Several times now (and no, I'm not going to link to those times, use the search feature if you want to check them out) I've quoted Cincinnati attorney (and former president of the Ohio Association of Criminal Defense Lawyers) Cathy Cook's words to the Ohio Supreme Court during oral argument. She was talking about prosecutorial misconduct and telling the court that there was only one way to stop it.
You've got to make them lose to make them learn.
Yep. The court didn't in that case. It almost never does. Courts rarely do. You're talking about rewarding a bad guy with a new trial? Just because the prosecutor cheated a little bit?
Besides, there are these other methods of stopping the prosecutors. They can be sued. (Ooops. No they can't.*) OK, then they can be disciplined in their office, denied raises, sent to the woodshed of a less important court. (In theory, perhaps. As Mike, at Crime and Federalism pointed out, the reality is quite different. "What do you call a prosecutor who cheats?" "Your Honor.") Well then, surely they can be sanctioned by the bar or the courts, reprimanded, disbarred. (Same theory, same reality.)
Oh, and we keep reelecting the same guys and gals.
But then, every century or so, a judge says, "Enough!" And we sit up. And we take notice. Because, really, it just doesn't happen often.
The thing about Judge Carney. It isn't that he's a Shrub appointment. It isn't that he's a Harvard Law grad. It isn't that he served in the Air Force or that he played football. The think about Judge Carney is that took an oath and apparently meant it.
Oh, you don't know what I'm talking about. Sorry.
Broadcom. Fraud. Conspiracy. Major white collar crime. Bad guys in expensive suits. And lots of prosecutorial misconduct. And Judge Carney dismissed the charges. With prejudice.
Here's some of what Judge Carney said in open court last week.
Based on the complete record now before me, I find that the government has intimidated and improperly influenced the three witnesses critical to Mr. Ruehle's defense. The cumulative effect of that misconduct has distorted the truth-finding process and compromised the integrity of the trial.
To submit this case to the jury would make a mockery of Mr. Ruehle's constitutional right to compulsory process and a fair trial. The Sixth Amendment to the United States Constitution guarantees the accused the right to compulsory process for witnesses in its defense. For this constitutional right to have true meaning, the government must not do anyting to intimidate or improperly influence witnesses. Sadly, government did so in this case.
. . .
Now, I'm sure there are going to be many people who are going to be critical of my decision in this case and argue that I'm being too hard on the government. I strongly disagree. I have a solemn obligation to hold the governemnt to the constitution. I'm doing nothing more and nothing less. And I ask my critics to put themselves in the shoes of the accused.
You are charged with serious crimes and, if convicted on them, you will spend the rest of your life in prison. You only have three witnesses to prove your innocence and government has intimidated and improperly influenced each one of them. Is that fair? Is that justice? I say absolutely not.
It goes on. Read it all here. Print it out. If you're a lawyer, take it to court with you every time. Copy it in your motions and briefs. Quote liberally and often. Remind the rest of the bench that it matters.
If you're not a lawyer, copy this and remember how the business is supposed to work. Use it in letters to the editor and in conversations with friends and neighbors and people at work or in line at the supermarket. (Lawyers can do those things, too.)
I don't know Judge Carney. I don't know if he'll be as concerned when he sees the government engage in these tactics when the charges involve murder or trafficking in drugs and the defendants are dressed in hoodies and sagging pants rather than thousand dollar suits and gold cuff links. I hope so.
A few more of these losses and maybe they'll start to learn.
*There's some chance there'll be a chink in that rule in a few months depending on what the Supreme Court does with Pottawattamie County v. McGhee, the case that asks whether prosecutors can be held civilly liable for framing people for murder. (See here and here. And consider that the question even has to be asked.)