The unethical prosecutor in State v. Flores. Watch out for her!
It’s always heartening to see a court cite the 1935 Supreme Court case of Berger v. United States, 295 U.S. 78, (1935), famous in legal ethics circles for its ringing statement that government lawyers must understand that their obligation “in a criminal prosecution is not that it shall win . . . , but that justice shall be done.” The principle has been extended by some judges to civil cases as well, making the point that the government in any legal dispute should be interested only in the best interests of citizens and getting the case right. It is less heartening when the cite is in a dissent, as in this case.
The Ninth Circuit, reviewing a conviction for illegal drug importation, conceded that the prosecutor crossed into unethical territory by misstating the law,misstating the defendant’s testimony, and improperly vouching for a witness. Nonetheless, the court in State v. Flores concluded that this misconduct didn’t rise to the level of “plain error,” meaning that the defendant would have been found guilty anyway:
“In sum, while the government misrepresented Flores’s testimony and misstated the law on multiple occasions, in the context of the trial as a whole, it is unlikely that the jury was misled about the law or the facts.”
That’s right: the government misrepresented facts and law, but the jury was probably not misled.
How does that meet the obligation of the government to give every defendant a fair trial? This is where the dissent raised Berger, saying,
“The Assistant U.S. Attorney violated the rules of permissible questioning and argument; forgot that our government’s interest “in a criminal prosecution is not that it shall win . . . , but that justice shall be done,” Berger v. United States, 295 U.S. 78, 88 (1935) (Sutherland, J.); and ignored Justice Sutherland’s admonition that a prosecutor “may strike hard blows, but not foul ones.” Id. These serious violations do not warrant invocation of the plain error rule.”
Moreover, as Matt Brown points out at the new criminal law website Mimesis Law, nowhere in the decision, not even in the dissent, is the offending prosecutor named. Brown writes:
“What is perhaps the most interesting part about the case, especially the dissent, is the court’s consistent refusal to name the prosecutor….Maybe throwing out the conviction isn’t the right thing to do, but the court’s decision and its carefully chosen language allow the prosecution to avoid any real consequences altogether. To give the government a pass for its lawyer’s misconduct, and then to give the lawyer herself not just a pass but the cloak of anonymity, does nothing to address what the court clearly believes to be a wrong.”
And this is one more reason why there is so much prosecutor misconduct, so many persistently arrogant and unethical prosecutors, and so many innocent people sent to jail.
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Pointer: Ken White
Source: Mimesis Law
Ethics Alarms 
Where is Spike Lee when you need him?
It also violates the right to trial by jury. The right to fair trial by jury is not consistent with a court finding that the trial was not fair but then speculating that a jury would have done the same thing in a fair trial.
The Ninth Circuit, in its opinion, pointed out that given the trial record, a jury could infer guilt even without the erroneous jury instructions.
But that’s not the point.
We throw out evidence that proves criminals guilty when police acquire it illegally. I see no reason why blatant prosecutor misconduct in trial should have at least equivalent consequences. This is the Barry Bonds defense: I didn’t need to cheat, so the cheating shouldn’t matter. Except that you didn’t know that when you were cheating. It’s pure consequentialism.
So you can go to jail because some judges say a jury COULD have found you guilty? That is not a right to a trial by jury.
This is the standard used when reviewing a conviction.
Yes — doesn’t make it right, though.
You can’t mislead people if they automatically assume you’re lying.
Prosecuter to self: “Hmmmmm This seems like a dangerous idea. So yeah, lets go for it.”
Nothing new here. A woman was raped and murdered. Alfred Brian Mitchell was convicted of the crimes and sentenced to death based on DNA evidence that showed that he raped the woman. The DNA evidence linking him to the rape was shown to be fabricated. They overturned his rape conviction, but allowed the murder conviction to stand, reasoning that this just means that someone else raped her and he must have come along and murdered her after she was raped. The death penalty was allowed to stand. On appeal, the judges agreed that the case was greatly weakened by the DNA evidence, so they commuted his death penalty to life in prison.
Why do you expect anything better from people with reasoning skills like these? By the way, the prosecutor in the case stated that he thought executing an innocent person is sacrifice worth making to keep the death penalty.
What was the evidence against Mitchell, according to the Tenth Circuit?