Filing # 42966806 E-Filed 06/20/2016 01:31:17 PM Motion for New Trial or Arrest of Judgment IN THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT IN AND FOR DIXIE COUNTY, FLORIDA. STATE OF FLORIDA, | Case No.: 2014-201CF v. TERRY G. TRUSSELL, Defendant. DEFENDANT'S RENEWED MOTION FOR JUDGMENT OF ACQUITTAL, OR ALTERNATIVELY MOTION FOR ARREST OF JUDGMENT OR ALTERNATIVELY MOTION FOR NEW TRIAL and RULE 3.575. MOTION TO INTERVIEW JURORS. Defendant, by and through undersigned counsel, respectfully files the Renewed Motion for Judgment of Acquittal or Alternatively Motion for Arrest of judgment, or Alternatively Motion for New Trial, and Motion to Interview Jurors, as follows: RENEWED MOTION FOR JUDGMENT OF ACQUITTAL OR ALTERNATIVELY MOTION FOR ARREST OF JUDGMENT The Defendant, Terry Trussell, by and through his undersigned aitorney, and pursuant to Rule 3.380 and 3.610, Fla. R. Crim. P., moves this Court to grant this Motion for Judgment of Acquittal or Alternatively Arrest of Judgment on previously stated grounds and new grounds that this Honorable Court vacate, set aside, and dismiss the jury verdict entered June 10, 2016, which found the Defendant guilty of the first 5 counts of the 14 count Information, including two counts of Impersonating a Public Official, Two Counts of Simulated Legal Process, and one count of Retaliation Against a Public Official Jeffrey Siegmeister. Alternatively, the Defendant moves pursuant to 3.610, Fla.R.Crim.P, to grant a Motion in Arrest of Judgment, as follows: Rule 3.380 Fla.R.Crim.P. states: RULE 3.380. MOTION FOR JUDGMENT OF ACQUITTAL (a) Timing. If, at the close of the evidence for the state or at the close of all the evidence in the cause, the court is of the opinion that the evidence is insufficient to warrant a conviction, it may, and on the Electronically Filed Dixie Case # 14000201CFAXM® 06/20/2016 01:31:17 PMPa 25 e2euuNE 38 35 7 Pa 40 a 2 4a “4 45 46 a7 48 49 5 53 55 57 60 6 6 Motion for New Trial or Arrest of Judgment motion of the prosecuting attorney or the defendant shall, enter a judgment of acquittal (b) Waiver. A motion for judgment of acquittal is not waived by subsequent introduction of evidence on behalf of the defendant. The motion must fully set forth the grounds on which it is based. (c) Renewal. If the jury returns a verdict of guilty or is discharged without having retumed a verdict, the defendant's motion may be made or renewed within 10 days after the reception of a verdict and the jury is discharged or such further time as the court may allow. The Defense renews the request for Judgment of Acquittal as set forth in Court and herein below. Defense incorporates each motion herein as to each and every allegation so as not to be repetitive. MOTION FOR ARREST OF JUDGMENT Rule 3.610 Fla.R.Crim.P., states: “RULE 3.610. MOTION FOR ARREST OF JUDGMENT; GROUNDS The court shall grant a motion in arrest of judgment only on 1 or more of the following grounds: (a) The indictment or information on which the defendant was tried is so defective that it will not support a judgment of conviction. (b) The court is without jurisdiction of the cause. (0) The verdict is so uncertain that it does not appear therefrom that the jurors intended to convict the defendant of an offense of which the defendant could be convicted under the indictment or information under which the defendant was tried (d) The defendant was convicted of an offense for which the defendant could not be convicted under the indictment or information under which the defendant was tried. * (a) The indictment or information on which the defendant was tried is so defective that it will not support a judgment of conviction. The grounds for this Motion are that the Information on which the Defendant was tried is so defective that it will not support the judgment of conviction that has been entered in this case. The Information charged the Defendant with 14 separate offenses of it did so merely by stating some of the language of the statute, and by alleging the Defendant was 26 65 6 70 n n "8 % ws 6 7 Ey a a 85 er Motion for New Trial or Arrest of Judgment charged with filing two fraudulent indictments. The Information, thus, failed to include any of the elements of the crimes alleged and wholly failed to charge an offense. Therefore, the Information will not support the Defendant's conviction for the 14 offenses in this case. Further, the State did not prove the Defendant filed two fraudulent indictments but attempted to prove the Defendant illegally reserved the Courtroom for the assembly of people. The Defendant was not convicted of the crimes charged but of the crimes the State argued at trial (b) The court is without jurisdiction of the cause. The Court is without jurisdiction for numerous reasons, one being that the statute violated the constitution as to the First Amendment, and petition Clause. This is being argued in a separate motion for judgment notwithstanding the verdict and incorporated herein Further, the Executive Orders must be set aside as having been untimely renewed and hidden from the Defense, while the State filed a response to the motion to continue while not having jurisdiction. A quo Warranto is also being filed in relation to jurisdictional issues. (c) The verdict is so uncertain that it does not appear therefrom that the jurors intended to convict the defendant of an offense of which the defendant could be convicted under the indictment or information under which the defendant was tried. The Verdict appears to conflict within itself as it finds simulated legal process in numerous counts but not in others. Further, it is unclear if the Defendant was convicted of illegally89 1 2 23 85 7 100 101 102 103 104 105 106 07 108 109 10 ” 12 na 4 8 16 7 18 9 120 Motion for New Trial or Arrest of Judgment reserving a courtroom or for two true bills that were not filed with the specific intent required. (d) The defendant was convicted of an offense for which the defendant could not be convicted under the indictment or information under which the defendant was tried. Itis unclear if the Defendant was convicted of illegally reserving a courtroom or for two true bills that were not filed with the specific intent required. It is inconsistent to fine Defendant guilty on the first five counts and not the last 9. It appears there is a conviction for an uncharged crime here. WHEREFORE, the Defendant prays this Court will issue its Order arresting the Judgment entered in this case. MOTION TO INTERVIEW THE JURORS RULE 3.575. MOTION TO INTERVIEW JUROR “A party who has reason to believe that the verdict may be subject to legal challenge may move the court for an order permitting an interview of a juror or jurors to so determine The motion shall be filed within 10 days after the rendition of the verdict, unless good cause is shown for the failure to make the motion within that time. The motion shall state the name of any juror to be interviewed and the reasons that the party has to believe that the verdict may be subject to challenge. After notice and hearing, the trial judge, upon a finding that the verdict may be subject to challenge, shall enter an order permitting the interview, and setting therein a time and a place for the interview of the juror or jurors, which shall be conducted in the presence of the court and the parties. If no reason is found to believe that the verdict may be subject to challenge, the court shall enter its order denying permission to interview. This rule does not abrogate Rule Regulating The Florida Bar 4- 3.5(d)(4), which allows an attorney to interview a juror to determine whether the verdict may be subject to legal challenge after filing a notice of intention to interview.” The Defense wishes to interview all the jurors to determine the effects of the clerk being in the court, the length of the trial, the prosecutor's statements and mischaracterizations in cross, direct and the closing, the basis for the conviction for impersonation as to whether it was the purported illegal use of the courtroom or not, the effect of the jury12 a3 124 25 126 aw 18 9 130 131 192 133 14 135 136 Ww 18 139 40 ut ua 3 48 us 46 “ar 48 us 150 151 182 153 154 156 Motion for New Trial or Arrest of Judgment instructions as to their decisions, the ‘Mary Cannon situation as far as her close and intimate active involvement in this prosecution, the Lead Juror’s conversation with the School Board Attorney, the responses to the questions asked and the evidence denied by the court, the fact that the State called rebuttal witnesses with an improper curative instruction, the demeanor of the court and the State, the jury flyers, the fact the defense did not open at the beginning, and other issues that are relevant. MOTION FOR A NEW TRIAL The Defendant, Terry Trussell, by and through his undersigned attorney, and pursuant to Rule 3.580, Fla. R. Crim. P., moves this Court to issue its Order granting the Defendant a new trial. The grounds for this Motion are as follows: POST-TRIAL MOTIONS RULE 3.580. COURT MAY GRANT NEW TRIAL “When a verdict has been rendered against the defendant or the defendant has been found guilty by the court, the court on motion of the defendant, or on its own motion, may grant a new trial or arrest judgment.” RULE 3.600. GROUNDS FOR NEW TRIAL “(@) Grounds for Granting. The court shall grant a new trial if any of the following grounds is established. (1) The jurors decided the verdict by lot. (2) The verdict is contrary to law or the weight of the evidence. (3) New and material evidence, which, if introduced at the trial would probably have changed the verdict or finding of the court, and which the defendant could not with reasonable diligence have discovered and produced at the trial, has been discovered. (b) Grounds for Granting if Prejudice Established. The court shall grant a new trial if any of the following grounds is established, providing substantial rights of the defendant were prejudiced thereby.“7 158 159 160 161 162 163 164 165 166 167 168 169 170 m wm 4 18 16 Ww 178 v9 120 181 102 103 a4 05 186 17 188 109 190 102 103 Motion for New Trial or Arrest of Judgment (1) The defendant was not present at any proceeding at which the defendant's presence is required by these rules. (2) The jury received any evidence out of court, other than that resulting from an authorized view of the premises. (3) The jurors, after retiring to deliberate upon the verdict, separated without leave of court. (4) Any juror was guilty of misconduct. (6) The prosecuting attorney was guilty of misconduct. (6) The court erred in the decision of any matter of law arising during the course of the trial (7) The court erroneously instructed the jury on a matter of law or refused to give a proper instruction requested by the defendant. (8) For any other cause not due to the defendant's own fault, the defendant did not receive a fair and impartial trial. (0) Evidence. When a motion for new trial calls for a decision on any question of fact, the court may consider evidence on the motion by affidavit or otherwise. C STANDARD OF REVIEW The trial court determines a motion for new trial using the ‘weight of the evidence” standard. Geibel v. State, 817 So. 2d 1042, 1044 (Fla. 2d DCA 2002) (citing Moore v. State, 800 So. 2d 747 (Fla. 5th DCA 2001). This standard differs from the “sufficiency of the evidence’ test, which looks to “whether the evidence presented is legally adequate to permit a verdict.” Id. “Weight of the evidence’ tests whether a greater amount of credible evidence supports one side of an issue or the other.” Id. In deciding a motion for new trial pursuant to Florida Rule of Criminal Procedure 3.600[a] ‘on the ground that the verdict is contrary to the weight of the evidence, the trial court acts as a “safety valve” by granting a new trial where the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the 6194 195 196 197 108 109 200 201 202 203 208 205 206 207 208 209 210 an a2 a3 a4 25 26 ar Motion for New Trial or Arrest of Judgment jury verdict. Id. (citing Moore, 800 So. 2d at 749). When doing so the trial judge is able "to weigh the evidence and to determine the credibility of witnesses so as to act, in effect, as an additional juror.” Id. (citing Uprevert v. State, 507 So. 2d 162, 163 (Fla. 3d DCA 1987) (quoting Tibbs v. State, 397 So. 2d 1120, 1123, n.9 (Fla. 1981))). The appellate Court reviews the trial court's ruling on the motion for new trial for abuse of discretion. See Stephens v. Slate, 787 So. 2d 747, 754 (Fla. 2001); Ferebee v. State, 967 So. 2d 1071, 1073 (Fla. 2d DCA 2007). This standard requires that “the non-prevailing party must establish that no reasonable person would take the view adopted by the trial court.” Stephens v. State, 787 So. 2d 747, 754 (Fla. 2001). “As a general proposition, an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact.” Tibbs v. Slate, 397 So. 2d 1120, 1123 (Fla. 1981). The question on appeal is ‘whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment,” and “[i]egal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.” Id The standard for reviewing an order granting a motion for new trial which addresses questions of law is de novo. Hartzog v. State, 133 So. 3d 570, 573 (Fla. 1st DCA 2014). ANALYSIS. Florida Rule of Criminal Procedure 3.600(a) provides that a motion for new trial shall be granted if it is established that ‘[tJhe verdict is contrary to law or the weight of the evidence.” The court may sit as a seventh juror to determine if a new trial must be granted. When the ‘judgment has greater impact upon the defendant's due process liberty 7218 219 220 21 22 223 24 25 26 ar 28 29 230 an 232 23 24 235 26 27 238 239 240 22 Motion for New Trial or Arrest of Judgment interest,” is different, and “the established precedent has appropriately given the trial court more power when considering a motion for new trial.” Geibel v. State, 817 So. 2d 1042, nt (Fla. 2d DCA 2002) (citing Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)). Itis true that the trial court may intervene and grant a motion for new trial ‘when the manifest weight of the evidence dictates such action.” Smith, 525 So. 2d at 869, 870. In State v. Coffman, 746 So. 2d 471, 472 (Fla. 2d DCA 1998), the Second District Court of Appeals held that the trial court's denial of a defendant's motions for judgment of acquittal amounted to an explicit finding ‘that the State presented legally sufficient evidence which, if believed by the jury, would support a conviction." Legally sufficient evidence is that which amounts to “proof beyond a reasonable doubt on every element of the offense charged.” Id. at 472- 73 (citing Tibbs, 397 So. 2d 1120). Despite this finding, Fla. R. Crim. P. 3.600(a)(2) specifically authorizes the trial court to set aside the jury verdict using a weight of the evidence standard. Coffman, 746 So. 2d at 473 ERRORS WARRANTING MISTRIAL COURT DENYING MOTION TO CHANGE VENUE and COURT CREATED ‘APPEARANCE OF PARTIALITY BY ALLOWING CLERK TO SIT ON BENCH AFTER TESTIMONY AND TO SWEAR IN WITNESSES, The Court denied the change of venue and held the trial where the Defendant could not have a fair trial and by allowing State Witnesses to operate the courtroom in front of the jury. The objections were overruled and denied over and over again in relation to this improper operation of the courtroom and the lack of ‘appearance of impartiality.”243 28 25 26 aT 28 29 280 251 252 253 24 255 286 27 28 289 20 281 262 283 24 285 286 27 268 289 Motion for New Trial or Arrest of Judgment COURT REFUSING TO RULE ON MOTION IN LIMINE IN RELATION TO THE PROSECUTOR MISLEADING THE JURY WITH THE USE OF THE TERMS ‘FILING’ AND ‘RECORDED The court allowed the State to mislead the jury and put on perjured testimony by allowing the State to repeatedly misuse the term ‘filed’. The Court refused to grant the motion in limine, any objections, and the proper jury instruction definition for the term ‘filed’ or ‘recorded.’ The State full well knew that this prosecution should have been dismissed prior to trial due to the fact that no crime was committed as the two True Bills were not a ‘legal process’ according to the definition in the statute. The Court continued to allow the State to misrepresent this to the jury all through the trial and the closing argument, over objection. By allowing this misrepresentation to the jury, the Defendant was severely prejudiced and did not receive a fair trial. The evidence in this matter clearly shows that the State did not prove beyond a reasonable doubt its case in chief and the evidence does not support a conviction. This also violated 90.104(1)(b). COURT REFUSAL TO RULE ON BRADY VIOLATION MOTION IN RELATION TO TWO TRUE BILLS NOT BEING FILED OR RECORDED AND IMPROPERLY REMOVED OR TAMPERED WITH WHILE NOT DISCLOSING THAT TO DEFENSE AND ATTEMPTING TO MISLEAD JURY THAT THE TWO DOCUMENTS WERE STILL FILED OR RECORDED BY NOT PRESENTING THE TRUE OFFICIAL RECORDS’ COURT DISALLOWING PROPER JURY INSTRUCTIONS AND DEFENSES The Court did not present proper jury instructions to the jury on the 14 counts. The jury instructions were misleading and did not track the language of the statute. The court excluded whatever language out of the statute it chose to prevent the Defendant from being able to present a defense. The Court refused to allow any defenses whatsoever to270 an 22 23 am 25 26 arr 28 20 280 201 202 203 208 205 286 27 208 20 290 1 292 Motion for New Trial or Arrest of Judgment the Defendant and only tracked partial language of section 5 on page 4 of the instructions SO as to minimize the jury's ability to understand that that was a complete defense to the crimes alleged. The court further refused to give any instructions on the first amendment, right to assemble and petition for redress. The court refused to allow the proper definitions of the legal terms filed’ and ‘recorded’ thereby allowing the State to completely misuse the terms to confuse the jury. There was no jury instruction concerning the ability of the jury to determine if a ‘grand jury Forman’ was a public official or not, thereby confusing the jury to believe a grand jury Forman was a public official. There was not one piece of evidence presented by the state to support that an impersonation occurred as to a public official. The court also allowed the State to prosecute the Defendant on an uncharged crime of impersonating a public official to reserve the courtroom when the actual charge was the purported filing of two fraudulent True Bills. The court removed the language from counts 3 and 4 so the Defendant could not properly defend the counts as the language concerning the contents of the document’ was completely removed from the instruction. The court denied the 905 immunity instruction as related to the Defendant's conduct as the Grand Jury Forman, which he was. The court improperly denied the “Good-Faith Defense’ as well as ‘Mistake of law and fact’, as well as definitions and many others as set forth in the motion for jury instructions and its numerous supplements and e-mailed versions. The Defense also contests the issues as to improperly naming the last 10 counts ‘retaliation’. The jury instruction to each count was written as directed verdicts and included language assuming the elements were true without explaining to the jury that the State needed to prove the elements as well as the definition beyond a reasonable doubt. For instance, the way impersonation counts 1 and 2 were written, it basically 102a 208 205 296 ar 298 20 300 301 302 303 304 305 306 307 208 308 310 a 32 313 a4 a5 36 37 a8 39 320 321 32 323 324 25 Motion for New Trial or Arrest of Judgment assumed that a Grand Jury Forman was a public official and that there was no specific intent requirements. It also did not include what the actual impersonation was so the State was able to wiggle out of the actual charged information and present a case of falsely impersonating to reserve @ courtroom, which completely confused the jury as to what the actual charges were. As to counts 3 and 4, the simulated legal process, the court's instruction again were presented like a directed verdict, and excluded the most relevant language concerning the content of the documents being false as well as the specific intent requirement. As to Counts 5 through 14 — the Court mislabeled the title of the counts as retaliation and again did not properly track the language of the statute, nor include clearly the specific intent requirements. Other jury instruction errors to be argued ore tenus. "RULE 3.390. JURY INSTRUCTIONS (a) Subject of Instructions. The presiding judge shall instruct the jury only on the law of the case before or after the argument of counsel and may provide appropriate instructions during the trial. If the instructions are given prior to final argument, the presiding judge shall give the jury final procedural instructions after final arguments are concluded and prior to deliberations. Except February 22, 2016 Florida Rules of Criminal Procedure 193 The Florida Bar in capital cases, the judge shall not instruct the jury on the sentence that may be imposed for the offense for which the accused is on trial. (b) Form of Instructions. The instruction to a jury shall be orally delivered and shall also be in writing. All written instructions shall also be filed in the cause. (c) Written Request. At the close of the evidence, or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of, its proposed action on the request and of the instructions that will be given prior to their argument to the jury. (d) Objections. No party may raise on appeal the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection. Opportunity shall be given to make the objection out of the presence of the jury. (e) Transcript and Review. When an objection is made to the giving of or failure to give an instruction, no exception need be made to the court's ruling thereon in order to have the ruling reviewed, and the grounds of objection and ruling thereon shalll be taken by the 126 327 328 m9 0 331 332 333 aM 335 336 oar 338 339 340 at a2 343 ea M5 36 8 349 380 351 382 353 a4 355 386 387 358 359 360 361 362 Motion for New Trial or Arrest of Judgment court reporter and, if the jury returns a verdict of guilty, transcribed by the court reporter and filed in the cause.” “RULE 3.985. STANDARD JURY INSTRUCTIONS The forms of Florida Standard Jury Instructions in Criminal Cases appearing on the cour’s website at wwwfloridasupremecourt.org/jury _instructions/instructions.shtml may be used by the trial judges of this state in charging the jury in every criminal case to the extent that the forms are applicable, unless the trial judge shall determine that an applicable form of instruction is erroneous or inadequate, in which event the judge shall modify or amend the form or give such other instruction as the trial judge shall determine to be necessary to instruct the jury accurately and sufficiently on the circumstances of the case; and, in such event, the trial judge shall state on the record or in a separate order the respect in which the judge finds the standard form erroneous or inadequate and the legal basis of the judge's finding, Similarly, in all circumstances in which the notes accompanying the Florida Standard Jury Instructions in Criminal Cases contain a recommendation that a certain type of instruction not be given, the trial judge may follow the recommendation unless the judge shall determine that the giving of such an instruction is necessary to instruct the jury accurately and sufficiently, in which event the judge shall give such instruction as the judge shall deem appropriate and necessary; and, in such event, the trial judge shall state on the record or in a separate order the legal basis of the determination that the instruction is necessary.” In this case there were no standard jury instructions nor defenses. The Court committed error in almost every jury instruction and disallowed all defenses. This case must be reversed for this reason alone, albeit there are hundreds of errors all around, including the Defense counsel. The Defense counsel was placed purposefully in the position of ineffective assistance of counsel to prevent the Defense from receiving a fair and impartial trial. The motion for mistrial based on these issues is being reaffirmed herein. DEFENDANT DID NOT AGREE TO JURY PANEL AND COURT WENT FORWARD WITH TRIAL AND SUBSEQUENTLY DID NOT ALLOW MISTRIAL AND FURTHER COURT DISALLOWED JURY QUESTIONING OF TWO JURORS, The Defendant did not waive his objection to the jury selection process and preserved his objection. Further, the State brought it to the court’s attention there were flyers given to all jurors. The Court improperly denied the motion for mistrial by Defense due to the 1228 368 205 366 307 368 369 370 an ar 373 374 375 376 a7 378 a9 380 oa 382 303 ses 385 386 37 308 Motion for New Trial or Arrest of Judgment possible jury influence. The Court refused to allow the Defendant to question the two jury members that there were possible bias issues. The jury Forman was seen speaking to the attomey for the School board in the hallway at the courthouse after the trial began Further, the Court refused to allow the Defense to question the other juror who is the former spouse of State Attorney Employee Mary Cannon The Defendant informed the Court that Mary Cannon's name appeared in the emails produced by Siegmeister as a very active participant in the prosecution of Terry Trussell. This bias cannot possibly be overcome. The e-mails at being filed with this motion. All prior motions for mistrial are being renewed herein. RT FORCING THE DEFENSE TO TRY IT: E DURING THE STATE’S CASE IN CHIEF BY FORCING THE RELEASE OF DEFENSE WITNESSES AT THE COURT'S CHOOSING THEREBY DEPRIVING THE DEFENDANT OF ANY TRIAL STRATEGY AND ORGANIZED PRESENTATION OF WITNESSES From the first witness, the Court improperly forced the Defense to release its properly listed and subpoenaed witnesses; even after the Defense reserved his opening statement; thereby created a disjointed and unorderly presentation of defense. The court created an ‘ineffective assistance of counsel’ situation by controlling the order of witnesses and when they were to be released in violation of the Defendants constitutional rights to confrontation and a fair trial. The Court began this procedure with the first state witness Dana Johnson, by forcing the Defense to cross examine her and not have the ability to call her in the Defendant's case if chief as the Defendant would have called. Especially in light of the fact the Defense had already reserved on its opening and was forced to try mush of the case without the jury having the benefit of the theory of the case. Further, then the court allowed this witness to not only remain in the courtroom, but to sit 13309 390 an 392 303 308 395 396 37 398 399 400 410 an 42 413 aa a5 a6 Motion for New Trial or Arrest of Judgment on the dais to his left in front of the jury after her testimony. This ridiculous and in appropriate bolstering of State witnesses created an unfair trial. The appearance of impartiality in front of the jury was totally destroyed by this action. This was the subject of a Motion to Change Venue which was denied and should have been granted. This appearance of partiality toward the state could not be overcome in any circumstance in this trial. The court forced the Defense to present most of its case in chief during the State’s case inappropriately and rushed the trial through against the Defense's right to confront witnesses, due process and right to a fair and impartial trial with effective counsel. The court then went on to force the Defense to release and to cross in the State's case in chief, Judge Munkittrick and Judge Parker. The Court further allowed Judge Parker to use the word ‘indictment or True Bill’ enough times to confuse the jury to believe the two True Bills were actually an indictment, which was misleading and false. COURT FORCING THE DEFENSE TO RELEASE SIEGMEISTER DURING DEFENDANT'S TESTIMONY BY STATING THAT SIEGMEISTER ‘WOULD NOT BE THERE THE NEXT MORNING’ AND THEN ALLOWING THE STATE TO CALL SIEGMEISTER AND WEED IN STATE’S REBUTTAL CASE AFTER THEY OBSERVED DEFENDANT'S TESTIMONY IN VIOLATION OF SEQUESTRATION