 4. To interview prospective witnesses against the accused 5. To work closely with law enforcement officers to determine the nature of inculpatory evidence against the accused In the federal system, the U.S. attorney s offices in the various federal districts are charged with the following broad roles: 1. Prosecute all offenses against the United States 2. Prosecute or defend, for the government, all civil actions, suits, or proceedings in which the United States is concerned 3. Appears on behalf of the defendants in civil actions and suits or proceedings pending in the district against collectors or other officers of the revenue or customs for things they have done or for the recovery of any money exacted by or paid to them 4. Institutes and prosecutes proceedings for the collection of fines, penalties, and forfeitures incurred for violation of any revenue law 5. Reports as the attorney general directs Screening Cases Screening cases means to assign priority to different cases on the basis of which ones are most deserving of prosecution. The screening function of prosecutors is very important as it relates to obtaining guilty pleas from criminal defendants. Most convictions are obtained through plea negotiations between prosecutors and defense counsel, where some form of leniency from the prosecution is extended in exchange for a defendant s guilty plea. Thus, prosecutors have broad discretionary powers concerning which cases to pursue and what types of offers to extend those charged with crimes as inducements for guilty pleas (Forst 2004). Prosecutors have the power to determine the types of cases that will be prosecuted more vigorously than others. Drunk-driving cases may receive high priority in certain jurisdictions, since strong interest groups, such as Mothers Against Drunk Driving (MADD), may wish to decrease alcohol-related driv-

11 Chapter 3 The Prosecution 75 ing accidents and deaths in their communities. Prosecutors can assist them in their prevention and deterrence efforts by pursuing DWI cases and seeking maximum penalties. Organized crime may have high priority for prosecutions in certain jurisdictions. Prosecutors seek convictions, and prosecutorial effectiveness is often gauged by the number of convictions they obtain (Keller 2005). The greater the number of convictions, the more effective are the prosecutors. Therefore, it is in the prosecutor s interest to select cases for prosecution that are the easiest to prosecute. Where clear and convincing evidence exists against an accused, prosecutors are in a stronger position to succeed in obtaining a conviction. More than a few cases have little incriminating evidence and are based purely on circumstantial evidence. Their vigor, persistence, and demeanor are often sufficiently convincing for jurors in courtrooms (Rockwell and Hubbard 2004). Prosecutors must decide whether these cases are worth pursuing, where the conviction of the accused is less of a certainty compared with a case with considerable inculpatory evidence. Determining Court Strategy Prosecutors must devise their theory of how and why the crime was committed. They must attempt to link the defendant to the crime in such a way so that the jury will be convinced beyond a reasonable doubt of the accused s guilt. There are many potential explanations for a defendant s conduct relative to the crime. It is not necessary that the prosecutor selects the true explanation, only a plausible one. The theory of the crime and its commission is often suggested by the nature and quality of the evidence against the defendant. For example, if one s spouse was violently killed and the surviving spouse stands to collect on a $1 million insurance policy, then this fact provides a motive for why the surviving spouse probably committed murder. However, if there is another person with whom the surviving spouse has had an affair, then the motive for the murder may be love and not money. It is fairly easy to see how different spins can be given to any criminal scenario. In the Scott Peterson murder case mentioned earlier in this chapter, following Peterson s conviction, the family of Laci Peterson sought to sue Scott Peterson in a civil action for damages. Earlier during Peterson s trial, Peterson and his defense counsels claimed that Laci Peterson had been kidnapped by others, and that somehow her body was deposited in the ocean near where Scott Peterson had claimed to be fishing when she disappeared. This was a deliberate act to incriminate Peterson, the defense claimed, since it became known where Scott Peterson was or alleged to be at the time of his wife s disappearance. The prosecution countered that Scott Peterson had taken his wife s body to a marina where he launched his boat, took the boat far out in a bay, and dropped his wife s body, weighted down with cement blocks, into the

