Monday, July 20, 2009

See no evil, hear no evil

Back in February, I wrote about two corrupt federal judges who pled guilty in connection with a years' long scheme of railroading juveniles. They were accepting kickbacks from the corporations that ran the state's juvenile detention facilities in exchange for sending an inordinate number of juvenile defendants to those facilities. Many of the kids were never even informed of their right to an attorney. At the time, I was not willing to let all of the court personnel, particularly the prosecutors, who took part in these sham cases, off the hook for standing by without question or complaint.

The defense attorneys attempting to sort out the mess agree with me, arguing that the prosecutors had an obligation to report the judges' conduct. Or, sheesh, at least to inform a few of those kids that they could have lawyers if they wanted.

But District Attorney Jackie Musto Carroll won't accept any responsibility for herself or her office.

Carroll said prosecutors acted in good faith and were under no responsibility to challenge the judge's actions. She called the allegation of prosecutorial misconduct "completely meritless and baseless," pointing out there is no contention that prosecutors were aware of the kickback scheme.

Well, true, Carroll, no one is claiming any prosecutors knew about the kickbacks. But you and your underlings did know that an awful lot of juvenile defendants weren't represented in court. As far as the abnormal sentences, perhaps the DA's office can hide behind the claim that they just thought these were two hanging judges. But there's really no way to claim they didn't notice the denial of 6th Amendment rights to hundreds of defendants.

I'm pretty unimpressed by Ms. Carroll's denial that her office had any role in this fiasco. When a judge is routinely running roughshod over defendants in your presence, in violation of the Constitution, I say you do have an obligation to challenge those violations. As a defense attorney, I'm obligated to challenge the judge when I think she's wrong. Otherwise, my client won't be able to raise that issue on appeal. So there's nothing unprofessional or unseemly about challenging a judge's rulings in court. In fact, it's expected and required. There is, though, something unprofessional and entirely unseemly about a prosecutor's office thinking that respecting the Constitutional rights of the defendants they charge isn't part of the job description.

I guess D.A. Carroll hasn't learned that lesson yet. I hope the courts governing the cases affected by the kickback scheme will make sure the District Attorney's office learns the lesson the hard way.


mikeb302000 said...

They definitely have some important lessons to learn. I'm not very optimistic, though. Thanks for writing about cases like this one.

Jeff Gamso said...

Justice Sutherland wrote, "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v. U.S., 295 U.S. 78, 88 (1935).

It's the same principle.

S said...

Great quote. I submit that Justice Sutherland would think a prosecutor standing by in a courtroom, choosing not to notice that the judge never informed the teenaged defendant of her right to an attorney, is one of those foul blows a prosecutor is not at liberty to strike.

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