Posted on December 16, 2009 by Walter Reaves

Are prosecutors acting up more?

Although I haven't been following the case, it appears the charges against Broadcom founder Henry Nicholas are on the verge of being dismissed. Nicholas and several executives have been charged various offenses. Last week the judge set aside a guilty plea against the former chairman, and co-founder of the company because of misconduct by the prosecutor. Yesterday the judge threw out the charges against Nicholas, leaving only a separate drug charge. It appears that charge may also be headed for dismissal for the same reasons.

It hasn't been that long ago that the conviction of Senator Ted Stevens was set aside for prosecutorial misconduct. So you have at least cases this year where the court has effectively sanctioned the prosecutor for their conduct. Claims of prosecutorial misconduct are nothing new. In fact, its a favorite claim of defendants in post-conviction proceedings. Most of those claims are frivolous, and nothing more than a complaint about the complaint about the conviction. Claims against prosecutors are almost as prevalent as claims against defense lawyers.

What is new is that the claims are being taken seriously - at least in some cases. The standard reaction in most cases has been to sanction the lawyer for making the complaint. Courts assumed there was nothing to them - after all, the prosecutor in their court would never do something wrong. They were out seeking justice - right?

Until recently, I can't remember the last successful claim of prosecutorial misconduct. So what does it mean? Are prosecutors acting worse? Or are courts just more willing to entertain the argument? The bottom line in these cases is the position of the defendants. A wealthy defendant and a senator. Not only do they have money to mount a defense, they also have something most defendants don't have - credibility. Judges can identify with them, and I think are more open to entertain the thought that the prosecution might be based on something other than evidence.

The question remains whether the willingness to consider these claims will extend to other cases. At least the precedent has been set.

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Posted on December 1, 2008 by Walter Reaves

When does the defense go too far?

In case you haven't heard about this, Vanity Fair recently had an article about a mother who refused to accept a guilty verdict in her son's murder case. John Giuca's mother, Doreen Guiliano, was apparently prepared to do anything to help her son. She ultimately created a false persona, by dying and her hair, and getting herself in shape. She then went "undercover", and befriended one of the jurors. She earned his trust, smoking marijuana with him, cooking for him, and who knows what else.He ended confiding in her that he should have never been on the case because he knew some of the people involved, and knew the defendants were guilty. She was recording everything, so it is all on tape.

The son's lawyer now has the information, and has to to determine how to use it to obtain a new trial.

With a story as unusual as this, you expect people to start talking about. Some have praised her tenacity, focusing on the fact that she uncovered what was no doubt serious juror misconduct. Others have raised the question of what effects this could have on potential jurors.

There are several things that bother me about this. One is the lengths she went to in order to gather information. If the police engaged in that sort of conduct, it would be entrapment. While they might form a personal relationship, they certainly wouldn't go to this extreme. It bothers me that anyone would be willing to do that; it appears she essentially prostituted herself to obtain information. I realize my personal moral code may be different from others, but I have a hard time believing most people would do that.

Another problem I have is the focus on the results; no matter what she did, she uncovered information of misconduct. The police routinely make that argument to excuse their failure to follow the law.  The same people condoning the action in this case are the ones who vehemently argue the ends do not justify the means when it comes to the government. I realize there are differences, because private citizens do not operate under the same constraints as government agents. We must impose limits on the government, because of the potential for abusing their power. But in the end, does that mean a private citizen can do anything to obtain information.

I have to agree in part with Scott Greenfield that we should be concerned with the effect this may have on potential jurors. Jury service is an inconvenience, and most jurors expect that once the case is over, they are finished. I'm sure they don't expect to be stalked, or investigated. If potential jurors started worrying about that, you have to wonder how many people would be willing to serve. There is also another problem I see, which is encouraging this type of conduct, and creating the impression that most jurors hide information.  In my experience, cases like this are extremely rare; it's rare that a juror will know the victim in the first place, and even rarer that they either don't disclose it, or someone doesn't already know about it. That doesn't mean contacting jurors doesn't have a place, because it does. It is always useful to find out their thoughts about what happened, and try to determine if anything improper occurred during deliberation. Those contacts however are generally not very intrusive.

Assuming they are able to use this information, there is no guarantee a new trial is going to be granted. That depends on a number of things, including what influence the juror's knowledge had on the decision. If he kept that knowledge to himself, and didn't share it with other jurors, the court may determine there is no harm. The evidence of guilt is also an issue. I don't know anything about the case, but if the evidence of guilt is overwhelming, the failure to disclose the information is going to have less effect.

This will be an interesting case to follow. In many way, they are in uncharted waters, and no matter, some precedent is going to be set.

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