Prosecutorial Misconduct

Just how not every person charged with a crime is guilty, not every attorney prosecuting a case is innocent. Some may do whatever it takes to ensure a conviction, even if their ways of obtaining a guilty verdict are unethical or even illegal. When this occurs, it is known as prosecutorial misconduct.

Dropped Charges

Photo by: Clyde Robinson

On Monday November 6, 2017 federal prosecutors gave up their fight to indict former Utah Transit Authority board member Terry Diehl on felony charges stemming from allegations that he failed to disclose assets when he filed bankruptcy in 2012. Originally, prosecutors had 14 felonies stacked up against Diehl but the charges slowly dwindled away after the prosecution was found to have been misleading, incapable of doing simple math, as well as unable to produce factual evidence to support the charges. Not having much left to work with, prosecutors dropped the case entirely. Although many Utah residents disagree with the apparent crooked way Diehl operated business, he still has Constitutional rights to a fair trial. The prosecution should have been honest in the way they handled the case.

Prosecutorial misconduct

When a prosecuting attorney breaks the law or behaves unethically during a case in order to ensure a conviction, this is known as prosecutorial misconduct. Some illegal or immoral activities in which prosecutors have been involved in include:

• Not sharing exculpatory evidence. Exculpatory evidence is evidence that could be helpful to the defendant but not necessarily the prosecution. In Brady v. Maryland (1963), John Leo Brady was convicted for murder because the prosecution had not disclosed that they had obtained a written confession from another man involved. Although Brady appealed and was later charged with his actual role in the crime, the U.S. Supreme Court ruled that from then on, the prosecution was not allowed to withhold exculpatory evidence again.

• Falsifying evidence. This includes any evidence that has been altered or fabricated. In the case of Terry Diehl, it was reported that the prosecution falsified evidence by trying to use a tax document with a forged signature of Diehl.

• Tampering with or intimidating witnesses. Sometimes the testimony of a witness is enough to throw a case in favor if the defendant. In People v. Warren (1978) a key witness was unsure about testifying in his friend’s behalf for fear of self-incriminating himself for the crime instead. Through a “barrage of cautionary questioning”, the prosecution essentially scared the defense’s witness into taking his Fifth Amendment rights to protect himself. The Prosecution was said to have “crossed the line separating proper advisement from intimidation”.

• Discriminating potential members of a jury. According to the United States Courts, in Batson v. Kentucky (1986) “the prosecutor used his peremptory challenges to remove all four African Americans from the jury pool.” The Court ruled that “while a defendant is not entitled to have a jury completely or partially composed of people of his own race, the state is not permitted to use its peremptory challenges to automatically exclude potential members of the jury because of their race.”

These and other methods of prosecutorial misconduct put the defendant at an unfair disadvantage during their court proceedings at the hands of the prosecution who is there to serve the people, not their tally of guilty verdicts.

Servant of the law

Prosecuting attorneys are upheld to a greater code of conduct than other attorneys as they are appointed by, and represent the State or the Nation. As noted by the U.S. Supreme Court in Berger v. United States (1935), the prosecuting attorney is “a servant of the law”. They also add that “while [the prosecuting attorney] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” With the position of trust that prosecutors hold, they should perform their duties honorably, favoring justice over a guilty verdict. A qualified defense attorney will be able to recognize dishonest snares put in place by the prosecution and be diligent in ensuring the case is handled fairly.

Avoid Dead Time – Receive Credit for Time Served

When a defendant spends time in a Utah jail prior to conviction, they will want to avoid this duration becoming dead time and ensure they receive credit for time served.

Waiting game

Photo by: Santi Villamarín

Photo by: Santi Villamarín

Sometimes the time between being arrested and being convicted can drag on, leaving the defendant waiting in jail for their time in court. Sometimes this is due to the defendant either not being allowed out on bail or being unable to afford it. Although the state has to file charges within a determined amount of time, things may take longer especially if the case goes to trial. Additionally, if the right to a speedy trial has been waived, this can add more time to the wait.

Credit for time served

Whatever the reason is for having an extended wait time in jail before sentencing, that time spent behind bars should count for something. Credit for time served is time that is taken off of a sentence because of time spent in jail prior to the hearing. For instance, if someone spends three months in jail prior to their hearing and is then sentenced to a year in jail, they can receive the three month credit for time served, reducing their jail time down to nine months from that point.

Make sure it counts

Time Served

Photo by: Neil Conway

If a defendant finds themselves spending time in jail while awaiting a sentencing hearing, they need to confirm that their attorney requests the judge to issue credit for time served. While this should be a given, occasionally this topic can be missed, especially by an overworked court appointed public defender or by a Utah judge who may simply overlook signing off on it. A qualified criminal defense attorney will ensure that credit for time served is received and that no time behind bars is wasted.

Why a Warrant is issued

According to Utah courts, a warrant is “a written order issued and signed by a judge or magistrate which allows the police to search a place and seize specified items found there […] or to arrest or detain a specified person […]. There are different types of warrants issued by a judge and not all will result in an individual being arrested.

Bench Warrant

Photo by: West Midlands Police

Photo by: West Midlands Police

A bench warrant a type of warrant that is issued by the judge so that the individual can be located, arrested, and appear before the judge and explain why they:

• Didn’t show up to court. When someone is facing charges, they are required to show up to court on a set date to discuss the charges in front of a judge. If they aren’t put in jail initially or if they are out on bail, they may take the temporary freedom too lightly and either forget or choose not to show up when that date comes. When this happens, a bench warrant will be issued for failure to appear in court.

• Violated a court order. If an individual violates an order issued by the court or violates their probation, then a bench warrant can be issued for their arrest.

• Failed to pay their fines. Any fine related to a charge or ticket must be paid by the required date. If a person fails to pay their fines on time, this is another reason why a bench warrant will be issued for their arrest.

Arrest warrant

Just like a bench warrant, an arrest warrant gives law enforcement the right to detain a person and take them to jail until they can be seen by a judge. This is usually the case for individuals who are suspects in a crime.

Search Warrant

A search warrant is very different from a bench or arrest warrant as it doesn’t always end in an individual being arrested. A search warrant merely gives law enforcement the right to search a certain location.

Defense counsel

If a warrant is issued for a person’s arrest, it is wise to immediately seek a criminal defense attorney to represent the individual in court. Likewise, if a search warrant turns up anything that would result in criminal charges, defensive counsel is recommended.