AND RIGHTS TO CONFRONT WITNESS AND FURTHER GIVING THE JURY AN IMPROPER CURATIVE INSTRUCTION While the Defendant was testifying the Court forced the Defense to release Jeffrey Siegmeister from the Defense list by informing the Defense that ‘Siegmeister would not be available in the morning’ to be called. This was a completely improper move by the Court and the Prosecutor in order to allow Siegmeister and ASA Weed to observe the Defendant's testimony and then to allow the State to rebut the Defendant's testimony with the two witnesses after they were able to observe the Defendant's testimony. This 14418 a9 420 422 423 428 425 426 4ar 428 429 420 4832 433 a4 438 439 40 481 482 48 Motion for New Trial or Arrest of Judgment created a complete due process violation and deprived the Defendant of effective assistance of counsel by the court's control of the witnesses and its assistance in helping the State to blindside the Defenses with the witnesses in violation of the sequestration rules. The curative instruction about the sequestration rule did not cure the extreme and unfixable prejudice to the Defendant. For this cause alone, a new trial is warranted This in and of itself demands a new trial for the misrepresentations by the Court that Siegmeister would not be there in the morning and then allowing the State to unfairly retry their case as a rebuttal case, fully depriving the Defense of the ability to present the Defendant and to rebut the newly discovered perjured testimony. COURT DISALLOWING DISCOVERY IN RELATION TO THE SECRECY RELEASE OF THE GRAND JURY PROCEEDINGS UNTIL SIEGMEISTER TOOK THE STAND; THEN BY ALLOWING SIEGMEISTER TO TESTIFY TO SECRET PROCEEDINGS; AND CAUSING THE DEFENSE THE INABILITY TO IMPEACH OR REHABILITATE THE DEFENDANT Directly related is the blindsiding of the secrecy element of the defenses by not allowing discovery on the issue then allowing the State not one bite but two at the apple to poison the jury to believe Siegmeister and not the Defendant. Siegmeister committee perjury by informing the Jury that he had to be in the room and misrepresenting the Statute of the State Attorney, Chapter 58. This was used by the State as a means to create an effect on his official position when there in fact was not one. This directly led to the prosecution of the Defendant on the 5" Count of retaliation against Siegmeister. This in itseff must grant a new trial. COURT REFUSAL TO ALLOW THE EXPERT WITNESS JOHN WOLFGRAM’S TESTIMONY IN RELATION TO THE DEFENSE OF THE FIRST AMENDMENT RIGHTS TO ASSEMBLE AND PETITION FOR REDRESS: 1545 446 ar 448 449 450 451 452 453 484 455 486 487 488 459 460 481 462 463 404 485 466 467 488 469 Motion for New Trial or Arrest of Judgment The Defense proffered twice the testimony and relevance of the expert witness John Wolfgram. The court cut off the defense both times and in fact got up and walked out of the courtroom while the Defense was preserving the record. The Defense proffered that the adjunct experience of this witness in dealing with the ‘conflicts within the system’ was important. That this witness was needed to explain the ‘sovereign citizens’ and ‘straight law’ communications between the two factions. The witness would have explained what compelled the defendant to undertake the crime reporting that was taken. This would have gone to the specific intent and meaning of the oaths taken by the Defendant. This would have explained the plausible reason for the physiological compulsion of the Defendant to report the crimes. This witness further would have testi d to the ‘good faith defense’ and how the Defendant's actions fell within the petition clause and present the authority to support it. The specific intent elements would have been explained as to ‘the real reason’ vs the ‘obstruction of justice’ reasoning would have been properly explained to the jury. The jury would have understood the affirmative evidence that there was no unified motive and only tone motive to go after. The motive would have been explained as the motive to investigate as a unity. The good motive would have been supported by the investigation of Siegmeister and it would have been clear there was no retaliation against him in spite of the beliefs of Siegmeister. COURTS REFUSAL TO ALLOW DELVING INTO THE CONTENTS OF THE DOCUMENTS INCLUDING THE ‘COMMON LAW GRAND JURY’ AND COMMON CORE ISSUES AND IMPROPERLY LIMITING THE CROSS EXAMINATION OF ‘SIEGMEISTER 16470 an ar ar4 475 476 arr 47a 479 480 481 402 483 404 406 488 409 490 491 492 Motion for New Trial or Arrest of Judgment The Defense was stopped from delving into the contents of the documents while the State read and reread the last two paragraphs to mislead the jury. The Court put unreasonable time limitations of the examination of the witnesses and excluded witnesses. The Defense was to show the good motives involving the common core investigation but was limited in its discussion. Further, by the court not allowing the depositions of the School Board Members, the Defenses was forced to not call them as witnesses since it did not have the opportunity to delve into the needed discovery. This improper characterization by the state pre-trial of an “A” Witness vs a “C” Witness created a completely prejudicial trial and deprived the Defense of its right to confrontation and a fair trial. The Court limited the cross examination of Siegmeister when Defense attempted to establish the relationship and the ‘common law grand jury’ theories. NON-DISCLOSURE OF CLOSE PERSONAL AND WORKING RELATIONSHIP OF JUDGE AND PROSECUTOR It was never disclosed to the Defense that the Judge and the State Attorney Meggs worked together for over what appears to be ten (10) plus years, that the Judge worked under State Attorney Meggs as an assistant state attorney or the relationship in the Tallahassee court system. The Court seemed to assist the state whenever the Defense was making headway by calling side bars and directing the State on objections or subtlety suggesting objections. Example was the expert witness John McDonald wherein the Court basically assisted and directed the State on how to cross examine him and to impeach the direct testimony. This was a key witness that completely supported the Defense position that the documents ‘were not filed.’ Numerous attendees of the trial made comments to the Defense about the obvious connection and niceties between the 7496 497 498 499 500 501 502 503 508 505 506 507 508 509 510 511 512 51a 514 515 516 si7 518 519 520 521 522 523 Motion for New Trial or Arrest of Judgment court and the prosecutor during the trial as well as observing the Jury watch the demeanor between the two, which all led to the appearance of lack of impartiality and lack of fair trial for the defense. Further, informing the jury that the Judge and the State Attorney came from Tallahassee improperly bolstered the State’s case as to the importance of appointing special people to run this trial, severely prejudicing the Defense, over objection COURT ONLY ALLOWING ONE WEEK FOR TRIAL WHEN TWO WEEKS WERE NEEDED DUE TO THE CONVENIENCE OF THE DIXIE COUNTY COURTHOUSE The Court did not allow the Defendant ample time to property conduct its defense by its arbitrary and capricious limitation of time allowed for trial. It was clear by the number of witnesses listed that the Defense could not physically complete its case in less than three days when at least two weeks were needed. The court denied the defendant due process, a fair trial and effective assistance of counsel by limited, for no reason other than, convenience to the court, the Defendant's trial. COURT QUASHING THE SERVICE ON NUMEROUS DEFENSE WITNESSES EITHER WITHOUT HEARING, IMPROPERLY HEARD OR IMPROPERLY AFTER HEARING DUE TO THE PROSECUTORIAL MISCONDUCT IN MISLEADING THE JURY AND KNOWINGLY PUTTING ON PERJURED TESTIMONY The State knew that the Two True Bills were not ‘filed’ or ‘recorded’ according to the legal definitions and requirements of the Statute at issue. However, the State chose to mislead the jury that ‘filing’ meant something completely different than the evidence presented. The State witnesses, defense witnesses and the attomey for the Clerk's Association, all testified that the True Bills were ‘not filed.’ The State continued to mislead the jury on 18524 525 526 27 528 529 530 531 532 533 5 535 536 sar 538 519 540 sit 512 58 545 546 “7 548 59 550 551 582 553 554 555 Motion for New Trial or Arrest of Judgment that major issue knowingly. Further, the State presented perjured testimony as to the reservation of the courtroom. The State knew that there was no statement or conversation between the Clerk of Court Dana Johnson and Defendant wherein the Defendant claimed to be the grand jury Forman. The State knowingly misled the jury as to that conversation. The State also put pressure on the witnesses to recant in fear. IMPROPER BOLSTERING OF WITNESS FDLE LINTON BY IMPROPER QUESTIONING THAT THE JURY SHOULD BELIEVE THERE WAS PROBABLE CAUSE FOR THE ARREST The State was fully aware that bolstering the Probable Cause to arrest was improper bolstering of a State Witness to lead the jury to believe that if FDLE thought it was a crime it must be. The State is also fully aware that FDLE Linton admitted that at the time of the probable cause affidavit to arrest the Defendant that he was not informed of the two True Bills actually not being filed at that time. This improper bolstering and aiding in perjury must lead to a new trial, DENIAL OF THE STAY DUE TO UNAVAILABILITY OF REPRESENTATIVE YOHO THE COURT IMPROPERLY DENIED THE TWO MOTIONS FOR ACQUITTAL 4.480(B) ALTHOUGH THE STATE DID NOT PRESENT SUFFICIENT EVIDENCE FOR A CONVICTION ON ANY COUNT The Defendant renews the motions for an acquittal herein. THE IMPROPER NAME CALLING OF DEFENDANT 19556 587 558 559 560 561 582 563 504 565 566 567 568 569 570 srt 572 s7a 574 875 576 sr 578 579 580 Motion for New Trial or Arrest of Judgment The prosecutor's name calling and belitting of Defendant on cross and in closing was improper and misleading to the jury. Calling the Defendant a ‘kindergartener who should take his marbles and go home’ and ‘spontaneously appearing people’ and the like are inappropriate for the jury. IMPROPER ACCUSATION AGAINST DEFENSE COUNSEL TO POISON THE JURY In allowing the prosecution to personally attack the Defense counsel in front of the jury to create bias the prosecutor improperly influenced the jury. The jury came back with questions concerning the ‘inadvertent taping of the police interview’ which may have poisoned the jury against Defense. DENIAL OF THE PRODUCTION OF THE EXCULPATORY EVIDENCE The State failed to provide the proof the two ‘true bills’ are not filed including the blank pages in the official records and the truthful written and oral agreement between the clerk and Defendant. The Court reminded the State of its obligation to comply at the May 3, 2016 hearing and notified the undersigned to send an e-mail in relation to the issue of the discovery. The undersigned sent the e-mail to the State and copied the Court on the e- mail. It was completely ignored by all and the documents and evidence have still not been produced and were not produced at the time of trial. The State presented the two True Bills at trial as if ‘filed’ to mislead the jury; knowing that if not filed, not a crime. This is obvious by the State's comments. Further, the other evidence not produced included the request for an extension of the Executive Order was timely requested and current and proof of why it was not served on Defense; service of the executive assignments timely 20sat 582 saa 508 585 586 587 508 589 590 591 592 593 504 505 506 507 soa 599 600 601 02 603 Motion for New Trial or Arrest of Judgment of the assistant state attorneys prosecuting this matter and proof of service on the defense, as well as delivery method to the clerk of Dixie County Court, the source of the state's definition of filing’ or ‘recording’ as used in all motions, at all hearings and as used at trial; as well as proof of why a subsequent and updated FDLE Report was not filed upon the FDLE learning the two ‘true bills’ are not ‘fled’ or ‘recorded’ or were tampered with. Due Process Requires the Immediate Disclosure of Exculpatory Evidence or ALTERNATIVELY a dismissal of this action. In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that due process forbids a prosecutor from suppressing “evidence favorable to an accused upon request where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id., at 87. See Giglio v. United States, 405 U.S. 150 (1972); United States v. McCrane, 527 F.2d 906 (3d Cir. 1975), aff'd after remand, 547 F.2d 205 (1976). The Supreme Court has also emphasized that impeachment evidence, as well as exculpatory evidence, falls within the Brady rule. United States v. Bagley, 473 U.S. 669, 678 (1985). Such evidence, if disclosed and used effectively, may make the difference between conviction and acquittal. See Napue v. Illinois, 360 U.S. 264 (1959) ("The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend"). In acknowledging that the prosecution has a duty to disclose any favorable evidence that could be used at tral, it is frequently overlooked that the prosecution also has a duty to disclose any favorable evidence that could be used “in obtaining further evidence.” Giles v. Maryland, 386 U.S. 24eos 605 606 607 608 609 eto ett er2 613 ow 615 ote 67 eta oto 20 en 22 23 out 625 a6 ear 628 Motion for New Trial or Arrest of Judgment 66, 74 (1967). Additionally, favorable evidence need not be competent evidence or evidence admissible at trial. United States v. Gleason, 265 F. Supp. 880, 886 (S.D.N.Y 1967); Sellers v. Estelle, 651 F.2d 1074, 1077 n.6 (Sth Cir. 1981)(evidence suppressed was material to the preparation of petitioner's defense, regardless whether it was intended to be admitted into evidence). DENIAL OF DECISION OR ABILITY TO PRESENT OPENING STATEMENTS AT THE OPEN OF THE STATE’S CASE BY NOT DISCLOSING THAT THE COURT WOULD BE CONTROLLING THE WITNESSES APPEARANCES AND RELEASES The Court did not disclose to Defense it would be completely controlling the release of witnesses at the beginning of trial. It was not until after the Defense chose to reserve on his opening statement that the Defense found out that the Court was going to conduct this improper control of the trial. The court did not inform the Defendant of this procedure he intended to invoke, thereby depriving the Defendant of calling witnesses in his case in chief, if any. The court completely deprived the Defendant of opening at the beginning of the State’s case in chief, thereby creating a complete disaster of the Defense’s presentation in an orderly fashion. This was done in conjunction with the State to confuse the jury and deprive defendant of a fair and impartial trial Defendant is entitled to make an opening statement. This is true whether or not he puts on evidence. Wright v. United States, 508 A.2d 915,919 (D.C. 1986). A defense attorney's opening statement, however, must remain “within the bounds of propriety and good faith.” Hallinan v. United States, 182 F.2d 880, 885 (9th Cir. 1950). It would be unethical, therefore, for counsel to simply predict during opening statement what the evidence will show, 22eo 630 en 6x2 633 oss 635 636 or 628 630 640 a2 643 os 65 os oa 649 650 651 652 653 Motion for New Trial or Arrest of Judgment Moreover, jury studies have shown that as many as 80 to 90 percent of all jurors have reached their ultimate verdict during or immediately after opening statements. See Alfred S. Julien, Opening Statements §1.01, at 2 (Supp. 1996) (Jurymen ... have been prone to say that once the opening statements were made there was nothing left to the case.) and Donald E. Vinson, Jury Trials: The Psychology of Winning Strategy 171 (1986) ("[Als many as 80 to 90 percent of all jurors have reached their ultimate verdict during or immediately after opening statements.”); Symposium: Communicating with Juries: Timing of Opinion Formation by Jurors in Civil Cases: An Empirical Examination, 67 Tenn. L. Rev. 627 (2000). Therefore, itis critical that Defendant be given a full opportunity to assist the jurors in understanding the evidence presented. See Best v. District of Columbia, 291 U.S. 411, 415 (1934) (the purpose of an opening statement is to assist the jury in understanding the evidence to be presented); accord United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J. concurring) (purpose of opening statement is “to state what evidence will be presented, to make is easier for the jurors to understand what is to follow and to relate parts of the evidence and testimony to the whole"). Given the nature of the anticipated evidence against Defendant and the expected duration of his trial, failure of the State to provide such information immediately denied him the opportunity to adequately prepare for this case and present his evidence in an orderly fashion, which constituted a complete a denial of due process and effective assistance of counsel COURT ERRED IN NOT PROVIDING THE DEFENDANT'S REQUEST FOR EARLY DISCLOSURE OF JENCKS MATERIAL Since the court had not allowed the secrecy to be disclosed in discover, the Defendant needed the Jencks materials to be able to prepare for the testimony of Siegmeister. The 23ost 655 656 687 658 659 660 661 62 663 664 665 666 007 668 9 670 en or2 ora ors ors 676 Motion for New Trial or Arrest of Judgment Court refused to rule on the pre-trial motion and allowed the State to blindside the Defense at trial Jencks material should be provided to the defense so as to furnish Defendant with sufficient time to examine and utilize this material in a meaningful manner before and during trial. United States v. Holmes, 722 F.2d 37, 40 (4th Cir. 1983). What that means in terms of timing depends on the specific facts and circumstances of the case. It is clear, however, that the Court, pursuant to the Fifth and Sixth Amendments to the United States Constitution, Rule 2 of the Federal Rules of Criminal Procedure and its inherent supervisory powers, has the authority to override the timing provisions set forth in the Jencks Act and in Rule 26.2. Indeed, Rule 26.2, unlike its predecessor the Jencks Act, contains no language explicitly precluding the disclosure of witness statements prior to trial. Cf. Fed. R. Crim. P. 26.2 with 18 U.S.C. § 3500(a). The Rule also provides that the Court may make an accommodation, upon request by defendant's counsel, so that counsel is provided adequate time to make use of Jencks material. Fed. R. Crim. P. 26.2(d). That section states: Upon delivery of the statement to the moving party, the court, upon application of that party, may recess proceedings in the trial from the examination of such statement and for preparation for its use in the trial. The prosecution should disclose Jencks material to defense counsel within 30 days of the hearing because it will not only assist the defendant in achieving a fair trial but also serve the public interest in expediting the fair resolution of criminal cases. See ABA Standards for Criminal Justice, §11-2.2; see, e.g., United States v. Tarantino, 846 F.2d 1384, 1415 1.12 (D.C. Cir.), cert. denied, 488 U.S. 840 (1988); United States v. Hinton, 631 F.2d 24err 678 ora 680 681 682 683 ons 685 626 87 688 689 20 691 a2 ena ons 695 626 er 698 600 700 701 702 Motion for New Trial or Arrest of Judgment 769,782 (D.C. Cir. 1980); United States v. Poindexter, 727 F.Supp. 1470, 1484-85 (0.D.c. 1989). In United States v. Hinton, the District of Columbia Circuit recognized the potential impact of late Jencks disclosure upon the defendant's Sixth Amendment rights. 631 F.2d 769, 782 (D.C. Cir. 1980). There, during a suppression hearing, defense counsel was provided with “voluminous Jencks material” in the form of FBI 302s. Id. at 781. Our Court of Appeals held that “in the rush and confusion” of the hearing, counsel failed to recognize “the critical importance of the 302's’ and, as a result, the appellant was deprived of her constitutional right to the “informed, professional deliberation of counsel." Id. at 782. Here, in order to accomplish even a rudimentary investigation so as to begin to be able to provide effective assistance to Defendant, counsel and his investigators will require the Jencks material well before the jury is sworn. See United States v. Holmes, 722 F.2d 37, 41 (4th Cir. 1983) (Noting that providing materials one day before trial began did not “affordl] a reasonable opportunity to examine and digest” the documents... THE COURT FORCED DEFENSE TO PROVIDE AND MARK ALL EXHIBITS TO STATE DURING THEIR CASE IN CHIEF DURING ONLY BREAK TIMES AT TRIAL DUE TO PROSECUTORIAL MISCONDUCT IN THE CLOSING AS FUNDAMENTAL ERROR The Prosecutor improperly inflamed the minds and passions of the jurors so the verdict would be an emotional response by commenting on irrelevant matters such as ‘feel good about yourself. The prosecutor knowingly misused the term ‘fling’ to misguide the jury by misstatement of facts — as well as misstated the fact that the Defendant ‘created his own grand jury’ when the uncontroverted evidence showed that he only participated in the assembly that was created by others. ’ the Prosecutor inferred a characterization of 2570a 704 705 706 07 708 708 na m™ ne na m4 75 76 nr na n9 70 re m3 ra 75 76 mr 78 ra Motion for New Trial or Arrest of Judgment the Defendant as a child and stated that the defendant should ‘take his marbles and go home! There were so many inappropriate statements by the prosecutor in closing it arises to fundamental error. The statement to the jury that it ‘must feel good about themselves by convicting’, the States bias, emotional pleas, name calling, stating facts not in evidence, improper summarization of the evidence and misleading the jury were an absolute abuse of the prosecutor's position to inflame and improperly influence the jury. The prosecutor made inappropriate comments to the jury in closing such as “have honor and integrity’ and find defendant guilty, ‘do your job and find the defendant guilty’, feel good about yourself’ inferring Defense counsel participated in an illegal recording to the extend it required a jury question and response, called the Defendant a liar and commented on the ‘roll of the jury’ in his prosecution and conviction that they should find the Defendant guilty so they can fee! good about themselves, making personal believe comments about feeling good stating * | know | do’. The attached articles summarize in detail how prosecutorial misconduct is handled as well as the closing argument misconduct analysis. It is incorporated by reference and made part hereof. "RULE 3.381. FINAL ARGUMENTS In all criminal trials, excluding the sentencing phase of a capital case, at the close of alll the evidence, the prosecuting attorney shall be entitled to an initial closing argument and a rebuttal closing argument before the jury or the court sitting without a jury. Failure of the prosecuting attomey to make a closing argument shall not deprive the defense of its right to make a closing argument or the prosecuting attorney's right to then make a rebuttal argument. If the defendant does not present a closing argument, the prosecuting attorney will not be permitted a rebuttal argument.’ 2670 731 72 733 ™ 735 736 738 79 740 ma 72 743 744 745, 748 wut 748 m9 750 751 782 753 Motion for New Trial or Arrest of Judgment According to Murphy vs. Intemational Robotic Systems, Inc., 766 So.2d 1010, the Prosecutors comments were (1) improper, (2) harmful, (3) incurable, (4) and so damaging to the fairness of the trial that the public’s interest in our system of justice requires a new trial. Although the State attempted to pretend that the Defendant being classified as a ‘sovereign citizen ‘was not part of the case; it was the key reason why the Defendant is where he is, he was classified as a ‘sovereign citizen’ early on by the State Attomey and was set up for failure. Further, the State claims that the constitution is not part of the case, The first amendment, right to assemble, and express opinions is a complete defense that was purposefully taken away from the Defense. ‘There is a separate motion for JNOV filed in relation to the First amendment, which is incorporated herein. The State also attempted to make it appear the ‘content of the speech’ was not part of the case. It was key to the case and the Defense was deprived of this defense by the rulings on objections as well as the improper wording of the jury instructions. FURTHER PROSECUTORIAL MISCONDUCT ANALYSIS Prosecutorial Misconduct—When a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, due process is Violated. The clause "cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance .. . is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation." Mooney v. Holahan, 294 U.S. 103, 112 (1935) 27754 755 756 758 759 760 761 762 763 764 765 766 707 768 769 770 ™ m m3 m4 5 76 Motion for New Trial or Arrest of Judgment The above quoted language was dictum in the case in which it was set forth, The Court dismissed the petitioner's suit on the ground that adequate process existed in the state courts to correct any wrong and that petitioner had not availed himself of it. A state court subsequently appraised the evidence and ruled that the allegations had not been proved in Ex parte Mooney, 10 Cal. 2d 1, 73 P.2d 554 (1937), cert. denied 305 U.S. 598 (1938) but the principle enunciated has required state officials to controvert allegations that knowingly false testimony had been used to convict Pyle v. Kansas, 317 U.S. 213 (1942); White v. Ragen, 324 U.S. 760 (1945). See also New York ex rel. Whitman v. Wilson, 318 U.S. 688 (1943); Ex parte Hawk, 321 U.S. 114 (1914). But see Hysler v. Florida, 315 U.S. 411 (1942); Lisenba v. California, 314 U.S. 219 (1941), and has upset convictions found to have been so procured. Napue v. illinois, 360 U.S. 264 (1959); Alcorta v. Texas, 355 U.S. 28 (1957). In the former case, the principal prosecution witness was defendant's accomplice, and he testified that he had received no promise of consideration in retum for his testimony. In fact, the prosecutor had promised him consideration, but did nothing to correct the false testimony. See also Giglio v. United States, 405 U.S. 150 (1972) (same). In the latter case, involving a husband's killing of his wife because of her infidelity a prosecution witness testified at the habeas corpus hearing that he told the prosecutor that he had been intimate with the woman but that the prosecutor had told him to volunteer nothing of it, so that at trial he had testified his relationship with the woman was wholly casual. In both cases, the Court deemed it irrelevant that the false testimony had gone only to the credibility of the witness rather than to the defendant's guilt. What if the prosecution should become aware of the perjury of a prosecution witness following the trial? Cf. Durley v. Mayo, 351 U.S. 277 (1956). 28778 7 720 781 72 73 704 75 726 17 738 79 70 71 m2 793 704 795 76 798 799 Motion for New Trial or Arrest of Judgment Extending the principle, the Court in Miller v. Pate overturned a conviction obtained after the prosecution had represented to the jury that a pair of men's shorts found near the scene of a sex attack belonged to the defendant and that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the shorts and furthermore that the shorts were not in fact bloodstained, and that the prosecution had known these facts. 386 U.S. 1 (1967). In Brady v. Maryland, the Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." In that case, the prosecution had suppressed an extrajudicial confession of defendant's accomplice that he had actually committed the murder. 373 U.S. 83, 87 (1963). In Jencks v. United States, 353 U.S. 657 (1957), in the exercise of its supervisory power over the federal courts, the Court held that the defense was entitled to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses during the investigatory stage. Cf. Scales v. United States, 367 U.S. 203, 257-58 (1961). A subsequent statute modified but largely codified the decision and was upheld by the Court. Palermo v. United States, 360 U.S. 343 (1959), sustaining 18 US.C. § 3500. “The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence." 427 U.S. 97 (1976). 