BECAUSE WHY THE HELL NOT: PROSECUTOR CHEATING EDITION

Robert Sybert shot and killed Joseph Stopera, Jr. He called a lawyer, told him what he'd done. Sybert said that Stopera had chased him down in his car and he'd found himself on a road where he couldn't get away and Stopera had come after him and had what he thought was a gun in his hand and was raising it and Sybert shot in self-defense. Go to the police and turn yourself in, the lawyer said. And don't talk to them. Don't make any statement. Invoke your right to silence.

A few minutes later, possibly while heading for the police station, Sybert was arrested. He didn't make any statement. He invoked his right to silence. A couple of months later, while he was in jail awaiting trial, he was interviewed by a newspaper reporter. Sybert told the reporter pretty much the same thing he'd told that lawyer.

When his case went to trial, the prosecutor asked the judge to prohibit the lawyer from testifying to what Sybert had told him that night. Pure hearsay. Altogether inadmissible. The lawyer can testify to the advice he gave (turn yourself in and keep quiet) but not to what he was told. The judge agreed. It was probably the legally correct ruling.

The reporter, for some reason, was allowed to testify to what Sybert told him. That was probably the wrong ruling, but it happened. So the jury heard exactly the story the lawyer was told except it didn't hear that the lawyer was told it. Instead, it heard this from the prosecutor during rebuttal closing argument, the last words before the judge gave them instructions and sent them off to reach a verdict.

The defendant has to prove self-defense, each and every element. There are three parts. He has to prove all three. And the defendant has failed to do so. And in fact his only attempt at proving those elements of self-defense are through a self-serving statement given to a newspaper reporter. The statement given over the telephone some seventy-two days after the incident. Not April 13th, the night of the incident. Seventy-two days later he calls up Mr. Sallah from The Toledo Blade and gives him his side of the story.

The message to the jury was simple. Sybert sat in the county jail for 72 days trying to think up a story that would save his ass, and he finally came up with one. The problem is that it wasn't true. Sybert knew it. His lawyer knew it. The judge knew it. The court reporter and the court staff knew it. The prosecutor sure as hell knew it. The only ones who didn't know it were the jury. Sybert was convicted of murder. The court of appeals acknowledged that the prosecutor shouldn't have said that (though it didn't make any difference, the court said, so no harm no foul), but never addressed the fact that it was an out and out lie.

Several years later, and while it was still early enough to do something about it, we caught the same prosecutor carefully excising from the discovery he was turning over to the defense in a death penalty case evidence that strongly militated against a death sentence. Supreme Court cases make clear that he had an obligation under the Constitution to give that information to the defense. But liars and cheaters lie and cheat. He's now a judge.

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"You've got to make them lose to make them learn." That's what Cathy Cook told the Ohio Supreme Court when she urged them to reverse a conviction and send the defendant back for a new trial because the prosecutor lied and cheated during the first trial. It was the same prosecutor who, a couple of years earlier, had been chastised by the same court for similar misconduct. No, they said, "Bad boy. Don't do it again."

What they didn't do, then, and didn't do in Cathy's case, either, was reverse the conviction. The first time, it was a death penalty case. a death penalty case, State v. Fears. The Chief Justice dissented in part and would have reversed the death sentence because of the prosecutorial misconduct. We condemn it all the time, he said, but then we let it go.

Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences. In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.

They didn't reverse the conviction in Cathy's case, either.

I've talked about these things before. (Just click on the link to "cheating prosecutors" under the "Labels" section to the right.) I've even quoted the passage from Fears and Cathy Cook's line. And I've quoted this from Justice Sutherland in Berger v. United States:

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.

Sadly, there's nothing new in this. It's been a problem and will remain one. And a major reason is that there's no consequence. The convictions are mostly affirmed. The prosecutors aren't disciplined by the court or the bar or, certainly, by their offices or the voters. (Often they're given promotions.)

And they can't be sued. In Imbler v. Pachtman, back in 1976, the Supreme Court said that they have absolute immunity for whatever they do as prosecutors.

But now, maybe, there's a chink. On November 4, the Supreme Court will hear oral argument in Pottawattamie County v. McGhee, a case asking

Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.

It's an important case. Mike, at Crime & Federalism, calls it "the most interesting Section 1983 [case] this Term," and he's probably right. Certainly, it is for those doing criminal law (on both sides of the aisle).

This morning, Mike put up three important posts (here, here, and here) on the case, each addressing one of the arguments put forward in an amicus brief filed on behalf of the prosecutors in the case by the by the National Association of Assistant United States Attorneys and National District Attorneys Association. Read them. He makes it clear that in explaining why the Court shouldn't allow people to sue prosecutors for lying, the prosecutors lie.

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Let me be clear. I'm not saying that all prosecutors lie and cheat or that all of the prosecutors who do lie and cheat do it all the time or that they get away with it 100% of the time when they do it. What I'm saying is that it's a real problem, that it happens way too often, that there are actually consequences far less often than there should be, and that what consequences there are tend toward the trivial.

The right to sue for money damages won't solve the problem either. But it'd be a start.

So let's count noses, shall we. In one camp, there are the Justices we expect to say, "Let them sue." That's Stevens, Breyer, and Ginsburg. On the other hand, there are the Justices we expect to say, "Don't be silly." That's Thomas, Scalia, Alito, and Roberts. On the third hand, there's Justice Kennedy. Typically for the past couple of years, on controversial constitutional questions, the law has become whatever Anthony Kennedy thinks it should be. But now there's a fourth hand, new Justice and former prosecutor Sonia Sotomayor. The wild card. She's shown over her years as a judge a very great deference to law enforcement, but she also worked, during her years as a prosecutor, for one who at least had a sterling reputation for integrity. And of course, sometimes the votes fool you.

I don't know what happens, but although a win for McGhee won't solve the problem, it'd sure be a step in the right direction.