Prosecutorial Denial….

Orenstein on Prosecutorial Denial in Postconviction Cases of Actual Innocence

Aviva Orenstein (Indiana University Mauer School of Law) has posted Facing the Unfaceable: Dealing with Prosecutorial Denial in Postconviction Cases of Actual Innocence (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:
As this memorial volume illustrates, Fred Zacharias wrote insightfully on many aspects of the legal profession, covering a wide-range of ethical topics and analyzing many aspects of lawyers’ work. He was interested in the lives of lawyers and believed they owed a duty to society beyond an exclusive focus on individual clients’ interests.

This Article develops a question that intrigued Fred: Prosecutors’ duties postconviction to prisoners who might be innocent. Although Fred wrote about a panoply of questions that arise regarding the prosecutor’s duty to “do justice” after conviction, this Article will address one specific area of concern: how and why prosecutors resist allowing DNA testing and, more startlingly, deny the obvious implications of DNA evidence when that evidence exonerates the convicted.

As Fred himself noted, there may be legitimate reasons for prosecutors to deny access to DNA to every prisoner who so requests. Less easy to understand, however, are the confabulations and attenuated scenarios some prosecutors posit to argue that the accused is guilty despite DNA evidence that demonstrates no link to the crime (and sometimes incriminates a known offender).

This article argues that the psychological concept of denial goes a long way in explaining prosecutors’ conduct. Rather than portraying these prosecutors as megalomaniacal abusers of the adversary system who will protect their win-loss ratios at any cost, a theory of denial posits that prosecutors simply cannot face the fact of a wrongful conviction or its implications for the entire system of justice. Ironically, a prosecutor’s desire to do justice and her self-image as a champion of justice renders the fact of wrongful conviction particularly painful. As a result, some prosecutors go to incredible lengths to deny the obvious rather than facing the fact that the system failed and they may have contributed to the injustice.

Part I of this Article briefly summarizes two of Fred’s major articles on the subject of prosecutorial ethics. Part II documents the problem of postconviction DNA exonerations and prosecutors’ varied reactions. These reactions encompass everything from the prompt release of prisoners to the adamant refusal to acknowledge the relevance of the evidence . Part III attempts to add to the current explanations of why some prosecutors refuse to acknowledge errors even after DNA indicates a wrongful conviction. This Part explores, in addition to traditional explanations involving prosecutorial self-interest, incentive structure, and cognitive biases, the role of denial. Part IV examines the bigger picture of denial, looking at how refusal to accept DNA exonerations may mask deeper concerns about the criminal justice system. Finally, Part V draws on these (?) insights about prosecutorial denial to examine structural solutions, including possible changes to ethical codes, to the urgent problems posed by postconviction innocence.
September 30, 2010 | Permalink

Coming up with the Supremes….

Today’s crim law and procedure cert grants

Issue summaries are from ScotusBlog, which also links to cert documents and opinions below for some of the cases (and likely in all of the cases soon):
Kentucky v. King: Under what circumstances can lawful police action impermissibly ”create” exigent circumstances that preclude warrantless entry?
United States v. Tinklenberg: Whether the time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act of 1974, or is instead excluded only if the motion actually causes a postponement, or the expectation of a postponement, of the trial.
Bullcoming v. New Mexico : whether it violates the Constitution’s right to confront witnesses against the accused for a trial judge to admit the testimony of a crime lab supervisor to discuss a forensic test that the supervisor did not personally conduct or observe.
Freeman v. United States.: whether a federal judge has the authority to reduce a federal criminal sentence after the U.S. Sentencing Commission has reduced the sentence range, even if the judge had already accepted a plea deal involving a longer time in prison
Sykes v. United States .: whether it is a “violent felony” justifying a longer sentence under the armed Career Criminal Act for a suspect to use a vehicle to flee from police after being ordered to stop

ET Tu Brute….

“USA Today exposes a “pattern of serious, glaring misconduct” among federal prosecutors”

That’s the post by Doug Berman at Sentencing Law and Policy, which extensively excerpts this article, which Doug accurately characterizes as “potent and disturbing.” From the piece:
Judges have warned for decades that misconduct by prosecutors threatens the Constitution’s promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses. Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation’s most elite and powerful law enforcement officials — themselves violated laws or ethics rules.
September 23, 2010 | Permalink

Improper Admission of Evidence

March 24, 2010 by tcbdefense | Edit
Evidence 1st Dist.
People v. Jackson , No. 1-04-3660 (March 10, 2010) Cook Co. (COLEMAN) Reversed and remanded.
Defendant was denied a fair trial by admission of evidence of other criminal acts. Prosecutor argued in rebuttal that motive for Defendant to murder his disabled mother was to obtain money for drugs, and State introduced evidence of his drug use. Unprosecuted drug use is admissible to show motive only if after establishing that the defendant was addicted and lacked financial resources to sustain habit, and neither was shown in this case. Commentary on drug use was bad-character accusation prohibited by rule against admission of other crimes to show criminal propensity.