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Prosecutorial Misconduct

Prosecutorial misconduct is a term broadly used to describe the actions taken by and behaviour of a prosecutor, whether at State (i.e. District Attorney, Attorney General) or Federal level that violates a defendant's constitutional rights, breaks the law, or violates the Code of Professional Conduct.


Prosecutorial misconduct happens when a “prosecuting attorney oversteps the bounds of that propriety and fairness, which should characterise the conduct of such an officer in the prosecution of a criminal offence” as quoted in Berger vs United States 295 U.S. 78.84 (1935) and as quoted in Brady vs Maryland 373 U.S. 83 (1963) where prosecutors suppressed evidence that might have led to a not guilty verdict.


For years after the ruling in the Brady case prosecutors and judges alike felt that there should be a way to counter this broad decision, too open to negative interpretation. Finally, in 1996 the backlash went all the way up to the office of the then President, Bill Clinton, who signed into law restrictions so severe that the ability to file petitions for an appeal by prisoners and to claim violations of rights while in prison made it almost impossible to claim a wrongful conviction or unlawful imprisonment.



By so drastically limiting a prisoners opportunity to submit and argue evidence of misconduct by a prosecutor the likelihood of reversal of a wrongful conviction is close to non-existent. On the rare occasion, it does happen, the immunity clause established by and for the protection of these same prosecutors, who were proven to have violated a prisoner's constitutional rights provide there is no recourse for civil or criminal action through a lawsuit by the victim of that wrongful conviction.

Compounding the burden placed on the victim of a wrongful conviction, the court’s dismissively termed “harmless error” analysis and “finality rule” all but seal their fate on appeal. Harmless error means simply that one or even a multitude of errors is admitted by the court to have taken place during the trial yet deemed “harmless” and therefore ignored by the judge. Harmless in this context in the sense that the admitted errors will not have changed the outcome of the verdict. Examples of “harmless error” as stated by the courts include an attorney deciding not to present alibi evidence; attorneys sleeping, or even consuming drugs and alcohol during the trial while in the courtroom; an attorney not bothering to communicate with their client and never investigating the contaminated crime scene or even questioning so-called expert testimony or false evidence knowingly put forth by the prosecutor.


The “finality rule” is a way for the courts to deny evidence of innocence for the purpose of maintaining the appearance of integrity in the public eye. To uphold conviction is more important for the security and safety of the established order and authority and the perceived view that society has been given of the so-called justice system. “Finality as a condition of review is a historic characteristic of federal appellate procedure.”- Cobbledick vs United States, 309 U.S. 323, 324 (1940). Thus, the jurisdictional statute limits the jurisdiction of the Courts of Appeal to appeals from final decisions of the District Court. The court also held that this policy is at its strongest in the field of criminal law because reasons for the final judgement rule are “especially compelling in the administration of criminal justice” or, as in Barca versus Wingo, 407 U.S. 514, 519 (1972) “There is a societal interest in providing a speedy trial which exists separate from and at times in opposition to the interests of the accused.”


A quick trial full of harmless errors that are ignored by the courts and an overlong appeal, designed in part to cause the attention of the public to wane, and so any political scrutiny, is a perfect scenario in which to hide and dismiss prosecutorial misconduct. “What harmless error cases do is they become incubators for misconduct. As long as there's a strong likelihood that what you do is going to be considered harmless error, there's absolutely no consequence at all.”- Maurice Possley. According to that Berger vs United States courts case ruling, a duty to justice is to transcend the prosecutor's desire to convict. “The United States Attorney as a representative not of an ordinary party to a controversy, but of a sovereignty whose delegation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution, is not that it shall win a case, but that justice will be done. As such he is in a peculiar and very definite sense, the servant of the Law. The twofold aim of which is that guilt shall not escape or innocence suffer.”


Because of the unique position the prosecutor has as a representative of the state, they also have an additional set of ethical duties outside of the already established American Bar Association Model Rules for Professional Conduct and those of the particular State’s Bar Association. But even with cited cases like Berger vs United States, Brady vs Maryland and the United States vs Banks, 383 F. Suppl. 389 (D.S.D 1974), “A prosecutor must make reasonable efforts to verify the accuracy of testimony if it later becomes apparent that the testimony is false in part”, continued violations by prosecutors are so pervasive that courts found it necessary to implement measures that in theory would rectify them. Even North Carolina, not usually known for reform, passed laws criminalising forms of misconduct by prosecutors. Even so, charging a prosecutor with misconduct is close to unheard of and yet these same prosecutors have immunity from lawsuits for their actions that are a continued part of the judicial process.


