Friday, November 27, 2009

The Breakdown of American Morality Part ll

Corrupt Prosecutors:

The Justice Department, and perhaps all the way to the White House have damaged the image of justice in America . The dedication of conservative power houses such as George W. Bush, Karl Rove, Monica Goodling, and Alberto Gonzales asserting their will and influence upon the judicial system has become extremely disturbing when taken into consideration the ways in which those tasks have been implemented and their end result, the undoing of the Constitution.

But what is even more disturbing it the rapidity in which corruption has spread throughout the entire spectrum of the Justice System at both the State and Federal levels. Prosecutorial corruption is so prevalent that we are advised that more than 20 percent of those convicted of crimes are actually innocent.

No state is immune from political and prosecutorial corruption and some are more prone than others, as George Magazine voted Nevada number one in political corruption, the State is followed closely by Texas , Alabama , and Florida.

Why is this becoming an alarming concern to Americans?

The answer is basic, because we are a nation of Laws, not of kings that rule by arbitrary decisions, yet when a prosecutor abandons the rule of law for reasons of protecting their status, or to hide their inequity, as for an example the fabrication of a Criminal prosecution, concealing evidence of NO crime, presenting to a Grand Jury, (a system that does not work because it is not adversarial) one side of the case and concealing evidence that No crime had been committed, or attempting to destroy the reputation of an individual that was doing the job the prosecutor was supposed to do, but failed, this should concern all Americans.

It has long been recognized that a prosecutor’s duty is to seek justice. In Berger v. United States, 295 U.S. 78 (1935) our Supreme Court declared this mandate recognizing that prosecutors should “prosecute with eagerness and vigor” but may not use “improper methods calculated to produce a wrongful conviction.” But this is exactly what they do, falsify documents, induce witnesses to commit perjury and intimidate those witnesses who defend the accused.

In other words, the rules of law have been bent, as long as the reviewing court determines, based upon their own post-conviction subjective interpretation, that the evidence notwithstanding the alleged misconduct is sufficient to support the conviction, a prosecutor’s deliberate misconduct, e.g. witness intimidation, fabrication of documents, deceptive and false testimony, is judicially tolerated.

This is generally called the “harmless error” rule, if the reviewing court determines that the person is “probably” guilty anyway. Then the “error” of a deliberate prosecutorial misconduct is deemed “harmless.” See, e.g. Cargle v. Mullin, 317 F. 3d 1196 (10th Cir. 2003) (“A prosecutor’s misconduct will require reversal of a conviction only where the misconduct sufficiently infected the trial so as to make it fundamentally unfair.”); Mason v. Mitchell, 320 F. 3d 604 (6th Cir. 2003) (“The misconduct must be so pronounced and persistent that it permeates the entire atmosphere of the trial”).

The problem with this logic is that the true harm is not in the result of the deliberate misconduct, but in the misconduct itself. For example where evidence of a crime has been wrongfully seized, it may be suppressed, what then is the distinction?

Our constitutional democracy works because we have become a nation of laws that evolve as necessary to protect the rights of all citizens. If we create a system that effectively absolves deliberate prosecutorial misconduct based upon subjective interpretation of actual harm, and not the act of misconduct itself, do we not invite and even encourage prosecution misconduct? The answer is yes!

As a civilized society we embrace the liberty interests of law and order. Without laws there can be no “order” as one cannot exist without the other. Now imagine a world where every individual is subject to accountability, except those empowered by the government to enforce those laws, this is America ! We must obey all laws while those who are to enforce them have no such obligation, and no accountability.

In today’s criminal justice system, with an epidemic of wrongful convictions increasingly undermining its confidence, prosecutorial misconduct has become the leading cause of these miscarriages of justice and MUST be addressed. The problem is immense, so much so that the US Supreme Court found it necessary to immunize prosecutors against civil liability based on corrupt practices, which include inter alia, acts of, concealment of evidence and lies and deception in the prosecution of criminal cases, even when they prosecute someone they know never committed any crime. The corrupt prosecutor will often use the Media to create the illusion of guilt. Trying the case in the public arena, where the accused is made to look guilty before any trial on the merits. A search for the truth, the very essence of litigation has been replaced with a struggle to pronounce guilt even where there is none.

Even with this epidemic of prosecutorial misconduct victimizing innocent men and women with wrongful incarceration and even condemning them to death, prosecutors enjoy “absolute immunity” from judicial accountability. In Imbler v. Pachtman, 424 U.S. 409 (1976) the Supreme Court concluded that prosecutors, even when they deliberately fabricate evidence, present false evidence, and knowingly use perjured testimony, even when they deliberately prosecute someone they know is innocent, are entitled to “absolute immunity” and cannot be held judicially accountable. The Supreme Court concluded, “The ultimate fairness of the system could be weakened” if prosecutors were held accountable in court for even deliberate misconduct.

This mundane thinking is archaic, used solely to shield intentional wrong doing of the politically connected. Everyone whether in government or outside must be held accountable for their actions when they cause deliberate harm. The operable word here is deliberate.

Add to that the political consequences that make admitting error, the equivalent of career suicide, and a culture that promotes those who will win at any cost; where the most “successful” prosecutors are those who practice the philosophy that “the ends justify the means” and you have a system that invites injustice, and becomes by its very nature inherently corrupt from within.

