Responded to comments

This is a picture of me 100 years ago in North Korea. Yes, NORTH Korea.

So my good friend, and Law Professor in Korea Ben Wagner commented on one of my articles with a very good question.  I figure, let’s discuss it as a main post, rather than bury it in the back of a comment thread.  His original comment is at the bottom of this post, but it can be summed up as (with heavy editing for simplicity):

My understanding is that the prosecutors would have to disclose this stuff motivated by their duty as “officers of the court” … which leads me to wonder how often do such disclosures occur?

And as Ben knows, the perfect law school answer is “It depends”.

Each Prosecutor interprets their duty individually.  Your question is really two-fold, so I’m going to break it in half. 1. How much will Prosecutors disclose information they have. 2. How much will Prosecutors search out relevant information that disproves their case.  Let me take each question in turn.

The answer to #1 is:  Not as often as you think.  My experience is that Prosecutors turn over most of what they know is in their possession.   I can tell you specific stories of a Prosecutor who refused to tell me a certain witness had died (in order to strongarm a plea) who dismissed the case only after I demanded trial (He’s now a defense attorney).  As a matter of course, Prosecutors will insulate themselves from witnesses (using Victim Witness Advocates) so as to protect themselves from having to turn over “new statements” they may make.

About a year ago now, Prosecutors in Honolulu were refusing to turn over the handbook and the specifications for the “Speed Gun” that Police were using to cite people for speeding and excessive speeding.  This went on for over six months or so.  Cases were getting continued or dismissed because Prosecutors refused to turn over this information.  They had a number of different reasons, but it seems if they’re going to introduce an instrument that proves a fact, the instrument better have some science behind it to prove that fact. And a defense attorney has no way to tell that the instrument is anything more reliable than a “Magic 8-ball” without the documentation.  This is just one example of the Prosecutors not turning over important information. see Sat Freedman’s cross-examination in State v. Assaye.

Currently, good luck getting the mainland criminal record of a Prosecution witness without a court order. It seems a clear violation of BRADY v. MARYLAND, 373 U.S. 83 (1963).  But the Office of the Prosecutor reads it differently and they follow it their own way.  The most recent rumor I have heard is that the deputies of the Office of the Prosecuting Attorney in Honolulu has been ordered not to turn over subsequent witness statements that contradict original witness statements, particularly for Abuse-type cases. The rumor goes that a number of local prosecutors quit, rather than follow this rule which they see as unethical.  Again this is a rumor…

Let’s look at sub-question #2: How often will the prosecutors search out information that contradicts their case.  To this I have say, in my experience, the answer is has been an unequivocal “NEVER” with one minor equivocation that I’ll get to in a minute.

My experience is Prosecutors take the reports from the police, any background they can get easily.  Anything their investigators have picked up while trying to serve witnesses or doublecheck locations, and make a choice, conscious or otherwise.  This choice is to believe everything that supports their case, and discard anything that doesn’t support their case as a lie.  And that’s it. Finished.



His speech on Prosecution should be mandatory reading.

Attorney General Robert H. Jackson got to this question before me in a speech he gave to the Department of Justice in 1940:

One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.

So, as they admittedly can’t investigate even their own cases, they’re not investigating the Defense’s.  It is an interesting debate (and beyond the scope of today’s post) whether the presence of a Defense Attorney provides the Prosecutor with a reason to be a) lazy, b) secretive, or c) overly conviction oriented.  Doesn’t the presence of a Defense Attorney give the Prosecutor the excuse of “well, if it isn’t fair, the attorney will stop it”?  It is the exceptional prosecutor that remembers his duty is to the truth, rather than the complaining witness.  Every time a Prosecutor has called that witness his “client”, or treated the witness as such, lays bare their true thought processes.

Back to the point already!

So here’s the caveat that ties together with the original post.  When do the Prosecutor or his investigator turn over, or find, information that benefits the defense? When it is requested by the Defense Attorney.  That’s how it all comes full circle.  How am I going to get priors in an abuse case? By finding out about them first, and then making a good faith request from the Prosecutor.

When I make certain requests, as defined by the Rules of Evidence and Penal Procedure.  The Prosecutors are required to make a Good Faith Effort to find this information, make a determination if I receive it, and then response to the request, either with the evidence or why I don’t get to receive it.  In Hawaii, this was recently reiterated by HPD v. Town.

Is Strauss-Kahn the best example of this?

Maybe, and here’s why.  There were no Defense Attorneys three weeks ago (or whenever) and the case was filed, pressed, and he was locked up with a bond of 5 million dollars. When he bailed out, he had to remain at home and notify the prosecutors every time he wanted to leave.

What has changed?  Did the Prosecutor’s duties change? Did the fact that she may have lied on Federal Documents change? These are not new facts.  These are facts the Prosecutors had every opportunity to find before the arrest, before the bail requirements that cost Strauss-Kahn $250,000 a month on top of his bond.

What changed is, he started defending his case.  He did not own up to it immediately and ask for leniency.  And now the Prosecutors are realizing what they should have done prior to pressing the charge.  And they still haven’t dropped the charges, they just turned the discovery over.  But it sounds like they’re starting to doubt their own accusations.  And if they have doubt, ethically they should probably drop the case.

Look, do I have any idea what happened in that bedroom, wether it was between two consenting adults, or wether it was a vicious rape by a sadist, drunk with the power of all the money in the world? Absolutely not.  But I don’t think the government even has probable cause anymore. Remember probable cause is:

Information sufficient to warrant a prudent person’s belief that the individual had committed a crime.

And the more information I get, the less likely I think there is probable cause here.  But then, I’ve never been accused of being a prudent person.

Let me leave you with the closing of Jackson’s speech, as true in 1940 as it is today:

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.


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