2900 801 ez 803 04 805 206 07 208 209 e10 at a2 a3 ana ans a6 air 818 aro 20 eat Motion for New Trial or Arrest of Judgment In United States v. Agurs, the Court summarized and somewhat expanded the prosecutors obligation to disclose to the defense exculpatory evidence in his possession, even in the absence of a request, or upon a general request, by defendant. First, as noted, if the prosecutor knew or should have known that testimony given to the trial was perjured, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. 427 U.S. at 103-04. This situation is the Mooney v. Holohan type of case. Second, as established in Brady, if the defense specifically requested certain evidence and the prosecutor withheld it,* the conviction must be set aside if the suppressed evidence might have affected the outcome of the trial. 427 U.S. at 104-06. This the Brady situation Third (the new law created in Agurs), if the defense did not make a request at all, or simply asked for “all Brady material” or for “anything exculpatory,” a duty resides in the prosecution to reveal to the defense obviously exculpatory evidence; if the prosecutor does not reveal it, reversal of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant's guilt. 427 U.S. at 106-14. This was the Agurs fact situation. This tripartite formulation, however, suffered from two apparent defects. First, it added a new level of complexity to a Brady inquiry by requiring a reviewing court to establish the appropriate level of materiality by classifying the situation under which the exculpating information was withheld. Secondly, it was not clear, if the faimess of the trial was at issue, why the circumstances of the failure to disclose should affect the evaluation of the 30a2 223 as 35 226 ar 228 a9 230 ant 032 a3 a8 a5 836 ear 838 a9 40 ez 03 as Motion for New Trial or Arrest of Judgment impact that such information would have had on the trial. Ultimately, the Court addressed these issues in United States v. Bagley. 473 U.S. 667 (1985) In Bagley, the Court established a uniform test for materiality, choosing the most stringent requirement that evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. 473 U.S. at 682. This materiality standard, found in contexts outside of Brady inquiries, is applied not only to exculpatory material, but also to material which would be relevant to the impeachment of witnesses. Thus, where inconsistent earlier statements by a witness to an abduction were not disclosed, the Court weighed the specific effect that impeachment of the witness would have had on establishing the required elements of the crime and of the punishment, finally concluding that there was no reasonable probability that the jury would have reached a different result. The Supreme Court has also held that “Brady suppression occurs when the government fails to turn over even evidence that is ‘known only to police investigators and not to the prosecutor.’ .. [T]he individual prosecutor has a duty to leam of any favorable evidence known to others acting on the government's behalf in the case, including the police.”45 473 U.S. 667 (1985). 1046 473 U.S. at 682. See United States v. Malenzuela-Bernal, 458 U.S. 858 (1982) (testimony made unavailable by Government deportation of witnesses); Strickland v. Washington, 466 U.S. 668 (1984) (incompetence of counsel). 473 U.S. at 676-77. Strickler v. Greene, 527 U.S. 263 (1999). See also Banks v. Dretke, 540 U.S 668, 692-94 (2004) (failure of prosecution to correct perjured statement that witness had not been coached and to disclose that separate witness was a paid government informant 31as 246 38 eo 880 851 a2 253 ass 055 886 37 a8 859 80 861 a2 863 et 865 266 Motion for New Trial or Arrest of Judgment established prejudice for purposes of habeas corpus review). Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (per curiam), quoting Kyles v. Whitley, 514 US. 419, 438, 437 (1995) A bad faith exception to absolute immunity would focus squarely on the character and mental culpability of the prosecutor. United States v. Agurs, 427 U.S. 97, 110 (1976)The exception would be available in those cases when a prosecutor actually is aware that the withheld evidence is both favorable and material to the accused, and that by withholding the evidence the defendant's ability to obtain a fair trial and prove her non-guilt would be seriously impeded. A bad faith exception would be limited to those egregious cases where a prosecutor makes a conscious decision to conceal from the defendant materially favorable evidence with knowledge that this evidence would exculpate the accused or impeach the credibility of a key witness. Unquestionably, such bad faith conduct is unethical and dishonest. It manifests a conscious intention by a prosecutor to commit a fraud on the judicial process—to defraud the defendant of her right to a fair trial, the court of the assurance that its discovery orders have been complied with, and the jury of leaming all of the facts that would materially assist its mission to arrive at the truth. See MODEL RULES OF PROF'L CONDUCT R. 8.4(c) (1993) (professional misconduct for lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation’), Bad faith conduct embraces the quality of “moral turpitude” that subjects the conduct of all attorneys to professional discipline. See MODEL CODE OF PROF'L RESPONSIBILITY DR 1-102(A)(3) ("A lawyer shall not . . . [e]ngage in illegal conduct involving moral turpitude.”) 32267 068 869 70 er ar ars ars 875 876 arr ara 379 20 a1 282 883 as 085 886 Motion for New Trial or Arrest of Judgment As examples of cases in which a bad faith exception could be invoked, consider the Duke Lacrosse case, in which the prosecutor, who was then running for re- election, concealed from the defense the existence of DNA evidence from four unidentified men on the clothes of the rape victim and the absence of DNA evidence from any of the defendants. See Wilson, supra Knowing that this disclosure would severely discredit the credibility of the victim, the prosecutor directed the laboratory official to exclude this exculpatory information from his report and then represented to the court that the report was a complete description of the laboratory’s findings. /d. The trial court asked Nifong [the prosecutor]: “So you represent that there are no other statements from Dr. Meehan?” Nifong replied: “No other statements. . . . No other statements made to me.” /d Similarly, in the Ted Stevens case, the trial judge identified some eleven instances of “shocking and serious” Brady violations, including the suppression of an interview with the government’s key witness, with knowledge that disclosure of this interview would destroy or seriously undermine his credibility. See Transcript of Hearing on Motion to Dismiss at 3-6, United States v. Stevens, 593 F, Supp. 2d 177 (D.D.C. 2009) (No. 08-231 (EGS)). Finally, in the “Pottawattamie” case See Pottawattamie County v. McGhee, 547 F.3d 922 (8th Cir. 2009), cert. granted, 129 S. Ct. 2002 (2009), cert. dismissed, 130 S. Ct. 1047 (2010).in which two: innocent defendants spent nearly twenty years in prison for a murder—the 33889 92 896 899 903 Motion for New Trial or Arrest of Judgment prosecution knew that its key witness against the defendants was a “liar and a perjurer” who was not telling the truth; the prosecutor was also aware of several items of evidence that identified and powerfully implicated an alternative suspect in the killing, but hid these from the defense. See Harrington v. State, 659 N.W.2d 509, 524 (Iowa 2003) In all of these cases there is strong circumstantial evidence to prove the prosecutor’s bad faith: actual knowledge by experienced prosecutors of the existence of exculpatory evidence; actual knowledge that the evidence if disclosed would probably— indeed, almost certainly—produce an acquittal; a powerful personal and political motive to hide the evidence; and a pattern of conduct revealing that the nondisclosure was neither inadvertent nor a good faith mistake. The Exhibits attached are articles that are incorporated herein and made part hereof, continuing the Prosecutorial Misconduct information and the specific misconduct and how it is treated. Further, the Defendant at hearing will supplement the memorandum or further argument to present further case authorities in support of these motions as well as the transcripts as soon as prepared, WHEREFORE, IT IS REQUESTED THIS HONORABLE COURT GRANT THE NEW TRIAL and for any other relief deemed fit and proper. 34908 908 o10 on oz 13 ons 15 oe o7 18 sg 920 21 922 923 94 925 926 7 928 929 920 oat 932 923 ou 925 936 sar 28 930 oo 2 3 ons 6 Motion for New Trial or Arrest of Judgment CERTIFICATE Opposing counsel will be contacted in an effort to resolve the matter without hearing. (Pursuant to Item 4 of Judge Hankinson’s February 29, 2016, Case Management Order — DE-269) Respectfully submitted, By: /s/ Inger M. Garcia, Esq. /s/ Monday, June 20, 2016 By: Inger M. Garcia, Esq CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the above motion has been served this 20th day of June, 2016, to all parties listed on the following Service List in accordance with e-filing Respectfully submitted, Isiinger Garcia, Esq. Garcia Legal Group Attorney for Defendant Trussell 4839 Volunteer Road; #514 Davie, Florida 33330 Cellular: (954) 394-7461 Tel. (954) 894-9962 Fax: (954) 446-1635 E-Mail:attorney@floridapotlawfirm.com By: /s/ Inger M. Garcia, Esq./s/ inger Garcia, Esq (FBN:0106917) SERVICE LIST William N. Megs All others on list Leon County Courthouse 301 S. Monroe Street Tallahassee, Florida 32399 email: hurstm@leoncountyfl.gov 3510 u 12 1B 14 15 16 17 18 19 20 au 22 23, 24 25 FOR DIXIE COUNTY, FLORIDA STATE OF FLORIDA, CASE NO.: 2014-201-cF Plaintifé, vs. TERRY TRUSSELL, Defendant . 7 / ae os foo om 3.5 PROCEEDING: PRETRIAL HEARING ‘2 3 BEFORE: The Honorable James C. Hankingon (3 Circuit Judge DATE: May 3, 2016 TIME: 10:01 a.m. PLACE: Dixie County Courthouse Cross City, Florida APPEARANCES: Jack Campbell, Esquire Assistant State Attorney 301 South Monroe Street Tallahassee, Florida 32301 Attorney for the State Inger Garcia, Esquire Post Office Box 11933 Fort Lauderdale, Florida 33339 Attorney for the Defendant see, me ORIGINAL pigieal court Reporter le (046)458-1999 IN THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT, IN AND10 u 12 13 4 15 16 HY 18 19 20 2 22 23 24 25 PROCEEDINGS (The following proceedings were held in open court, with the defendant and his attorney present, to-wit:) THE COURT: I have State of Florida versus Trussell 2014-201-CF. Mr. Campbell for the State, Ms. Garcia for the Defense, and Mr. Trussell is present It’s on -- the mic is on red, does that mean it’s on? THE CLERK: It’s on. THE COURT: All right. Okay. Couple of preliminary matters as to the trial. 1 know, Mr. Campbell, you're filling in for Mr. Meggs here today How long is the State anticipating their part of the trial will take? MR. CAMPBELL: Your Honor, I would -- we’ve listed seven witnesses. I believe that the direct of them will be no more than one hour per witness, probably substantially less. so it depends on the cross, Your Honor, but I would think that we'd be able to do it in one business day One of the questions I have for the Court is if we were going to do a pick and go, or if we were going to start the day after jury selection. But if it was a one full day, I would expect us to rest by five o’clock that evening THE COURT: Okay. It will be done as what -- I know Jennifer L. Musgrove pigital Court Reporter Tard Judicial cireute (396) 458-1333,10 uv 2 13, 14 15 16 7 18 19 20 2 22 23 24 25 what you mean by a pick and go. In other words, we'll pick the jury, we will move immediately into opening statements and start the testimony that day. We’re not going to pick a jury and come back the next day, so that’s how we will proceed. MR. CAMPBELL: Yes, sir. THE COURT: I know Ms. Garcia’s been kind of unilaterally telling people that this is a two-week trial. I’m not expecting a two-week trial, Ms. Garcia, we’re going to get this done in a week. You need to have your witnesses available by Tuesday afternoon. If we have to go late in the evening to get it done, we/re going to get it done. But we're going to get it done in a week. We don’t have two weeks, so please quit telling people this is a two-week trial, it’s not going to be a two-week trial. We will start on gune 6, at eight-thirty, in Courtroom B, because the jurors will be gathering in here. That's the little courtroom around the corner. I hope that’s the right designation of it. Is that the -- THE CLERK: Yes. THE COURT: the right name for it? Courtroom B. so we can take care of any preliminary matters there. I know that late yesterday there were a number of motions filed by the Defense. I had the opportunity to review those that were filed up till about four forty-five. Yennifer L. Musgrove pigical Coure Reporter ‘Third dudielal cieeuse (336) 458-233310 1 2 13 14 15 16 17 18 19 20 2 2 23 24 25 4 And then there were a number filed after that, I have not had an opportunity to review all of those Apparently, we need a hearing time between now and the trial to deal with those. The only date that I have available is June 1*, that’s a Wednesday. And I don’t know I/1l hear from y’all whether you want to do it here in person, or want to do it in Tallahassee and do it by phone. Do you have -- does the State have a preference? MR. CAMPBELL: Your Honor, not knowing what Mr. Meggs schedule is for June 1%, T think logistically it’d be best if we did it by phone. But that's my recommendation because it gives us the most flexibility for all parties THE COURT: All right. Ms. Garcia? MS. GARCIA: Your Honor, it requires an evidentiary hearing, as it's numerous -- THE COURT: On which? MS. GARCIA: -- motions to suppress. THE COURT: On the motion to suppress statements? MS. GARCIA: There’s numerous motions to suppress, so - THE COURT: I’m unlikely to have an evidentiary hearing on that. I have read that motion. If there are issues on that, we'll probably take that up during the course of the trial. I need to analyze a little more carefully whether there’s a prima facie motion at all. But I had a quick skim Jennifer b. Musgrove Digital Court Reporter (3a) 458-133310 1 12 13 14 15 16 7 18 19 20 21 2 2 24 25 of it, so I have not studied that. But if we need to take evidence, we’ll do that during the course of the trial. Are there any of the other motions requiring an evidentiary hearing? MS. GARCT: There’s other motions, Your Honor, to dismiss. THE COURT: But my question is, are any of the others going to require an evidentiary hearing? Since I haven't read the others. MS. GARCIA: Right. I’m not sure at this point Your Honor. THE COURT: Okay. Well, do you have a preference of whether you want to do it here in person or appear by phone? MS. GARCIA: In person, Your Honor THE COURT: Okay. And why is that? MS. GARCIA: I think that having the -- all of us in one room where the defendant can be present and -- THE COURT: Okay. MS. GARCIA: -- and we can have a proper formal hearing would be more appropriate for -- THE COURT: Okay. MS. GARCIA: -- motions of this caliber and importance. THE COURT: All right. Well, tentatively what we'll do is set to have a hearing here June 1°, at 1:00 p.m. They -- I've checked with the Judge’s judicial assistant who handles Jennifer L. Musgrove pigital Cour Reporver (306/450-1333,10 W 12 13 14 15 16 17 18 19 20 a 22 23 24 25 calendaring, she says they have felony court here in the morning, but that in the afternoon the courtroom would be available. Mr. Campbell, I know you're a little handicapped on being able to speak for Mr. Meggs’ calendar, but frankly 1 don't have any other time that I can do it. So I think we'll just have to figure out a way. MR. CAMPBELL: If need be 1/11 be here myself, Your Honor. We’1l have it covered. THE COURT: Okay. Ms. Garcia, why don’t you do a notice of hearing for June 1%, at one o'clock here in this courtroom, since they’re your motions that you're wanting to be heard. MS. GARCIA: Thank you, Your Honor. THE COURT: Okay. One of the things I was going to say was that I was -- I wanted the Defense to submit their proposed jury instructions. It would appear and I -- and as again, all I’ve read was the front page, but it would appear the Defense has submitted proposed jury instructions. Is that correct, Ms. Garcia? MS. GARCIA: They’re not fully completed, Your Honor. 1 stated in my motion, T requested a hearing on the jury instructions, and there’s a few of them drafted and T’m going through them now, and I'm going to complete the drafting of them. And I'll be emailing it as we were doing prior, to see Jonniter L. Musgrove gital Court Reporeer ‘Third Judicial cirouse (3as)450-239310 iW 12 13 14 15 16 17 18 19 20 21 22 23 4 25 if we can resolve it without the hearing. But otherwise, I filed my motion for the hearing if there was any disputed instructions. THE COURT: Well, we’ll fine tune them during the trial. But any proposed jury instructions that you want the Court to consider, I want to be filed by the end of the day May 27°". MS. GARCIA: Okay. THE COURT: And if the Court -- and if the State wants to respond, I know I’ve already received some proposed jury instructions from the State. I assume you've seen those Ms. Garcia? MS. GARCIA: Yes, sir. Actually attached to the motion Your Horior, and I put some of my comments toward those. THE COURT: Okay. MS. GARCIA: And then I will be working it through and 1 will be presenting them to you with the state’s proposals with my proposed changes, as well as my individual instructions that we're requesting -- THE COURT: Okay. MS. GARCIA: -- as a defense THE COURT: If the State wants to respond, I want them to respond by the end of the day, May 31°. MR. CAMPBELL: Yes, sir. THE COURT: And both of you, please submit your proposed instructions to me in a Word or Word Perfect format, so that Jennifer &. miegrove pigival Court Reporter (348745110 MW 12 13 14 15 16 17 18 19 20 2 2 23 24 25 T can edit them without having to retype the whole thing. T think we've already probably gotten the State’s proposed in a Word format, but -- so we can work on that. And any issues that we can, we'll take up on June 1‘, to the extent we need to take up further issues on the jury instructions. All right. Now, the only motions I saw a notice for today was Vaughn's motion to quash and Judge Parker’s motion to quash. I don’t see representative of the attorney general's office here. MS. GARCIA: Your Honor, they cancelled the hearing. THE COURT: Okay MS. GARCIA: Notice of cancellation was filed yesterday THE COURT: All right. TI had not seen that. Did you receive it -- that? THE CLERK: (No audible response. THE COURT: Okay. All right. TI think they had assumed they could do that by phone. I just was not I wasn’t going to mix that in with this, to have a phone hearing mixed in with this. Other motions that I did get a chance to review, there were two motions for exculpatory evidence filed by the Defense. I’m going to deny both those motions as moot they’re unnecessary. The State has an obligation without motion to provide exculpatory materials to the Defense. I’m Jennifer b. Musgrove bigital court Reporter mind Judicial cireule (396/458-133910 nT = 13 4 = 16 17 18 19 20 21 ve4 23 24 25 confident the State’s aware of that, but I will remind them of that obligation. The review of that is an after-the-fact review, it’s not a court proceeding in advance, and I’m sure the State’s aware of their obligations. Correct, Mr. Campbell? MR. CAMPBELL: Yes, Your Honor, we are THE COURT: Okay. So we will -- there was a motion -- I haven't noted all the motions. But, I guess, Ms. Garcia, you were assuming that the motions that you filed yesterday would be heard on our June 1% date? MS. GARCIA: Yes, Your Honor THE COURT: Was there anything else that you wish to bring up today? MS. GARCIA: Not today, Your Honor THE COURT: Mr. Campbell? MR. CAMPBELL: No, Your Honor. The -- just this morning I’ve been approached by a couple of witnesses who have indicated that they have travel plans, that they were under subpoena. They may, through counsel, want to file motions to quash their subpoena. I know you've quashed some others. Would you want that -- I just want to give them some clarity. THE COURT: All right. If -- you know, I/1l let y‘all work out when we have hearing on that. If they want to come here on June 1%, or if y’all can agree to an intervening venniter L, Misgzove Digital court Reporter Third Judicial Circuit (396/458-1339,10 i 12 13 14 16 7 18 19 20 21 22 23 24 28 10 hone hearing, we could probably work out phone hearing. It pl g would seem that would might be the kind of thing we could, you know, work out over the phone to have a hearing on. Usually those are not terribly complicated, but I guess we'll leave it to them and discuss with y'all and see, you know, what agreement can be reached on that. MR. CAMPBELL Yes, Your Honor, I'll indicate -- 1/11 try to get it done in the next couple of weeks so we have it done before June 1, so they can plan their travel accordingly and know whether they’re going to need to be here for the trial - THE COURT: Okay. MR. CAMPBELL -- period or not. THE COURT: Okay. MR. CAMPBELL Thank you, Your Honor. THE COURT: All right. Anything else from either side? MR. CAMPBELL No, Your Honor. Thank you very much. THE COURT: Let me -- we got Mr. Hoyt here? Are you Mr. Hoyt? MR. HOYT: (No audible response.) THE COURT: Come up here for a second. Turn your camera off please, sir, and come up here. You can just come to one of the podiums. MR. HOYT: Sure. THE COURT: Put your phone down. pigital court Repo Third Judicial circu (346) 458-233310 iW 12 13 14 15 16 7 18 19 20 21 22 2B 24 25 W MR. HOYT: Yeah. THE COURT: Okay. Thank you. I’ve been pretty flexible in terms of allowing you to record during the course of these proceedings. It doesn’t concern me one way or another I do have concerns when we get to a jury situation. I am not going to have you recording during jury selection or during the jury trial. I am concerned that that may cause some intimidation to the jury, or some distraction to the jury. I've talked with the Court Administrator; they're prepared to give you, at the end of the day, a recording of everything that occurred -- MR. HOYT: Uh-huh. THE COURT: that day. Is that correct, Ms. Lanier? MS. LANIER: Yes, sir. THE COURT: I’m sure you're familiar with -- MR. HOYT: Yes. THE COURT: Ms. Lanier and she has said she’ll make that available to you. I just don’t want anything that interferes with the jury or distracts the jury is my concern. MR. HOYT: Is that for me specifically, or is that for press in general? THE COURT: Well, if -- we haven’t had any other press inguiry. If we get other press inquiry I -- MR. HOYT: sure. Jennifer b. Muagrove pigital court Reporter10 rT 12 13 14 15 16 7 18, 19 20 a 22 23 24 25 12 THE COURT: -- I may, you know, I may revisit -- MR. HOYT: Sure. THE COURT: -- what we're doing exactly. But that applies to you, and we have not had any further inquiry - MR. HOYT: Right. THE COURT: -- at this point in time. You know, if we get, you know, the local TV station, you know, decides they're going to record, you know, we may have further discussion about that and -- MR. HOYT: Okay. THE COURT: -- see what can be worked out on sharing a feed there. But anytime, I’11 deal with what I’ve got at the moment, so -- MR. HOYT: Sure. THE COURT:. -- if that comes up, we’ll -- 1/1] let you know and we/1l deal with that. MR. HOYT: Very good. THE COURT: Okay. Thank you, sir. MR. HOYT: Thank you. THE COURT: All right. If there’s nothing else, we'll be in recess. MR. CAMPBELL: Thank you, Your Honor. (The proceedings were concluded at 10:14 a.m.) venniter b. Musgrove vigital court Reporter mira Judicial circuit (306) 458-139910 WW 12 4 1s 16 17 18, 19 20 21 22 23 24 25 13 REPORTER'S CERTIFICATE OF ACCURACY STATE OF FLORIDA ) COUNTY OF COLUMBIA ) I, Jennifer L. Musgrove, Digital Court Reporter, Third Judicial Circuit of Florida, do hereby certify that: A PRETRIAL HEARING was held in re: The Circuit Court of the Third Judicial Circuit, in and for Dixie County, Florida, case No. 2014-201-CF, THE STATE OF FLORIDA, Plaintiff, versus TERRY TRUSSELL, Defendant, before the Honorable James C. Hankinson, Circuit Judge, on May 3, 2016. That I was authorized to and did transcribe the digitally recorded proceedings had during said PRETRIAL HEARING and that the foregoing pages, numbered 1 through 12, constitute a true and correct transcription as permitted by the quality of said digital recording. IN WITNESS THEREOF, I have hereunto affixed my hand on senate 5 ee Digital Court Reporter Third Judicial Circuit of Florida (386) 758-1333 this 25th day of May, 2016. pigival Court Reporter aired Judie: 06) 45%Oklahoma City University School of Law From the SelectedWorks of Charles Cantrell 2003 Prosecutorial Misconduct: Recognizing Errors In Closing Argument Charles Cantrell, Oklahoma City University School of Law SELECTEDWORKS™Prosecutorial Misconduct: Recognizing Errors in Closing Argument Charles L. Cantrell" Abstract Professor Cantrell discusses many forms of prosecutorial misconduct ‘found in closing arguments. Using examples from case law, the author is able t0 classify and describe such errors as to help make them more recognizable 10 both practitioners and judges. Introduction Many trial attorneys believe that the final summation to the jury is the most critical stage of a criminal trial. It presents the last opportunity to convince the jury of the defendant’ s innocence or guilt. Yet many scholars have recognized a recurring problem with the proliferation of improper prosecutorial argument in closings.' These arguments send to juries the dangerous message that they are allowed to consider extraneous, prejudicial factors in determining guilt or punishment. Why this problem exists is no mystery. These improper arguments can be devastatingly effective in influencing verdicts. Additionally, the existence of the harmless error” and + L.D. (1972), Baylor University School of Law; LL.M. (1976), The University of Texas School of Law. The author is a professor of law at Oklahoma City University School of Law. His publications include: OKLAHOMA CRIMINAL PRACTICE MANUAL (1994); OKLAHOMA CRIMINAL LAW: STATUTES & RULES ANNOTATED (7th ed. 2002); OKLAHOMA UNIFORM JURY INSTRUCTIONS: CRIMINAL 2D ANNOTATED (2000); MISSOURI CRIMINAL LAW STATUTES & RULES ANNOTATED (st ed. 2003). " See Albert Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 TEX. L. REV. 629 (1972); Ronald Carlson, Argument to the Jury: Passion, Persua- sion, and Legal Controls, 33 ST. LOUISU. L.J. 787 (1989); Henry Vess, Walking a Tight- rope: A Survey of Limitations on the Prosecutor's Closing Argument, 64 J. CRIM. L.