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Second time was a plea agreement with a codefendant cut in the middle of trial, and not disclosed to the Court or defense counsel until after the codefendant had testified on behalf of the state against my client.

The Judge was not complicit in the misconduct in any way in either case.

The prosecutor in the first case was publicly censured by the disciplinary administrator. The second case is currently on appeal.

James B. Fleming
Fleming Law Offices, P.A.
P O Box 1569, Monticello, MN 55362
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1. In your career as a defense attorney, how often have you seen prosecutors engage in misconduct in order to gain an unfair conviction?

The answer depends largely upon how you define misconduct. Prosecutorial misconduct is seen primarily as a procedural defense used by defendants to argue that although they may have violated the law, they should not be held criminally liable because the prosecution acted in an unfair manner. Such arguments may involve allegations that the prosecution withheld evidence or knowingly permitted false testimony. Or, it can be much more simple such as “the state engaged in prosecutorial misconduct when it (1) asked questions that were directed at the defendant’s presence at the trial and his ability to tailor his testimony based on the evidence presented prior to his own testimony; (2) questioned the defendant about his pretrial silence and his right to counsel; (3) asked the defendant a series of “Are they lying?” questions when the defendant did not put the witnesses’ credibility in central focus; and (4) engaged in a series of remarks that diverted the jury’s attention from issues relating to the defendant’s guilt or innocence.” Misconduct of this lesser sort happens quite a bit.

Modernly, the courts are much more likely to find that “a new trial is not warranted because the objected-to misconduct was harmless error and the unobjected-to misconduct did not affect the defendant’s substantial rights.”

However, prosecutors are protected from civil liability even when they knowingly and maliciously break the law in order to secure convictions. Sometimes, such as the Duke Lacrosse case, the prosecutor’s action were so egregious that the prosecutor (Nifong) was later disciplined and disbarred, and he deserved it given the circumstances of his misconduct.

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

I have seen very little of that in situations so blatant that it was easy to spot. Lots of accusations get made, very seldom does it ever amount to anything. And accusing a Judge of complicity in misconduct is a really, really serious accusation.

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

Penalties vary widely, depending upon the circumstances. The courts are increasingly using an outcome determinative analysis as an excuse to overlook plain error. Yes, it happened, but did it really change anything in terms of the outcome of the case? Lots and lots of appeals are denied these days, using this analysis. “Yes, there was error, but we don’t think it changed anything.” So, the penalties, depending upon the situation may range from nothing, to disbarment, with mistrial landing somewhere in the middle.

There is the way things should be, and there is the way things are. Don’t get confused as to which is which. Courtrooms are a really excellent place for good citizens to stay out of. Particularly those citizens who love to start a conversation about “the law” with “I know what the Constitution says . . .”