12 76 Chapter 3 The Prosecution ocean. The prosecution surmised that Scott Peterson never imagined that his wife s body would somehow reappear later and be discovered by police. In a subsequent civil action, Laci Peterson s family would argue that Scott Peterson benefitted from killing his wife because of his affair with another woman, and that he deliberately killed and disposed of his wife in order to facilitate this romantic relationship. While the complete truth about Laci Peterson s murder will never be known, this fact gives fuel to all types of speculation about what happened to her and why. Even today, it cannot be conclusively demonstrated by investigators that Laci Peterson was killed in a specific place with a specific instrument and that her body was conveyed by Peterson to the ocean where it was dumped. No eyewitnesses were ever produced linking Scott Peterson directly with his wife s disappearance. A civil jury will have to weigh the circumstantial evidence and decide whether to award Laci Peterson s family any damages against Scott Peterson in a separate civil proceeding. Assigning Cases Prosecutors in most jurisdictions usually have assistant prosecutors who can handle some of the case workload (Champion 2005a). In fact, most large-city district attorney s offices are bureaucratized to the extent that there are various specialty areas for different types of legal cases. A general civil-criminal distinction exists, where some of the assistant district attorneys may be assigned civil cases, while other assistants are assigned criminal ones. Further subdivisions may be made, depending upon case volume. Criminal cases may be divided according to sex crimes, property crimes, and other logical divisions. Certain prosecutors acquire considerable expertise in selected legal areas, and this expertise enables them to prosecute certain cases involving their expertise more effectively than other prosecutors without this expertise. For instance, prosecutors with substantial experience with forensic evidence, such as DNA testing, may be more skillful at eliciting more compelling testimony from expert witnesses, and they may also do a better job of cross-examining defense experts on the same subject matter. Other prosecutors may have considerable experience and facility with child eyewitnesses. Each case poses certain types of problems for prosecutors, and thus, it is prudent for prosecutors to make strategic case assignments on the basis of which assistant district attorneys can do the best job of prosecuting under the circumstances. Interviewing Witnesses Prosecutors and their assistants must interview persons who have knowledge about the crime. Often, witnesses for both the prosecution and defense are deposed. A deposition is a sworn written record of oral testimony. Persons who are deposed are deponents. The purpose of a deposition is to have a writ-

13 Chapter 3 The Prosecution 77 ten record of what one s testimony is as well as an indication of its relevance to the case. When witnesses testify in court later, their depositions can be used to refresh their recollections. Sometimes depositions can be used to impeach witnesses if they are lying or say things that are inconsistent with their earlier depositions (Carey 2001). Information provided prosecutors by witnesses can be interpreted various ways. Witness interviews can help prosecutors to formulate their strategy for prosecuting a case. The state may use expert witnesses to verify whether a defendant is sane or insane, competent or incompetent. If certain defendants are sufficiently incompetent to stand trial, then prosecutors can use this information to seek their commitment indefinitely in a mental hospital (Bullock 2002). Prosecutors can determine in which order they will present their witnesses against the accused later in court. Thus, they can use witnesses to build their case against defendants. In complex serious criminal cases, there will probably be numerous witnesses called by both sides. It is important, therefore, that some effort should be made to organize the witnesses into an orderly presentation that will create the most convincing case against the accused. Observations of actual criminal trials reveal such orderly presentations of witnesses for both sides. Working Closely with Law Enforcement Officers It is important for prosecutors to develop a working rapport with law enforcement officers. Law enforcement officers have direct crime scene experience and can testify about their conversations with the defendant. If a confession has been obtained, or if the defendant has provided police officers with incriminating information, this information can be developed in court to the defendant s disadvantage. Law enforcement officers are subject to cross-examination by defense counsel. Experienced defense attorneys can seriously impair the state s case against a defendant by evoking responses from officers that show their ineptness. Prosecutors and their assistants can assist officers in learning how to give testimony that will minimize any weaknesses in the state s case. Police officers also testify about the evidence they collected at the crime scene that incriminates the defendant. Their testimony is quite important in this respect, and it is vital that prosecutors have the trust of these officers when they are questioned under direct examination in court (Leo 1994). In federal district courts, AUSAs work closely with FBI agents and other federal authorities in presenting evidence against those charged with federal crimes. FBI agents learn to permit AUSAs the latitude of presenting the case against the defendant in a particular way. FBI agents also learn to give testimony in certain ways that will heighten the inculpatory or incriminating effect of it. In a criminal case in the U.S. district court in Knoxville, Tennessee, an FBI agent advised the AUSA that

