Houston, We Have A Problem

A few days ago our frequent foil SHG put up a post about a prosecutor who “fabricated evidence” in a case, got found out and fessed up.  Then the prosecution was dismissed.  SHG is outraged, and wants everyone else to be outraged and is using his access to eyeballs to promote this story far and wide.

And – though I’m sorry to say it – he’s all fucked up on the law in one of the most dangerous ways possible.  He should come over here and read a few things.

What did this prosecutor actually do?  He inserted into a transcript a completely fabricated exchange between a defendant accused of child molesting and his police officer interrogator, as follows:

“[DETECTIVE]: You’re so guilty you child molester.

“[DEFENDANT]: I know. I’m just glad she’s not pregnant like her mother.”

After some hemming and hawing the prosecutor admitted the whole thing and claimed it was meant as a joke, but everyone was outraged and the prosecution’s case was dismissed.

The problem with going on and on about this, and SHG’s determination to “…spread it as widely as possible…” is that this is basically a case of all’s well that ends well, and the prosecutor is probably not guilty of misconduct at all; or if he is, it was a minor infraction.

I take this position for two reasons:  first, the claim that the fabricated exchange was meant as a joke is plausible.  I mean, just think about it.  And if it was meant as a joke – that is, not to be taken seriously – then the prosecutor wasn’t acting in bad faith.  I can certainly agree that he was acting with poor judgment – maybe poor enough to warrant an admonition or something – but he wasn’t acting in bad faith.

If he wasn’t acting in bad faith then on these facts he didn’t violate the defendant’s right to due process of law.

The second reason is, the prosecutor fessed up prior to the trial, prior to obtaining a conviction.  And his honesty in doing that, even if a little belated, should be recognized and encouraged, not punished.

The really dangerous thing, then – well, one dangerous thing, anyway – about SHG’s approach here is that it’s entirely a function of the prosecutor’s candor in admitting what he did.  The prosecutor could have doubled down once it became a big issue and compounded lie with lie all the way to a conviction, but he didn’t.

That, by the way, would be a violation of the defendant’s right to due process of law.

Now, that prosecutor’s candor may have in part been prompted by self-interest, but nevertheless:  this was a disaster that was avoided because of that candor.  There was no wrongful conviction.

And another thing:  this is a poor case for the defense minded to tout, because by any sane measure the defendant was factually guilty.  This is a better opportunity for the prosecutor side to score public relations points than the defense side.  The vast majority of people will not have SHG’s blinders on and will recognize the likelihood that the prosecutor was just joking around, however inappropriately, and conclude that the defendant got off on a technicality, and that the soft on crime judge and defense lawyers over-reacted and let the guilty guy go free.  I mean, wait til he gets arrested on another child molestation charge, which I can assure you the cops will be looking to do, and will probably be able to do without fabricating anything.

We have a defense bar that can’t distinguish unintentional Brady due process violations from the far more basic – and far more serious – Mooney due process violations.  And this has been exploited by the worst prosecutors, some of whom have apparently resided even within the Department of Justice itself.

This is a big problem.  I keep trying to fix it.  It would be nice not to be undermined from underneath, by the defense bar.


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