Integrity
As I have said
before, it’s easy for lawyers to cheat. And very tempting. This is a
consequence of the great power lawyers have. And it is an issue we must
address, both for the sake of the justice system and for the welfare of our
souls. Recent events provide another instance of how cheating by prosecutors
distorts the justice system.
On December
20, 2017, the United States District Judge for the district of Nevada declared
a mistrial in the then-pending case against Cliven Bundy and three others. The
charges the men faced were conspiracy and assault, arising out of an armed
confrontation with federal agents over control of public lands, which Mr. Bundy
and his cohorts reject. The government indicated it wanted to retry Mr. Bundy
and his co-defendants. But on January 8, 2018, the district judge granted the
defense motion to dismiss the case with prejudice, meaning that it cannot be
retried. Mr. Bundy, who had been in custody, was released.
"The
court finds that the universal sense of justice has been violated," Judge
Gloria Navarro said. The violation was the failure of the government to fulfill
its obligation to provide information in its possession that was relevant to
the defense. The government admitted it had omitted information; the prosecutor
said that he “culled the database with witness protection in mind” because he
thought leaks of information might lead to threats against witnesses. The trial
judge called this a “reckless disregard for Constitutional obligations.”
The misconduct
came to light when Larry Wooten, an investigator for the U.S. Bureau of Land
Management who had been assigned to investigate the events surrounding the
confrontation between the Bundys and the federal agents. Mr. Wooten says that
he was removed from the investigation after he complained to the U.S. Attorney
about government misconduct. You can read his memo here. Wooten memo.If you don’t want to go through the whole 18 pages, a good summary is here. Oregon Live Among other things, he says, “As the investigation went on, it became clear to
me that my supervisor wasn’t keeping the U.S. Attorney’s Office up to date on
substantive and exculpatory case findings and unacceptable bias indications.”
Of course, one of the responsibilities of a prosecutor is to disclose to the
defense any exculpatory evidence in his or her possession. And the prosecutor
is held accountable for any such information in the possession of anyone on the
prosecution team, whether the prosecutor is aware of the information or not.
To their credit,
the prosecutors disclosed Mr. Wooten’s memo to the defense. The motion to
dismiss followed. The government has 60 days from the date of dismissal to
appeal; it has taken no action as of the posting of this article.
But the damage
to the justice system has been done. Here’s the way the National Review sees
it:
In April 2014, America was transfixed by an armed standoff in
the Nevada desert. On one side was a collection of dangerous, out-of-control
armed men who were deliberately provocative, prone to saying unhinged things in
a single-minded quest to destroy their enemies, and who lied time and again to
cover their misdeeds. On the other side was Cliven Bundy.
Mr. Wooten
points out that he is no fan of the Bundys. Nor is the National Review: “He
broke the law. He defied the government without any legal justification, and
his own conduct helped precipitate a crisis that could have led to a horrible
tragedy. Bundy was wrong.”
Why does this
happen? As a former prosecutor, I can attest that prosecutors do not all have
horns and pitchforks; they are not, simply, evil. Two causes come to mind. The
first is ego. The prosecutor wants to win his or her case, and if skirting the
rules can safely be done to make it easier, then the prosecutor will do it. In
a case I read recently that was reversed for a Missouri discovery violation,
the prosecutor explained his failure to disclose jailhouse statements by the
defendant until just before trial by saying, “If we disclose [the jailhouse
recordings] to the defense, they’ll tell their client. And I’m not impugning
anyone’s integrity, I’d do the same thing: Hey, they’re listening to your
conversations, shut up. So we don’t disclose them until towards the end.”[1]
The second
reason arises from the desire to fulfill the prosecutor’s obligation to enforce
the law, to protect the public from the likes of the Bundys. The prosecutor in
the Bundy said that he wanted to protect witnesses, and therefore limited his
disclosures. Protection of witnesses is certainly a legitimate concern, but it
cannot be used to justify flaunting rules intended to insure that the defendant
receives a fair trial. The government is held to a higher standard. When the
justice system itself cheats, it loses its status as a protector of justice.