& CRIMINOLOGY 22 (1973); see also Paul J. Spiegelman, Prosecutorial Misconduct in Closing Argument: The Role of Intent in Appellate Review, | J. APP. PRAC. & PROCESS 115 (1999); J. Thomas Sullivan, Prosecutorial Misconduct in Closing Argument in Ar- kansas Criminal Trials, 20 U. ARK. LITTLEROCK L.REV. 213 (1998); Mare Kantrowitz etal., Closing Arguments: What Can and Cannot Be Said, 81 Mas5.L. REV. 95 (1996). ? See Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed, 2d 705 (1967) (federal constitutional error may be harmless if the reviewing court believes so beyond a reasonable doubt); United States v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) (applying the harmless error standard applicable to Griffin violations). See generally Charles 8. Chapel, The Irony of Harmless Error, 51 OKLA. L. REV. $01 (1998); Stephen A. Saltzburg, The Harm of Harmless Error, 59 VA.L.REV. 988 (1973). HeinonLine =~ 26 am, J. Trial Advoo, 535 2536 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 26:535 plain error’ doctrines limits meaningful appellate review to only instances of egregious misconduct by prosecutors. The purposes of this Article are to reveal, explain, and classify improper arguments both for attorneys and for judges. Cases from several jurisdic- tions are utilized in an attempt to illustrate the different modes of argument employed. This Article makes no focused effort to address whether there was a defense objection made to the prosecutorial remarks. Little would be gained because of the contextual differences of the cases and the various applications of the harmless error doctrine used. In addition, this Article does not attempt to analyze the pedestrian errors of misstatement of fact or law. Analyzing the arguments has yielded four main categories to dis- cuss. This Article doesnot recommend strategic objectives; its major goal, instead, is to educate and inform trial participants that some arguments are unethical and have no place in a criminal trial. I. Commenting on Self-incrimination Issues A. Failure to Testify ‘The most significant constitutional prohibition on prosecutorial miscon- ductiin final argument finds its genesis in Griffin v. California.' The prose- cution in that case repeatedly pointed out the defendant's failure to testify: He would know how she got down the alley. He would know how the blood got on the bottom of the concrete steps. He would know how long he was with her in that box. He would know how her wig got off. He would know whether he beat her or mistreated her. He would know whether he walked away from that place cool as a cucumber when he saw Mr. Villasenor be- cause he was conscious of his own guilt and wanted to get away from that damaged or injured woman. ‘These things he has not seen fit to take the stand and deny or explain. And in the whole world, if anybody would know, this defendant would know. > This doctrine allows appellate courts to reverse a case even if no error has been preserved for review. See United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Johnson v. United States, 520 US. 461, 1178. Ct. 1544, 137 L. Ed. 2d 718 (1997) (asserting plain error affects substantial rights and seriously affects the fairness, integrity, or public reputation of judicial proceedings). * 380 US. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).2003] PROSECUTORIAL MISCONDUCT 537 Essie Mae is dead, she can't tell you her side of the story. The defendant won't? The United States Supreme Court characterized such comments as “a remnant of the ‘inquisitorial system of criminal justice,”” and held that they constituted a penalty on the exercise of a constitutional privilege.® Griffin establishes a clear rule that is easily recognizable and applicable to direct references to the defendant's failure to testify or offer evidence. Such direct comments are seldom made in argument today. If so, they are usually the result of attorney negligence or oversight. The modern controversial Griffin problem revolves around comments considered to be an indirect reference to the defendant, or to uncontradicted evidence in the case. The generally applicable standard governing the propriety of these remarks is usually defined as “whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the accused’s failure to testify.”” Thus, the test is an examination of the “language” used by the prosecutor. The first prong examines such language through the prism of the “manifest intent” of the prosecutor. The second, and independent, prong measures the “natural and necessary” effect of the words on the jury. Any text purporting to examine intent must necessarily include all the relevant manifestations that demonstrate the presence of such intent by the prosecution. An examination of the prosecutor’s language must take into account the particular facts of each case. Ifthere isa reasonable alternative explanation for the remarks of the prosecutor, the intent will not be deemed. “manifest.”* An example of this process can be found in United States v. Johnston? During the redirect examination of a conspiracy witness, the prosecutor attempted to bolster his witness’s testimony after the latter ad- mitted on cross-examination no one could corroborate his story concerning 5 Grigin, 380 U.S. at 611. * Jd, at614 (quoting Murphy v. Waterfront Commm’n, 378 U.S.52, 55,845. Ct. 1594, 1597, 12 L. Ed. 2d 678, 681 (1964)). 7 WAYNER. LAFAVE, JEROLD H. ISRAEL & NANCY J. KING, CRIMINAL PROCEDURE § 24.5, at 1125 (3d ed. 2000). * United States v. Collins, 972 F.2d 1385, 1406 (Sth Cir. 1992). ? 127 F.3d 380 (5th Cir. 1997). HeinonLine =~ 26 am, J. Trial Advoo. 53538 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 26:535 certain cocaine deliveries."° “Onredirect the prosecutor inquired, ‘{AJren’t there some people in this courtroom that can back up what you say?” ‘Simultaneously the prosecutor made a sweeping arm gesture indicating the individuals seated at counsel tables.”"' The court correctly concluded the prosecutor's implication was that the defendants were the only persons who could have corroborated the incidents. Taking these circumstances into account, the court found the necessary “manifest intent” present.” Another important factor to consider under the intent test is the body language or physical actions of the prosecutor. In addition to the type of gesture performed in Johnston, a prosecutor will sometimes position himself to make an unspoken point to the jury. These stares, gestures, and movements are not transcribed by the court reporter. A proper objection from the defense must include a recital of the challenged movements. An example from personal experience demonstrates this principle. Prosecutor: But, anyway, he looks-you know-he is sitting over there-you know-we had Dr. Anderson-Dr. Anderson had that thing there, and he had his lawyer arguing to you and everything. But there is somebody that we haven't heard from in this case. And I think you all know who it is Cantrell: Your Honor, we're going to object to that comment. He is obviously commenting-inferring by the place he stood-let the record reflect that he stood right behind the defendant, raised his voice, at that time, and objected-excuse me-not ob- jected~said, ‘We haven’t heard from somebody in this court.” ‘At that time, Mr. Casey looked down at the defendant in such that by his actions and inferences and comments made, was a comment on not testifying by the defendant. Prosecutor: I was referring to Dr. Stockton, Your Honor. Cantrell: You were not. Prosecutor: Let the record clearly reflect that I was talking about the medical testimony, and Dr. Stockton, the man that took the EEG wasn’t up here testifying in court. Court: I'll overrule your objection. Cantrell: Note our exception.'? '® Johnston, 127 F.3d at 397. "Ud. "Id, } Hicks v. State, 525 $.W.2d 177, 182 (Tex. Crim. App. 1975). HeinonLine =~ 26 am, J. Trial Advoo, 538 22003) PROSECUTORIAL MISCONDUCT 539 Articulating the prosecutor’s physical actions allows the appellate court to review the language in the context of the actual trial and gain the jurors’ perspective of what transpired in court. The appellate court held that the prosecutor’s physical actions and argument was “manifestly intended to be, and was, of such a character that the jury would naturally or necessarily take it as a comment on the failure of the appellant to testify.”"* The second component of the Griffin test views the language from the jury’s perspective. In so doing, the issue becomes whether the “character” of the language would “naturally and necessarily” cause the jury to under- stand it as a comment on the defendant's failure to testify. Testing these indirect remarks also requires an understanding of the context of the proceeding at the time they were uttered. The identical argument may be permissible in one trial yet constitute error in another. One of the most frequent oratorical devices employed by prosecutors in final summation is the “uncontradicted evidence” statement. The basic approach is to determine whether the defendant “is or appears to be ‘the only one who could explain or contradict the evidence.’ In State v. Blackman, the “uncontradicted evidence” remark was permissible because the prosecutor’s immediately subsequent references were to other persons at the scene who could have been called as witnesses.'* Thus, the defen- dants were not the only persons who could have contradicted the evidence. Incontrast, the court in United States v. Cotnam held an identical comment to be improper when the prosecution’s witness testified that several of the conversations in question were held with only the defendant present.” Thus, the natural implication for the jury was to understand the alleged comment as being uncontradicted by the defendant.'* A final grouping of prosecutorial comments on the defendant’s silence includes statements that create an inference of guilt by shifting the burden to the defendant to come forward with evidence. Included in this category are comments such as, “What other witnesses could the defendant’s case have put forward who were totally available to you? What other witnesses? "fd. at 180. 'S State v. Blackman, 201 Ariz. 527, 545, 38 P.3d 1192, 1210 (Ct. App. 2002) (quoting State v. Still, 119 Ariz. 549, 551, 582 P.2d 639, 641 (1978). '© 201 Ariz. 527, 545, 38 P.3d 1192, 1210 (Ct. App. 2002). "7 88 F.3d 487, 500 (7th Cir. 1996). "* Cotnam, 88 F.3d at 500.540 [AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 26:535 Ask yourself that question. Who else could have testified in this case?”"” Another prosecutor crossed the line when he commented on the defendant's demeanor by noting that he “has been very quiet at the end of counsel table.” Shortly thereafter he opined that the defendant “has been very quiet, quietly apparent throughout this case.””" B. Post-Arrest Silence Since commenting directly on the defendant’s decision to be silent at trial is prohibited, prosecutors occasionally attempt to utilize an earlier post-arrest silence for impeachment purposes. In other words, “why didn’t he tell anyone about his alibi before trial?” Using this technique does not depend upon whether or not the defendant testifies at trial. This type of powerful impeachment can be used to create an inference of guilt due to the defendant's failure to explain his defense earlier. In Doyle v. Ohio, the Supreme Court held that the immediate post-arrest silence of an arrestee may not be used as impeachment because the Miranda warnings imply “that silence will carry no penalty.””? Such use of silence amounts to a “deprivation of due process.” Incontrast, the Supreme Court has permitted comment or cross-exami- nation when a defendant makes inconsistent statements,” when a defendant testifies in his own behalf,’> and when the defendant did not receive Miranda warnings.* The holding in Doyle has been limited for use in situations where the defendant has received Miranda warnings. Although the Doyle holding is rather narrow, prosecutorial comments continue to violate its parameters. For example, in United States v. Laury, the defen- '” Eberhardt v. Bordenkircher, 605 F.2d 275, 278 (6th Cir. 1979). » United States v. Rodriguez, 627 F.2d 110, 112 (7th Cir. 1980). Id, ® 426 US. 610, 618, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91, 98 (1976). ® Doyle, 426 U.S. at 618. * Anderson v. Charles, 447 U.S. 404, 408, 1008. Ct. 2180, 2182, 65 L. Ed. 24222, 226 (1980). 5 Jenkins v. Anderson, 447 U.S. 231, 235, 100 S. Ct. 2124, 2127, 65 L. Ed. 2d 86, 92 (1980). 2 Fletcher v. Weir, 455 U.S, 603, 607, 102. Ct. 1309, 1312, 71 L. Ed. 24490, 494 (1982).2003) PROSECUTORIAL MISCONDUCT 541 dant had made post-arrest statements to law enforcement.”” Normally this would enable the State to cross-examine over any inconsistent statements. Instead, the court observed that the prosecutor missed the mark on his selection of topic: Although Laury made post arrest statements to FBI agents, he did not discuss his whereabouts during the robbery. Therefore, nothing Laury told the FBI agents was inconsistent with his trial testimony that he was at a party on the date of the bank robbery. The prosecutor did not comment on what Laury told FBI agents, but on whathe did nottell them. Jurors would naturally and necessarily view the prosecutor’ line of questioning on cross-examination, as well as his statementin closing argument, as an attack on Laury’s credibil- ity. Oneross-examination, the prosecutor suggests an implausible scenario ~that Laury would prefer to languish in jail than tell the FBI about his alibi. Clearly the prosecutor meant to suggest that Laury's alibi was not disclosed prior to trial because it was not true, for the prosecutor's comments could not have served any other purpose. Therefore, the prosecutor's “manifest intent” was to comment on Laury’s post-arrest silence with regard to his alibi. Only “when a defendant chooses to contradict his post-arrest statements to the police . . . does] it become[] proper for the prosecutor to challenge him with those [post-arrest] statements and with the fact that he withheld his alibi from them.” Because Laury’s post-arrest and trial statements were not inconsistent, we view the prosecutor’s comments as comments on Laury’s post-arrest silence, and therefore in violation of Doyle.*® C. Failure to Produce a Witness A distinct issue of self-incrimination sometimes arises in a situation when the State argues to the jury that the defendant failed to call a witness to substantiate his claims or defenses. Normally such acommentis permis- sible f the defendant has the power to produce a witness “whose testimony would elucidate the transaction.” Another approach is to comment on 2” 985 F.2d 1293, 1299 (5th Cir. 1993). * Laury, 985 F.2d at 1303-04 (quoting Lofton v. Wainwright, 620 F.2d 74, 78 (Sth Cir. 1980)) (citations & foomotes omitted); see, e.g, United States v. Curtis, 644 F.2d 263 (3d Cir. 1981) (reversing the lower court's position that referral to the cross- ‘examination question concerning the witness’s failure to tell his story post-arrest was proper); Williams v. Zahradnick, 632 F.2d 353 (4th Cir. 1980) (reversing the lower court's denial to strike statements made in the closing argument referring to the failure of the defendant to tell his story post-arrest to the police). United States v. Young, 463 F.2d 934, 939 (D.C. Cir. 1972) (quoting Graves v. United States, 150 U.S. 118, 121, 14 S. Ct. 40, 41, 37 L. Ed. 1021, 1023 (1893)).342 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 26:535 the failure to produce a witness whose testimony could be considered material.’ The defendant’s right against self-incrimination arises when the comment either is “‘phrased to call attention to [the] defendant’s own failure to testify,”””! or leads the jury to “naturally and necessarily” interpret the remark as a comment on the defendant’s silence.»? Thus, substantial latitude is given to the State when a comment is directed toward a possible helpful defense witness*® or is in response to an assertion by defense counsel.** II. Personal Opinions and Beliefs A. Opinions and Beliefs Generally One of the most flagrant types of improper argument is when the prose- cutor interjects his personal opinion or belief during summation. This method employs a devastatingly powerful approach combining the stature of the prosecutor’s office with his experience and knowledge of the case. Heis, in effect, becoming a witness advising the jury as to the guilt of the defendant. Further reasons for the prohibition of personal beliefs are con- tained in United States v. Bess."$ “There are several reasons for the rule, long established, that a lawyer may not properly state his personal belief either to the court or to the jury in the soundness of his case. In the first place, his personal belief has no real bear- ing on the issue; no witness would be permitted so to testify, even under oath, % Assadollah v. State, 632 P.2d 1215, 1219 (Okla. Crim. App. 1981). » United States v. Bagley, 772 F.2d 482, 494-95 (9th Cir. 1985) (quoting United States v. Soulard, 730 F.2d 1292 (9th Cir. 1984)) (citing United States v. Passaro, 624 F.2d 938, 944 (9th Cir. 1980)). ® United States v. Bubar, 567 F.2d 192, 199 (2d Cir. 1977) (citing United States ex rel. Leak v. Follete, 418 F.2d 1266 (2d Cir. 1969). » United States v. Dyba, 554 F.2d 417, 422 (10th Cir. 1977). * United States v. Mitchell, 613 F.2d 779, 782 (10th Cir. 1980) (stating that defense summation concerning why the defendant did not testify invited prosecutorial response concerning why the defendant’s wife, allegedly a witness to the crime at issue, did not testify); United States v. Lipton 467 F.2d 1161, 1168-69 (2d Cir. 1972) (stating that a comment about the failure to call a witness was a fair rejoinder to the assertion that the witnesses were uncooperative). 2S 593 F.2d 749 (6th Cir. 1979).2003] PROSECUTORIAL MISCONDUCT 543 and subject to cross-examination, much less the lawyer without either, Also, if expression of personal belief were permitted, it would give an improper advantage to the older and better known lawyer, whose opinion would carry more weight, and also with the jury at least, an undue advantage to an un- scrupulous one. Furthermore, if such were permitted, for counsel to omit to make such a positive assertion might be taken as an admission that he did not believe in his case." The Bess decision is an illustrative close case. The court had to deter- mine whether the prosecutor’ s disclaimer of his personal statement, “based onthe evidence which has been presented to you (the jury),” was adequate ‘enough to cloak his personal vouching.” Of course, this familiar phrase has other derivatives such as “under the evidence” or “the facts and evi- dence clearly show.” The court was not convinced that the incantation of such a phrase “should convert improper argument into proper argument.”* ‘The opinion further rejected the proposition that a prosecutor’ belief of guilt was permissible so long as it was based solely on the evidence pre- sented at trial.” Yet, other courts have rejected the reasoning in Bess and allow “I think” and “I believe” statements so long as they are based on the evidence.” In any event, a timely objection should be raised by defense counsel whenever the prosecutor employs the “I” pronoun. Inthe majority of cases one can safely predict the “I” pronoun signifies the beginning of testimony from the prosecution.*' % Bess, 593 F.2d at 755 (quoting HENRY DRINKER, LEGAL ETHICS 147 (1953)). » Id. a0 756. mia Ud. * See Mintun v. State, 966 P.2d 954, 960 (Wyo. 1998); Marshall v. State, 395 N.W.2d 362, 367 (Minn. Ct. App. 1986). “ See United States v. Modica, 663 F.2d 1173, 1181 (2d Cir, 1980). Nonetheless, personal pronouns should not dominate an attomey’s courtroom conversation. More than 60 times in the summation the prosecutor introduced a sentence with “I'm telling you” or “I suggest to you.” Occasional use of such rhetorical devices is simply fair argument, but their constant use runs the risk that the jury may think the issue is whether the prosecutor is truthful, instead of whether his evidence is to be be- lieved. A prosecutor should exercise restraint to avoid needless personal references, without sacrificing the vigor or effectiveness of his argument. Modica, 663 F.2d at 1181 (citing United States v. Murphy, 374 F.2d 651, 655 (24 Cir.), cert. denied, 389 U.S. 836 (1967)). HeinonLine =~ 26 am, J. Trial Advoo, 543 2544 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 26:535 B. Credibility of Witnesses Another notable subject concerning prosecutorial beliefs and opinions is the impermissible bolstering of State witnesses. An associated area is when the State attacks the credibility of defense witnesses. An example of the former is found in United States v. Dandy, wherein the court held it was “improper for the prosecutor to state that Mr. McColgan is honest.” The court concluded that “[s]uch a statement conveys a conviction of per- sonal belief regarding the witness’ veracity.” In another trial, the prosecu- tor stated, “I’m here to tell you that Mr. Amato’s testimony when it relates to the evidence in this case is truthful.”“* Prosecutors often attempt to bolster the credibility of police officers who have been attacked by the defense.** In a remarkable oration, a district attorney delivered the fol- lowing improper argument without objection: Iknow that there is one thing you can be proud of. It’s the New Mexico State Police. It’s the finest state police that I have personally seen. Those people do their job unswayed by any person who would like to sway them. ... I know personally, that can’t be said of New York’s police. Tknow personally that can’t be said of a lot of the police forces in the Midwest. But I know personally that those police officers in the New Mexico State Police are peo- ple that you can be proud of and they do their job, no matter what the conse- quences to them, no matter the fact that they have to sit around for five days to be asked a question, like Mr. Lujan was asked at the end of this trial.“ In addition to personal beliefs about the defendant’s guilt or about the credibility of State witnesses, the prosecution is also barred from giving personal opinions about defense witnesses.” Any comment concerning the credibility of a witness must be based solely upon the evidence and fair inferences therefrom." The line is crossed when the prosecutor clearly 998 F.2d 1344, 1353 (6th Cir. 1993). © Dandy, 998 F.2d at 1353. “ Modica, 663 F.2d at 1178. United States v. Ludwig, 508 F.2d 140 (10th Cir. 1974). “Id. at 143. “1a. “ See Capps v. State, 674 P.2d 554, 557-58 (Okla. Crim. App. 1984).2003) PROSECUTORIAL MISCONDUCT 545 interjects his interpretations of the testimony and credibility of the defense witnesses.” We find several comments by the prosecutor during closing argument were clearly improper. The prosecutor was wrong to argue: “Bring this guy in here from Ohio, pay him to come in here to testify. He’s an expert, Here's what we need to testify. Here’s yourten grand, Thank you.”; “Ifhe’s telling the truth for the first time in his life, nine good law-abiding citizens are not.”; “Well, that’s the biggest bunch of crap I’ve ever heard.”; and “he drummed up a dope dealer rat to lie for him ten years later.” These comments went beyond the bounds of what can be considered fair argument. Characterizing a witness's testimony as a “lie” or using the word “liar” is usually considered improper.*' Overuse of these terms exceeds the proper boundary of argument. A prosecutor in Dupree v. State accused defense witnesses of making up a story, saying, “he told a lie” and “‘I submit to you why he lied."*? The appellate court found the argument to be “highly improper.”® In stark contrast, the Second Circuit held in United States v. Peterson that using the words “liar” and “lie” to “characterize disputed testimony when the witness’ credibility is clearly in issue is ordinarily not improper unless such use is excessive or is likely to be inflammatory.” The court found no error since the prosecutor tied each comment to part of the record and did not attempt to inflame the passions of the jury.** C. Inferences Outside the Record A final area of improper argument occurs when the prosecution allows the jury to draw an impermissible inference. This inference, in effect, informs the jury that the prosecution is relying on undisclosed evidence toassure the credibility of the State’s witnesses. The dual errors of bolster- ing and going outside the trial record are both presented in this scenario. © Martinez v. State, 984 P.2d 813 (Okla. Crim. App. 1999). Id, at 825. * See id. 2 514 P.2d 425, 426 (Okla. Crim. App. 1973). ® Dupree, 514 P.2d at 426. 808 F.2d 969, 977 (2d Cir. 1987). * Peterson, 808 F.2d at 977.546 ‘AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 26:535, In Gradsky v. United States the prosecutor told the jury that “the govern- ment representatives don’t put a witness on the stand unless there appears to be some credibility, until he appears to be a truthful witness.”** This general form of personal vouching is arguably made worse when it refers to a specific witness for the State. In another case from the Fifth Circuit, the prosecutor stated, “I know him to be a fine F.B.1. officer-absolutely the finest I know. A man of absolute integrity.”*” Both decisions con- demned using such improper arguments because they suggest that undis- closed evidence exists that would bolster the prosecutor's witnesses. III. Attacks on Defense Counsel ‘These types of improper arguments arise in the State’s rebuttal stage of the final argument. It seems plausible that these statements are in response to a defense argument, or are employed to shock the jury when the defense has rebutted some of the State’s case. Since the prosecution opens and closes the final summation, many defense attorneys believe they must make full use of their opportunity to speak to the jury. In doing they often “open the door” and waive any error under the doctrine of “i vited response.”** Categorizing these errors reveals two general groupings: attacks on defense ethics and assertions of defense beliefs on guilt. A. Ethical Attacks Many arguments contain various attacks on the ethics of the defense attorney. Often, the prosecutor’s comments assert that the defense attorney concocted the defense strategy as a device to thwart the jury’s search for truth. The seminal case is Berger v. United States wherein the State asserted, “But, oh, they can twist the question. ... [TJhey can sit up in their offices and devise ways to pass counterfeit money; but don’t let the Government touch me, that is unfair; please leave my client alone.” The same argument has been phrased as the defense counsel “making up a * 373 F.2d 706, 710 (Sth Cir. 1967). *" Hall v. United States, 419 F.2d 582, 585 (Sth Cir. 1969). * United States v. Young, 470 U.S. 1, 12-13, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 10-11 (1985) (articulating the test as to whether “invited response” comments unfairly prejudice the defendant), 295 US. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 2d 1314, 1321 (1935).2003) PROSECUTORIAL MISCONDUCT 547 61 story,” playing “cheap tricks, a “cheap shot artist," being a “hired gun,” or “lying or trying to mislead yor B. Belief in Client’s Guilt Many defense arguments feature the attorney as the client's surrogate who “believes” in his true innocence. Unfortunately, this approach invites the State to respond with its reply that the defense attorney knows the client is actually guilty. An example of this is found in Fryer v. State.® In Fryer, the prosecutor responded to an expression of personal opinion by the defense by saying, “The only nightmare that [defense counsel] had last night was that he knew his client was guilty.” The court sustained a timely objection by the defense.” A related argument occurs when the prosecutor implies that the defense attorney does not believe his client's testimony. In Bates v. United States the defense chose to emphasize the testimony of an alibi witness rather than the defendant's testimony. The prosecutor's response was predictable: “And, you must wonder, must you not, why defense counsel never even mentions the testimony of his own client. ... Why is that?” The court found this argument to be harmless error due to its isolated nature and ‘overwhelming evidence of guilt.” IV. Arguing Outside the Record The prosecution may comment upon any fact in evidence and any per- missible inference drawn from the evidence. When argument strays outside © McCarty v. State, 765 P.2d 1215, 1220 (Okla. Crim. App. 1988). Redish v. State, 525 So. 2d 928, 931 (Fla. Dist. Ct. App. 1988). © Jackson v. State, 421 So. 2d 15, 15 n.1 (Fla. Dist. Ct. App. 1982). © Bames v. State, 743 So. 2d 1105, 1106 (Fla. Dist. Ct. App. 1999). * State v. Lyles, 996 S.W.2d 713, 716 (Mo. Ct. App. 1999) * 693 So. :d 1046 (Fla. Dist. Ct. App. 1997). “ Fryer, 693 So. 2d at 1047. “Wd. $* 403 A.2d 1159, 1162 (D.C. 1979). © Bates, 403 A.2d at 1162. 7 fd. at 1163.548 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 26:535 this role, itis improper. Research has revealed several categories properly included in this section. The following subsections represent the most recurring classifications of arguments going outside the record of the trial. A. Other Evidence 1. “I Wish I Could Present This to You...” Often prosecutors appeal to the jury’s sense of fair play by implying that their hands are bound by the rules of the legal system, or that they are not allowed to bring a necessary witness to court. The former is exemplified by the prosecutor in Berger v. United States." During final summation the State’s attorney informed the jury, “I was examining a woman that I knew knew Berger and could identify him, she was standing right here looking at him, and I couldn’t say, ‘Isn’t thatthe man?’ Now imagine that! But that is the rules of the game, and I have to play within those rules.” ‘These improper statements actually violate rules prohibiting impermissible inferences, prosecutorial testimony, and going outside the record. An example of a prosecutor explaining the testimony of a missing expert is People v. Ellison.” After stating that it was unfortunate that a fingerprint expert could not testify, the prosecutor summarized what would have been. the expert’s testimony and concluded assuredly, “Mr. Maxwell, I would submit, would have told you all of this had he been here.””* 2. “I Could Show You More Evidence... . Onoccasion, a prosecuting attorney will assure the jury that he has much more evidence than he produced at trial. This is typically a psychological ploy to ensure the jury that a verdict of guilt is beyond question. This argument is a powerful forensic device when employed by one who has made a favorable impression on the jury. So used, the prosecutor becomes 74295 U.S. 78, 88-89, 55 S. Ct. 629, 632, 79 L. Ed. 2d 1314, 1321 (1935); see, eg., People v. Emerson, 455 N.E.2d 41, 45 (Ill. 1983) (“[W]e can’ttell you everything he did after his arrest and he knows it”). ” Berger, 295 US. at 87. ” 133 Mich. App. 814, 820, 350 N.W.2d 812, 815 (Ct. App. 1984). ™ Ellison, 350 N.W.2d at 814.2003) PROSECUTORIAL MISCONDUCT 549 a trusted confidant assuring the jury he has not wasted its time by calling more witnesses than needed. In response to the presentation of defense character witnesses, one prosecutor argued, “I could probably have fifty people in here who would show that he isn’t a good character.” In a particularly egregious example, an argument continued, “We could have gone on with this case for probably [two] weeks had I presented all of the evidence in detail that points toward the defendant. . . .””° B. Punishing for Other Conduct or Associations Many defendants either have prior criminal records or are otherwise subject to impeachment by prior bad acts. Arguments that incorporate men- tion of these are extremely prejudicial because they call the jury’s attention to those acts outside the proper scope of impeachment. Often, the defendant does not testify but is faced with this inflammatory argument, The obvious risk is that the jury will convict on the basis that the defendant is a “bad” man-regardless of the evidence in the case. The following quoted portion of an argument improperly called for conviction based on the defendant’s actions in court. This particular argument contains multiple errors-noted by the court in the second halfof the following-and may deserve a separate law review article dedicated solely to it. “Ladies and Gentlemen, I wish to God that when you retire to deliberate, Thope that you come back with a speedy verdict so that we can tell Kelly Spencer Ward that we don’t appreciate this type of behavior in a court oflaw. That we don’t appreciate having toendure his threats, insults and every other thing that you have heard in this trial. If you give him less than two years, I’ll be sorely disappointed in this jury and I know that you are reasonable people and I know that you will do what's right because only when you say to him, “Nuts, Mr. Ward, we're not going toputup with itas citizens, ‘can you do what's right.” You have worked hard to get where you are at. You went through the system. He spits on the system. Find him accountable and give him the maximum, for how much time will he indeed do on two years?” There can be no doubt as to the impropriety of the quoted remarks. The prosecutor went outside of the evidence produced at trial. He appealed to the jury to punish the appellant for his conduct at trial rather than the offense ” Ginsberg v. United States, 257 F.2d 950, 954 (Sth Cir. 1958). % State v. Ranicke, 3 Wash. App. 892, 897, 479 P.2d 135, 139 (Ct. App. 1970).550 AMERICAN JOURNAL OF TRIAL ADVOCACY [vol. 2535 for which the trial was being held. He argued that by according rights to minorities, society has somehow been demeaned. He argued that the appel- lant was in the same class as convicted killers. He insinuated that appellant had the gun in the bar in order to commit a homicide. Finally, he made comments on the pardon and parole system. We have condemned similar arguments in the past.”” Other examples of this type of prejudicial argument typically include situations where the State interjects into summation the defendant’s prior criminal record or past bad acts not in evidence. In Joyner v. State the district attorney improperly referred to the defendant as a “four time loser.””* The reviewing court found that, since no prior conviction had been established during trial, the prosecutor had acted in bad faith.” Another prior bad act not in evidence was improperly argued in Barron v. State, where the district attorney stated “that if you fail to convict this defendant, you are releasing him to go and kill some little boy ona bicycle again.”®° ‘The absence of any such death in the record rendered the argu- ment reversible error.*' C. Inferences From Non-Existent or Limited Evidence ‘An improper implication usually is coupled with one of two methods of argument. The most common is when the prosecutor argues a factual nexus exists to something that has not been admitted into evidence. The second is when the State utilizes evidence admitted only for a limited purpose but asks the jury to draw factual conclusions beyond that purpose. An improper inference was drawn from limited evidence in State v. Nickens.®? Evidence of the defendant’ s prior convictions had been received by the jury through the testimony of expert psychiatric witnesses." This evidence was limited to the “issue of [the] defendant’s mental condition. ” Ward v. State, 633 P.2d 757, 759 (Okla. Crim. App. 1981). 78 436 S.W.2d 141, 142 (Tex. Crim. App. 1969). ” Joyner, 436 S.W.2d at 144. © 479 P.2d 614, 615 (Okla. Crim. App. 1971). " Barron, 479 P.2d at 615. ® 403 S.W.2d 582 (Mo. 1966). ™ Nickens, 403 S.W.2d at 588. “Id.2003) PROSECUTORIAL MISCONDUCT 551 During final argument the State referred to these convictions as a reason for imposing maximum punishment.’ The appellate court found the statement to be “an abuse of [the] defendant’s rights.”* The more prevalent improper inference argument is one that stems from facts not in evidence. In an illustrative case, the prosecutor argued outside the record: “He and Houston, and Mr. Miller knew exactly where they were going. Do you think this is the first time they’ve been in a building [together]?”” The reviewing court found this to be a “direct statement” that the defendants were “habitual storebreakers.”** Arguably, this is not a direct statement at all but rather the creation of an impermissible infer- ence. In any event, the result is the same. A final example is the classic textbook use of a nonexistent fact that all trial attorneys will recognize. In State v. VanWagner the trial court ruled that a police officer could not testify regarding a hearsay statement made to him by a person who identified the defendant as driving a certain car.” During closing argument, the State twice made reference to the excluded statement. First, “[o]ne of the questions they asked [Soland] was, ‘Who was driving?’ He answered that question. You didn’t hear his response. But it was with that question, that answer, that the officers further firmed up their conclusion, . ..”” Shortly thereafter, the State continued: “They talked to Mr. Soland and he was asked who was the driver and he answered. that question, and that answer was taken into consideration by the deputies incharging Lloyd VanWagner.”™ The reviewing court granted a new trial based on the elicitation of the testimony and its use in summation.” D. E lence Disparaging to the Defendant Often there are more than sufficient facts available to the prosecution showing that the defendants a person who has no guilt, no shame, nor any 8 id. "Ia. * State v. Miller, 271 N.C. 646, 656, 157 S.E.2d 335, 343-44 (1967). ® Miller, 157 S.E.2d at 344, © 504 N.W.2d 746, 748-49 (Minn. 1993). VanWagner, 504 N.W.2d at 749. "Id. % Id. at 750.352 AMERICAN JOURNAL OF TRIAL ADVOCACY [vol. 26:535 semblance of a moral code. Outside of these admissible facts, the State sometimes resorts to revealing prior dealings with the State. An example includes the mentioning of a prior guilty plea in the same case used in an effort to rebut the defendant’s present not guilty plea.”* In United States v. Wiley, the prosecutor bolstered the credibility of one of his witnesses by relating the private conversation he had had with the witness that included no inducements to testify.* In each of these examples, the prosecution divulged prior legal proceedings or conversations in an improper effort to influence the jury. In addition to the above category, another group of cases indicates that disparagement of the defendant’ s character can be accomplished by insinu- ating or suggesting wildy prejudicial facts outside the record. Recall that the former category had at least a basis in fact. However improper the argu- ment, both the guilty plea and the conversation discussed in summation actually had occurred. In State v. Kolander, the prosecutor argued during an arson trial that the defendant was “under suspicion of murder,” and that they were “dealing with a desperate and a dangerous man.”*° The appellate court reversed the conviction because the. argument lack: evidentiary support and urged a conviction based on a suspicion of a more serious crime. A final example of a district attorney inserting prejudicial facts during argument is McCarty v. State.®” During the guilt-innocence stage summa- tion, the State commented, “I wonder if [the appellant] was grinning and laughing that night when he murdered Pam ”°8 This statement was held to be “highly improper” because it had no basis in evidence and was completely outside the record.” Citing another court reviewing a similar argument by the same prosecutor, the court characterized it as “at best speculation and at worst fantasy.”! ® State v. Reardon, 245 Minn. $09, 510-11, 73 N.W.2d 192, 193 (1955). % 534 F.2d 659, 664 (6th Cir.), cert. denied, 425 U.S. 995 (1976). % 236 Minn. 209, 223, $2 N.W.2d 458, 466 (1952). * Kolander, 52 N.W.2d at 466. % 1988 Okla. Crim. App. 271, 765 P.2d 1215 (Crim. App. 1988). % McCarty, 765 P.2d at 1220. ® Id. References to the defendant's courtroom behavior are considered improper in some circuits. See United States v. Schuler, 813 F.2d 978 (9th Cir. 1987); United States v. Wright, 160 U.S. App. D.C. 57, 62, 489 F.2d 1181, 1186 (1973). 19° McCarty, 765 P.2daat 1220 (quoting Bowen v. Maynard, 799 F.2d 593, 612 (10th Cir. 1986) (Seymour, J.)).2003) PROSECUTORIAL MISCONDUCT $53 E. Testifying as an Expert or Witness Inaneffort to gain a tactical advantage during final argument the State’s attorney may dispense with the formality of taking an oath and proceed to practically present himself as a witness before the jury. Distinguish this category from the previously discussed “personal beliefs and opinions” category.'*' These remarks are not prefaced with “I think” or “I believe” language. Instead, the prosecutor inserts himself into the role of a State’s witness. In a classic example rebutting defense counsel’s argument that burglars do not ring doorbells, one prosecutor stated: [WJhen you are in law enforcement and you are sitting in enough cases, you Jeam a lot about this stuff and you lear that that is not the way criminals always work..... {I]t is very common for burglars to go around and check out places and see if anybody is at home before they go in and do their deeds because they don’t want to be doing this stuff when people are home. So, it is very common to go around ringing the door bell and knocking on the door." The reviewing court found this argument to improperly assert that he had “special knowledge acquired through his experience in law enforce- ment.” In effect, he presented himself to the jury as an expert witness.'™ A prosecutor also crosses the line into impermissible argument when he presents himself as a witness to facts of the prosecution's case. In these circumstances, he does not testify from his peculiar expertise, but rather asa witness filling in missing facts to the prosecution’s case. For example, when the credibility of a State’s witness was in issue, a prosecutor ex- plained what he had told the witness. Nowat this point Sherman Dean has been trying to make a deal, saying look Pmwilling to give youll this stuffbut it’s got to be worth something to you, could you dismiss, could you give me this sentence. Nothing, Sherman, noth- ing, we don’t need you, you are a dirty liar, and he said he got mad at me because I told him again repeatedly that if anybody else had offered him "°' See supra text accompanying notes 35-55. "State v. Vigue, 420 A.2d 242, 246 (Me. 1980). 1 Jd. at 247. Id.334 ‘AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 26:535 anything they were lying, that they didn’t have the authority, and if you want to take a chance on it you go on, but if you lie, Sherman, you are going in the hole, you are going to be that much worse off, and if you hold back one thing on anybody, I don’ tcareif it is your mother and father, if itis your little sixteen year old boy, that is going to prison, if you're not ready to tell every- thing don’t tell anything at all. ‘And so he got upset, and he expected a little deal or tradeouts here and there, and nobody would deal, but he decided to do it anyway, he had nothing to lose and something to hope for.'"5 Predictably, the circuit court held that the attorney was “not privileged to testify in the guise of a closing argument.”" V. Inflammatory Remarks The use of inflammatory argument employs a unique and serious risk. By appealing to the passions and prejudices of the jury, the prosecution introduces anger and fear into the deliberative process of determining guilt or innocence. This leads to irrational decisionmaking based on emotions rather than facts. A. Law-and-Order Appeals Prosecutors may emphasize to the jury the larger problem of crime. It is usually permissible to mention the “importance of the case” by ref- erencing the consequences associated with the particular crime." The best description of when these arguments become error is found in United States v. Solivan.'* The fairness or unfaimess of comments appealing to the national or local community interests of jurors in a given instance will depend in great part on the nature of the community interest appealed to, and its relationship to, and the nature of, the wider social-political context to which it refers. The '°5 United States v. Wiley, 534 F.2d 659, 664 (6th Cir. 1976). ‘° Id. (citing United States v. Peak, 498 F.2d 1337, 1339 (6th Cir. 1974)). United States v. Ramos, 268 F.2d 878, 880 (2d Cir. 1959). '°8 937 F.2d 1146, 1157 (6th Cir. 1991) (holding that the prosecutor's comments made during closing arguments were grossly prejudicial to the defendant).2003] PROSECUTORIAL MISCONDUCT 555 correlation between the community interest comments and the wider social- political context to a large extent controls the determination of whether an appeal is deemed impermissible because it is calculated to inflame passion and prejudice. The Supreme Court. ., framed the inquiry to incorporate both the purpose and effect of the comments, .... [I]n the light of contemporane- ousevents which had great impacton the emotions and perceptions of jurors, the remarks “‘could only have . . . arouse{d] passion and prejudice." Thus a reviewing court attempts to place these comments in perspective by looking at their context. The great danger in allowing these comments is that the jury may vote to convict believing “‘they will assist in the solu- tion of some pressing social problem.’”""° The first category of law-and-order appeals is the State’s use of “send a message” comments to the jury.''' In one child abuse case, a prosecutor argued that abuse “happens in our society” and “you can’t tur your back on these children.”''? The appellate court found this to have exceeded the parameters of summation and was “intended to coerce or urge the jury to send a message to the children of the world ‘that we will protect you." On the other hand, comments such as “send a message to these drug dealers”!"* have been held to be non-reversible error when a timely objec- tion was made and a curative instruction followed." A court will allow these prejudicial arguments if they are in response to a defense argument. In United States v. Bascaro the State told the jurors that they would “send out a very loud and clear message to other people of a similar per- suasion.”""* The appellate court allowed this argument because the defense attorney had referred to the Government’s case as a “circus.”""7 '© Solivan, 937 F.2d at 1152 (quoting Viereck v. United States, 318 U.S. 236, 247, 63 S. Ct. 561, 566, 87 L. Ed. 734, 741 (1943). "© /d_ at 1153 (quoting United States v. Monaghan, 741 F.2d 1434, 1441 (D.C. Cir. 1984)). ™ See James Duane, What Message Are We Sending to Criminal Jurors When We Ask Them to “Send A Message” With Their Verdict?, 22 AM. J. CRIM. L. 565 (1995). "? State v. Peterson, 530 N.W.2d 843, 848 (Minn. Ct. App. 1995). 1d. "* United States v. Sanchez-Sotelo, 8 F.3d 202, 211 (Sth Cir. 1993). aids "6 742 F.2d 1335, 1352 (11th Cir. 1984). " Bascaro, 742 F.2d at 1353.556 ‘AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 26:535 Another tried and true technique of the prosecution is to analogize the trial to a war. In this scenario the defendant is regarded as the enemy. In one federal drug case, a prosecutor gave a vivid description of this war. “But thank God at that time we had the Coast Guard on board the [U.S.S.] SIMMS. ... Because not only they are [sic] protecting us; they are protecting the people, they are protecting the youth, they are protecting other societies. That is why, ladies and gentlemen of the jury, they were in the drug interdiction, To save you all from the evil of drugs. Because the defendants are not soldiers in the army of good. They are soldiers in the army of evil, in the army which only purpose [sic] is to poison, to disrupt, to corrupt." Although this constituted error, yet another case upholds war analogies if the defense invites such a response. It appears that criticism of the State’s case serves as an invitation for the prosecution to employ this language. In United States v. Smith, the defense compared the Government's case toan atomic bomb." This reference allowed the Government to emphasize the war on drugs and say the defendant was “symbolic of the enemy.”!”? The most prejudicial form of argument in the law-and-order arsenal is the imparting of fear to the jury. The personalization of fear to jurors is infinitely more reversible than generalized appeals to enforce society’s laws. This was conveyed in a death penalty case in Florida when a prose- cutor said, “If you do not electrocute this defendant, this man may come back here and kill all of you.”"" A slightly more subtle example was used ina Missouri trial when the district attorney argued, “Now it would have been just the same if one of you had been standing outside the tavern and they came out and they saw you and shot you.”"” Both of these examples demonstrate how the prosecution instills fear in the jury by asking them to assume the role of the victims. The tactic of using fear is often used in trials of violent crimes. It ap- pears regularly in sexual assault and rape cases when the State moves from the subdued tone of a law-and-order appeal to a more aggressive tone of " Arrieta-Agressot v. United States, 3 F.3d 525, 527 (Ist Cir. 1993). ° 918 F.2d 1551, 1562 (1 1th Cir. 1990). "°° Smith, 918 F.2d at 1562. "" Grant v. State, 194 So, 2d 612, 615 (Fla. 1967). ™ State v. Paxton, 453 S.W.2d 923, 926 (Mo. 1970).2003} PROSECUTORIAL MISCONDUCT 557 anger. In State v. De Pauw the prosecutor may have been calling for mob justice when he said, “What would you do if you found that your child had been violated? . . . I know that you, too, who are fathers here, you would do the same thing.” ‘These types of crimes are particularly susceptible to victim substitution. Another example of this was an argument that included, “It could be my daughter, [i]t could be your daughter, it could be anybody’s daughter, it could be my wife, [i]t could be somebody else’s wife.”"* Thus, reversible error is often predicated on this prejudicial fear tactic some prosecutors employ. B. Name Calling Calling the defendant an insulting or demeaning name during final summation has become more commonplace than one might suppose. By employing descriptive terms such as “blackhearted traitor” or “trash,”""* the prosecutor labels the defendant as a person who is without a conscience and truly despicable to ordinary law-abiding citizens. More often than not, these characterizations are permissible because the evidence at trial supports such an inference or deduction. Although many of these epithets are allowed, it remains clear that they are used to arouse the jury’s passion and prejudice. The first instance when name calling becomes impermissible is when the comments are not supported by evidence. An example of this occurred when a prosecutor labeled the defendant a “fugitive.”"”” This was found to be error because there was no supporting evidence in the record."* The court recognized that the argument was inflammatory, irrelevant, and error because of the lack of an evidentiary foundation.’ ‘5 243 Minn. 375, 376, 68 N.W.2d 223, 225 (1955). " State v. Jones, 266 Minn. 523, 524, 124 N.W.2d 727, 727-28 (1963), "5 CF Stephan v. United States, 133 F.2d 87, 98 (6th Cir. 1943) (distinguishing that the defendant was actually charged with treason and that the statement was made without objection in connection with evidence tending to show that the defendant was a traitor). '% Roberts v. State, $71 P.2d 129, 136 (Okla. Crim. App. 1977). "7 United States v. Goodwin, 492 F.2d 1141, 1147 (Sth Cir. 1974). "8 Id, id,558 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 26:535 Some courts recognize a great danger when there is alack of supporting evidence. The risk of unduly influencing the jury was stated eloquently in Hall v, United States:'® This type of shorthand characterization of an accused, not based on evidence, is especially likely to stick in the minds of the jury and influence its deliberations. Out of the usual welter of grey facts it starkly rises-succinet, pithy, colorful, and expressed in a sharp break with the decorum which the citizen expects from the representative of his government." This consideration has led appellate courts to find error with a prosecutor’s inflammatory remarks when there is simply too great a possibility of preju- dice. Even an admonishment or instruction by the court may be ineffective in erasing the effects of the argument. In an Illinois rape prosecution, the State “referred to the defendant as a pervert, a weasel and a moron; told the jury that the defendant, who raped his mother’s friend, would rape a dog and would rape each and every member of the jury.”""? Another court found error in a prosecutor's characterization of a defendant as a “doper,” a “marijuana expert man,” and a “homosexual.”! The court found the repeated references to the defendant being homosexual as particularly prejudicial." ‘Name calling also includes the deliberate association or comparison of the defendant to a known rogue or criminal of the past. This forensic tech- nique has met with various measures of disapproval from higher courts. A Florida court held that a characterization of the defendant as a “young Mr. Hitler” was improper, but it refused to reverse the verdict due to the compelling nature of the evidence."®> The Oklahoma Court of Criminal ‘Appeals modified a defendant's sentence from thirty to fifteen years in response to a district attorney's remarks comparing the defendant to 9° 419 F.2d $82 (5th Cir, 1969). "1 Hall, 419 F.2d at 587. "People v. Garreau, 27 Ill. 2d 388, 391, 189 N.E.2d 287, 289 (1963) (holding that instructing the jury to distegard the prejudicial statement may notbe sufficient to remove the effect of such statements). ™ Tobler v. State, 688 P.2d 350, 354 (Okla. Crim. App. 1984). Id. 5 Copertino v. State, 726 So. 2d 330, 334 (Fla. Dist. Ct. App. 1999).2003) PROSECUTORIAL MISCONDUCT 559 Charles Manson, Al Capone, and John Dillinger.'* The court speculated that the jury “may well have been swayed to return a more severe penalty than they would have given otherwise.”"” Regardless of the appellate courts’ disapproval of these comparisons, the practice continues. The most flagrant example of name calling occurs when the State attempts to dehumanize the defendant. An example of this technique can beseen in Gore v. State." In that summation the prosecutor told the jury, “[T]here’s a lot of things I can say or can’t say, but . .. one thing the Judge can’t ever make me say [is] . .. that’s a human being.” The court cor- rectly observed that the “prosecutor lost sight of his professional respon- sibility.”"“° In addition to calling defendants non-human, prosecutors have used the terms “rat,” “dog,” and “animal” to dehumanize defendants. '*' A Colorado court summed up the inherent prejudice by observing: “Such terminology is impermissibly derogatory and inflammatory. These state- ments not only improperly dehumanize the defendant but incorrectly focus the jury’s determination of the case... onto the defendant’ s supposed non- human status.”"*? Admittedly, it is a close call whether Hitler or a rodent is less human, but this author votes for the latter. C. Sympathy and Prejudice Acommon forensic ploy of many prosecutors is to reinforce the natural instincts of jurors. It is commonplace for a jury to experience sympathy for the victim of a crime. It is also certain that every person on the jury has particular biases, prejudices, and predispositions. Every court in this nation qualifies jurors by insisting that they lay their own prejudices aside and decide the case based solely on the evidence presented. Thus, argu- ments that ask jurors for victim sympathy or that reinforce biases have no place in the courtroom. In fact, they are repugnant to the jurors’ oaths. 138 Meggett v. State, 599 P.2d 1110, 1114 n.3 (Okla. Crim. App. 1979). 17 fd. at 1114. 8719 So. 2d 1197 (Fla. 1998). "9 Gore, 719 So. 2d at 1201. 10 id. " See, e.g., People v. Hemandez, 829 P.2d 394, 396 (Colo. Ct. App. 1991) (stating “courts have uniformly condemned as improper a prosecutor using such terms as “rat,” ‘dog,’ or ‘animal,’ to describe a defendant”). 12 1,560 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 26:535 Having stated the above, the goal is to recognize such impermissible arguments in action. The first indication of a victim-sympathy comment is the prosecutor focusing on the aftereffects of the crime-nor on whether the defendant committed the crime. Also, the argument will not be directed to the motivation of the accused. In many instances the jury is presented with a moral question of whether what happened is just. An example of this approach is seen in Powell v. State.'*? In that death penalty case the district attorney stated: “Is there any rightness to her, where she’s at, in the grave, allowing him to live in the sun, receive his meals every day, lay onclean sheets every night, think about ways to manipulate the system until bis next visit or letter{?} Is that right{?J"" In another case, the Govern- ment argued that the accused was “taking advantage of a poor person,” “taking advantage of children,” and “taking advantage of amother’s ability to provide for their {necessities].”“* The court found that these comments, inthe context of Christmastime and substantial employee layoffs, “had the ability to mislead the jury as well as ignite strong sympathetic passion for the victims.”"