Natty Shafer Law

Utah lawyer for criminal and immigration cases


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Is Prosecutorial Misconduct Becoming Common?

That certainly seems to be the opinion of a growing number of judges, and a few opinion writers have have followed their lead and registered complaint. The most prominent judicial critic thus far has been Chief Judge Kozinski of the Ninth Circuit Court. Writing a scathing dissent of the Court’s refusal to rehear United States v. Olsen last December, Kozinski characterized the panel opinion as a free pass for prosecutors to shirk their duties. He wrote, “the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway.”

Prosecutors have a constitutional duty in the United States to turn over evidence that could be favorable for the defendant. To fail to do so would be a due process violation and should be grounds for a new trial and sanctions against the prosecutor. You would not know it, however, by examining appellate court decisions. All too often, appellate judges shrug theirs shoulders and decide to do nothing.

It has been just over fifty years since the Supreme Court explicitly stated a prosecutor has a duty to turn over evidence to the defendant. In Brady v. Maryland the Court held, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” As United States v. Olsen shows, however, appellate courts find that a lot of evidence is not “material.” Taping unparalleled powers of mind-reading, appellate judges regularly express “confidence” that a jury would have convicted even if they had heard the evidence favorable to the defendant. Kozinski thinks this has lead to rampant unethical prosecutorial behavior. “Some prosecutors don’t care about Brady because courts don’t make them care,” he wrote in his dissent.

The bottom line is that there are plenty of incentives for prosecutors to shirk their duties, but few disincentives. Formal sanctions from state bar associations are rare. Appellate courts are reluctant to overturn convictions. In the rare instances where a conviction is overturned, a prosecutor is rarely personally punished. It is very difficult to bring civil suits against prosecutors for constitutional violations. They enjoy qualified immunity which means—without getting too technical—there is a threshold a person has to show before they are even allowed to get their day in court and sue for damages. And if someone happens to prevail in spite of those difficulties, taxpayers pay the settlement.


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Another Reason Not to Talk to Police

With yesterday’s decision, Salinas v. Texas, the Supreme Court has unwittingly shown once again why you should never talk to the police. The defendant in that case, Genovevo Salinas, went into the police station with the understanding the police were trying to clear him as a suspect. As should be clear from the record, the police had no intention of clearing him. They wanted him to incriminate himself. Salinas continued answering their questions until the police asked if the shotgun in his home “would match the shells recovered at the scene of the murder.” At that point Salinas stopped talking.

At his trial, the prosecutor used Salinas’ silence as proof he was guilty. He asked the jury to infer that an innocent person would have protested their innocence. It should go without saying that for the privilege against self-incrimination to mean anything, silence cannot be proof of a person’s guilt. With yesterday’s decision, the Supreme Court said there was nothing improper about the prosecutor’s comments. According to the Court, Salinas needed to specifically state the magic words, “I’m going to exercise my right to remain silent.”

How a non-lawyer is supposed to know what magic words to utter is beyond me. There are just too many things a layperson cannot know and therefore should never attempt to talk to the police without a lawyer. This is equally true if you are innocent. Remember, the police already think you are guilty, or they would not be investigating you. No matter how eloquent you think you are, the police have more practice at interrogation.