Insultingly Short And Remarkable – Another Parable of Prosecutor Perfidy

It’s a Good Thing that every once in a while the New York Times takes up the subject of lying and cheating prosecutors.

Today’s installment is one Ken Anderson.  Curiously, a full news report about Mr. Anderson appears across the pond.

So we can add Anderson’s name to our gallery of “rogue” prosecutors.  He joins such luminaries as Michael McFatridge and Tom Moran.  Like Moran, Anderson went on to become a judge.

Ugh.

Anderson gets 10 days in jail, a $500 fine and 500 hours of community service.  His victim, undoubtedly one of many unknown others, got 25 years behind bars for a crime he did not commit.  Thus the Times’ characterization as “insultingly short”.  According to the Innocence Project, he is the first prosecutor in the nation to be jailed for withholding exculpatory evidence.  Thus the Times’ characterization as “remarkable”.

Are there a lot of prosecutors like Anderson?  I think not.  Are there more than we would like to admit?  Yes.

One thing that should occur is a complete review of every single conviction Mr. Anderson obtained when he was a prosecutor.  And every single conviction occurring while he was a judge – for 11 years, apparently.  But there’s no indication anything like that is going to happen.

The damage from even one wrongful conviction is incalculable.  Because this is so, we have a whole “system” the purpose of which is to prevent them from happening.  That system is failing, and apparently has no clue how to right itself.  In the Navy, a system wide failure so fundamental and of such magnitude would probably result in a service wide “stand-down” to recalibrate and re-assess.

Here’s a little factoid that brings no comfort:  the United States Department of Justice has a Grand Jury Manual that is used to train federal prosecutors.  Here is how that manual addresses the “issue” of the deliberate use of perjury by prosecutors to obtain an indictment:

A few courts have dismissed indictments because of prosecutorial abuse before the grand jury on due process grounds. Dismissal on due process grounds is rare because most courts view grand jury proceedings as outside of the scope of the due process clause, the indictment being a mere technical instrument to bring on the trial.  A very few courts have dismissed indictments on due process grounds because of the knowing use of perjured testimony.  However, the weight of authority in this area is that dismissal, if justified at all, is only justified in flagrant cases.

(citations omitted)

The not so subtle message of the Department of Justice Grand Jury Manual, then, is that the deliberate use of perjury before a Grand Jury by a prosecutor is no big deal, and does not warrant dismissal of the resulting indictment as violating the accused’s right to due process of law.

Two very important observations must be made here.  First, the manual is wrong on the law.  The “weight of authority” – indeed the unanimous authority – was, is and always has been that the deliberate use of perjury by prosecutors at any stage of a criminal prosecution violates the accused’s right to due process of law.

But second, and perhaps more importantly, deliberately presenting perjured testimony is not only unethical conduct for a lawyer, any lawyer; it is also criminal conduct.  For anyone.

Thus one begins to wonder just how many prosecutors are – well, warped.  And how they got to be so warped.  As in, you know, what the hell happened?  Is there a back story to all this?  There has to be.

And there is.  There are some particulars that can be set forth in a blog post, and maybe some day I’ll get around to that.  But what is fairly required to really get to the bottom of it all is a full length treatise.  A book.  People may or may not be interested in such a book.  But they should be.  In any case, that project will have to await further developments already in process.

Sorry to be so cryptic, but prudence dictates a certain amount of discretion here.

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Filed under Judicial lying/cheating, Media incompetence/bias, wrongful convictions

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