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If it's more than 30 minutes old, it's not news. It's a blog.

Wednesday, May 04, 2005

11th Circuit Admonishes CNN's Grace over ethics

Quick tip:

  • See the following case in re Prosecutorial Abuse: United States v. Weatherspoon (2005) F.3d , 05 C.D.O.S. 3802 (9th Cir. 5/6/05, 03-10551)

  • Other recent publications in re Grace.

  • Search for prosecutor misconduct

    Thoughts on Grace in re Prosecutorial Misconduct

    The arrogant press. From the ranks of arrogant prosecutors.

    The story of one prosecutor who was very bad. Admonished three times!

    Now she has her own talk show. Who is she to talk? Ref Now a reporter with CNN and host of the widely acclaimed is said to have played fast and loose with her disclosure obligations.

    Who is this person to then come before the cameras and presume to educate the public on legal issues?

    The reason the "burden of proof" is there is so that the evidence is probative; its not some random hurdle that the prosecutor is given carte blanche to ignore. I don't want to hear this whine of, "the burden of proof is too high." That's not what our laws are about; the laws already stated what the appropriate evidence standard is; andthe appropriate burden; and the rules that the prosecutor is supposed to live in. Quit your whining about "the end justifies the means," it doesn't when you're talking about the consdequences: Loss of confidence in the judicial system; greater reluctanct to come forward withinformation, and crimminals who will threaten victimes because the prosecutor fails to do what is reliably needed.

    If the case struly "stood on the merits," then why fabricate something that Grace clearly though was something that might be a problem? Answer: In grace's mind [rightly or wrongly] she had already decided that the conviction was going to stick, regardless the facts, and stacked the information with false information.

    If you want to live in a country where false allegations are put before the court and you could be subjected to incarceration, just say nothing about the US and let the FBI seize all your records. They're not doing taht to help you out, but to deprive you of your liberty.

    The constitution gives all the right to certain standards of evidence so that warrants are issued. If you want to "let the prosecutor" do whatever they want, they will run right over your rights, deprive you of your liberty, and get innocent poeple convicted, senteced to death, and exterminated.

    That is not why this country fought a war in 1776. If that's the kind of country you want to live in [where prosecutors lie to get convictions] why not burn the constitution and say, "British Monarcy, plase come back, we agree with what you do and we made a mistake."

    That war was already fought. WOuld you like to fight it again?

    What makes this worse is Grace continues to face the wrath of the 11th Circuit Court of Appeals.

    She interrupts, is not simply being confident but overly full of herself. But to find out that this comes on top of the admonishments.

    I shall not bother to give her remarks a second thought. I hope CNN gets an outpouring of audience and ABA outrage and removes her from syndication.

    I'm glad the 11th Circuit put it in writing and made them official court opinions. A useful benchmark to evaluate prosecutor conduct, and the appropriateness of oversight and sanctions for egregious conduct.


  • Stephens v. State, 264 Ga. 761 (1994)

  • Stephens v. Hall , No. 1:99-CV-1317 (N.D.Ga. April 2, 2003)

  • Stephens v. Hall, No. 1:99-CV-1317 (N.D.Ga. Sept. 11, 2003)

  • Stephens v. Hall, No. 03-15251 (11th Cir. May 2, 2005)

  • Carr v. State, 267 Ga. 701 (1997)

  • Bell v. State, 263 Ga. 776 (1994)

    Thanks to Jonathan Ringel [Via Drudge], Fulton County Daily Report, for the nice summary and caselaw references.

    Comments in re Testilying and 11th Circuit

    [ In re: HERBERT CONNELL STEPHENS, Petitioner-Appellant, versus HILTON HALL, Warden, Georgia State Prison, Respondent-Appellee. No. 03-15251 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 2005 U.S. App. LEXIS 7537 May 2, 2005, Decided May 2, 2005, Filed]

    My overall problem with the Grace situation is that she was a prosecutor and seems to act like she's above ethics. Indeed, this many years later, why would any prosecutor care? The courts don't timely do anything; and the sanctions appear to be meaningless.