Accountability...? Look at the statistics. With no oversight outside of their peers and no independent review, low to any moral standards and only those same “peers” to remind one another of discretional ethics, the self-regulated responsibility of these “agents of justice” to uphold their oath just isn't in their best interests. Prosecutors are more than willing to forsake truth and justice to win a conviction, ignore and even suppress or destroy evidence cited by a court that their own powers or officer misconduct led to a wrongful conviction with no accountability, this most powerful public servant has been placed in a position of authority not only to ruin lives, but also to end them by seeking the death penalty.


Former prosecutor Jim Petro even went so far as to admit “…government misconduct is more prevalent than assumed … instances of corruption; unlawful tactics; misplaced motivations; arrogance and abuses of power by district attorneys … law enforcement and judicial process can be inconsistent with fairness, decency and due process.” (Jim Petro, False Justice: Eight Myths That Convict The Innocent.)


A small but ever increasing number of stories of exonerees detail the systematic abuse of authority from prosecutors. Documented evidence of fabricated evidence; State crime lab suppression of and falsified results; torture and other manners of coerced confessions; testimony from witnesses that are obtained in exchange for dismissal of criminal charges against them. Testimony that is false and perjured, and so made improper because they were incentivized to say whatever needed to obtain a conviction of the falsely accused by the exact same prosecutor who only charged them for that very purpose. <NC crime lab scandal>


Under the Brady ruling, prosecutorial misconduct includes actions taken by any in the prosecutor's office, which includes any District Attorney, detective or regular police officer who was directly involved with the case. Therefore, too often it's only some lowly officer far down the chain of command who takes any blame for misconduct, and even the only disciplinary measure taken may be a paid leave of absence, or temporary demotion for the sake of appearance.


Why should any one person or office have this much power and control over the lives of individuals and at the same time have immunity for the misconduct they are known to perpetrate? Apparently they are also immune from the morality they enforce, and the ethical standards they expose.


In my case, as you can view here, the sole “witness” to say she saw me commit the crime which put me on death row, when there is no physical evidence to directly link me to the crime, came back after 20 plus years, not only to admit she had lied again, but also that she had been coerced to do so by the exact same prosecutors as had previously coerced her to make false statements against me a decade prior to this, in a completely unrelated case, having had admitted to being coerced on the stand in front of a jury.


She came back not only to confess having had lied, but to also having had been manipulated and coerced into doing so by being coached into what to testify about and how to do it. Is this behaviour and the actions taken by this prosecutors office to convict me to even be considered by a court or misconduct? The answer is no. No, because during this long, drawn out and continuing process of appeal, the previous judge removed any opportunity (claim) for me to present evidence that directly implicates the prosecutor's office of knowingly using false testimony against me in order to gain a conviction. Why did this happen? Perhaps because that prosecutor, whose office coerced the witness against me, over the course of his time in office certainly had occasion to socialise and interact during campaign runs and political party events.. Maybe it was because the present District Attorney, whose greatest honour it was to be sworn into office by this very same judge, is also a lifelong childhood friend of this same judge. Who is to know what motivates these people to do what they do? Could it possibly be immunity coupled with the highest example of ethical fortitude?


Whatever the actual reasoning behind that judge’s decision to not even allow anyone to question the integrity of that office, we cannot know, but on the one and only day I was able to present in front of the judge concerning these matters, the same sole “witness” was also present in that courtroom. Not then being allowed to testify, but under subpoena to return at a later date that ended up being permanently cancelled by this same judge.


She later revealed that she would have again admitted to not knowing exactly what did happen and to being coerced. She never got that chance, though. That day in the courtroom, she was crying. Crying because it was the first time she had had to see me, her former best friend and professed “love of her life” after 20 years of living with the grief of knowing her coerced lies gave me a death sentence.


Understandably, she also cried over her fear of retaliation from the prosecutor and that the office would recharge her with the murder that she was originally charged with before me. By confessing to having lied, she could at a minimum have faced a perjury charge, but said that that would be OK because at least this time they couldn't threaten to take her child away from her if she didn't testify against me. Still, she was scared, and for good reason, because she knew well the consequences of exposing prosecutorial misconduct.


Sadly, even the attempt to right this wrong led her to kill herself through an overdose of heroin while desperately seeking the assistance of my attorneys to arrange for protection against retaliation from vindictive prosecution (of which my attorneys were unwilling to even try.) She fretted and stressed herself to the point of relapse and she died. She was only 9.2 miles or 18 minutes from one lawyer's office and 26 miles on 30 or 34 minutes from the others.


Misconduct? Ineffective Assistance of Counsel? Look at Rule 8.6 Comment [1] and decide for yourself because almost certainly no court will.

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