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Attorney Question Of The Month

Network President Marty Hayes asked our Affiliated Attorneys a short series of questions about fairness in our criminal justice system. He asked–

1) In your career as a defense attorney, how often have you seen prosecutors engage in misconduct in order to gain an unfair conviction?

2) How often do the judges either look the other way or assist the prosecution?

3) What is the penalty for either of the above?

Our Affiliated Attorneys responded with a variety of very interesting answers. We think you will learn from and enjoy what they told us.

Kevin E. J. Regan
The Regan Law Firm, L.L.C.
1821 Wyandotte St., Suite 200, Kansas City, MO 64108
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In my career as a defense attorney here in the Midwest, we rarely see prosecutors engage in professional misconduct in order to gain an unfair advantage. In the past, there have been a very small number of attorneys who have played “hide the ball” with discovery and not provide exculpatory evidence to defense counsel.

This has been dealt with appropriately by the elected prosecuting attorney, as well as the courts themselves. Bad apples usually get weeded out.

In several high profile cases, convictions have been overturned, new trials have been granted and, in some cases, substantial money judgments have been awarded in civil courts. Justice has prevailed, although sometimes at great cost to the defendant.

I am pleased to report that, in our jurisdiction, the judges at the city, state and federal levels vigorously enforce the defendant’s right to a fair trial and do not condone foul play by the prosecution.

The penalties or sanctions for withholding discovery or intentional violation of procedural rules by the prosecution may come in several ways.

The defense attorney can ask that the judge to ask the trial court to exclude evidence that has not been disclosed in a timely manner. If the prosecutor asks an inappropriate question of a witness or makes an inappropriate comment during a closing argument, the proper remedy would be to ask the court for a mistrial.

If a prosecutor’s misconduct during trial is egregious enough, possible remedies available are the granting of a new trial or the reversing of a conviction.

When defense counsel believes that their opponent has impermissibly crossed the line, they should be prepared to ask for the appropriate sanctions of exclusion of tainted evidence, a mistrial, or the reversal of the conviction. If court orders are intentionally violated, a citation of contempt of court may also be viable against the offending prosecutor.

John R. Monroe
Attorney at Law
9640 Coleman Rd., Roswell, GA 30075
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1. I rarely see what I would call misconduct. More frequently I see things like rebuttal closings (the last word to which the state is entitled) that suggest “facts” that were not proven.

2. I think most judges are fair, and do not see them assisting the prosecution, especially in major cases. Things like that happen more frequently in minor cases (traffic), where I’ve seen judges reopen the evidence to let the prosecution prove some aspect of the crime that they forgot to prove. In my view, that’s going too far.

3. Not much penalty, because they tend not to cross the line into real misconduct.

Mark D. Biller
Attorney At Law
P.O. Box 159, Balsam Lake, WI 54810
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Prior to opening my criminal defense practice in 2002 I was a prosecutor for fifteen years; fourteen of it as elected District Attorney.