14 78 Chapter 3 The Prosecution he would not get on the stand and lie. The AUSA advised him that he [the prosecutor] didn t want the agent to lie; rather, the prosecutor wanted the FBI agent to tell the story our way. This implies that there was more than one way to relate the testimony, and that the prosecutor wanted the FBI agent to put a spin on the story, which would place the defendant in the most incriminating light. It would be up to the defense counsel, therefore, to attempt to get the FBI agent to admit that other less-sinister interpretations of his testimony might be made by the jury. Changing the Venue for Trials The venue is the jurisdiction where the case originates. If a crime is committed in Los Angeles, California, the venue is Los Angeles. Los Angeles judges will likely hear the case. The jury will be selected from Los Angeles County. If the case is an especially high-profile one, either the defense or the prosecution may attempt to change the venue where the case is heard. This is because of the substantial publicity given the case and the possibility that an impartial jury cannot be impaneled to hear it. Jurors in any criminal case are expected to hear all evidence impartially and to render an objective decision as to the guilt or innocence of a defendant. If pretrial publicity is adverse to defendants, defense counsels may make a motion to change the venue for hearing the case to another county. Prosecutors may oppose such motions. But changes of venue, which are rarely granted, may also be initiated by prosecutors. If the crime occurs in a locality where the defendant is well known and liked by the community, it may be difficult to find an impartial jury that would convict the defendant, despite the compelling evidence favoring a conviction. In these cases, prosecutors may attempt to change the venue to a jurisdiction where the defendant is less well known. Thus, both prosecutors and defense counsels have a stake in determining the best location for where the ensuing trial will be held. Many circumstances, including pretrial publicity and media coverage, influence such decision making and which side will request a change in venue (Posey and Dahl 2002). Neither prosecutors nor defense counsels can mandate changes of venue for their cases, but they can make motions for such changes. They must present compelling arguments to judges for venue changes. Unless there are overwhelming circumstances suggesting that defendants would not receive a fair trial in the original venue, motions for changing the venue of the trial are typically not granted. Obtaining Indictments or Filing Criminal Informations In about half of all states, grand juries are convened to hear evidence against particular defendants. This evidence is presented by prosecutors in most circumstances, and based on the evidence presented, grand juries issue true bills

15 Chapter 3 The Prosecution 79 or indictments. These true bills or indictments are merely declarations by grand juries that sufficient probable cause exists to believe that one or more crimes were committed and that the defendant may have committed the crime(s). Grand juries do not decide one s guilt or innocence, therefore. Prosecutors work to persuade grand juries to indict defendants so that their cases may proceed to trial (Schmid 2002). For less-serious offenses, such as misdemeanors, prosecutors may act on their own and file charges against criminal defendants by filing criminal informations or simply informations. Informations are similar to indictments, except that prosecutors initiate them on their own. Prosecutors believe that probable cause exists that a crime was committed and that a particular defendant committed the crime. Therefore, prosecutors can file an information against any criminal suspect. The result is the same as an indictment. The defendant will face a criminal trial where their guilt can be decided by the judge or jury. Prosecutorial Misconduct Whether prosecutors in various jurisdictions are elected or appointed, there are many pressures on them from different sources. First, there is the immediate pressure to win cases and obtain convictions against defendants. Second, there is pressure to make a weak case look like a strong case. This means that the evidence may have to be manipulated or collected in ways that are inconsistent with proper police procedure (White 2002). Just like there are varying degrees of attorney competence, there are also varying degrees of prosecutorial misconduct (Schoenfeld 2005). Not all forms of misconduct have the same weight or importance. Some misconduct may be trivial, although the cumulative effect of minor or trivial misconduct may arouse juror suspicions to the degree that a guilty verdict is subsequently rendered. Prosecutors may encourage experts to exaggerate their claims or evidence to enhance their case against a defendant; prosecutors may overwhelm grand juries with purely inculpatory evidence and deliberately exclude any exculpatory evidence; prosecutors may bluff with defendants and threaten or intimidate them; prosecutors may suppress certain types of exculpatory evidence from the defense; prosecutors may exclude prospective jurors who have views favorable to defendants; prosecutors may offer inadmissible evidence in court; and prosecutors may engage in malicious prosecutions. While it is presently unknown precisely how much prosecutorial misconduct occurs nationally, it has been reported by the Center for Public Integrity that since 1970, 20 percent of 11,452 appellate-reviewed cases where the defendants claimed prosecutorial misconduct were dismissed, reversed, or reduced from the original sentence partly or wholly because of prosecutorial misconduct (Weinberg, Gordon, and Williams 2005).

