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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 in this column last month. We received so many interesting responses that the topic was continued over to this month. Here is what we 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’ responses follow—

Don Rehkopf
Brenna, Brenna & Boyce, PLLC
31 E Main St., Ste. 2000, Rochester, NY 14614
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After having practiced law for 39 years, let me offer my observations to your Brady questions:

1) Far too many times, unfortunately. And as the seriousness of the crime increases, so do the convolutions of some prosecutors to “win at any cost.” Consider the cases of former Senator Ted Stevens [conviction set aside because of Brady violations]; the so-called “Detroit Sleeper Cell [convictions set aside and indictments dismissed for Brady violations]; the guy recently exonerated in Texas and the former DA, then judge who was disbarred for withholding evidence in a murder case. I personally have two post-conviction homicide cases where we know that crucial Brady information was “hidden” from the defense – the issue is, what is the appropriate remedy for those violations?

2) I must unfortunately say, that with the exception of a few federal judges [remember, life-time appointments, so they don’t stand for re-election], 95% of the judges either “poo-poo” the issue, hold that it is “harmless error,” or usurp the role of the jury and conclude that it wouldn’t have mattered in any event. But, that call is mine as the defense counsel – I cannot use what I’ve been lied about and told does not exist. If judges would actually sanction overzealous and unethical prosecutors and order new trials for Brady violations, word would spread, and it would reduce, but probably not eliminate, the problem.

3) Virtually nothing ever! At worst, a Judge yells at a DA and tells him to “be more careful in the future,” or an appellate court rules that the Brady violation is “harmless error,” and thus, no big deal. With the exception of the prosecutors in the Senator Stevens’ case who were referred for an ethics violation investigation [the exception, rather than the rule], or the Michael Morton exoneration in Texas late last year where the DA who went on to become judge, went to jail, the Brady rule is the proverbial “paper tiger.”

Richard H. Seaton, Jr.
Seaton, Seaton & Gillespie, LLC
410 Humboldt, Manhattan, KS 66505
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In 25 years of practice, I have seen it twice, at least egregiously. Both were murder cases. The first time involved the prosecutor manipulating the discovery so that it was largely unusable without countless hours of staff time sorting it and reorganizing it.