*° The opposite of a sympathy argument is one that appeals to the preju- dices of the jury. Typically, the prosecutor identifies the accused with an unpopular group. That group may be based on race, religion, class or any other number of subjects. In addition, the State will either attempt to connect some undesirable trait with the group, or will ask the jurors to view the accused from the perspective of a biased viewpoint. The undesirable trait or associated innuendo is often found in cases where racial prejudice is injected. In United States v. Hernandez the State remarked that the verdict “will send a clear message to Cuban drug dealers.”"“” The court found this to be error but refused to reverse the con- viction.'** The central question in these cases is whether “the argument shifts its emphasis from evidence to emotion.”” Therefore, the State may inject an occasional racial remark if it otherwise makes an intelligent and straightforward presentation. A persistent use of racial terms that under- 61.995 P.2d 510 (Okla. Crim. App. 2000). ™ Powell, 995 P.2d at 539 “S United States v. Payne, 2 F.3d 706, 711 (6th Cir. 1993). “6 fd. at 712. “7 365 F.2d 925, 927 (7th Cir, 1989). ' Hernandez, 865 F.2d at 928. “© United States v. Doe, 284 U.S. App. D.C. 199, 208, 903 F.2d 16, 25 (1990).2003] PROSECUTORIAL MISCONDUCT 561 mined a prosecution can be found in United States v. Sanchez. The Assistant United States Attorney asserted that, if the defendant wanted to better the lives of Mexican-Americans, “he should have enough machismo and chicannismo to take that stand and tell you the truth.”!** The circuit court held that these and other remarks were “unwarranted inferences or insinuations calculated to prejudice the defendant.’”!** ‘Asking the jury to view the accused or his defense from a biased view- pointisa tricky situation. First, few experienced prosecutors would be so bold as to do this overtly. Instead, the State attempts to demonstrate that the jury is representative of a group of commonsense, truthful and law abiding persons who share the same values. An appeal is then made for these values to be enforced in this case. For instance, when a religion clause defense was raised in a marijuana prosecution, a prosecutor argued: Andall this other stuff, Isubmit,is just hogwash. It’s just an attempt to come down here to Laredo, Texas and get a federal jury to believe that because he has got a Ph.D. and because he has got a 3,000-acre mansion in Upper New York where they experiment all the time, that he is not subject to the laws of the United States of America. And I say to you respectfully and sin- cerely that is not but hogwash, that Dr. Leary, like everybody else, high, low, black, white-any color-are subject to the laws equally, of the United States,’ This constitutes an apt example of discrediting a minority religious view- point by appealing to majoritarian views regarding religion. Another famous case from the World War II era included one of the most notorious appeals to patriotism ever given to a jury. In closing, let me remind you, ladies and gentlemen, that this is war. This is war, harsh, cruel, murderous war. There are those who, right at this very moment, are plotting your death and my death; plotting our death and the death of our families because we have committed no other crime than that we do not agree with their ideas of persecution and concentration camps. This is war. It is a fight to the death. The American people are relying upon you ladies and gentlemen for their protection against this sort of crime, just as much as they are relying upon the protection of the Men who man '% 482 F.2d 5 (Sth Cir. 1973). "5 Sanchez, 482 F.2d at 8. '2 fd, at 9 (quoting Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962)). 'S Leary v. United States, 383 F.2d 851, 864 n.13 (Sth Cir. 1967). HeinonLine -- 26am, J. Trial Advoo. 561 2562 ‘AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 26:535 the guns in Bataan Peninsula, and everywhere else. They are relying upon you ladies and gentlemen for their protection. We are at war. You have a duty to perform here. ‘As a representative of your Government I am calling upon every one of you to do your duty.’ In addition to using patriotism, appeals have been made to juries asking them to classify defendants with respect to their wealth, '®* as taxpayers,'** and as parents.'*” Each distinct group carries its peculiar set of biases. If the prosecution can successfully appeal to these dormant instincts, it may arouse the jury to convict in order to protect the shared values inherent to the groups. The obvious danger is that any doubts in the case will be re- solved against the accused because he is not a member of the group. Conclusion The foregoing classifications of improper arguments comprise an under- standable organization of the vast majority of various prosecutorial tactics employed in criminal cases. These are recurring issues that are present in every jurisdiction in this country. The most important measure any attorney can take is to learn to recognize these errors when they occur. Once such techniques are known, the defense attomey may choose to use a motion in limine, object, or simply ignore the remark. The choice of strategy is peculiar to the case, and will vary accordingly. In any event, the use of these prejudicial and improper methods continues to cast serious doubt on the final verdicts of juries in many instances. In addition, the intentional and persistent use of them causes a lack of respect and trust in professional prosecutors. ' Viereck v. United States, 318 U.S. 236, 247 n.3, 63 S. Ct. 561, 566 0.3, 87 L. Ed. 734, 741 n.3 (1943). '55 United States v. Stahl, 616 F.2d 30, 33 (2d Cir. 1980) (stating the prosecutor's intent to “appeal to class prejudice” was improper). '% Taglianetti v. United States, 398 F.2d 558, 566 (Ist Cir. 1968) (stating the prosecutor's statement that the government witnesses were “laboring .. . to protect the taxpayers from people who are cheating on their income tax” was improper). 157 Washington v. State, 668 S.W.2d 715,719 (Tex. Ct. App. 1983) (reversing based on the prosecutor’s improper reference to a non-existent Christmas card from the deceased to his daughter, which was discussed in order to appeal to the jurors’ emotions).Bad Faith Exception to Prosecutorial Immunity for Brady Violations By Bennett L. Gershman! Introduction: Imbler v. Pachtman Thirty-Four Years Later For those of us who teach and write about the conduct of prosecutors, reading . Imbler Imbler v. Pachtman® thirty-four years later is a profoundly disturbing experien is the linchpin for the doctrine that affords prosecutors absolute immunity from civil iability for actions that violate a defendant's constitutional rights. Despite its revisionist history and dubious policy, Jmbler is one of the Supreme Court’s most durable precedents, having been reaffirmed several times,’ including as recently as last Term.* The Court in /mbler viewed the prosecutor as a “quasi-judicial” official, much like a judge or a grand juror, for whom absolute immunity is vital to protect the judici process from harassment and intimidation.’ Thus, according to /mbler, when a prosecutor initiates a prosecution and pursues a criminal case, the prosecutor is cloaked with absolute immunity from civil liability to allow the prosecutor to make discretionary decisions fairly and fearlessly without the distraction of a flood of civil lawsuits by disgruntled defendants. ‘The Court acknowledged the hard choice between the evils inherent in either alternative but, quoting Judge Learned Hand, concluded that it is “in the "Bennett L, Gershman isa Professor of Law at Pace Law School and former prosecutor with the Manhattan District Attorneys office. 2424 US. 409 (1976) * See Kalina v. Fletcher, $22 US. 118 (1997) (reafirming /mbler and holding that prosecutor is protected by absolute immunity for preparing and filing charging documents, but not entitled to absolute immunity for execution of certification for determination of probable (1993) (reaffirming Fmbler, but holding that prosecutor isnot entitled to absolute immunity in investigating ‘whether boot print at scene of erime was lft by suspect, and not entitled to absolute immunity for allegedly false statements made during press conference); Burns v. Reed, 500 U.S. 478 (1991) (reffiming fmbler and holding that prosecutor is absolutely immune for participation in probable cause hearing, but not entitled to absolute immunity for giving legal advice to police). «See Van de Kamp v. Goldstein, 129 S.Ct. 855 (2009) (reaffirming fmbler and holding that sbsolute {immunity applies to administrative fimetions of district attorney and chief supervisory prosecutor for allegedly filing wo institute supervision and training programs for assistants). “Imbler, 24 US. at 423-29, fd, at 423-26,end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” As an open question thirty-four years ago, Imbler’s choice to afford prosecutors absolute immunity for advocacy functions was not entirely unreasonable. Although the Court vented a specially tailored common law history for absolute immunity, and concocted a publie policy to spare prosecutors from having to defend civil lawsuits, Imbler’s accommodation is not without contextual justification. Civil rights litigation thirty-four years ago was much less hospitable to prosecutors; qualified immunity was not nearly as protective of prosecutors as it is today.’ Moreover, alternative sanctions for m conduct, such as criminal prosecution and professional discipline, were not clearly unavailable or inefe ve; the Court was making an educated guess that these checks might serve as an effective deterrent to misconduct.’ Further, the Court’s attempt to classify a prosecutor's conduct into functional categories such as advocacy, investigation, and administration, while not seamless and easily applied, seemed rational, In any event, as the Court acknowledged, these attempts may present close questions requiring line- drawing in future cases."” Most importantly, however, the Court did not discuss the larger problem of prosecutorial misconduct, particularly as it relates to the prosecutor’s, duty to disclose exculpatory evidence; the subject was not nearly as complex and controversial as it is today." Thus, as the edifice for the doctrine that has spawned hundreds of decisions immunizing prosecutors from civil liability for acts of willful misconduet—misconduct, Id, at 428 (quoting Gregoire v. Biddle, 177 F. 2d $79, 81 2nd Cir. 1949), * See infra notes 186-191 and accompanying text. * See infra notes 153-185 and accompanying text "See Imbler, 424 US. at 431 33 " See infra Past Lthat occasionally resulted in innocent defendants being convicted and punished!’—Jmbler appears in retrospect to have been a gratuitous experiment in judicial administration, that not only failed to protect the judicial process but skewed the balance of power in the criminal justice system more heavily toward prosecutors." Moreover, by removing a deterrent to abus of power by prosecutors, /mbler encouraged dishonest prosecutors to hit below the belt and discouraged honest prosecutors from doing the right thing. Although /mbler’s perverse analysis of incentives and disincentives applies to the conduct of prosecutors across the board, there is one area of prosecutorial misconduct in which /mbler’s adoption of absolut immunity for prosecutors applies with special force: the prosecutor's decision to conceal from defendants exculpatory evidence that in some cases could be used to prove the defendant's innocence. That is the subject of this Article: why prosecutors should no longer enjoy absolute immunity from civil liability for deliberately suppressing exculpatory evidence, and why the Supreme Court, or Congress, should create an exception to absolute immunity for the deliberate suppression of exculpatory evidence. As this Article demonstrates, a prosecutor’s nondisclosure of exculpatory evidence is the most pervasive type of misconduct, involves misconduct that is the least capable of being discovered and punished, and involves conduct that contributes more than any other type of misconduct to the conviction and incarceration of innocent persons. This Article therefore proposes an exception to Imbler’s doctrine of absolute nmunity fora prosecutor’s deliber te bad faith suppression of exculpatory evidence. ® See infra note $4 and accompanying text © Several commentators have proposed abolishing absolute prosecutorial immunity enirly. See Maia N. Brink, A Pendulum Swung Too Far: Why the Supreme Court Must Place Limits on Proseeutorial Immunity, 4 Cuan. L. Rev. 1 (2009); Margaret Z. Johns, Reconsidering Absolute Proseewtorial Immunity, 2005 BLY. L. Rev. 53 2005); Douglas J. MeNamara, Buckley, Imbler and Stare Decisis: The Present Predicament of Prosecutorial immunity and an End to its Absolute Means, 59 Aus. L. Rtv, 1135 (1996),Part I of this Article describes the rule from Brady v. Maryland," which requires a prosecutor to provide a defendant with exculpatory evidence that might assist the defendant in obtaining an acquittal, and discusses the ease with which prosecutors are able to evade the rule and the difficulty of enforcing compliance. Part II discusses Imble adoption of absolute immunity for prosecutors for conduct related to their advocacy activities and the extension of absolute immunity to a prosecutor who violates his disclosure duty under Brady. Part III discusses a prosecutor's accountability for Brady violations and examines why, in the absence of civil liability, the other potential sanctions to deter and punish prosecutors for willful violations of Brady are insufficient. Part IV argues that in the absence of any meaningful sanctions to make prosecutors accountable for Brady violations, either the courts or Congress should adopt a bad faith exception to absolute immunity when prosecutors deliberately violate Brady 1. The Brady Rule: Easily Evaded and Virtually Unenforceable Ofall the constitutional rules in criminal procedure that impose limits on a prosecutor's conduct, the rule of Brady v. Maryland’ is unique in many ways. In all other areas of criminal procedure a prosecutor is commanded by the Constitution, statutes, and ethies rules to refrain from striking foul blows." Brady alone imposes on. the prosecutor a positive duty of fairness. By tempering the prosecutor's traditional role of a zealous advocate with that of a neutral minister of justice, Brady promised to transform the U.S. criminal adversary system from a competitive sporting event into a "373 US. 83 (1963). "id, "See, e.., Berger v. United States, 295 U.S. 78, 88 (1935) (although prosecutor “may strike hard blows, he is not at liberty to strike foul ones”); Unit 3, 162 n.10 (2d Cir. 1994) (prosecutor has “special duty not to misleadmore balanced and objective search for the truth.!” As the Court in Brady observed, “society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Further, i all other areas of constitutional criminal procedure in which an error has prejudiced a defendant, itis typically the prosecution that bears the burden of proving that the error was harmless." Under Brady, however, it is the defendant who bears the burden to establish that the prosecution's suppression of favorable evidence was harmful.” Also, in all other areas of constitutional criminal procedure, the commission of a constitutional error requires the prosecution to meet a much more stringent burden by proving that there is no reasonable possibility that the violation would have altered the "The prosecutor's Brady duty is contained in Fen, R. Ce. P. 16(a)(1)(E)() (upon defendant's request, prosecutor must disclose evidence if “the item is material to preparing the defense”). ‘There are widely inconsistent approaches in the US. courts as to what eonstituies Brady evidence, the specific types of information required to be disclosed, when it must be disclosed, and the sanctions for noncompliance. See Lauran L. Hooren er ata Fep. Joost Crr. TRearwent oF Bray v. Mayan Marerint wy Ustrep Stares Distmicr anp Stare Cours’ Rutes, Oroers, axb Pouiirs (2004), available at http://www. fe gov/public pdf nsf lookup BradyMat pdt Sfile BradyMat pdf. Rule 16 does not explicitly require a prosecutor to disclose all exculpatory information to the defense. In 2006, the Advisory ‘Committee on the Rules of Criminal Procedure voted eight to four to forward an amendment to the ‘Standing Committee on Rules of Practice and Procedure recommending an amendment to Rule 16 requiring a prosccutorto disclose to the defense all exculpatory information. See Advisory Committee on Criminal Rules, Minutes from Teleconference (Sept. 5, 2006), available at bttp:/www-uscourts gov/rules/Minutes/CR09-2006-min.pdf. ‘The Department of Justice strongly opposed the amendment and argued thet changes in the United States Attorneys’ Manual dealing forthe first time ‘with a prosecutor's disclosure obligations and establishing guidelines for disclosure would make such an amendment unnecessary. See U.S. Dep't of Justice, United States Attorneys’ Manual 9-5,000 (2010), available at http www .usdoj gov/ussaleousa/foia_reading_room/usanvttle9/Smerm.htm. Bur see United States v. Jones, 620 F. Supp. 2d 163, 171 (D. Mass. 2009) (noting thatthe change in the U.S. Attomeys' ‘Manual “was not an unprompted effort by the Department of Justice to address a problem that it perceived and acknowledged” but “part of an ardent and, to date, successful effort of the Department to defeat a possible amendment to the Federal Rules of Criminal Procedure”) "Brady, 373 U.S. at 87. Brady elaborated on this theme, alluding to the inscription on the walls ofthe Justice Department: “The United States wins its point whenever justice is done its citizens in the courts.” id, " Sce Chapman v, California, 386 U.S. 18, 24 (1967) (harmless error rule “put(s] the burden on the beneficiary ofthe error either to prove that there was no injury orto suffer a reversal of his erroncousty obtained judgment”), ® See United States v. Bagley, 473 U.S. 667, 685 (1985) (White, J.. concurring) (“l agree with the Court that respondent isnot entitled to have his convietion overturned uniess he can show that the withheld by the Government was “material™); id at 701 (Marshal, J, dissenting) (eri requires defendant to “shoulder the heavy burden of proving how [the undiselosed evidence] would have affected the outcome”).verdict. When a prosecutor violates due process by suppressing evidence under Brady however, the defendant must prove that had it not been for the prosecutor's suppression, there is a reasonable probability that the jury’s verdict would have been different? A reasonable probability, according to the Court, is a probability “sufficient to undermine confidence in the outcome.” Rather than producing a fundamental change in the criminal justice system, however, Brady became an illusory protection that is easily evaded and virtually unenforceable. Brady represents a contradiction within the operation of the U.S. criminal adversary system, The prosecutor is at once encouraged to be a zealous advocate charged with the responsibility of winning convictions against people who break the law, but at the same time is encouraged fo be a neutral minister of justice with the duty to provide the defendant with exculpatory evidence that might assist the defendant in obtaining an acquittal" Although Brady does not require a prosecutor to provide the defense with open-ended discovery, Brady does require a prosecutor to sift 8 See Fahy v, Connecticut, 375 U.S. 85, 86-87 (1963) (“The question is whether there is a reasonable possibility thatthe evidence complained of might have contributed to the conviction.”); Chapman, 386 U.S. at 24 (“There is little, if any, difference between our statement in Fahy v, State of Connecticut about “whether there isa reasonable possibility thatthe evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the crror complained of did not contribute tothe verdict obtaincd.”) ® Bagley, 473 U.S. at 682 (“The evidence is material only if there isa reasonable probability that, had the evidence been disclosed to the defense, the result ofthe proceeding would have been different”) i, + See Stephanos Bibas, The Story of Brady v. Maryland: From Adversarial Gamesmanship Toward the Search for Innocence?. in Crosasat. Proceoune Stones 154, 154 (Carol S. Steiker ed., 2006) (“Ultimately though, our proceduralized adversarial model has rendered Brady, if nota dead letter, not a very vigorous ‘one either. Judges are too weak, prosecutors are too partisan, enforcement is too difficult, discovery is too limited, and plea bargains are too widespread for Brady to influence many cases. Brady remains an {important symbol but in some ways a hollow one. ® Bagley, 473 U.S, at 696-97 (Marshall, J, dissenting) “[FJor purposes of Brady, the prosecutor must abandon his role as an advocate and pore through his files, as objectively as possible, t identify the ‘material that could undermine his case.") » See United States ¥. Agus, 427 U.S, 97, 106 (1976) (prosecutor has “no duty to provide defense counsel with unlimited discovery"). Bur see Ellen 8. Podgor, The Ethies and Professionalism of Prosecutors in Discretionary Decisions, 68 Foronaw L. Rev. 1511, 1522 (2000) (“Some defense attomeys are fortunate to practice in jurisdictions that have ‘open-file” discovery practices and thus receive the material early in thethrough her files in a conscientious effort to identify any favorable evidence that might assist in proving a defendant's innocence. Given “this obviously unharmonious role” for a prosceutor,”” Brady exemplifies a remarkable faith of the Supreme Court in the capacity of prosecutors to subordinate their moral values, personal biases, and competitive instincts to the overriding objective of the pursuit of truth in the service of justice. When prosecutors “play the game to win,” as they typically do, carefully analyzing the evidence, reexamining the hypothesis of guilt, and identifying defects and inconsistencies are undertaken not by “minister[s] of justice,” but by ardent partisans who keep score of their convictions, are motivated by the rewards of winning, and are unlikely to sacrifice the conviction of guilty defendants to an abstract principle of justice. The Brady rule runs counter to these considerations. Brady's counter-intuitiveness is based not only on general observations of the interests and incentives of a prosecutor within the criminal adversary system; Brady compliance also runs counter to more nuanced considerations of the psychology of a prosecutor preparing for adversarial combat, Any prosecutor preparing for trial almost, certainly believes the defendant to be guilty and has assembled a cache of evidence to prove the defendant’s guilt, There may be evidence in the government's files that Bagley, 473 U.S, at 697 (Marshall, J, dissenting) > See Catherine Ferguson-Gilbert, I is Nor Whether You Win or Lose, It is How You Play the Game: Is the Win-Loss Scorekeeping Mentality Doing Justice for Prosecutors?, 38 Cat. W. L. Rev, 283, 289-90 (2001) s that prosecutors readily admit that winning is important and that district attomeys offices keep ating averages” of prosecutors); Ken Armstrong & Maurice Possley, Trial & Error: Break Rules, Be Promoted, Cit. Tro. Jan. 14, 1999, at N1 (describing prosceutorial culture “where prosecutors recite convietion rates like boxers touting win-loss records” ® See Moves Ruts oF Pror't. Conoucr R. 3.8 emt, | (1983) (“A prosceutor has the responsibility of a ‘minister of justice and not simply that of an advoeate."); Moost. Cooe oF Pkor't Ressoxsiusry BC 7-13 (1981) (“The responsibility ofa public prosecutor differs from that of the usual advocate: his dty isto seck justice, not merely to conviet”); ABA Staxpaxos Fox Crown Jusnice: Prosecution Funetion and Defense Function, Standand 3-1.2(6) (3d ed, 1993) (“The duty of the prosecutor is to seck justice, not merely to convict."); Nar't Pkostcunon Sranoakos § 1-1 (Nat'l Dist. Attomeys Ass'n, 2d ed, 1991) ("The primary responsibilty of prosecution is to see that justice is accomplished.”)contradicts guilt and that a rational prosecutor may view as favorable to the defendant and subject to Brady disclosure, but a rational prosecutor who has carefully analyzed her proof in preparation for trial reasonably might view this contradictory evidence as irrelevant, unpersuasive, or unreliable and certainly not of such probative value to reach the high threshold of materiality that is required for disclosure under Brady.” To be sure, a prosecutor has no discretion under Brady to refuse to search for materially favorable evidence, but a prosecutor has unfettered discretion to decide whether any of that evidence must be disclosed. Given the mindset of prosecutors preparing for trial, it is very likely that prosecutors are predisposed to view their disclosure obligations quite narrowly."! Leaving aside intuitive judgments about a prosecutor's mental state and so-called “conviction mentality,” itis increasingly recognized by specialists in cognitive psychology that a prosecutor's predisposition is to ignore Brady. Experts who study the existence and impact of various cognitive biases on prosecutors recognize that prosecutors ordinarily make professional decisions based on their personal beliefs, values, and incentives, and that these decisions may result in the subversion of justice, even unintentionally.” These studies have examined the capacity of prosecutors to * See infra notes 39-48 and accompanying text » Sce Randolph N. Jonakait, The Ethical Prosecutor's Misconduct, 3 Cros, L. Butt. $30, $59 (1977) (prosecutors are convinced thatthe defendant is guilty and view contradictory evidence as “irrelevant or petty incongruity”); Bennett L. Gershman, Reflections on Brady v. Maryland, 47 S. Tex. L. Rev. 685, 690 1.24 (2006) (citing anecdotal evidence confirming prosecutors’ restrictive view of Brady obligation). For a ent example of this prosecutorial mindset in highly publicized prosecution of a United States Senator see Transcript of Hearing on Motion to Dismiss at 4~7, United States v, Stevens, 593 F. Supp. 24.177 (D.D.C. 2009) (No, 08-231 (EGS)). ‘The district judge identified atleast twelve instances where the prosecution team “was caught making false representations and not meeting its discovery obligations {As the cour listed the violations, itmoted the government's responses: “testimony was immaterial”; ‘government acted in “good faith”; “just a mistake”; “mistaken understanding”; evidence was “immaterial”, nondisclosure was “inadvertent”; nondisclosure was “unintentional”; documents were “immaterial”; complaint by FBI agent against prosecutors for their misconduct had “no relevancy” and could be adequately addressed by the Office of Professional Responsibility © See Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Ws. L, Rew. 291, 296-307 (2006) (describing case studies in tunnel vision by prosecutors that idmaintain the neutrality and objectivity that compliance with Brady requires and have described the kinds of pressures and biases that operate on virtually all of the discretionary decisions that prosecutors make, including the ability to maintain an open. mind,** For instance, a prosecutor who is convinced of a defendant's guilt—and what prosecutor is not convinced?—may exhibit so-called “tunnel vision” whereby she ignores, overlooks, or dismisses evidence that might be favorable to a defendant as being irrelevant, incredible, or unreliable. Similar kinds of cognitive biases that operate on a prosecutor's decision-making include “confirmation bias” that credits evidence that, confirms one’s theory of guilt and discounts evidence that disconfirms that theory," lective information procs ing” that inclines one to weigh evidence that supports ‘one’s belief in the defendant's guilt more hi than evidence that contradicts those beliefs,” “belief perseverance” that describes a tendency to adhere to one’s chosen theory even though new evidence comes to light that completely undercuts that theory's evidentiary basis," and “avoidance of cognitive dissonance” under which a person tends to adjust her beliefS to conform to her behavior.