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.

The Eighth Amendment and the Death Penalty

If the people are protected against cruel and unusual punishments, where does the death penalty come in?

Eighth Amendment

Photo by: World Coalition Against the Death Penalty

The Eighth Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” No one convicted of a crime should face punishments that are considered severe or unfair. Being sentenced to death seems to be the grimmest and harshest sentence possible though, so why is it permissible under the protection of the Eighth Amendment?

Death penalty

In the early 1970’s the U.S. Supreme Court ruled the death penalty to be in violation of the Eighth Amendment. Within a few short years however, during the case of Gregg V. Georgia, the Supreme Court ruled by a wide majority that the death penalty under new statutes were no longer unconstitutional. Under the new guidelines, the trials of someone facing the death penalty must be a two part, with the first determining guilt or innocence and if found guilty, the second step to decide prison or death.

Is Utah pro-death penalty?

Photo by: Humphrey King

The state of Utah wasted no time in welcoming the death penalty back. In fact, Utah was one of the first states to begin perform an execution after the nationwide overhaul of capital punishment. Utah is also the only state to still have the questionable firing squad as an option of carrying out the death penalty when unable to “obtain the substance or substances necessary to conduct an execution by lethal intravenous injection” according to Utah Code 77-18-5.5. Many death penalty activists in Utah are currently fighting to cease the death penalty in Utah on the next legislative session. While many claim it is truly unconstitutional to take the life of another person under law, others admit the death penalty with the cost of the continuous appeals is just too expensive to support.

Capital felonies

Until Utah lawmakers decide to abolish the death penalty, Utah Code 76-3-206 states: “A person who has pled guilty to or been convicted of a capital felony [such as murder] shall be sentenced in accordance with this section [and if the person] was 18 years of age or older at the time the offense was committed, the sentence shall be:

(i) An indeterminate prison term of not less than 25 years and that may be for life; or
(ii) On or after April 27, 1992, life in prison without parole”;
(iii) [or the ultimate punishment,]  Death”.

Pleading Guilty with a Mental Illness

When a person is suffering from a mental illness, it can drastically reduce their ability to determine right from wrong, leading some to commit offenses they may have not been predisposed to commit had they been of sound mind. When this occurs, they may think it is best to plead guilty with a mental illness. Since pleading guilty with a mental illness is still pleading guilty, this is something that is best discussed with a qualified attorney prior to the initial appearance or preliminary hearing.

Prevalence of mental illness nationwide

Photo by: A Health Blog

Mental illnesses are experiences by millions throughout the nation. It is estimated that roughly 1 in 5 adults, or more than 40 million Americans suffer from a mental illness each year. Nearly 10 million of those suffer from severe, and often debilitating cases of mental illness. Mental illness can affect an individuals ability to hold down a job, maintain healthy relationships, and overall dramatically reduce the quality of life for the sufferer. Mental illnesses such as depression, anxiety, bipolar and schizophrenia can decrease a person’s ability to understand the gravity of situations and many believe they could lead a person to exhibit criminal behavior outside their control.

Pleading guilty with a mental illness at the time of the offense

Some individuals may realize that they have committed a serious offense, yet felt they were not in a healthy state of mind when the event occurred. If the evidence is stacked against them, they may choose to claim guilty with a mental illness at the time of the offense. According to Utah Code 76-2-305, “it is a defense to a prosecution under any statute or ordinance that the defendant, as a result of mental illness, lacked the mental state required as an element of the offense charged. “This section defines mental illness as “a mental disease or defect that substantially impairs a person’s mental, emotional, or behavioral functioning. A mental defect may be a congenital condition, the result of injury, or a residual effect of a physical or mental disease and includes, but is not limited to, intellectual disability.”

Sentencing with or without treatment

Photo by: Alachua County

When someone is given a verdict of guilty with a mental illness, according to Utah Code 77—16a-104, a hearing will then be conducted to “determine the defendant’s present mental state”. If the person is found to still be suffering from a mental illness, the court would “impose any sentence that could be imposed under law upon a defendant who does not have a mental illness and who is convicted of the same offense and commit the defendant to the department.” The defendant would then be admitted to the Utah State Hospital. Once treatment is completed, the defendant would then be transferred to the UDC (Utah Department of Corrections) to complete their sentencing. Being found guilty with a mental illness it is not a get out of jail free card. It is more of a temporary adjustment as to where the defendant will be serving their sentence.

Still a guilty plea

Utah Code 77-16a-103 gives a note of caution to those pleading guilty with a mental illness, “If the defendant is later found not to have a current mental illness, that plea remains a valid plea of guilty with a mental illness at the time of the offense, and the defendant shall be sentenced as any other offender.” Pleading guilty is still considered admitting fault. This is not something that should be done without proper legal counsel. There are other options available such as pleading guilty to a lesser offense or pleading not guilty by reason of insanity. For anyone facing criminal charges, it is best to speak to a criminal defense attorney to discuss the options available to those suffering from a mental illness.