1. Prosecutorial Misconduct
Prosecutorial misconduct refers to any situation in which the prosecutor in the course of litigating a case breaks a law, violates a code of ethics or misbehaves to such an extent that the fairness of the criminal justice process is unambiguously tilted in her favor. An example of prosecutorial misconduct would be a prosecutor who prior to trial fails to turn over a key piece of evidence that provides an alibi for the defendant, and tells a witness friendly to the defendant that she will tell the federal authorities about his illegal immigration status if he testifies. Moreover, at trial the same prosecutor mentions evidence that the judge ruled could not be mentioned and tells the jury, during closing argument that the defendant is guilty because if he wasn’t he would have testified. Despite the negative effects that prosecutorial misconduct can have on a criminal case, just because it occurs does not mean that the prosecutor will be punished. Indeed, under federal and most state law, prosecutors are given immunity from civil liability lawsuits for misconduct. This protects prosecutors by eliminating the ability of defendants and suspects to effectively respond to the abuse or injury they have suffered at the hands of a deviant prosecutor. In addition, it allows prosecutors to operate without restraint in litigating their cases because, no matter what the result, they understand that they cannot be punished or held accountable for their actions.
2. Ineffective Assistance of Defense Counsel
Ineffective assistance of defense counsel refers to the failure of a defendant’s attorney to uphold his rights guaranteed under the Sixth Amendment. The Sixth Amendment states, in relevant part, “In all criminal proceedings, the accused shall enjoy the right to have the assistance of counsel for his defense.” Courts have interpreted that provision to mean that a defendant not only has a right to an attorney but the attorney must be competent. An example of ineffective assistance would be an attorney who recently passed the bar exam, taking on a case in which he: fails to acquire the necessary knowledge, skills and or supervision to properly represent the defendant; fails to interview key witnesses; fails to properly investigate the prosecution’s evidence; fails to communicate a plea deal to the defendant; and fails to object to an obvious error at trial. Despite the requirements of the Sixth Amendment, however, not every occurrence of sub-standard defense counsel performance will result in a finding of ineffective assistance of counsel. Under Strickland v. Washington, the defendant in the above hypothetical will need to prove that: (1) his defense counsel was deficient as illustrated by the fact that it fell outside a broad-range of actions that would be considered reasonable under prevailing professional standards and (2) but for the defense counsel’s ineffectiveness, the results of the trial or sentencing would have been different.
3. Judicial Misconduct
Judicial misconduct refers to the situation where a judge breaks the law, violates a code of ethics or misbehaves in some manner that eliminates (or appears to eliminate) her impartiality or neutrality in presiding over a case. An example of judicial misconduct would be a judge who frequently speaks with the prosecutor about the case without the defense counsel, is openly in favor to the prosecution’s argument to the extent that she does not afford the defense counsel an equal opportunity in the case, and who presides over a case that involves her husband who she admitted she would never do anything to hurt or harm him in any way. While each form of judicial selection has its advantages and negatives, non-partisan judicial elections seems to be the most suitable for decreasing the instances of judicial misconduct. In an election, judges must regularly put themselves before the public and ask for their support. The public therefore has an opportunity to review not only the judge’s judicial record but also her personal interactions with the community. If there is evidence of misconduct, this will eventual get out and the public can issues its own opinion on the judges at the ballot box. It seems too in the other methods of selection (appointment and merit) for a “backroom bargaining” that may keep a judge in position despite her misconduct.
References
Gray, C. (2004). The Line between Legal Error and Judicial Misconduct: Balancing Judicial Independence and Accountability. Retrieved on December 19, 2014, from http://www.hofstra.edu/PDF/law_lawrev_Gray_vol32no4.pdf
Minsker, N. (2009). Prosecutorial Misconduct in Death Penalty Cases. Retrieved on December 19, 2014, from http://scholarlycommons.law.cwsl.edu/cwlr/vol45/iss2/3
Strickland v. Washington, 466 US 668 (1984). Retrieved on December 19, 2014, from http://www1.law.umkc.edu/suni/wrongful_conviction/Strickland.htm