    If you recall in the cases of evidence gathered without probable cause, law enforcement loses the ability to use evidence when it is the fruit of an illegal search. The idea is that if a person committed a crime, but the evidence was obtained through illegal means, then the appropriate sanction on law enforcement is to suppress the evidence.

    Yet, what is to be done when the prosecutor engages in misconduct? Do they do the same thing as they do with tainted evidence, and throw out the case?

    I'd like to see something more substantial than an apparent slap on the wrist by the Appellate court. This is up to the legislatures.

    So, going forward, I'd like to see, just as we have evidence suppression for tainted fruit, a similar type of rule in re prosecutor misconduct.

    Clearly, the courts have created caselaw which justifies some sort of convoluted logic to still admit evidence even though it is tainted if the decision would not change.

    My problem with that approach is, although technically and legally correct in terms of finding a result, there really isn't a meaningful sanction on the prosecutor. Rather, the prosecutor can [and does] do what they want knowing full well that nothing is going to happen.

    Yet, this is the same kind of thinking which once prompted law enforcement to still violate the constitution when gathering evidence.

    Again, the big picture is that the US under the constitution was attempting in 1776-1781 to create something that addressed the abuses from King George.

    In 2005, all I see is a system that now condones the same abuses.

    If the US truly has a constitution that respected the rights of the accused until proven guilty, then the means to do that should be above reproach; and violations of that standard should have consequences for the system.

    Yet, the present approach is to shift the burden of proof on to the accused to show why the evidence was or was not material.

    I frankly don't care whether it is material. And, in my view, to rely on the "materiality" argument as to whether the conviction should stand, misses the point.

    Again, using the law enforcement analogy, if we were to suggest that the defendant would then have to show that "if the illegal evidence was not introduced, then how would that change the decision," that kind of logic would bring delight to the prosecutor, but do nothing about the rights of the individual.

    Again, the goal of suppressing evidence isn't simply to hide reality, but it is to impose a meaningful sanction on law enforcement to respect the constitution. If law enforcement violates the law to get real-evidence, then the smack on the face is suppression, sometimes throwing the whole case out.

    If the prosecutor were to face a similar type of sanction, then we wouldn't have to wait X-years after the prosecutor becomes a report to finally hear something.

    Nor would we have a defendant trying to prove their innocence base on materiality. Rather, the original prosecutorial misconduct would, if I had my way, jettison the case out of court with a firm, "Thou shalt not do that Madame/Sir."

    My initial reaction

    What remains are my original thoughts in re Grace

    Putting aside the law for the moment, my main contention [with the way Grace approaches issues hinges] on facts, accountability, timely sanctions, and the self-regulatory mechanism of the Judicial Branch.

    Filling in the gaps

    In Stephens, the 11th Circuit on 2 May 2005 recognized that testimony was false, but this did not mean due process was denied.

    Cases do hinge on very minor points. The slight nuances in details can swing a judgment.

    I do not dispute the finding of the 11th Circuit. I do have a problem when a prosecutor uses false testimony in order to clean up a case and get the desired result.

    It's more than sloppy. It creates a rubber standard.

    Sanctions elusive

    Yet the central issue with Stephens is not necessarily just what Grace did or didn't do, but that the 11th Circuit essentially made no mention of reasonable consequences that could be imposed on either law enforcement or the prosecutor for the conduct.

    Who is the advocate for the system; who ensures that the officers and prosecutors remain accountable for their misconduct? Where there is no mention of meaningful sanctions, the self-regulatory mechanism in the courts proves wanting.


    Recall that in the securities world, numbers were once presumed to be true because they were fruits of an internal audit and management control system. There is some wiggle room in the real numbers.

    There is only a cause of action in re securities if the financial information was materially wrong -- meaning, if the adjustment or actual numbers [unlike those provided in the financials] would have changed the investment decision.

    Yet, what is material in terms of a dollar amount; and what is material when it comes to swinging a case.

    The 11th Circuit found that the results would not have changed if the false testimony did not exist. So why did Grace stack the case with something that was not needed?