16 80 Chapter 3 The Prosecution BOX 3.1 CASES OF PROSECUTORIAL MISCONDUCT Chapman v. California, 386 U.S. 18 (1967) Chapman and a confederate, Teale, were charged with robbing, kidnapping, and murdering a bartender. During the trial, Chapman did not testify. At that time, California had a statute permitting the judge and prosecutor to comment on the fact that the defendant did not testify in his or her own defense and that inferences about guilt could be drawn from that failure to testify. The trial judge told the jury that they could draw adverse inferences from the defendant s failure to testify, and Chapman was convicted. Before she appealed, the U.S. Supreme Court decided another case, Griffin v. California (1965), which held that commentary by a judge or prosecutor about a defendant s refusal to testify in a criminal case must not infringe on his or her right not to be compelled to be a witness against him- or herself guaranteed by the Fifth Amendment. The California Supreme Court, therefore, admitted that Chapman had been denied a federal constitutional right because of the judge s instructions to the jury about that silence, but it held that the error was harmless. Chapman appealed. The U.S. Supreme Court reversed Chapman s conviction, holding that the error was not harmless when the state prosecutor s argument and the trial judge s jury instructions continuously and repeatedly impressed the jury that the refusal of the defendant to testify required inferences to be drawn in the state s favor. Chapman was granted a new trial, in which judicial and prosecutorial commentary on her refusal to testify in her own case were prohibited. Fletcher v. Weir, 455 U.S. 603 (1982) Weir was in a fight with Buchanan outside a nightclub and stabbed Buchanan, who died. Weir fled the scene. Later, when apprehended by the police, he said nothing about the incident. However, during the trial, he took the stand in his own defense and for the first time alleged self-defense as the reason for stabbing Buchanan. The prosecutor sought to discredit him by referring to his prearrest silence. When Weir was convicted, he appealed, alleging a violation of his Fifth Amendment rights against selfincrimination by the prosecutor s effort to impeach his testimony in court. The Supreme Court ruled that for impeachment purposes, it is proper for prosecutors to make such comments about the defendant s prearrest silence, particularly if the defendant raises self-defense as his defense. Thus, Weir s right against self-incrimination had not been jeopardized by the prosecutor who cross-examined him regarding his prearrest silence. Caldwell v. Mississippi, 472 U.S. 320 (1985) Caldwell had shot and killed the owner of a small grocery store while robbing it. After he was apprehended and tried, the defense and prosecu-

17 Chapter 3 The Prosecution 81 tion gave their summations. The prosecution told the jury not to view itself as finally determining whether Caldwell would die, because a death sentence would be reviewed for correctness by the Mississippi Supreme Court. Caldwell was convicted and sentenced to death. He appealed, arguing that the prosecutor s remarks during summation had been improper and had misled the jury into believing that they would not be responsible for the death of Caldwell. The U.S. Supreme Court reversed his conviction, holding that the prosecutor s remarks had been improper because they were inaccurate and misleading in a manner that diminished the jury s sense of responsibility. Thus, the U.S. Supreme Court concluded, these prosecutorial remarks and the jury s subsequent recommendation for the death penalty had violated Caldwell s Eighth Amendment right to due process. Darden v. Wainwright, 477 U.S. 168 (1986) Darden was a convicted murderer under sentence of death. He filed a habeas corpus petition challenging the exclusion of a juror from his earlier trial, allegedly improper remarks made by the prosecutor during his summation to the jury, and ineffective assistance of counsel. One prospective juror had been excused by the judge when the juror declared a moral and religious opposition to the death penalty, which was one option in Darden s case. The prosecutor had referred to him as an animal. Darden thought the one-half hour preparation by his attorney between the trial s guilt phase and the penalty phase insufficient to prepare an adequate mitigation statement. The U.S. Supreme Court rejected all of Darden s arguments. It held that jurors may be excused from death-penalty cases if their religious views or moral feelings would render them unable to vote for such a penalty. Further, the emotional rhetoric from the prosecutor was insufficient to deprive Darden of a fair trial. Finally, evidence showed that the defense counsel had spent considerable preparatory time for both the trial and mitigation statement during the penalty phase. Brecht v. Abrahamson, 507 U.S. 619 (1993) At a murder trial in a Wisconsin court, Brecht admitted shooting the victim but claimed it was accidental. State prosecutors in their jury arguments cited Brecht s pre-miranda statements that he failed to tell anyone of the accidental nature of the shooting. More important, a prosecutor commented on his silence following the Miranda warning. The jury convicted Brecht and he appealed, arguing that the errors committed by the prosecutor were prejudicial. The U.S. Supreme Court upheld Brecht s conviction, holding that the prosecution statements did not have a substantial or injurious effect or influence in determining the jury s verdict. (continued)