* All of these biases plainly are impediments to rational decision-making and make it perfectly understandable that a prosecutor, wearing the mantle of a zealous advocate seeking to win a conviction, is likely to overestimate the strength of her case and underestimate the probative value of loverted justice) "See Alufair S. Burke, Improving Proseculorial Decision-Making Some Lessons of Cognitive Science, AT Wu. & Mary L. Rev. 1587 (2006) (describing prosecutorial decision-making as often “irrational” because of cognitive biases). Having served as a prosecutor for several years, and as.a Long-time observer of prosecutorial conduct, am inclined to agree with much of Professor Burke's commentary. See Susan Bandes, Loyalty to One's Convictions: The Prosecutor and Tunnel Vision, 49 How. L. J. 4 (2006); Findley & Scott, supra note 32. * See Burke, supra note 33, at 1594-96, * Id, at 1596-99, © Id, at 1599-1602. * Id, at Y601-02evidence that contradicts or undermines her case. This latter evidence is precisely the kind of evidence that a prosecutor is required to identify and disclose under Brady. Finally, apart from the adversarial pressures on prosecutors that discourage Brads compliance, compounded by the cognitive biases that make compliance even more unlikely, the judiciary’s permissive interpretation of the prosecutor's duty under Brady affords prosecutors a virtual license to evade Brady with impunity. Brady, as originally understood, required a prosecutor to make a prospective, pretrial determination as to the probative value of certain evidence in her possession that might be materially favorable to the accused and to immediately disclose that evidence.” However, this prospective duty of the prosecutor mutated into a retrospective, post-conviction determination by an appellate court as to whether the prosecutor's nondisclosure, in the context of the entire record at trial, makes it reasonably probable that, had the evidence been disclosed, the defendant would have been found not guilty.” By adopting this retrospective, post-trial standard to define the scope of the defendant’s constitutional right to certain evidence prior to trial, the Court has made it easier for prosecutors to evade their Brady duty * See United States v. Coppa, 267 F.3d 132, 141 (2d C bbe using the word “materia” in its evidentiary sense, i preclude a finding of guilt or lessen punishment"). * United States v. Bagley, 473 US. 667, 699-700 (1985) (Marshal, J, dissenting) (Brady duty defined not by reference tothe posse usefulness of the particular evidence in preparing and presenting the case but retrospectively, by reference tothe likely effect the evidence will have on the outcome of the tal”) See Coppa, 267 F.3d at 142: 2001) (suggesting that Court in Brady “appears to . evidence that has some probative tendency to ‘The result of the progression from Brady to Agurs and Bagley is that the nature ff the prosecutor's constitutional duty has shifted from (a) an evidentiary test of ‘materiality that can be applied rather easily to any item of evidence (would this evidence hhave some tendency to undermine proof of guilt?) to (b) a result-affecting test that “obliges a prosecutor to make a prediction as to whether a reasonable probability will exist that the outcome would have been different if disclosure had been made. To put it another way, Bagley makes the extent of the disclosure required by Brady dependent on the anticipated remedy for violation of the obligation to disclose: the prosecutor must disclose evidence if, without such disclosure, a reasonable probability will exist that the ‘outcome of atrial in which the evidence had been disclosed would have been different (emphasis in original)simply by claiming that they believed it inconceivable that any evidence they possessed would create a reasonable probability that the defendant would be found not guilty. What rational prosecutor would ever reach such a conclusion?! Under this perverse standard of constitutional due process, a prosecutor is encouraged to play games, to “gamble” and “play the odds,? to “bury [his] head{ Jin the sand,” to play “hide” and “seek” with the accused,* and require the accused to undertake a scavenger hunt for hidden Brady clues.* Further emboldening a prosecutor to evade Brady with impunity is the knowledge that the undisclosed evidence probably will remain hidden forever,” and even * Consider Professor Seott Sundby’s tongue-in-cheek rumination about a hypothetical “ethical” prosecutor's mental process in deciding whether a particular piece of evidence is material under Brady and therefore must be disclosed: This pieve of evidence is so exculpatory in nature that it actually undermines my belief that a guilty verdict would be worthy of confidence. Under Brady, therefore, I need to turn this evidence over to the defense. Then, once | turn the evidence over and satisfy ‘my constitutional obligation, 1 can resume my zealous efforts to obtain a guilty verdict that | have just concluded will not be worthy of confidence. See Scott E, Sundby, Fallen Superheroes and Constitutional Mirages: The Tale of Brady v. ‘Maryland, 33 McGrorce L. Rev. 643, 653 (2002) (emphsis omitted) * See Bennett L. Gershman, Litigating Brady v. Maryland: Games Prasecutors Play, ST Cast W. Res. L. Rev. 331 (2007). © Bagley, 473 U.S. at 701 (Marshall, J, dissenting) (Brady standard of materiality “invites a prosecutor, ‘whose interests arc conflicting, to gamble, to play the odds, and to take a chance that evidence will latcr tum out not to have been potentially dispositive"), “ United States v. Giovannetti, 919 F.2d 1223, 1228 (7th Cir. 1990), See Gershman, supra note 42, at $51 ("The prosecutor's claim of ignorance as an excuse for compliance with Brady resembles a defendant's claim of ignorance as an excusc to avoid criminal lability."). But see David Luan, Contrived Ignorance, 87 Gio. L. J. 957, 976 (1999) (“[1]n legal ethies, unlike criminal law, there is no willful blindness doctrine") ~ Banks v. Dretke, S40 U.S. 668, 696 (2004) (“A rule thus declaring ‘prosecution may hide, defendant must seek,” is not tenable ina system constitutionally bound to accord defendant due process.”) “1d. at 695 (“Our decisions lend no support tothe notion that defendants must scavenge for ints of | undisclosed Brady material when the prosecution represents that al such material has been disclosed”) * Imbler v. Pachtman, 424 U.S. 409, 443-44 (1976) (White J, concurring) (“Te judicial process will by definition be ignorant ofthe violation when it occurs; and itis reasonable to suspect that most such violations never surface.”); United States v. Alvarez, 86 F.3d 901, 905 (9th Cir. 1996) (“{T]he government's failure to turn over exculpatory information in its possession is unlikely to be discovered and thus largely unreviewable.”); United States v. Oxman, 740 F.2d 1298, 1310 (3d Cir. 1984) (*[W]e are left with the nagging concer that material favorable to the defense may never emerge from seeret government files"), vacated sub nom. United States v. Pflaumer, 473 U.S. 922 (1985). See also Elizabeth Napicr Dewar, 4 Fair Trial Remedy for Brady Violations, 115 Yate L. 1. 1450, 1455 (2006) rarely unearth suppressions."); Stephen A. Saltzburg, Perjury and False Testimony: Should the Difference Matter So Much?, 68 Fors L. Rev. 1537, 1579 (2000) (arguing that in most cases “withheld evidence will never see the light of day”); Bibas, supra note 24 at 142 (“Because Brady material i hidden in uif the evidence ever does surface, the obstacles to a defendant successfully using it are daunting. Thus, given a prosecutor's predisposition and incentives to evade Brady, it should come as no surprise that Brady violations are serious, pervasive, and rarely subject to sanctions of any kind. The ease with which Brady evidence may be concealed and kept hidden may lead one to surmise that the documented violations represent only a fraction of the total number of Brady violations. Moreover, since no records or statistics are kept by courts, prosecutor offices, or other government agencies of the incidence of prosecutorial misconduct, the effort to document and measure misconduct is difficult, Nevertheless, a large and growing body of empirical and anecdotal evidence exists suggesting that Brady violations are the most common type of prosecutorial m conduct.” This evidence suggests that violations often occur in the same prosecutor prosecutors’ and police files, defense lawyers probably will never lear ofits existence. Most defendants to dig up Brady material.”) * See Ashcroft v, Iqbal, 129 S. Ct. 1937 (2009) (imposing stringent pleading requirements under which plaintiff nceds to show that claim is facially plausible and contains sufficient factual content that allows court to draw reasonable inference that defendant is liable for misconduct), * See Jou F. TeRzavo rr at, Tie Jusnice Pronecr, Iurnovic Prostcuroria. Accouxtanmiry ~ A Poticy Review 9 (2009) ("Suppression of exculpatory evidence is the most widespread and common form of prosecutorial misconduct,office,” are often committed by the same prosecutor! oceur disproportionately in capital cases,” and, tragically, have been a principal cause of convictions of innocent persons.** ‘The documentation of widespread violations of Brady is striking. A 1999 national study by the Chicago Tribune of 11,000 homicide convictions between 1963 and 1999 found that courts reversed 381 of these convictions for Brady violations. Sixty- seven of these defendants had been sentenced to death,* many of whom were subsequently exonerated.** A 2003 report by the Center for Public Integrity analyzed 11,452 post-1970 convictions that appellate courts reviewed for prosecutorial misconduct and found reversible misconduct in 2,012 cases, the majority of them for Brady violations.” A 2000 Columbia Law School study of error rates in capital cases found See Steve Wensnens, Crn. Fox Punuc Isrecriry, Breaxrno Tie Rutzs: Wao Surrras Wit A Prosecutor Is CCrrep For Misconoucr? 3-4 (2003) (analyzing 11.451 cases since 1970 in which charges of prosecutorial misconduct were reviewed by appellate courts and finding that in many instances the misconduct occurred in the same office, often by the same prosecutor); Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecution Discipline Seriously, 8 U.D.C. L. Rev. 275, 281-282 (2004) (noting seventy-two reported cases of prosccutorial misconduct from the Bronx District Attomcy’s Office between 1975-1996, eighteen ‘of which involved reversals of convietions based on prosecutorial suppression of exculpatory evidence). ® See Wensnrno, supra note 50, at 3 (study finds many “recidivist prosecutors” around the country had “bent or broken the rules multiple times © See Jones, Lirnseaw EY Aly A BROKEN Sysrew: Exsox Rates ly Cartrar Cases, 1973-1995 5 (2000), available at http’ www2-law.columbia.cdw/instructionalservices licbman licbman_final.pdf (noting that prosecutorial suppression of exculpatory evidence accounted for 16% to 19% of reversible erors); Hugo ‘Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stax. L. REV. 21, 23-24, 57 (1987) (finding that thirty-five of 350 wrongful capital convietions resulted from prosecutorial suppression of exculpatory evidence). Most of the post-Brady decisions of the U.S. Supreme Court addressing a prosecutor's nondisclosure of exculpatory evidence occurred in capital cases © See Weinberg, supra note 50, at 2 (noting that in twenty-eight cases involving thirty-two defendants, misconduct by prosecutors, including suppression of exculpatory evidence, led tothe conviction of | {innocent persons); United States v, Jones, 620 F. Supp. 2d 163, 170 (D, Mass. 2009) (noting that “in response to 2 disturbing number of wrongful convictions resulting in death sentences, in 2002 the Ilinois, ‘Commission on Capital Punishment recommended that the Illinois Supreme Court ‘adopt a rule defining “exculpatory evidence” in order to provide guidance to counsel in making appropriate disclosures.” Bennett L, Gershman, Reflections on Brady v. Maryland, 47 S, Tex. L. Riv. 685, 688 n.18 (2006) (isting several cases in which a prosecutor's suppression of exculpatory evidence led to the conviction of innocent persons). ® Ken Armstrong & Maurice Possley, The Verdict: Dishonor, Cat. Tr. Jan, 10, 1999, a 3. Sid © 1d, Six months after the Chicago Tribune series was published, several more people convicted of murder received new trials based on a finding that prosecutors failed to disclose evidence favorable to the defense. See Maurice Possley and Ken Armstrong, Historic Case Sent Ripples Through Legal Community, Ci Tun. June 6, 1999, at 1 © See LWersnens, supra note 5D, at 2. 13that, apart from errors relating to ineompetent counsel, the most frequent basis for reversible error in capital cases was Brady violations. A report by the California Commission on the Fair Administration of Justice examined 2,130 state cases that raised claims of prosecutorial misconduct over a ten-year period ending in 2006.” Misconduct was found in 443 of these cases, or 21 percent, Violations of Brady were one of the most common forms of misconduct. An examination by the Pittsburgh Post-Gazette in 1998 of over 1,500 cases found that Brady violations were pervasive and that courts hardly ever reversed convictions.” In addition to these empirical studies, the widespread incidence of Brady violations is also a matter of increasing concern to the courts. Dozens of cases in the federal courts since 2007 have found serious Brady violations.*' In an extraordinary & See Lirmwan Frat. supra note 52, a S ® See Cat. Cownw On Tite Fair Abwix. oF Jusnice, Re#oat ann Recovwiespanoss ox Rerorrino Miscoxpocr 3 (2007) C*The most common forms of misconduct found were failing to disclose exeulpatory evidence and improper argument”) "See Bill Moushey, Win at All Costs, Prresavrc Post-Gazzerte, Nov. 24, 1998, available at Inip:/www.post-gazette.com/win (study of over 1,500 cases nationwide during past decade found hundreds ‘of cases in which prosecutors intentionally concealed exculpatory evidence). For recent cases in the U.S, Supreme Court involving Brady violations, see Cone v, Bell, 29'S. Ct, 1769 (2009) (remanded for hearing into prosecutor's suppression of evidence regarding seriousness of defendant's drug problem); Youngblood v. West Virginia, $47 U.S, 867 (2006) (suppression of evidence indicating that testimony of key witness was false), For recent Brady cases (not an exhaustive list) in which the Circuit Courts of Appeals sranted relief or criticized prosecutors for nondisclosures, see United States v. Robinson, 583 F.3d 1265 (Oth Cie. 2009) (nondisclosure of mental health records of confidential informant requires vacating conviction); Simmons v. Beard, 581 F.3d 158 (3d Cir, 2009) (suppression of evidence discrediting key ‘witness violates due process); Montgomery v. Bagley, 581 F.3d 440 (6th Cir. 2009) (suppression of police report undermining credibility of key witness violates due process); United States v, Lee, $73 F.3d 155 Gd ir. 2009) (nondisclosure of back of hotel registration card suggesting defendant had registered in hotel required vacating conviction}; United States v. Burke, 571 F.3d 1048 (10th Cir. 2009) (court greatly concerned that prosecutor's belated disclosure “encourages gamesmanship” and “creates dangerous incentives [to misconduct)” but defendant did not show material prejudice); United States v, Torres, 569 F.3d 1277 (10th Cir, 2009) (failure to disclose that confidential informant had been retained by government ‘on two previous occasions required vacating conviction); United States v. Price, 566 F.3d 900 (Sth Cir. 2009) (nondisclosure of extensive criminal history of key government witness requires vacating, conviction): Douglas v. Workman, 560 F.3d 1156 (10th Cir. 2009) (suppression of deal with key witness violates due process); United States v. Mauskar, $57 F.3d 219, 232 (Sth Cir. 2009) (court “deeply conecrned” at prosecutor's belated disclosure of key evidence and at prosecutor's justification which is “beneath a member of the Bar representing the United States before this Court but defendant failed to prove prejudice); United States v. Gibson, 328 F. App’x 860 (4th Cir. 2009) (new trial ordered on some counts based on prosecutor's discovery violation); Harris v. Lafler, $53 F.3d 1028 (6th Cir, 2009) 4decision last May in United States v. Jones. United States District Judge Mark L. Wolf castigated the federal prosecutor for her “egregious” Brady violation, stating that “tl case extends a dismal history of intentional and inadvertent violations of the government's duties to disclose in cases assigned to this court."** Judge Wolf appended appellate and federal district court decisions in which the courts vacated convictions for (uppression of evidence that key witness promised substantial benefits for his testimony); United States v ‘Triumph Capital Group, Inc. 544 F 3d 149 (2d Cir. 2008) (new trial ordered based on prosecutor's ‘inexplicably withholding” material exculpatory and impeachment evidence); United States v. Aviles- Colon, $36 F.3d | (Ist Cir. 2008) (nondisclosure of DEA reports materially prejudicial and new trial ordered); United States v. Lopez, $34 F.3d 1027 (9th Cir. 2008) (prosecutor's Brady violation “troubling” but motion for new trial denied); D'Ambrosio v. Bagley, 527 F.3d 489 (6th Cir, 2008) (suppression of several items of exculpatory evidence that substantially contradicts testimony of state's only eyewitness); United States v. Rittweger, 524 F.3d 171, 180 (2d Cir. 2008) (court “troubled” and “disappointed” by prosecutor's belated disclosure of exculpatory evidence; prosecutor's argument that evidence not material disingenuous but defendant fated to show prejudice); United States v. Chapman, $24 F:3d 1073 (9th Cir. 2008) (prosecutor's “unconscionable.” “willful,” and “bad faith” violation of discovery obligations and “flagrant” misrepresentations to court justified mistrial); United States v. Zomber, 299 F. App’x 130 (3d Cir. 2008) (prosecutor's discovery violation requires reversal of conviction and new trial); United States. Garcia, 271 F. App"x 347 (4th Cir, 2008) (prosecutor's failure to disclose key impeachment evidence not prejudicial because defendant's counsel uncovered information day before witness testified); United States ¥, Butler, 275 F. App'x 816 (Ith Cir. 2008) (suppression of impeachment evidence but no new trial); United States v. White, 492 F.3d 380 (6th Cir, 2007) (remanded for hearing on Brady violation but court observes that given conflicting statements “United States Attorney's word is worth considerably less"); Jaekson v, Brown, 513 F.3d 1057 (9th Cir. 2008) (suppression of evidence of eooperation agreement with key witness); United States v. Jemigan, 492 F.3d 1050 (9th Cir. 2007) (en bane) (prosecutor suppresses evidence that other simitar bank robberies were committed by someone after defendant’s arrest who bore striking resemblance to defendant); United States v. Gamer, 507 F.3d 399 (6th Cir. 2007) (belated disclosure of evidence used to impeach governments key witness violates due process); United States v Velarde, 485 F.3d 553 (10th Cir. 2007) (Suppression of evidence undermining credibility of key witness violates due process); United States v. Rodriguez, 496 F.3d 221 (2d Cir, 2007) (remanded for Brady hncaring after prosccution witness admits lcs in initial interviews and prosccutor sccks to avoid disclosure by not taking notes); Trammel v. MeKuune, 485 F.3d 546 (10th Cir. 2007) (in theft prosceution, suppression ‘of receipts linking third party to theft violated due process); United States v. Chases, 230 F, App’x 761 (9th Cir. 2007) (no reversal but court admonishes prosecution for “shocking sloppiness” in carrying out its disclosure duty); Ferrara v. United States, 456 F.3d 278 (Ist Cir. 2006) (nondisclosure of recantation by key government witness was “blatant” and “so outrageous” as to undermine defendant's guilty plea); United States v. Risha, 445 F.3d 298 (3d Cir, 2006) (suppression of evidence diserediting testimony of key witness violates due process). Forrecent cases in the district courts (not an exhaustive list) where relief was granted based on Brady violations, see United States v. Shaygan, 661 F. Supp. 2d 1289 (S.D. Fla, 2009); United States v. Stevens, 593 F.Supp. 2d 177 (D.D.C. 2008); United States v. Jones, 620 F. Supp. 2d 163 (D. ‘Mass. 2009) United States v. Fitzgerald, 615 F. Supp. 2d 1156 (S.D. Cal. 2009); Cardoso v. United States, 642 F. Supp. 2d 251 (S.D.N.Y. 2009); Hernandez v. City of El Paso, 662 F. Supp. 2d 596 (W.D. Tex. 2009); United States v. Quinn, 537 F. Supp. 2d 99 (D.D.C. 2008); United States v. Freeman, No. 07-CR- ‘843, 2009 WL 2748483 (ND. Ill. Aug. 26, 2009) (prosecutor's misconduct in allowing witness's false testimony to materially prejudice defendants requires new tral); Sykes v. United States, 897 A.2d 769 (D.C. 2006), "© 620 F, Supp. 2d 163 (D. Mass. 2008). 15serious Brady violations. In two recent highly-publicized prosecutions—the Duke lacrosse case and the federal trial of then-Senator Ted Stevens—Brady violations were discovered that were so serious as to result in the criminal contempt conviction and disbarment of the Duke prosecutor, Michael Nifong,* and the vacating of Stevens” conviction by the federal district court, the dismissal of the charges, and the commencing of criminal contempt proceedings against six prosecutors for obstruction of justice.** What is so disconcerting about the misconduct by the prosecutors in the Duke lacrosse and Stevens cases is the realization that ia prosecutor is willing to violate Brady ina case of such high public visibility and media scrutiny, this suggests that a prosecutor will violate Brady with impunity in the thousands of cases involving anonymous and invisible defendants II. Imbler’s Adoption of Absolute Prosecutorial Immunity Thirty-four years ago, the issue of whether prosecutors were entitled to immunity from civil liability for Brady violations—indeed, whether prosecutors enjoyed any immunity at all for their misconduet—had not been decided by the Supreme Court Imbler v. Packman answered these questions. Paul Imbler was convicted in 1961 of robbing and murdering Morris Hasson, the operator of a market in Los Angeles, California, and was sentenced to death.” The prosecution’s key witness was Alfred 1. at 165. Fd at 185-193, © See Duff Wilson, Hearing Ends in Disbarment For Prosecutor in Duke Case, N.Y. Tawts, June 17,2007, at 21; Shaila Dewan, Duke Prosecutor Is Jailed; Students Seek Settlement, NY. Tits, Sept. 8, 2007, at AB ‘See Amended Findings of Fact, Conclusions of Law and Order of Discipline, N.C. State Bar v. Nifong, No. 06 DHC 35 (Disciplinary Hearing Comm'n of the N.C. State Bar July 31, 2007), available at huip:/www.nebar.gow/Nifong”420FinalY%200rdet.pd ' See Transcript of Hearing on Motion to Dismiss, United States v, Stevens, 593 F. Supp. 2d 177 (D.D.C 2009) (No. 08-231 (EGS)) (district court appoints special prosecutor to investigate and prosecute the matter), 1d. at p. 46-47. " Imbler v, Pachtman, 424 U.S, 409, 411-12 (1976), An alleged accomplice in the Hasson killing, Leonard Lingo, was himself killed ten days later while attempting a robbery in Pomona, California. A subsequent investigation led by the Los Angeles District Attomey determined that Lingo was involved in the Hasson 16Costello, who positively identified Imbler as the gunman.** Imbler raised an alibi defense. After the state supreme court affirmed the conviction and sentence, the trial prosecutor, Deputy District Attorney Richard Pachtman, wrote to the Governor of California describing new witnesses who corroborated Imbler’s alibi as well as new evidence that undermined Costello’s credibility.” Imbler thereupon filed a state habeas corpus petition based on this new evidence but, after a hearing, the writ was denied.”" For unrelated reasons, Imbler’s death sentence was overturned.” A few years later Imbler filed a federal habeas corpus petition raising the same grounds that were rejected by the state court.”” Deciding the petition on the written record without holding a hearing, the federal district court found cight instances of misconduct at Imbler’s trial whose cumulative effect warranted issuance of the writ.” According to the district court, the misconduct consisted of six instances during Costello’s testimony in which the prosecutor elicited false and misleading testimony from killing and that Imbler killed Hasson. 1d. at 412, The prosecution also introduced several other eyewitnesses whose testimony supported Costello © td. Inibter elaied he spent the night of the killing bar hopping with several persons and that he met Lingo forthe first time the morning before the Pomona robbery. A witness corroborated his ai % 1d. Pachtman’s letter described newly discovered corroborating witnesses for Imbler's alibi as well as new revelations about Costllo’s background, which indicated that he was less trustworthy than he had represented originally to Pachtman and in his testimony. ‘The letter was dated August 17, 1962. Imbler’s execution, which was originally scheduled for September 12, 1962, was stayed, 1d. at 413. A referee was appointed to conduct the hearing at which Costello was the “main ataction.” He recanted his trial identification of Imbler and admitted embellishing his background testimony. ‘The corroborating witnesses uncovered by Pachtman also testified. Imbler's counsel described Pachtman’s post-trial investigation as “in the highest tradition of law enforcement and justice” and a premier example of “devotion to duty." However, he also charged that Pachtman knowingly used Costello's false testimony’ at Imbler’s tral. In a thorough opinion by Justice Roger Traynor, the California Supreme Court unanimously rejected these contentions and denied the writ. See In re Imbler, 387 P.2d 6, 10-14 (Cal, 1963). ‘The California court agreed with the referee's finding that Costollo's recantation lacked credibility compared to his original identification, and that the new corroborating witnesses who testified at the hearing were unreliable. Ld. * Imbler, 24 US. at 414 ad % See imbler v. Craven, 298 F. Supp. 795, 812 (C.D. Cal. 1968). 7Costello about “his criminal background, his education, and his current income. Although Pachtman lacked actual knowledge of the falsity, according to the district court, he had “cause to suspeet” it" The other two instances of misconduet were suppressions of evidence by a police fingerprint expert who testified at the trial,” and by a police investigator who altered an artist's sketch to resemble Imbler more closely.”* The Ninth Circuit Court of Appeals affirmed, finding that the district court had merely reached different conclusions than the state court in applying federal constitutional standards to the facts.” The state chose not to retry Imbler and he was released.*” Imbler thereafier filed a civil rights lawsuit under 42 U.S.C. § 1983 against Pachtman and various officers of the Los Angeles police department alleging a conspiracy to deprive him of his liberty in violation of due process.*' Imbler’s complaint essentially tracked the district court’s opinion in alleging that Pachtman intentionally and negligently allowed Costello to give false testimony; that Pachtman was chargeable with the fingerprint expert’s suppression; that Pachtman knew that a lie detector test had cleared Imbler; and that Pachtman had used at trial the altered artist’s sketch."* The district court granted Pachtman’s motion to dismiss the complaint, holding that public prosecutors repeatedly had been afforded immunity from civil liability for “acts done as part of their traditional official functions." ‘The Court of Appeals for the Ninth Cireuit Imbler, 424 US. at 114 n.8 (referring to district court’s finding that Costello had “lied flatly” about his criminal record, education, and current income). * I. 7 Id, at AAAS, td. at 415-16, * Imbler v, California, 424 F.2d 631, 632 (9th Cir, 1970) © Imbler, 424 US. at 415, "Fd, at 415-16, © Id. at 416, omaffirmed, finding that Pachtman’s acts were committed during prosecutorial activities that ‘were “an integral part of the judicial process.” ‘The Supreme Court granted certiorari to consider the “important and recurring issue of prosecutorial liability” under § 1983 of the Civil Rights Act of 1871.6 The Court acknowledged at the outset that § 1983, the statutory remedy for the deprivation of constitutional rights caused by an official’s abuse of power.