Advanced Trial Handbook - Prosecutorial Misconduct
Possible courses of action if you are
experiencing prosecutorial abuse or misconduct.
Also see Prosecutorial Misconduct Part Two,
Prosecutorial Discretion, Police Discretion and Public Integrity website.
Caught.net does NOT and cannot give legal advice. Keep this in mind as you read these suggestions from websites dealing with prosecutorial misconduct.
As seen on Prosecutorial Abuse Website: Summary or Checklist of Possible Remedies and Opposing Actions for Prosecutorial Misconduct and Abuse.
These are remedies and suggestions which an attorney and his or her client should consider when trying to offset prosecutorial wrongdoing. The list is not exhaustive, and, to some extent, contains ideas which are somewhat novel. Some are without significant precedent and some have no precedent. Yet, the relative novelty of the opposition makes it more effective in some cases. These possible remedies for consideration (without any elaboration, and in no particular order) are:
- Direct constitutional action against federal prosecutor and conspiring witness;
- Raising issues at all levels in state criminal proceedings (trial court and all available appellate courts) to be able to make 2254 habeas corpus petition in federal court without dismissal for failure to exhaust remedies;
- Filing 2254 or 2255 petition in federal court within 1 year after conviction becomes final raising any issues of prosecutorial misconduct and abuse and any issues of ineffective assistance of counsel;
- Demand pre-trial expert discovery equivalent to expert discovery permitted in federal civil actions, to obtain such discovery, if possible, and to preserve such issue on any appeal;
- Demand that prosecutor and/or court or appropriate agency provide funds to defendant equivalent to the amount being spent by the prosecutor (including the market value of the prosecutor's time), if the defendant is unable to afford to pay such amounts himself/herself;
- File a civil action, as soon as possible, against complaining witnesses for any wrongdoing by them, to ensure that you bring your claim on a timely basis (because if you waited until the criminal proceeding ends you might be precluded by the statute of limitations) and to obtain discovery useful in the civil and criminal actions; and to make the overall litigation more easily resolved through global structured settlement (including the defendant, prosecutor and complaining witness). After the civil action is filed, in exchange for the claimant's securing the dismissal of the lawsuit, the defendant agrees to make a series of periodic payments over time known as a structured settlement annuity;
- File a criminal complaint against the federal prosecutor and/or complaining witness if you have grounds, using the Givens rationale (direct constitutional action);
- File a motion demanding that the prosecutor recuse himself/herself due to a conflict of interest, if appropriate (note: a meritorious civil or criminal action by the defendant against the prosecutor would seem to be grounds for recusal, as well as the filing of a meritorious 2255 petition alleging prosecutorial misconduct);
- Demand and file a motion for the taking of pre-trial depositions of bribed prosecutorial witnesses as a constitutional right, or demand an evidentiary hearing in the alternative, to enable the defendant to get all relevant facts in the record; this will be useful during any appeal and during a 2255 or 2254 habeas corpus petition;
- File charges against the prosecutor with the appropriate state organization (usually a part of the state court system) which regulates the conduct of attorneys in the state and can order or recommend sanctions against errant attorneys, including suspension or disbarment; but make doubly sure that you have appropriate grounds;
- Establish a record that the bail being sought is excessive, without justification, far more than is being requested or imposed in other, similar matters, would have the effect of precluding you from defending yourself (by taking funds needed for your defense, or worse, would preclude you from getting out of prison and make you less able to defend yourself against the charges as a result), and that this is the prosecutor's intent; also, request an evidentiary hearing on the bail issue to establish an appropriate record; and go up on appeal on these bail issues, as an interlocutory appeal, if and to the extent possible under law;
- Demand an evidentiary hearing on the bail issue (as stated within the prior point);
- Move to stay the criminal proceeding as unconstitutional selective, arbitrary and discriminatory enforcement of law (which stay would require holding up the prosecution until the prosecutor commenced criminal proceedings against all others similarly situated);
- Seek a jury charge to let the jury be told that it is lawful for a jury to nullify the court's instructions to the jury by finding in favor of the defendant if the jury wishes, under whatever standards for upholding jury nullification exist under law; in other words, request a charge on the law which governs the extent to which a jury may find for the defendant in spite of the governing substance law as charged to the jury; and do this with an eye toward raising this issue on appeal if and when the defendant's request to charge is denied by the judge;
- Demand the right of defendant to appear before the federal grand jury to explain his/her side of the issues;
- When making a 2254 or 2255 petition, demand that any hearing on the matter be commenced within 70 days from the date of filing the petition (under the Speedy Trial Act of 1974, as amended), and upon failure to obtain the commencement of such a hearing within the 70-day period, move to have your criminal proceeding dismissed under the Speedy Trial Act of 1974, as amended;
- Encourage co-defendants to make some of these motions, and join in with their motion, if applicable;