18 82 Chapter 3 The Prosecution BOX 3.1 (continued) Buckley v. Fitzsimmons, 509 U.S. 259 (1993) Buckley was charged with murder. Prosecutors made various statements surrounding the indictment of Buckley for the murder, including several untrue statements. Subsequently, the charges against Buckley were dropped, and he sued the prosecutors under Title 42 U.S.C. Section 1983, alleging that his civil rights had been violated by this prosecutorial misconduct. The prosecutors sought absolute immunity from this suit and the U.S. Supreme Court heard the case. The U.S. Supreme Court upheld Buckley s right to sue the prosecutor, who only enjoyed qualified immunity from such suits. Prosecutors are liable for statements they make publicly if such statements are false and they result in harm to defendants who are innocent of criminal wrongdoing. Old Chief v. United States, 519 U.S. 172 (1997) Old Chief was convicted in federal court of being a felon in possession of a firearm, and he appealed. His appeal alleged that he had offered to stipulate to the federal court that he had previously been convicted of a crime punishable by a term exceeding one year, but that the court disallowed this stipulation. Rather, the prosecution admitted into evidence the specific prior conviction by name, which was assault causing serious bodily injury. Old Chief believed that the actual name of his crime would prejudice the jury in his case. The trial court and appellate court rejected his appeal, and the U.S. Supreme Court heard his case. The U.S. Supreme Court reversed Old Chief s conviction, holding that it is an abuse of judicial discretion when the court spurns a defendant s offer to admit evidence of the prior conviction element of an offense and instead admits the full record of prior judgment of conviction when the name and nature of the prior offense raise the risk of a verdict, and that the evidence of the name and nature of the defendant s conviction was not admissible to show the prior felony conviction element of the offense of possession of a firearm by a felon. Portuondo v. Agard, 529 U.S. 61 (2000) Agard was convicted of anal sodomy and several weapons charges in a New York state court. During the summation, the prosecutor commented about Agard s opportunity to sit in the courtroom and listen to witnesses, and then to easily fabricate stories to fit his own version of events when he testified in his own behalf. Agard filed a writ of habeas corpus with the federal district court, contending that the prosecutor s comments were unconstitutional and in violation of his Fifth and Sixth Amendment rights to be present at trial and confront his accusers, and his Fourteenth Amendment right to due process. The federal district court denied Agard s motion, but the Second Circuit Court reversed his conviction. The

