More Prosecutorial Misconduct
Today’s news provided us with two more cases of prosecutorial misconduct. In Kansas, an investigation into drug trafficking at the Leavenworth Detention Center resulted in prosecutors obtaining videos and recordings of meetings and conversations between prisoners and their attorneys. The prison is a privately run institution and was apparently illegally recording meetings that prisoners had with their attorneys. The recording were then turned over to prosecutors as a result of a search warrant served on the prison that was investigating drug trafficking within the prison. Seven people including a prison guard were indicted based on that investigation.
Included in the material prosecutors received from that search warrant were videotapes of meeting rooms where attorneys would meet with their clients. Prosecutors say there was no audio associated with those tapes although defense attorneys claim otherwise. In any case, even juts a video of such meetings is a violation of attorney-client privilege. Subsequently, it was also revealed that audio recordings of phone calls between prisoners and their attorneys were also turned over to prosecutors. US District Judge Robinson granted a motion by defense lawyers to issue a cease-and-desist order covering the recording of protected attorney-client meetings and phone calls. She made it clear that similar violations at other prisons run by the same private company may be occurring. She then announced that she would appoint a special master to investigate how prosecutors received the prohibited material. Incredibly, one of the Assistant US Attorneys said she did not believe all the meetings between attorneys and their clients in the meeting rooms videotaped were privileged. The US Attorney’s office also objected to the appointment of a special master. If that wasn’t bad enough, the judge accused an Assistant US Attorney of trying to enter her office where the prohibited material is kept while she was away. The attorney was interrupted by the judge’s clerk and claims she was trying to slip some papers under the judges door. And now the judge is wondering if prosecutors knew of these recordings before the search warrant occurred. Please read the whole sordid story – it is incredible.
The other case is your more usual, run-of-the-mill misconduct where prosecutors “forget” to turn over some evidence that might indicate the accused is innocent. The case involves the former Clarkson University soccer coach, Nick Hillary, who is charged with murdering the 12-year old son of his girlfriend. The original indictment by the Grand Jury was thrown out due to prosecutorial misconduct, including forcing the accused’s 17 year old daughter to reveal the details of a privileged attorney-client discussion she had with her lawyer as well as bullying that same 17 year old with a variation of the same question thirteen times in order to show that she could not provide an alibi for the defendant. That was only part of the misconduct with the prosecutor’s handling of the Grand Jury. That indictment was thrown out and in 2014 a newly impaneled Grand Jury finally did indict the defendant, despite no evidence of any kind linking him to the crime scene – no witnesses or evidence placing him at the crime scene, no hair, fingerprint, fiber, or tissue evidence whatsoever.
The trial got underway two days ago and yesterday it was revealed that an inmate at Attica State Prison told a New York State Trooper in 2015 that he had seen a St. Lawrence County deputy sheriff, John Jones, enter the building at about the same time the boy was murdered. The deputy sheriff had also had a relationship with the boy’s mother and had been considered a suspect. That report was never passed on to the defense by the prosecutors. What makes this even more damaging is that Nick Hillary had already been charged with the murder when the inmate made his statement. If he was looking to “make a deal”, the inmate would have been much better off saying he had seen Mr. Hillary. In addition, in pre-trial hearings, the prosecution did try to introduce DNA evidence taken from under the victim’s fingernails using a cutting-edge technology from New Zealand. Although the state’s own experts have stated that no conclusions could be reached from that DNA, the prosecution tried to show that this new analysis showed it was Hillary’s DNA. The judge rejected that effort saying there was no way to show the state police had preserved the samples correctly for analysis. So the prosecution turned around and tried to say that the DNA result just showed it could not have been Jones. That pre-trial attempt indicates the prosecution was worried about any defense efforts to implicate Jones and withholding the evidence of the inmate would also help in that regard. Frankly, you always have to be suspicious of a prosecution of an individual when an uncharged suspect is a law enforcement officer. But the degree of misconduct that has already occurred in this case is already pretty incredible.
The amount of prosecutorial misconduct in the US these days is simply astounding. Changes in the law to make it a felony or almost certain disbarment are about the only things that will change these renegade prosecutors’ behavior.