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4th Cir. Affirms Overturning Death Sentence for Prosecutorial Witholding of Evidence

Justin Wolfe has been on death row in Virginia since 2002 for killing a fellow drug dealer. He was convicted based upon testimony of the shooter, Owen Barber, that Wolfe had hired him to kill the dealer. Barber later recanted and said he made that up to avoid the death penalty. His affidavit is here.

In 2010, Barber testified at Wolfe's federal habeas hearing that he fabricated Wolfe's involvement to avoid the death penalty. (He was sentenced to 60 years.) In 2011, the federal court vacated Wolfe's conviction and sentence finding he was wrongfully convicted based on the prosecution's withholding of critical evidence. Virginia appealed.

Today the 4th Circuit Court of Appeals affirmed the District Court's order vacating Wolfe's conviction and sentence, finding no error in the district court's findings. Virginia says it is disappointed and most likely will retry Wolfe. [More...]

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9th Circuit Reverses Conviction for Prosecutor's Inflammatory Comments

The 9th Circuit has reversed a conviction in a drug case because of the prosecutor's "inflammatory comments" during closing argument in a drug trial. Even though the defendant didn't object at trial, the court found plain error. The opinion is here.

The defendant, a U.S. citizen living in Mexico, brought drugs across the border. His defense was duress. He said the traffickers threatened his family. He said he didn't want to transport the drugs because he had a 2005 drug conviction. When he was caught, he asked the border patrol to check on his family, but they say he did not explain it was because they had been threatened.

In closing, the prosecutor delivered these objectionable "send a memo" comments: [More...]

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Wrongfully Convicted Man Sues Over Prosecutorial Misconduct

Jabar Collins was released from prison last year after serving 16 years for murder. He's now filed a lawsuit claiming the Brooklyn District Attorney's office under DA Charles Hynes routinely engaged in misconduct.

Michael F. Vecchione, a top assistant in the district attorney’s office, was accused of improperly using court orders to detain witnesses, physically threatening them and coercing them into providing false testimony that would benefit the prosecution’s case.

The 106 page lawsuit alleges these illegal practices were widespread in cases prosecuted by Hynes' office.

When a subpoena is issued, it is to appear in court, at a specific day and time when a hearing or trial is scheduled. It is not acceptable to subpoena someone to the DA's office for an interview. If the DA thinks a witness won't testify and a material witness warrant is necessary, the person picked up on the warrant should be brought before the court and provided counsel to challenge the warrant and seek bail, not brought to the DA's office for interrogation and threatened with jail unless they cooperate. [More...]

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USA Today Series on Federal Prosecutorial Misconduct

USA Today has a series, Justice in the Balance, exploring 201 cases of federal prosecutorial misconduct.

A USA TODAY investigation has found that prosecutors have little reason to fear losing their jobs, even if they violate laws or constitutional safeguards designed to ensure the justice system is fair.

...The Justice Department consistently conceals its own investigations of misconduct from the public. Officials say privacy laws prevent them from revealing any details of their investigations. That secrecy, however, makes it almost impossible to assess the full extent and impact of misconduct by prosecutors or the effectiveness of the department's attempts to deter it.

Today's installment reveals that prosecutors rarely lose their jobs even after they recklessly break the rules. One example: the case of the wrongful charges brought against the parents of missing baby Sabrina Aisenberg. AUSA Steven Kunz was admonished by the Florida bar (order here) and removed from handling criminal cases in Tampa. [More...]

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Supeme Court Won't Decide Prosecutorial Misconduct Immunity Case

Terry Harrington and Curtis W. McGhee Jr. were wrongfully convicted of murder in Iowa and served 25 years. The Iowa Supreme Court vacated their convictions, saying the prosecutors failed to disclose exculpatory evidence of an alternative suspect.

The men then sued in federal court, also alleging the prosecutors had procured false testimony against them. They won on that claim, and the 8th Circuit Court of Appeals affirmed, holding a prosecutor’s procurement of false testimony “violates a [criminal defendant’s] substantive due process rights.” The Supreme Court agreed to decide the case and heard oral arguments. The case was Pottawattamie County v. McGhee, 08-1065.

Now, a settlement has been reached. Harrington and McGhee will get $12 million, and the Supreme Court has dismissed the case, meaning no ruling will be forthcoming on whether prosecutors can claim personal immunity for such misdeeds. [More...]

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