19 Chapter 3 The Prosecution 83 government appealed, and the U.S. Supreme Court heard the case. The Supreme Court reversed the Second Circuit, reinstating Agard s conviction, holding that the prosecutor s comments did not violate Agard s Fifth and Sixth Amendment rights. The Supreme Court noted that the prosecutor s comments were intended to challenge Agard s credibility. The Supreme Court added that no promise of impunity is implicit in a statute requiring a defendant to be present at trial, and there is no authority whatever for the proposition that the impairment of credibility, if any, caused by mandatory presence at trial violates due process. Williams v. Taylor, 529 U.S. 420 (2000) Williams was convicted of two capital murders in Virginia and sentenced to death. During his trial, Williams sought to discover the results of a psychiatric examination of Jeffrey Cruse, his accomplice and the main witness against him. The court refused to permit him access to these psychiatric records, and he was convicted. The Virginia Supreme Court subsequently dismissed Williams s habeas corpus petition requesting an evidentiary hearing on three claims: (1) that Williams and his counsel were denied access to a psychiatric evaluation of Cruse, (2) that a juror was possibly biased, and (3) that the prosecutor knew about the biased juror and the nature of the bias and permitted the juror to be seated anyway. The Virginia Supreme Court dismissed Williams s habeas corpus claims. Williams appealed to the U.S. Supreme Court, where the case was heard. The U.S. Supreme Court upheld the lower court denial of access to Cruse s psychiatric reports, because Williams had failed to develop a factual basis for the claim that the prosecutor s nondisclosure of the report violated the Brady discovery rule. However, the U.S. Supreme Court overruled the lower courts and held that Williams had been wrongfully denied an evidentiary hearing on the biased juror and the prosecutor s misconduct resulting from a knowledge of the biased juror. The juror issue was that the seating of one juror, Ms. Stinnett, was unfair because during voir dire, Stinnett denied knowing Deputy Sheriff Meinhard, who had investigated the crime, interrogated Cruse, and later became the prosecution s first witness. Stinnett had a previous 17-year marriage to Sheriff Meinhard and four children with him. Further, Stinnett denied knowing the prosecutor, Woodson, when in fact Stinnett had retained Woodson as her attorney to represent her in her divorce from Meinhard. Later, Woodson admitted that he knew that Stinnett and Meinhard had been married and divorced, but stated that he did not consider divorced people to be related and that he had no recollection of having been hired by Stinnett as her private attorney in the divorce action. Stinnett s reticence to admit that she knew either Meinhard or Woodson, and Woodson s failure to divulge this same information, disclose the need for an evidentiary hearing, according to the U.S. Supreme Court. (continued)

20 84 Chapter 3 The Prosecution BOX 3.1 (continued) Banks v. Dretke, U.S., 124 S.Ct (2004) Delma Banks was convicted of capital murder in the death of 16-year-old Richard Whitehead, which occurred in mid-april Banks was originally implicated in the murder by two associates, Jefferson and Farr, who were working with the county sheriff, Willie Huff, as informants. Unknown to Banks before and during the trial was the allegation that Jefferson and Farr were testifying against Banks in order to avoid drug charges, which were threatened by the sheriff and prosecutor. At the same time, a confidential informant, Cook, also furnished the prosecution with incriminating circumstantial evidence against Banks. This information was also withheld from Banks pursuant to a motion for discovery. Although Banks had no prior criminal record, testimony from Farr and Jefferson provided the jury with innuendo that Banks had an unsavory and criminal past, which was untrue. Banks s efforts to impeach Farr and Jefferson were undermined because of his own witnesses, who were themselves impeached on crossexamination. Banks was sentenced to death and sought postconviction relief, alleging that the prosecution failed to disclose exculpatory evidence as required by Brady v. Maryland (1963), including the threats made to Farr and Jefferson as well as the confidential informant, Cook. In its answer, the state claimed that nothing had been kept secret from Banks and no deals had been made with government witnesses, including Cook. In 1993 Banks s postconviction claims were denied outright by an appellate court. Following this loss, Banks filed for habeas corpus relief in a U.S. district court, which granted relief on Banks s death sentence. In 1999 Banks filed discovery and evidentiary hearing motions, both supported by affidavits sworn to by Farr and Jefferson that the prosecution had wrongly withheld crucial exculpatory and impeaching evidence. The federal court determined that the state, indeed, had failed to disclose Farr s informant status during the original discovery phase of Banks s trial. Therefore, a writ of habeas corpus was granted Banks with respect to his death sentence, but not to his conviction. Banks petitioned the U.S. Supreme Court, who heard the case. The U.S. Supreme Court reiterated that under Brady, a prosecutorial misconduct claim must establish three things: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the state, either willfully or inadvertently; and (3) prejudice must have ensued. In its response, the state contended that it can lie and conceal and the prisoner still has the burden to discover the evidence. The U.S. Supreme Court ruled this assertion to be untenable and a violation of Banks s due process rights. Banks presented sufficient evidence to support his Brady claim and was thus entitled to a full evidentiary hearing and a certification of appealability.

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