An Approach to Prosecutorial and Judical Wrongdoing

A Grand Jury, in many jurisdictions, is a prosecutor's tool. It is a special jury consisting of statutory number of citizens, usually more than 12, that investigates accusations against a person or an agency. Prosecutors usually hold Grand Jury hearings on criminal matters in sessions closed to the public and to the accused. A prosecutor is free to present anything that encourages an indictment and withhold information that would preclude an indictment. Based on this information, a Grand Jury could decide that the information that the prosecutor presents, does or does not warrant an indictment and trial of the accused. In some jurisdictions, an indictment by a Grand Jury absolves the prosecutor of all blame of malicious prosecution.

When prosecutors vicariously and maliciously select who will be tried, without a thorough investigation or lie to a private jury, they are in effect preempting and exercising the powers of the judicial branch and public juries. They are contravening the cornerstone of our federal Constitution - the separation of powers.

It is my experience (see A False Allegation of Rape) that the 1991 Solano County Grand Jury were toadies of the district attorney. The foreman's letter, by James H. Mortensen, totally ignored the witnesses, coercion, withholding of exculpatory evidence, and perjury. The letter abetted the lies of a female police officer, the probation department, and the prosecutor. The Mike Nail's supporters later solicited a bribe from me. I refused.

That district attorney is now a superior court judge. Last Monday, September 3, 2001, the Vallejo Times Herald ran a story that this judge, Mike Nail, and the district attorney's office, headed by David Paulson, face disqualification in the matter of the shooting death of a local police officer. The attorney for the accused alleges that, several weeks before the shooting, another Vallejo police officer and a confidential informant followed the accused into his home and assaulted and threatened him. Reportedly, the confrontation was recorded by a voice activated recorder. This remains to be confirmed in the upcoming trial.

Reports say that two weeks after the shooting, Vallejo police searched the informant's home and found several firearms and a bullet-proof vest belonging to another Vallejo police officer. In a related incident, police internal affairs discovered that another officer tried fix or have the issuing officer pull a traffic ticket issued to the informant. Though these activities were clear violations of the law, Paulson declined to prosecute. The attorney for the accused believes that no charges have been filed against these officers and the informant because those charges could adversely impact the prosecution's case against the accused.

In an article that appeared in Wednesday, September 5, 2001 edition of the San Francisco Chronicle, Former District Attorney and now Superior Court Judge Mike Nail disqualified himself after someone discovered that he voided a traffic conviction of the confidential informant on February 8, 2000. The erasure of the conviction came as a result of a private non-judicial meeting between Nail and the officer who had attempted to fix a traffic ticket (material alteration) issued to the informant. According to the article, Nail reportedly said that although it was rare for him to throw out convictions at the request of the police, he could not specifically remember voiding the traffic conviction. Police and District Attorney principals have declined to comment.

As I related in Immunity, lawyers (including prosecutors) have enormous liberty in determining what is a legitimate case. Prosecutors do not have to verify the truth of an allegation (an assertion made without proof) and the veracity of witnesses before they file a criminal pleading. In this way, prosecutors can ruin lives and reputations at will. Here follows an example.

A prosecutor charges a man with rape. The prosecution does not present physical evidence that the crime occurred because it does not exist. The defense proves that the defendant was at a reunion with friends and relatives some 500 miles away when the alleged rape occurred. The prosecutor claims that the witnesses are the defendant's relatives and friends and by these relationships, they would lie for the defendant (in effect, calling them liars - a tort). Then the defense presents a video tape, recorded by a store's security camera, and a credit card voucher signed by her. The video tape depicts the accuser purchasing clothing and signing the voucher at a distant mall at the time of the alleged rape. The jury convenes and since it cannot return a factual finding of innocence, it has to return a "not guilty" verdict.

In this example, the prosecutor and the accuser violated the law relating to perjury and obstruction of justice. Criminal trials are costly and even with a favorable outcome, some will remain with the belief that the accused was guilty. Some prosecutors have claimed that the accused was vindicated by a jury on the basis of a technicality - that of innocence. The falsely accused can bring action against the accuser but has no recourse against the prosecutor because of immunity. I know of no subsequent civil or criminal prosecutions of an accuser and prosecutor in these circumstances.

Prosecutorial preference is a vestige of the long discredited notion of class ascendancy and is a sign of arrogant self-importance. Mr. Sheck, Neufeld, and Dwyer stated the phenomenon eloquently, quoting Edwin Meese, former U.S. Attorney General, "The thing is, you don't have many suspects who are innocent of a crime. That's contradictory. If a person is innocent of crime, then he is not a suspect."

Prosecutors convict innocent people for self-gratification, higher social status, and money. Of course they are not alone. They have the help of dishonest cops, jailhouse snitches, and crooked crime lab workers such as Fred Zain, Pamela Fish, and Joyce Gilchrist. These three crime lab technicians received glowing recommendations and other career boosts.

Admission of, or reporting wrongdoing hurt a person's career. Last Thursday, August 30, 2001, the Vallejo Times-Herald published an account revealing that falsification by forensic chemist Joyce Gilchrist lead to the wrongful conviction and execution of a man. Another chemist, Laura Schile, discovered the fabrication. Ms. Schile recently resigned from the Oklahoma City forensic lab citing a hostile work environment.

1. The current ways of dealing with malicious attorneys and judges is grossly inadequate. More safeguards are required. This might be a public advocate agency that is charged with the investigation and discipline of attorneys and judges. It may:

2. Instances of gross misconduct should result in the permanent loss of immunity and civil rights. Gross misconduct may include:

5. Apply same penalties to supervisors of prosecutors who know about the illegal practices of a malicious prosecutor and fail to do anything to stop it.

7. Ban pretrial questionnaires. Each person summoned for jury duty in the O.J. Simpson trial had to complete an eighty page questionnaire covering more than 260 items. Four years ago, I received a summons me for jury duty. The jury room was packed and spilled out into the hallways. Part of the selection process was that the prospective jurors had to complete a lengthy questionnaire on the spot. This process was a search for biased jurors and not for an impartial jury.

8. Jurors and prospective jurors should be treated with civility and respect. Too many judges and attorneys arrogantly patronize the public. The jurors in the Simpson criminal trial became virtual prisoners of Judge Lance Ito and the prosecution. During the trial the jurors were sequestered for 266 days and their rooms and personal effects were subject to search and seizure. While Lance Ito entertained celebrities, the trial came to a halt. Marcia Clark, the principal prosecutor, often arrived late and unprepared; while the jurors were awakened at 5:30 in the morning. Clark's flirting, pouting, and coarse language did not help the State's case. She treated the jury as a collection of boorish morons. Not unexpectedly, Clark blamed the jury and everyone else for the trial's outcome.

9. Litigants should be treated with civility and respect. Trials are supposed to reveal the truth but many lawyers seek to hide the truth through theatrics, finger pointing, shouting, brow beating, berating, deception, and manipulation.

10. Courtroom testimony should be recorded by tamper revealing technology. This can be implemented with current encryption and compression technology.

11. After deciding for a not guilty verdict, if so moved, a jury might issue a signed certificate of a Factual Finding of Innocence. They can do this privately.

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