Editorial - Prosecutorial Misconduct

I missed this editorial on Saturday from CCJRC member Tom Carberry. I'm glad I caught it today.

The Timothy Masters case illustrates three related, but not exclusive, reasons the United States has the very worst criminal justice system in the civilized world.

First, we have a scourge of prosecutorial misconduct that has permeated our justice system for decades all over the country. Prosecutors commit misconduct because they know they can get away with it, and even if caught the courts probably will do nothing about it.

More than 60 years ago, 2nd U.S. Circuit Court of Appeals Judge Jerome Frank wrote: "This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel's alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, 'Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of "disapproved" remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.'

"Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court - recalling the bitter tear shed by the Walrus as he ate the oysters - breeds a deplorably cynical attitude towards the judiciary."

Nothing has changed.

Second, ineffective assistance of defense counsel happens routinely.

Although we have many excellent criminal defense lawyers, the terrible ones greatly outnumber the good ones. Again, the courts have set the standard for constitutional effective assistance of counsel so low that if a person has a law degree and can fog up a mirror, they have provided effective assistance.

Finally, we have courts filled with judges selected on the basis of who they know, rather on what they know. Our judiciary, both federal and state, and around the country, will do virtually anything to uphold a conviction. Our courts will do almost anything to let evidence in for the prosecution, no matter how spurious, and they will do almost anything to keep exculpatory evidence out. The opinions of the Colorado Supreme Court and Court of Appeals in the Masters case illustrate this point.

Unfortunately, for every Timothy Masters who finally gets justice, we have thousands of other innocent people rotting in prison because of our broken judicial system.

Rocky Mountain News