    It shows that she will have an appropriate judgment of what the outcome is, regardless the role of the court. This turns justice upside down.

    Grace is not the final arbiter. But it is likely her conduct is not isolated.

    Yet on what basis did she conclude that, despite the likely successful result, that some loose ends needed to be closed.

    That is what does not make sense. Indeed, Grace must have known that, but for this false testimony, there might be a chance of losing the case. If not, why would she bother entering it into evidence; despite its fabrication, it must have been perceived as being probative and material for the lawful decision maker: The court.

    Yet, it is when the "we just know what the outcome should be"-crowd presumes to know the outcome before the court is afforded the opportunity to perform their role that we get into trouble.

    Grace needs to be carefully watched. For a reporter that "just knows" what the right outcome is, regardless the facts or actual evidence she has, is likely to be a bully. Yet, this was exactly the tone which prompted John Stewart of the Daily Show to speak out about the Crossfire Circus.

    This does little to inspire confidence that the minority, the reason the constitution was created to protect, will be afforded the necessary coverage.

    It is likely that Grace will not last in the long-run, and that a more appropriate balance will emerge.

    Who will tell Grace to "just stop, you're hurting America?" The 11th Circuit has done so three times, but I see no evidence Grace sees the red light. Or that the sanctions really changed. Three times in my book isn't a lapse, it's a pattern. That's called recidivism in prosecutorial misconduct, to which the 11th Circuit did not address but a slap on the wrist.

    Shifting the burden of proof

    On another note, I do have a problem when it is the burden of the accused to prove things in re prosecutorial abuse. I realize this is how appeals go, but it seems absurd that most people presume the burden of proof is on the state. It is self-evident in that to prove a violation, the accused then has the burden to disprove what the court as now presumed to be correct, despite the misconduct.

    But misconduct is not "that's what we have to put up with" simply because the conclusion would not change. This means that the court could justify child abuse if the parents credibly convince the court that "they did it for love." The court would have us then put the burden on the victim-child to disprove the guardian's assertions. The burden of proof should rest with the state, not with the victim or defendant.

    If such is the standard, then we presume to have a superior knowledge of what is an appropriate outcome, regardless the means. The ends do not justify the means, especially when the misconduct is by someone expected to set the example, not make special exceptions as in Animal Farm. [Taylor v. Singletary, 122 F.3d 1390, 1395 (11th Cir. 1997) ]

    This is but another example of how the arrogant will presume superior holds on the future, when no one can claim that right. It is disturbing how far a prosecutor is allowed to cross the line in the name of "justice."

    It would be more appropriate if there were some meaningful sanctions on the prosecutor and police so they would not engage in this conduct, not simply find more loopholes to do what is otherwise inappropriate conduct which might otherwise "justify" law enforcement engaging in a pretextual stop.

    The objective of suppressing evidence is to impose consequences on the prosecutor and law enforcement for misconduct. But if the outcome is "just the same," then the lack of suppression is a green light for more misconduct.

    There need to be other methods to timely discipline both law enforcement and prosecutors for misconduct. For without a meaningful link between misconduct and consequences, so too does the misconduct become a well entrenched habit. To which we might reasonably expect to see from Grace on CNN.

    There are other options. Perhaps viewers will change channels and deprive CNN of the needed ratings to justify the advertising rates. If the courts will not act, then perhaps the financials will do the talking.

    Yet it is curious that the possible sanctions on Grace will only occur well after she has left the courtroom as a prosecutor. The lack of immediacy does little to inspire confidence that misconduct will be timely sanctioned. The space between prosecutor misconduct and sanctions should be shorter; and the forum where the sanctions occur should be reasonably linked to the offending forum.

    It is absurd that a prosecutor may escape sanctions, and that the substantive consequences might only occur in a different forum, through commercial means wholly disconnected from the systems which are designed to regulate the prosecutors.

    It is clear that that system does not timely impose meaningful consequences, and does defer to other days and systems accountability. Such "lack of accountability" was the catalyst for both 9-11 and remains but one of the driving motivations behind the Iraqi insurgency.

    We look forward to hearing more from John Stewart and his reasoned insights.