Prosecutorial misconduct
Prosecutorial misconduct refers to a procedural defense usually available to the defendant in criminal matters whereby the defendant advances an argument that the court should not hold them criminally liable for actions which may be criminal for the reason that the prosecution acted unfairly. The defense arises in various instances such as where the prosecution knowingly sanctioned false testimony and where the prosecution withheld evidence. It is therefore a violation of laws or ethical rules by the prosecutors (Texas District and County Attorneys Association (TDCAA), 2012).
A real-life example of prosecutorial misconduct was apparent in the case of U.S. v. Koubriti 307 F. Supp. 2d 891 (E.D. Mich. 2004). In this case, Koubriti and two others had been convicted in the first terrorism case after the September 11, 2001 attacks on the Pentagon and the World Trade Center. Consequently, Koubriti and the two fellow convicts filed motions for new trial and acquittal. The Justice Department decided to replace the chief prosecutor who had initially prosecuted the case. The new prosecutor found information on the file that the previous prosecution team led by Richard Convertino failed to disclose to the defendants or to the court prior and during the course of the trial. In the year 2004, the Justice Department requested the District Court in Michigan to discharge the terrorism charges that led to the conviction of Koubriti and two others. The court obliged and observed that on critical issues and at crucial stages the prosecution had failed to hand over to the defense evidence that pointed to the innocence of the defendants. As such, the prosecution had deceived the jury, the defense and the court as to the character of crucial evidence.
The chief prosecutor in the case was later charged in 2006 for permitting witnesses to lie and for concealing crucial evidence. However, the jury acquitted Convertino. Koubriti also tried to charge Convertino for prosecutorial misconduct but in 2010 the United States Court of Appeals ruled that Convertino was protected by the absolute immunity for prosecutors. Consequently, the Supreme Court declined an opportunity to consider the case.
Prosecutor’s immunity is based on the U.S. Supreme Court ruling in 1976 in the case of Imbler v. Pachtman that prosecutors enjoy absolute immunity from civil litigations for the work they do in courtrooms notwithstanding the seriousness or palpability of the abuses. This decision was premised on the fact that prosecutors could not carry out their work effectively for fear of lawsuits each time they fail to succeed in a trial and that in the absence of the immunity prosecutors would be unwilling to take over difficult cases. Absolute immunity therefore protects prosecutors from harassing litigations that would otherwise divert their focus.
Ineffective assistance by criminal defense counsel
This refers to a scenario whereby a convicted criminal defendant claims that the performance of their attorney was so abysmal that it amounted to depriving the defendant the Sixth Amendment right as provided by the constitution. The Sixth Amendment offers an accused person the right to legal representation in criminal cases. Having representation refers to having a competent attorney to represent them before during and after the trial. A convicted defendant may rely on ineffectual assistance of counsel to seek redress by stating that the performance of the counsel was so appalling that it weakened the working of the adversary process hence the trial cannot be trusted as having fashioned a fair result. The defendant must however show that the attorney made serious procedural or substantive mistakes hence prejudiced defendant’s case and that the court was unlikely to reach the same determination had the attorney not made those mistakes.
A case in point is the Missouri v. Frye case. In this case, the court considered the case of a person whose attorney failed to disclose to him the presence of a pending plea offer. The attorney only informed his client after the expiry of the offer. The court held that the conduct of the attorney fell lower than the constitutional minimum. However, the court remanded the defendant pending a determination of whether the incompetence of his attorney had prejudiced his case. The scope of ineffective representation usually extends to incompetence in the preparation of legal documents and dealings with the defense witnesses.
The standard regarding to ineffective assistance was set in the case of Strickland v. Washington (1984). In the Strickland case the standard was set thus, failure to notify a defendant of the direct results of a sentence constitutes ineffective assistance but failure to notify the defendant of the collateral consequences of criminal charges does not qualify as ineffective assistance of counsel. The case established the ‘but-for’ test where the defendant states that the ineffective advice by the counsel led to their rejection of a plea proposal and eventually stand trial.
The Strickland test was applied in the Frye case since the non-disclosure by the attorney of the existence of a plea offer until the expiry of the offer denied the defendant an opportunity to consider the option of accepting the offer. Concealment of information regarding the defense case was interpreted to mean ineffective counsel. The court opined that a defendant can be successful on such claim if a court determines that but-for the ineffective assistance of a counsel there exists reasonable chance that the plea agreement would have been presented to court and accepted.