- Demand that the prosecutor's report to the court monthly the amount of time and money they are spending in their prosecution of the defendant (which is necessary for the defendant to be able to know how much funding he/she should be able to get, similar to "matching funds" to oppose the prosecution);
- Make a motion to require the prosecution to answer under oath that he/she has turned over all listed categories of exculpatory evidence set forth in your motion, as a way of forcing the prosecutor to turn over more exculpatory evidence than he/she normally would, and prepare for the 2254 or 2255 motion based on prosecutorial wrongdoing (of not providing the defendant with all exculpatory evidence the prosecutor did in fact receive, or had failed to accept when he/she was obtaining evidence from various persons);
- Make a motion to request the judge to permit the defendant to testify at the trial with substantial restrictions on the prosecutor's right to cross-examine the defendant as to the defendant's background, prior convictions, other matters -- on the grounds that such testimony is too prejudicial and the jury's need to hear the defendant's side of the story far outweighs the prejudice which the extraneous cross-examination would create for the defendant (and thereby make the defendant unable to testify in his/her own behalf); and do this for purposes of using any denial of the motion as a basis for appeal, and for possible 2255 prosecutorial abuse in denying a reasonable request;
- Review the complete website and the related website Prosecutorial Abuse Website for other matters to add to this list;
- Make a motion to have the judge hold that expert witness reports and all documents upon which the reports are based is not covered by the grand jury secrecy provisions for various reasons, including that experts are not fact witnesses; their testimony is purchased and revealing of the whole relationship is required to limit expert-witness abuse; experts were not envisioned or used when the grand-jury secrecy doctrine was first established, and it was judicial oversight by which expert testimony was swept within the grand-jury secrecy provisions;
- File a motion to preclude the prosecutor from using testimony of prisoners who have been promised mitigation of sentence as violating the Citizen's Protection Act of 1998, 28 U.S.C. Section 530B; and take this issue up on appeal and in a 2255 or 2254 petition.
How to Deal with Prosecutorial Misconduct and Abuse - Part Two
If you believe you have become a victim of prosecutorial abuse or misconduct, you should consider consulting with a different criminal attorney. You may find that your present attorney is unwilling to deal with the problems properly. You may also consider a civil rights attorney. Review these and other possible matters with such attorney:
Applicability of 28 USC 2254 or 28 USC 2255 or other state or federal habeas corpus motions, or other motions for a new trial, or to dismiss criminal proceedings (grounds for which may include one or more points listed below);
All complaints which your criminal attorney voiced to you about the activities of the prosecutor;
All complaints which you have, if any, about your criminal attorney, whether voiced to such attorney or not;
Any pre-trial publicity which may have been generated by the prosecutor;
Any possible bribery of prosecution witnesses;
Any possible failure to ask for exculpatory evidence when the prosecution was investigating the matter;
Any possible failure by the prosecutor to turn over exculpatory evidence to your criminal attorney (evidence which would tend to help prove innocence of the defendant, or cast doubt on the accuracy or veracity of any of the prosecution's witnesses);
Any possibilities for obtaining discovery which might have been overlooked, even if such discovery requires an application to the court for permission to obtain;
Any possibilities for obtaining government-provided additional funding of the costs of your investigation or retention of expert witnesses;
Any possible use of civil litigation at this time to preserve your right to relief for the infringement of your constitutional rights (bearing in mind that such action might expose you to discovery yourself, unless you apply for and obtain a court order in the civil case protecting your from discovery until resolution of the criminal matter);
Possibility of a motion to disqualify the prosecutor for the alleged misconduct, and because of any civil action you might have or have brought against the prosecutor;
Motion in the criminal case to demand expert discovery comparable to that which is provided in civil litigation under Rule 26(b)(4) of the Federal Rules of Civil Procedure, the denial of which would be an excellent ground for appeal (the issue being the unconstitutionality of Rules 16(a)(1)(E) and 16(a)(2) of the Federal Rules of Criminal Procedure and 18 U.S.C. Section 3500 7/1/01 Letter to Sen. Leahy, with rule and statute quoted at end of letter which prohibit expert discovery, and particularly expert discovery of government employees who are used as expert witnesses (such as FBI laboratory experts);
Possibility of application of doctrine prohibiting arbitrary, selective and discriminatory enforcement of law, which means that under constitutional law you are not allowed to be selected for prosecution while others known to have done the same thing are not also being prosecuted (which gives grounds to stay, but not to dismiss, the discriminatory criminal proceedings);
Failure to present felony to grand jury under New York law is grounds for a dismissal, whether or not the defendant is incarcerated (there is a constitutional right under New York law to have a felony alleged in a complaint brought before a grand jury for indictment, unless this is waived by the defendant, and this is so even if the defendant is out on bail); you should determine whether this right exists in any other states;
And other matters which come to mind. This list is far from exhaustive.