How can we deny that the absence of accountability is itself an invitation to injustice? If our system can identify the overall numbers of specific prosecutors who have reportedly engaged in deliberate misconduct then is there not a moral responsibility to at the very least ensure that these corrupt individuals never practice law again?

If we identify a doctor that has deliberately engaged in malpractice causing injury to his or her patient, do we not take action to strip them of their license to practice? Why would we demand anything less of a person entrusted to represent “We, the people” in a court of law? Is not the deliberate violation or that most sacred trust at least as equally contemptible, and intolerable, as a physician deliberately engaging in acts of malpractice that victimizes his patients?

The hypocrisy that presently exists is perpetuated by the system itself. Florida being a good case in point, the Florida Supreme Court has repeatedly admonished prosecutors for deliberate misconduct in capital cases, promising that disciplinary actions would follow if that behavior continues, yet not once has the Court actually taken action. This judicial rhetoric is found in case law e.g. In Ruiz v. State, 743 So. 2d 1 ( Fla. 1999) the Florida Supreme Court stated that,“ we warned of the dire consequences of such ‘inexcusable prosecutorial overkill.’” citing, Hill v. State, 477 So. 2d 553 (Fla. 1985) “… yet in spite of our admonishment in Hill and despite subsequent warnings that prosecutorial misconduct will be subject to disciplinary proceedings by the Florida Bar, we never-the-less continue to encounter this problem with unacceptable frequency.” Both Ruiz and Hill were capital cases in which the defendants were sentenced to death; but they’re certainly not the only capital (death sentence) cases in which the Court admonished prosecutors for acts of deliberate misconduct. See, e.g. Garcia v. State, 622 So. 2d 1325 ( Fla. 1993) (“Once again, we are compelled to reiterate the need for propriety, particularly where the death penalty is involved.”); Nowitzke v. State, 572 So. 2d 1346 ( Fla. 1990) (“We are distressed over the lack of propriety and restraint exhibited in the overzealous prosecution of capital cases.”); Garron v. State, 528 So. 2d 353 ( Fla. 1988) (“Such violations of the prosecutor’s duty to seek justice and not merely ‘win’ a death case cannot be condoned by this Court.”); and, Bertolotti v. State, 476 So. 2d 130 (Fla.1985) (“we have recently addressed incidents of prosecutorial misconduct, in the face of repeated admonitions against such overreaching to be grounds for appropriate disciplinary proceedings.”)

All of these cases in which the Florida Supreme Court explicitly recognized acts of prosecutorial misconduct share several things in common, in each of these cases the defendant was sentenced to death (several of these defendants have since been executed) and in each of these cases no actual disciplinary action was taken against the prosecutor found to have engaged in such misconduct.

Two distinct forms of prosecutorial misconduct have accounted for the majority of cases in Florida in which a wrongfully convicted and condemned person was subsequently exonerated by the Courts and released from death row. The first form is an act of prosecutorial misconduct in which a prosecutor is subsequently found to have knowingly withheld material evidence of an exculpatory nature from the defense. In many cases evidence that would have proven the person innocent. The second form are acts of overzealous prosecution in which a prosecutor has a wholly circumstantial case of specious nature, yet proceeds to prosecute by simply manipulating the jury into believing the evidence proves guilt beyond reasonable doubt even though the evidence is legally insufficient to support guilt.

The most recent exoneration released from Florida ’s death row after almost six years of incarceration is John Ballard. After being convicted and condemned to death without any eyewitnesses, no physical or forensic evidence, and no confession; the Florida Supreme Court concluded that the erroneous conviction was the product of overzealous prosecution; that the prosecutor (Deputy Assistant State Attorney Randall McGruther) improperly stacked circumstantial inference upon inference to convince the jury of Ballard’s guilt even though no credible evidence actually supported guilt. See, Ballard v. State, 923 So 2d 475 ( Fla. 2006)

Prosecutorial misconduct is a corruption that acts as a cancer upon the very integrity of our judicial system. This corruption exists only because the judicial system and the State Bar’s allow it to exist. When a group of prosecutors engage in repeated acts of deliberate misconduct resulting in convicting and condemning innocent men and women to death, then those individual prosecutors become the responsibility of society to insist that these prosecutors who have engaged in deliberate misconduct never practice law again. If we are not willing to hold them accountable, then we invite the injustice that inevitably results.

The use of the media, to prosecute a case through the resort of public opinion, where the accused, though innocent, will lose his good name and reputation must be stopped. Sadly the Majority of Americans lack the intelligence to see through the mist, that fog professed by media hype with the prosecutor’s aid.

They buy into media attacks and accusations without seeking the truth behind the campaign. Without ever wondering what really happened, their mind having been molded by the rants of a decisively controlled media, facts then become irrelevant. It is for that reason alone, that people decline to step forward to help. It is this ignorance that allows the Government to keep its citizens in the dark, and allows them to take from us without challenge.

This list of corrupt prosecutors is as endless as there are offices to fill and there are thousands that could be included.

The most extreme injustice conceivable is that of an innocent man or woman being wrongfully convicted and condemned to death, and yet we are executing the innocent.