Friday, September 2, 2011

If we don't get in trouble for doing it, is it really misconduct?

Of course. Of course Roger Clemens will have to face a second trial even after prosecutors engaged in shenanigans that ended his first trial. (Read my previous post to refresh your memory about the shenanigans.) And it would appear that prosecutors won't have to pick up the extra legal fees he will incur by this case being dragged out because of those shenanigans. The judge says he has no choice. Legal commentators say it's absolutely the correct ruling. That the "mistake" was inadvertent. That it would be a "windfall" for Clemens to have the case dismissed. The judge did apparently express extreme displeasure with the prosecutors, gave them a bit of a tongue-lashing, but then he whipped out his calendar and scheduled the second trial anyway.

And this is why prosecutorial misconduct keeps happening. Because there are no consequences. Because courts and court watchers refuse to question prosecutors when they say, "Oh my golly, we don't know how that happened! We feel just awful about it. Sorry!" So they think they can do these things. They know they can get away with it, so why not try it and see if we just can't sneak something past the defense and the court.

Now whether these particular prosecutors intentionally left the snippet of video in the exhibit they were playing for the jury or just forgot, I can't say for sure. But it doesn't seem terribly likely that these prosecutors, who the court knows to be "highly professional career crime-fighters," just forgot to redact their video. Forgetting to check a major piece of evidence for any possible violations of pre-trial court orders doesn't seem  highly professional to me. The linked legal commentary on ESPN also makes much hay about how experienced these trial lawyers are and how they wouldn't be thrown by last minute discovery. Which also means they shouldn't have been thrown by a pre-trial court order issued only days before trial began. They should have reviewed their evidence and made sure the evidence complied with court orders. We either have to believe these highly professional lawyers just didn't think to do that or that they just didn't do it, taking a calculated gamble that they would get a defense objection, which would of course be sustained, but which would guarantee that the jury heard that piece of evidence and remembered it. (Yes, the judge would have instructed them to disregard, but please, who are we kidding to think juries really can do that?)

Given those choices, courts almost always defer to believing the experienced, professional prosecutors innocently lost all sense of how to prepare for trial. Which makes me nuts because, frankly, I'm not all that convinced it should matter. They screwed up, but Roger Clemens still has to pay for it. He has to pay for more hours of trial prep and trial presence by his lawyers. He has to fret for another several months about his future. And the prosecutors involved in the case face no consequences at all. There won't be any disciplinary complaints for their "mistake." They won't personally bear the financial burden of extending the trial to next year.

I wish I had a dime for every time I have heard a prosecutor say that such and such behavior is not misconduct even though in case after case, the appellate courts have found that behavior to be improper. The appellate courts just decline to find that misconduct to be reversible error. The courts say that while the prosecutor shouldn't have made that comment or asked that question, it didn't actually affect the outcome of the case, so we won't reverse. Which is why prosecutors feel perfectly free to make those comments or ask those questions because they feel so confident that they will get away with it yet again.

The way courts now treat misconduct is about as useful as it is to say "no" to a puppy in a baby-talk voice while scratching the puppy behind its ears. The dog is going to think that doing that thing you're "scolding" it for is something it should do again and again because being scratched behind the ears feels so good. If you really want to stop prosecutors from trying to sneak in the evidence you ruled inadmissible or from making the closing argument you say is improper, you need to impose consequences. Real consequences. Not just words while wagging a finger. And holding prosecutors accountable for their misconduct is not granting the defendant a windfall. It's simply acknowledging that process matters, that the rules matter. If you can't (or just won't) play by the rules, you shouldn't be allowed to keep playing.

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