Judicial misconduct
Judicial misconduct refers to the acts of a judicial officer which may be considered to be in violation of the impartial conduct or outright unethical. Judicial misconduct is pegged on the violations of The Code of Conduct formulate in 1972 by the American Bar Association and subsequently adopted by the state and federal governments. Among the most common complaints of misconduct include the allegations that a judge was biased in the ruling against a complainant, allegations that a judge’s ruling is factually and legally wrong hence decision was inspired by other motives while ruling against the complainant, failure by a judge to follow the due process, using office to obtain favorable or special treatment for relatives and friends, errant behavior and occasioning unreasonable delay. Consequently, judges can face accusations of judicial misconduct where they act in a manner to suggest that they disbelieve the accused’s case in judicial proceedings or that the prosecution should prevail at all cost.
An example of judicial misconduct is exemplified by the complaint brought against Judge Edith Jones. Edith Jones, a Judge of the Court of Appeals for the Fifth Circuit made comments that were considered extremely disrespectful of a colleague judge during a lecture at University of Pennsylvania School of Law sometime in February 2013. She also expressed contempt for some Supreme Court rulings especially the ruling on the death penalty for mentally retarded persons and juveniles in the Atkins v. Virginia 536 U.S. 304 (2002) case. She further made disparaging remarks on foreign nationals, presumption of innocence, and mental retardation in addition to racially insensitive comments to the shock and disbelief of the audience (Garris, 2013). Her remarks were in outright violation of Canon 1 of the Code of Conduct for the Judges.
Merit selection of judges would be an ideal approach to deal with judicial misconduct. This is because the merit selection unlike the election method is based on reviewing the prior performances and conduct of the proposed judges. It is only through merit selection that a vigorous vetting exercise with regard to previous conduct of individuals can be achieved. Vetting exercises are important because they involve all persons from lawyers to lay persons. States must ensure quality evaluation of professional qualifications and other competencies in order to realize a competent impartial judicial system on the basis of qualifications and experience (Bonneau, 2009). It is only through the merit selection that judicial misconduct based on partisan, political, and special interests can be eradicated.
The future of accused persons and public safety is hinge on the entire criminal justice process. For a trial process to be considered fair there must be a concerted effort by the judges, prosecutors and defense counsels. For instance, prosecutors, judges, and defense attorneys share a collective task of processing cases and at the same time play different roles in the outcome of the cases. Each participant must competently perform their duties with due regard to the laid down laws and procedures. Failure by either of these participants to exercise their respective duties with competence erodes public confidence and often leads to disrespect of the legal processes.
In cases where judges misconduct themselves, they lose the moral authority to judge other people while they (judges) are facing allegations of misconduct. When prosecutors fail to carry out thorough investigations, offenders go scot-free and continue to commit crimes. When the defense counsels fail to uphold competence in their duty to represent the interests of the defendants, it is the later that are faced with wrongful convictions. Even where the misconduct is detected, the participants get very lenient punishment as compared to the affected persons. The presence of either or all these shenanigans within the criminal justice system frustrates the crime control model of criminal justice.
Fighting criminality is a major challenge within the society. The government spends billions of dollars in the due process model of criminal justice which involves apprehending, convicting, and punishing criminal elements within the society. The failure of those tasked with these processes to effectively do their work means that the whole process flawed and the result is that every person whether in the public or private sector is negatively affected directly or indirectly (Myers 1996). When there is a perceived incompetence in the three processes of criminal justice system, it is only safe to conclude that the due process model of criminal justice system is broken; people are then dissatisfied with the fairness in the judicial process and feel unsafe.
References
Bonneau, Chris W., Melinda Gann Hall. 2009. In Defense of Judicial Elections. New York:
Routledge.
Edward Garris, Federal Judge Edith Jones: African Americans and Hispanics Prone to Acts of
Violence, Burnt Orange Report, Jun 05, 2013, available at http://www.burntorangereport.com/diary/13612/federal-judge-african-americans-and-hispanics-prone-to-acts-of-violence
Myers, Laura. (1996). Bringing the Offender to Heel: Views of the Criminal Courts. Pp. 46–61
in Americans View Crime and Justice: A National Public Opinion Survey, edited by Timothy Flanagan and Dennis Longmire. Thousand Oaks, CA: Sage Publications.
Texas District and County Attorneys Association (TDCAA). (2012). Setting the Record Straight
on Prosecutorial Misconduct: A report Issued by the Texas District and County Attorneys Association (TDCAA). Austin, TX: Author.
