Defendants are entitled to a fair trial and due process

Regardless of how you might feel about defendants, they are entitled to a fair trial under the Fifth and Sixth Amendments. That includes a prosecution that produces all material information within its possession, custody or control that could bear on guilt and/or innocence. FBI surveillance video just happened to be within the prosecution’s control. The government is in the business of removing people’s liberty and property upon criminal convictions. Before we take away liberty and property (or life), we must make sure the process was fundamentally fair. The government has the clear investigative advantage and virtually unlimited resources. Defendants do not, by and large.

Why does the prosecution find it necessary to cheat, in clear violation of defendants’ rights to due process? Afraid of losing? Afraid of looking bad? Afraid of bringing discredit to the government?

In my experience most prosecutors uphold their duties. Unfortunately, not all. Prosecutors should be held to account when they do not, in the form of sanctions for contempt. Or more serious, including formal action against their licenses to practice law. Indeed, if the consequence of a violation had some actual teeth, if judges actually referred to State bar associations the violations, and sanctioned them for such misconduct, withholding exculpatory evidence would become much rarer. Usually, a defendant never finds out the prosecution cheated. There is very little oversight. And in my experience, supervisors have the backs of line prosecutors when violations occur. Rule 3.8 of Rules of Professional Conduct (Utah’s, and these are based on uniform professional standards), provides that “The prosecutor in a criminal case shall . . . [m]ake timely disclosure to the defense of all evidence of information known to the prosecutor that tends to negate the guilty of the accused or mitigates the offense . . . “

So it’s a mistrial. Prosecutors go home at the end of the day while certain defendants often remain in custody. Huge waste of resources. The case will likely be retried.

In an eloquent, unanimous Supreme Court decision, Berger v. United States, 295 U.S. 78 (1935), the Court explained: “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done … He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones ….”

As true now as then.

Judge declares mistrial in case against rancher Cliven Bundy, sons and militiaman

Government lawyers suppressed evidence related to 2014 standoff, a federal judge said.