** contains no immunities for prosecutors.*” The Supreme Court assumed, however, that Congress did not intend to abrogate all of the immunities that existed at common law, and the Court identified those immunities that were available for certain parties at common law.** Thus, according to the Court, absolute immunity was available at common law for judges," legislators,” © Imblerv. Pachtmnan, 500 F.2d 1301, 1302 (9th Cir, 1974) (quoting Marlowe v. Coakley, 404 F.2d 70 (9th Cir. 1968) Imbler, 24 US. at 417. ™ See Monroe v. Pape, 365 U.S. 167, 1721961), Section 1983 of the U.S. Code, originally enacted as part of the Civil Rights Act of 197, states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42. US § 1983 (2006) Imbler, 424 U.S. at 417. Indced, in 1871, when § 1983 was enacted, public prosccutors did not exist in their modern form and eriminal prosecutions ordinarily were instituted by private citizens. See Kalina v. Fletcher, 522 USS. 118, 132 (1997) (Sealia, J, concurring) (noting that at common law private citizens typically performed the functions currently delegated to public prosecutors): Burns v. Reed, 500 U.S. 478 '500 (1991) (Sealia, J, concurring in part and dissenting in part) (noting that “prosecutorial funetions, had they existed in their modem form in 1871, would have been considered quasi-judicial”). It was twenty-five years after the date noted by Justice Scalia that a state court would address forthe first time a prosecutor's immunity from civil liability. See Griffith v. Slinkard, 44 N.E. 1001 (Ind. 1896) (holding prosecutor absolutely immune in civil action alleging that prosecutor maliciously and without probable cause added plaintiff's name to grand jury truc bill after grand jury refused to indict plaintiff and which resulted in plaintiff's arrest and incarceration. ™ Imbler, 424 US. at 417-19. The Court cited Tenney v. Brandhove, 341 U.S. 367, 376 (1951), for the conetusion that “immunities ‘well grounded in history and reason’ had not been abrogated ‘by covert inclusion in the gencral language’ of § 1983. ” Imbler, 424 US. at 418, 423 n.20 (“The immunity of a judge for acts within extending tothe earliest days of the common law.") °° 4d, at 418 ( “Regardless of any unworthy purpose animating their actions, legislators were held to enjoy ‘under this statute their usual immunity when acting ‘in a field where legistators traditionally have power to jurisdiction has roots 19grand jurors,” and other government officials such as assessors, highway officers, and ‘members of township boards.” In addition, absolute immunity, referred to as, ‘defamation immunity,” was available to any person for statements that were made in the course of judicial proceedings.” However, absolute immunity was not afforded to other government officials; only a qualified immunity, referred to at common law as “qua judicial immunity,” was afforded.* Qualified immunity was available to government officials such as governors,” other executive branch officials," and police officers.” With respect to a prosecutor’s immunity at common law, Jmbler concluded, as had several lower courts, that it was “well settled” that a prosecutor enjoyed absolute immunity when he acted within the scope of his prosecutorial duties.°* This created inconsistencies within the /mbler opinion. Prosecutors are members of the executive branch and, as the Court noted, executive branch officials such as governors and police officers at common law received only qualified immunity.” Jmbler also referred to a prosecutor as a “quasi-judicial” official and, at common law, absolute immunity was not act”) (quoting Tenney v. Brandhove, 341 U.S. at 379), " Imbler, 424 US. at 423 n.20 (noting thatthe immunity of grand jurors enjoys “an almost equally venerable common law tenet” as that of judges). "= For discussion of these immunities, sce Bums v. Reed, $00 U.S. at 499-500 (Scalia, J., concurring in part and dissenting in part). According to Justice Sealia, “prosecutorial functions, had they existed in their modem form in 1871, would have been considered quasi-judicial (wherefore they are entitled to qualified immunity under § 1983).” Ld. at 500 (emphasis in original). Imbler, 424 US. at 426 0.23 (“In the law of defamation, a concer forthe airing of al evidenee has resulted in an absolute privilege for any courtroom statement relevant to the subject matter of the proceeding. In the case of lawyers the privilege extends to their briefs and pleadings as well.” Ld, at 420, 423 n.20 (refering to grand jurors and prosecutors as “quasi-judicial” officers); Burns, S00 US. at $00 (Scalia, J, concurring in part and dissenting in part) (noting that quasi-judicial immunity afforded an official only qualified immunity); Kalina, $22 U.S. at 132 (Scalia, J, concurring) (noting that at common law, the disertionary decisions of public officials that did not involve actual adjudication were protected by “quasi-judicial” immunity, which is “more akin to what we now call “quali absolute immunity”) ° Imbler, 424 US. at 419. See also Scheuer v. Rhodes, 416 U.S. 232 (1974). * Imbler, 424 US. at 419. See also Scheuer, 416 U'S. at 247 " Imbler, 424 US. at 418-19. See also Pierson v. Ray, 386 U.S. $47, $55. * Imbler, 424 US. at 424, 424 n.21 (citing cases). dat 418-19 7 (1967) 20available to quasi-judicial officials." Nonetheless, /mbler emphasized the prosecutor's “functional comparability” to judges and grand jurors to the extent that all of these parties make discretionary decisions on the basis of evidence presented to them in court,!”! Despite these analytical gaps and inconsistencies, /mbler extrapolated from the common law two broad categories in which absolute immunity for prosecutors would be available: first, suits for malicious prosecution," and second, sui alleging courtroom misconduct that involves the examination of witnesses and arguments to the jury. Imbler, however, extended a prosecutor's absolute immunity beyond these two categories. Relying on public policy, mbler reasoned that if prosecutor was constrained in making “every decision” by the threat of a civil lawsuit, the public trust in the prosecutor's office might be compromised.' /mbler speculated that lawsuits against prosecutors “could be expected with some frequeney,”" and as a consequence would divert the prosecutor's energy and attention to her work." Imbler further argued, but did not elaborate, that affording prosecutors only qualified immunity would have an adverse effect on the criminal justice system because a prosecutor would face “greater difficulty” in meeting the standard of qualified immunity than other executive or administrative "© See supra note 94 and accompanying text. " Imbler, 424 USS. at 423 n.20 (“Courts that have extended the same immunity to the prosecutor have sometimes remarked on the fact that all three officials—judge, grand juror, and prosecutor—exereise a discretionary judgment on the basis of the evidence presented to them. Its the Functional comparability of | their judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to officers, and their immunities being termed ‘quasi-judicial’ as well." (citations omitted), "8 fd, at 426 0.23. ' fd. at 424-25 (“A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court The public trust of the prosecutor's office would suffer ithe were constrained in making every decision by the consequences in terms of his own potential lability ina suit for damages.”) "8 pd. at 2: "fd, Ulf the prosecutor could be made to answer in court each time such a person charged him with ‘wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the eriminl 2officials.""” Moreover, a prosecutor might be discouraged from presenting evidence whose accuracy might be questionable, or from making arguments about that evidence, if the use of and arguments about that evidence exposed her to personal liability." In sum, according to Jmbler, “the ultimate fairness of the operation of the system itself would be weakened by subjecting prosecutors to § 1983 liability, Although Imbler recognized that a genuinely wronged defendant would be without a civil remedy against a malicious and dishonest prosecutor, the Jmbler Court believed that the alternative would disserve the broader public interest.'"" It surmised that a defendant might even be prejudiced if she were able to pursue a § 1983 lawsuit against a prosecutor beca a court that reviewed the prosecutor's conduct might skew its de ion to protect the prosecutor from potential civil liablity.""" Moreover, Imbler asserted, alternative sanctions to civil lawsuits against prosecutors were available to deter a prosecutor’s malicious and dishonest behavior. The availability of criminal charges, against a prosecutor,""” as well as the availability of professional discipline by bar associations," the Court suggested, would “not leave the public powerless.”"" “These checks,” said the Court, “undermine the argument that the imposition of civil liability is Jd, (Its fair to say, we think, thatthe honest prosecutor would face greater difficulty in mecting the standards of qualified immunity than other executive or administrative officials"). ‘The Court noted that prosecutors operate under “serious constrains of time and even information,” but did not explain why other executive and administrative officials who receive qualified immunity but who operate under similar constraints would not face the same burdens as prosecutors). Id "= jd, at 426 (noting that “t]he veracity of witnesses in criminal cases frequently is subject to doubt,” and “lf prosecutors were hampered in exercising their judyment as tothe use of such witnesses by coneern about resulting personal liability the triers of fact i criminal cases often would be denied relevant evidence”) id, at 27. ° See supra note S and accompanying text. "fd, at 428 (qualifying a prosecutor's immunity “often would prejudice defendants in criminal cases by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justi: [d, at 428 0.27 (“consideration of the habeas petition could well be colored by an avvareness of potential prosecutorial liabi 4d, at 429. a wud » 22the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.”""* Imbler did not demarcate precisely the scope of absolute immunity that it afforded prosecutors. dmbler used various formulations to describe the extent of a prosecutor's immunity, stating that absolute immunity would be available for prosecutors in “initiating a prosceution,”" “presenting the state's case,”"” performing activities that are “an integral part of the judicial process,”!"* performing activities that are “intimately associated with the judicial phase of the criminal process,”"” and performing functions as an “advocate,” although noting that an advocate’s duties may also include actions preliminary to the initiation of a prosecution as well as actions outside the courtroom.'*! Imbler cautioned that absolute immunity would not necessarily be afforded to prosecutors for administrative and investigative activities and concluded that “[d]rawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.” a Fd. at 431,421. "id at AB "7, at 430 (quoting Imbler v, Pachtman, 500 F.2d 1301, 1302 (Sth Cir. 1974)). Fd at 430, "fd at 431, 431 0.3. "fd at 431 133. "=f. The Supreme Court has not decided whether absolute immunity extends to a prosecutor's post- conviction functions, such as prosecuting an appeal, opposing habeas petitions, or reviewing newly discovered evidence. Circuit Courts of Appeal have reached different conclusions. Compare Wamey v. ‘Monroe County, 587 F.3d 113 (2d Cir, 2009) (prosecutors entitled to absolute immunity for post-conviction review and testing of DNA evidence) and Carter v. Burch, 34 F.3d 257 (4th Cir. 1994) (absolute immunity for handling direct appeal and post-conviction motions) with Yarris v, County of Delaware, 465 F.3d 129 {Gd Cir, 2006) (no absolute immunity unless prosecutor personally involved as state’s advocate in post- conviction proceedings) and Houston v. Partee, 978 F.2d 362 (7th Cir. 1992) (no absolute immunity where prosecutor did not personally prosccute appeal). For a discussion on prosccutorial conduct in the post conviction context, see Daniel S. Medwed, The Zeal Deal: Prosecuorial Resistance to Past-Conviction Claims of Innocence, 84 B.U. L, REV. 125 (2004) (explaining prosecutorial resistance to post-convietion claims of innocence as attributable to personal incentives to maintaining convictions, logistical barriers to confronting innocence claims, and political consequences in responding to sich claim). 23Imbler did not explicitly address whether absolute immunity extends to a prosecutor who violates his constitutional duty to disclose material exculpatory evidence to a defendant under Brady v. Maryland." Imbler’s lawsuit against Pachtman was based. almost entirely on allegations that Pachtman knowingly allowed a key eyewitness at Imbler’s capital murder trial to testify falsely without correcting that testimony." Imbler included counts charging suppression of evidence by the police and claimed that Pachtman was vicariously responsible for that suppression." ‘The Supreme Court discussed Imbler’s Brady claim ina lengthy footnote at the end of its opinion, largely in to Justice Whit respon: concurring opinion, joined by Justices Brennan and Marshall, which argued against extending absolute immunity to Brady violations.""° Justice White did not disagree that absolute immunity would be appropriate when a prosecutor is sued civilly for knowingly eliciting and using false testimony to prove a defendant’s guilt. Justice White drew this conclusion based on his understanding that a prosecutor’s absolute immunity at common law extended to two kinds of lawsuits: suits for malicious prosecution! and suits for defamatory remarks made during judicial proceedings." As to the immunity for malicious prosecution, Justice White observed that this immunity was necessary to protect the judicial process because, absent immunity, prosecutors might be afraid to bring proper charges against a defendant for © 373 US. 83 (1963) = mbler, 424 US. at 416, 2d fd, at 431 034. fd, at 438 (White, J, concurring) ("I agree with the majority that, with respect to suits based on claims thatthe prosceutor’s decision was malicious, and without probable cause ... the judicial process is better served by absolute immunity than by any other rule. °F, at 440 (noting that fimetion ofa judicial proceeding is “to determine where the trth les," and that those partes involved in judicial proceedings should be encouraged to make full disclosure of all relevant information) 24fear of being sued if the defendant was acquitted.'* As to the immunity for statements made in court, Justice White observed that this immunity was also necessary to protect the judicial process by encouraging those persons involved in judicial proceedings to make complete and candid disclosures of all relevant information without fear of being sued for false and defamatory testimony and arguments." Indeed, Justice White observed that it is precisely the function of a judicial proceeding to determine the truth, and since it is often impossible for attomeys to be absolutely certain of objective truth and falsity, a prosecutor should be given every incentive to submit the testimony of witnesses to the crucible of the judicial process without being subjected to liability based on the claim that he knew or should have known that the testimony of the witness was false." However, according to Justice White, the majority extended to prosecutors an immunity that was not available at common law: immunity for the suppression of exculpatory evidence," Rather than protecting the judicial process, affording a prosecutor absolute immunity for such conduct in fact undermines the judicial process by removing an incentive to prosecutors to disclose material evidence that is favorable to the defendant.'® Accusing the majority of an illogical extension of immunity, Justice White explained that whereas it is sensible to afford defamation immunity to prosecutors to "Fd. at 438 (IF suits for malicious prosecution were permitted, the prosecutor's incentive would always bbe not to bring charges.”) Id. a0 439. 7d, at 440 ("agree with the majority that history and policy support an absolute immunity for prosecutors from suits based solely on claims that they knew or should have known thatthe testimony of @ ‘witness called by the prosecution was false."). Justice White appended a clarifying footnote that absolute immunity should not apply to independent claims that the prosecutor withheld facts tending to demonstrate the falsity of the witness's testimony in constitutionally matcrial respects fd. at 440 n.5 "jd. at A41 (I disagree with any implication that the absolute immunity extends to suits charging ‘unconstitutional suppression of evidence.” jd, at 442 (-[O]ne would expect thatthe judicial process would be protected and indeed its integrity cenhaneed by denial of immunity to prosecutors who engoge in unconstitutional conduct”) 25encourage prosecutors to elicit all relevant information to assist the fact-finder in arriving at the truth, “it would stand this immunity rule on its head” to apply it to a prosecutor who withholds relevant information from the fact-finder and thereby prevents the fact- finder from arriving at the truth. Thus, according to Justice White, immunizing a prosecutor for not disclosing exculpatory evidence to the defendant encourages nondisclosure and discourages disclosure." Denying immunity to a prosecutor for withholding evidence encourages disclosure and discourages nondisclosure." Justice White acknowledged that denying absolute immunity to a prosecutor for failing to disclos close more evidenc culpatory evidence might encourage a prosecutor to di than Brady requited,'” but such broader disclosure, he argued, “would hardly injure the judicial process.”"* “Indeed, it [would] help it Moreover, according to Justice White, constitutional violations that are committed by prosecutors in open court—such as improper summations, introduction of hearsay testimony in violation of the Confrontation Clause, and knowingly presenting false testimony—are clearly integral parts of the judicial process.” Justice White suggested that such violations may be corrected by the judicial process. However, in his opinion, there is no way that the judicial process can correct a prosecutor's suppression of exculpatory evidenee, for such conduct is hidden from the judicial process and the suppressed evidence may never be discovered." It is therefore all the more important, Pd at AAAB Yd a 443, Pd 1 jd. (°A prosecutor seeking to protect himself from liability for failure to disclose evidence may be induced to disclose more than is required.") Od 2d wo id fd, at 443-44 (°[T Ihe judicial process has no way to prevent or correet the constitutional violation of suppressing evidence [since] the judicial process will by definition be ignorant ofthe violation when it ‘oceurs; and itis reasonable to suspect that most such violations never surfaee.”) 26he argued, to deter such violations by permitting § 1983 damage actions in those cases where violations are exposed." “The stakes are high,” Justice White observed," citing Hilliard v. Williams," in which the prosecutor's suppression of exculpatory evidence resulted in the conviction and punishment of an innocent defendant, The injury to the from allowing prosecutors to evade civil liability for such misconduct is, easy to identify, according to Justice White." However, he added, it is “virtually impossible” to identify any injury to the judicial process from permitting such suits." The majority saw no difference in principle between a prosecutor knowingly presenting false testimony and a prosecutor suppressing evidence that would demonstrate that falsity. “The distinction is not susceptible of practical application,” the majority contended," Moreover, the majority argued, to require a prosecutor to make a “full disclosure” of potentially exculpatory evidence to obtain absolute immunity would place upon the prosecutor a duty that might far exceed the disclosure requirements of Brady." Further, the majority claimed, denying immunity to the prosecutor would “weaken the adversary system” as well as “interfere with the legitimate exercise of prosecutorial diseretion.”""” fd at 44 id “465 F.2d 1212 (6th Cir, 1972) (no absolute immunity for prosecutor in eivil complaint charging prosecutor with deliberate suppression of exculpatory evidence), cert. denied. 409 US. 1029 (1972). On remand, the Sixth Circuit vacated its prior decision and remanded to the district court, Hilliard v. Williams, ‘540 F.2d 220, 221 (6th Cir. 1976) (prosecutor absolutely immune from eivil liability for suppressing ‘exculpatory police report and instructing witness to testify falsely) 8 Imbler, 424 US. at 444-45 (White, 1, concurring). "7d. (Where the reason forthe rule extending absolute immunity to prosecutors disappears, it would truly bbe ‘monstrous to deny recovery.” (quoting Gregoire v. Biddle, 17 F.2d $79, S81 (2d Cir. 1949)) © fd at 431 n.34 (majority opinion) (“A claim of using perjured testimony simply may be reframed and asserted as a claim of suppression ofthe evidence upon which the knowledge of perjury rested.”) toa "© {The majority suggested that there was no principled distinction between a prosecutor knowingly using perjured testimony and knowingly suppressing information demonstrating the falsity. Id. (“Asa ‘matter of principle, we perceive no less an infringement of a defendants rights by the knowing use of perjured testimony than by the deliberate withholding of exculpatory information.”). However, the ‘majority likely was aware thatthe distnetion was neither unprineipled nor abstract. As the Court would 27In sum, Imbler adopted a broad rule of absolute immunity when prosecutors ‘engage in advocacy activities related to the adjudicative process. Particularly with respect to a prosecutor's nondisclosure of exculpatory evidence, mbler viewed the prosecutor's conduct as within this broad spectrum of advocacy conduct. dmbler did not recognize the uniqueness of the Brady rule, did not take into account the mindset of prosecutors that invites them to hide exculpatory evidence, and failed to appreciate the cease with which prosecutors are able to violate Brady. Imbler was concerned that a civil action against a prosecutor would dampen the prosecutor’s “courage,” “independence,” and “energy,” and that an “honest” prosecutor would have greater difficulty in defending himself from “error” and “mistaken judgment” than other officials cloaked d of Brady with qualified immunity.'*! Moreover, although Pachtman was acct violations, the Court appeared to view his conduct at most as an error, as a mistake of judgment, or as negligent rather than as willful misconduct. Given the record in that case, it is neither surprising nor counterintuitive that /mbler chose to minimize the need for a civil remedy with respect to a prosecutor's conduct generally, and with respect toa prosecutor's Brady violations in particular. It is also noteworthy that the Court focused on the prosecutor's conduct in open court and the advocacy decisions that a prosecutor makes before and during a trial that are subject to judicial review. The Court lumped together all of the conduct of a prosecutor that is related to the trial, including all actions undertaken before trial, in secret, shielded from publie scrutiny, and not subject to hear in oral arguments the following month and decide later that Term in United States v. Agurs, 427 U.S. 97 (1976).a prosecutor's knowing use of false testimony and a prosecutor's suppression of exculpatory evidence were distinct violations. Jd. at 103-04. Moreover, in contrast to Jubler, the Court in Agurs described the prosecutor's duty to disclose exculpatory evidence as grounded in clementary notions of fairness to serve the cause of justice rather than as a funetion of a prosecutor's role as an advocate secking to win a convietion, /d. at 111 (noting “prosecutor's obligation to serve the eause of justice”), © Imbler, 424 US, at 423, 425. "8d, at 425, 427, 28judicial oversight, such as Brady decisions. To the extent that the Court assumed that a prosecutor's duty under Brady to disclose evidence is undertaken as an “advocate” rather than as a “minister of justice,” the Court lost sight of the special responsibilities assigned to the prosecutor by Brady. By removing the sanction of civil liability from such misconduct, Imbler gave prosecutors a further incentive (o disregard their constitutional responsibilite IV, Accountability of Prosecutors for Brady Violations Imbler acknowledged that, by creating the immunity, it left a wronged defendant without a civil remedy.” However, the Court added, this absence “does not leave the public powerless to deter misconduct or to punish that which occurs.” According to -onsiderations that mandate civil i Imbler, the polic munity for prosecutors do not place prosecutors beyond the reach of the criminal law, suggesting that prosecutors ‘would be subject to criminal prosecution for willful criminal acts.'® Imbler also observed that a prosecutor, who “stands pethaps unique, among officials whose acts could deprive persons of constitutional rights,” would be subject to professional discipline by bar associations." “These checks,” /mbler asserted, “undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.” immunity does leave the genuinely wronged defendant without evil redress against a prosccutor whose malicious or dishonest action deprives him of lberty.”) Fd at 429, "Jd, (This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officals also place them beyond the reach of the criminal law. Even judges, cloaked ‘with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights... "The prosecutor would fare no better for his willl acts.”) "7. (Suggesting that a prosecutor is “perhaps unique ... in his amenabilty to professional an association of his peers”) oa line by 29Imbler’s confidence that prosecutors would face both criminal and professional sanctions for their misconduct has proven to be dramatically mistaken, One of the central themes in criminal procedure and professional ethics since /mbler has been the lack of accountability of prosecutors for their misconduct, especially that which involves the 30deliberate suppression of exculpatory evidence,'*? As noted above," a significant body of empirical and ancedotal evidence demonstrates that Brady violations are becoming the norm rather than the exception. Yet paradoxically, despite this systemie malfunction, there also appears to be a systemic inability to fix the problem. "9 See Jows F, Tenzaxo €1 Ate, Te Justice Prose, Ivmoving Prostcutoni Accouxtamnary: A Poucy Review (2009), available at hitp:/www.thejusticeproject.org/wp-content/uploads’pr-improving- prosecutorial-aecountabiity pdf (describing prevalence of prosecutorial misconduct, absence of significant restraints on misconduct, and recommending ways to improve accountability; Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 NC. L. Rev. 721, 756-762, 774 (2001) (noting rarity of diseipline against prosecutors); Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Proseeution Discipline Seriously, 8 D.C. L. Rev. 275, 277 (2004) (professional diseipline for prosecutor's ‘misconduct “is often nil”); Kenneth Rosenthal, Prosecutor Misconduct, Convictions. and Double Jeopardy: Case Studies in an Emerging Jurisprudence, 71 Tex. L. Rev. 887, 889 (1998) (*[T]here is a notable absence of disciplinary sanctions against prosecutors, even in the most egregious cases.”); Bruce A. Green, Prasecutorial Ethics as Usual, 2003 U. ls. L. Rev. 1573, 1596 (2003) (noting that existing rules of

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