In my experience most prosecutors play by the rules.  They know their ethical duties and abide by them.  However, I, along with many of my colleagues, have observed a growing number of prosecutors that have no problem stepping over the ethics line.  The issue seems more to do with ignorance than intent.

For the most part, the public is unaware of this growing problem.  It is only when the misconduct is so outrageous and the victim has the means to fight it does the misconduct make its way to the public’s attention (e.g. the 2006 Duke University lacrosse case.)   When prosecutorial misconduct truly does occur, only a small percentage of prosecutors are disciplined for their actions.  Apparently, a new report from the Northern California Innocence Project at Santa Clara University School of Law demonstrates this problem is not isolated to Arizona.

The Report examined more than 4,000 cases where prosecutorial misconduct was alleged over a twelve year period.  The Report found that courts only made prosecutorial misconduct a finding in approximately 700 of 4,000 of the cases.  In those 700 cases, only six (6) prosecutors were charged with misconduct.  Obviously, as a former prosecutor, I understand that when someone is convicted of a crime, it may result in a frivolous claim; still these numbers are still extraordinary.

In addition, this report determined that judges often failed to report prosecutorial misconduct to the state bar despite their legal obligation to notify the bar of such behavior.  Although over sixty prosecutors (60) committed misconduct more than once, and some more than five times, the majority of those prosecutors were never publicly disciplined.

In response to the report, the State Bar of California, issued the following written statement:

“Prosecutorial misconduct as indicated in the Innocence Project report does not always equate with attorney misconduct for disciplinary purposes.  The State Bar believes that it is disciplining criminal prosecutors where appropriate and where the misconduct was willful and can be established by clear and convincing evidence.”

If you have a specific legal question regarding prosecutorial misconduct in an Arizona Criminal Case, please contact The Koplow Law Firm at 602-494-3444.

Lawrence Koplow

We should all be able to agree if you are charged with a crime, you should get a fair trial. An obvious prerequisite to a fair trial is that the jurors at least understand everything going on in the courtroom. That is, a juror should, at a minimum, be able to comprehend all evidence presented and understand the rules (i.e. the jury instructions) provided by the judge.

What if a juror says to the judge, “I can’t read English” Upon further questioning, you discover the juror can speak (relatively) fluent English, but can’t read or write even one word. When this happened during one of my trials, my first thought was, let’s just get an interpreter. However, this juror spoke an eastern European language for which there was little chance of finding an interpreter on short notice. What should the court do in this situation?

I submit that reasonable minds can disagree on the answer to this question. My stated position, based on his inability to read or write any English, was that he could not be a fair and impartial juror for my client (moreover, I had a feeling this juror, who grew up in a former Soviet bloc country, may not value the presumption of innocence.) I argued that, absent an interpreter, being a juror required the ability to read and write (i.e. jury instructions.) Moreover, how could we ever qualify how much English he really knew? So I motioned to strike him for cause.

The prosecutor took no position. The judge denied the motion. In all fairness, the judge had a reason. He believed we could accommodate the juror by having his judicial assistant read this juror the jury instructions. However, my response was: (1) We can’t tell how much English he really knows without speaking his language; (2) in Arizona, jurors can write down questions to ask a witness. It seemed unlikely that he would get the clerk and have her ask the question; and (3) sometimes there are words that have no translation from English to another language. Not all languages have an adequate vocabulary to translate the concept of “beyond reasonable doubt.” The judge was not persuaded. He denied my motion. My tactic was to now turn towards the prosecutor. I discussed the possible appellate issues, and we agreed he would strike the juror to avoid the issue.

So, after the trial, I did some research, talked with my appellate attorney guru friend and concluded that under Arizona law, the judge may have been in his discretion to keep the juror. It would be a close call. Arizona law would most likely require me to show actual “prejudice” by keeping the juror on the panel. Under Arizona law, this would be almost impossible.

Consequently, if you thought the ability to read was a prerequisite for jury service, then think again. Not only is it a real possibility that your juror may not be able to read, it is also legal.

Law enforcement and prosecutors hear this defense all the time: “it wasn’t me.”  If you went and visited a state prison, you would probably hear a lot of people behind bars say “it wasn’t me.”  Let’s face it: a lot of people will not own up to a crime that they have committed.  Thus, when you hear someone say “it wasn’t me,” your natural assumption is that the person is lying.  However, according an article by Debra Cassens Weiss, a senior writer with the ABA Journal, when it comes to illegal internet pornography, we may need to rethink our assumptions.

Cassens discusses an issue that I have been hearing from experts for the past couple of years.   In her article entitled “Viruses Can Infect Computers with Child Porn, Leading to Legal Charges,” she discusses the growing number of cases when another person hijacks your computer to view or store child pornography.  Cassen’s article states:

Viruses can infect your computer, allowing pedophiles to view child porn when your PC is online or to use your computer to surf child porn sites….An infected computer may be the least of your problems, the Associated Press reports. “An Associated Press investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon child porn placed on a PC through a virus,” the story says. “It can cost victims hundreds of thousands of dollars to prove their innocence.”

AP cites the case of Michael Fiola, a former investigator with the Massachusetts agency that oversees workers’ compensation. An Internet bill for his state-issued laptop showed he was using more than four times the online data of his colleagues. An investigation found child porn stored in a folder that contains images viewed online…Fiola was fired and charged with possession of child pornography. He spent $250,000 on legal fees before prosecutors dropped charges. An inspection of the laptop had found it was programmed to visit as many as 40 child porn sites per minute.’

Consequently, the next time someone says “it wasn’t me,” maybe we need to run a virus check before we assume they are lying.

If you need legal advice for a specific problem, you must consult with an Arizona Criminal Defense Attorney. For more information about Arizona Criminal Law or a specific legal problem, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.