Recent cases of prosecutorial misconduct in Illinois courtrooms give us a chance to dig a little deeper. What exactly is going on?

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If you know anything about the “Saul Goodman” playbook, then you know no Illinois attorney should be referencing that manuel. Nonetheless, the legal profession is still largely practiced by humans and from time to time mistakes will be made.

These 4 examples of prosecutorial misconduct are taken right from Illinois courtrooms. Rather, than jump up and down and point the finger at the people and the offices involved, instead, we take a more inquisitive approach.

• What happened?
• Why did it happen?
• What does it reveal about our business?
• How can we prevent it in the future?

Take for instance this first example.

Prosecutor Fibs or Grossly Mistaken 

This story was widely reported in the media:

• Prosecutor Fired Over Alleged Perjury in Cop Shooting
• Fired Prosecutor Says He Made Mistakes
• Zero Tolerance For Police and Prosecutors Who Lie

The thing that stood out to me in this story is that the prosecutor involved was actually acting in an investigative capacity. That in no way justifies the conduct, but it is a reminder that otherwise decent people may react in uncharacteristic ways when put under pressure they may not be quite use to.

This ASA was faced with a gun being tossed in a high profile attempted murder of an officer case. Prosecutors in court see things differently than a prosecutor thrown into the field to investigate.

The courtroom experience is much more clinical. It’s all after the fact. From a distance it’s way easier to remain objective and to call them like you see them.

An investigation, on the other hand, is much more fluid and unpredictable. 

Things are jumping at you and thrown into your face in a flash. Some things can have enormous consequences on the case others may not. How would you react when a little question pops up that could tank the whole the case?

Again, none of this justifies the conduct, but I would have been more assured in learning that this prosecutor’s office was taken proactive steps to help their ASA’s deal with the different kinds of pressure they are subjected to when they are thrown into the wild.

The “one bad apple” approach gives me no confidence the office will be able to prevent this in the future.

Little Baby Prosecutorial Error

I first spoke about this example of sloppy grand jury work in podcast episode 144.

The case featured a prosecutor seeking a warrant for palm prints in a murder investigation. This was being done through the use of a special grand jury.

The reviewing court took special note to point out that the prosecution did not follow proper procedures:

• No affidavit to the grand jury
• Failure to swear in the officers as agents of the grand jury
• Failure to return the subpoena to the grand jury, and the
• Records were not shown to the grand jury.

In the grand scale of wrong doing, this one is definitely on the “baby” side.

However, what it highlights is the fact that it is so much easier to cut corners when the adversary is removed from the process.

Now, let’s raise the bar a little bit.

Little White Lie To Win a Deposition

In podcast episode 148, we had a prosecutor who really wanted to win a deposition.

You see…

There was a 77 year old victim found 12 hours after going over her basement stair rail. She immediately tells paramedics that her son pushed her.

The victim was battling metastatic cancer and the state told the trial judge they wanted a deposition pursuant to Rule 414. All of this  based on the substantial possibility that the victim would die from her injuries.

The state persuaded the court to allow the deposition. Defense counsel was objecting strenuously because he had no discovery and no time to prepare.

In turns out, the victim was not hurt as badly as the state said she was…and the prosecutor never talked to the doctors the way she told the judge she did.

The prosecutor seemed to be relying on fourth-hand information: the ASA read police reports generated by detectives, who had spoken to the victim’s daughter and an unnamed hospital nurse, who had maybe spoken to the victim’s doctors.

The injuries cited by the ASA were less than accurate and at best could only be an initial evaluation of possible injuries that eventually were ruled out by treating physicians.

…and, again, she never talked to the doctors the way she told the judge she did.

What happened?

This was a great example of what can happen when everybody involved believes the outcome of the case is inevitable. 

Little old lady said her son throw her over. What else is there to investigate?

Everybody (except for the defense attorney) half-assed it and mailed it in for the rest of the case. 

• The investigators didn’t go talk to the doctors directly. (Why bother they had their man?)
• The prosecutor didn’t talk the doctors. (Why bother the police reports had plenty of medical details?)
• The judge accepted all the misrepresentations because, well, the outcome was inevitable.

And the last example, is the doozy.

Prosecutorial Misconduct Leads to Rape Reversal 

This one was featured in podcast episode 127 (People v. Mpulamasaka). 

Among the points of error committed by the State were the following:

1. The State used evidence admitted for one purpose, ability to consent, to establish the element of force.
2. The State knew that it had failed to establish that S.B. was unable to consent and that defendant knew as much, yet argued repeatedly that the jury should consider S.B.’s “disability” on the issue of force in that defendant “manipulated” S.B.
3. During its closing and rebuttal arguments, the State made 21 direct references to S.B.’s intellectual limitations.
4. The prosecutors used S.B.’s learning disability to confuse the jury on the issue of consent.
5. The State depicted defendant as a “predator” who took “a piece of meat” home with him.
6. During its rebuttal argument, it argued that Dr. Locker “was at the rent-a-doctor agency sipping a latte” and that he sold his integrity “for three pieces of silver.”
7. At the same time, the State misstated their expert’s testimony, arguing that “Dr. Holt told you point blank, she didn’t say it’s likely, she said this was as a result of a violent sexual assault, point blank.”
8. By arguing repeatedly, with no evidentiary support, that S.B.’s cross-examination answers were not “her own words,” the State violated defendant’s right to confront witnesses.
9. The most troubling aspect of the ASA’s conduct was leaving the podium and sitting in the witness chair to argue the victim’s credibility and courage and then discussing defendant’s credibility.
10. The State wrapped up its rebuttal with a final appeal to sympathy, calling defendant a “bully” who took advantage of the “weakest amongst us.”
11. Overall, the State served only to inflame the passions of the jury.

Clearly, there was a lot going on in the case.

I believe we can trace a bunch of the problems down to the fact that the prosecutor continued to insist that the victim was mentally disabled.

I don’t think this prosecutor set out to pull the wool over the jury’s eyes. I don’t think the prosecutor just decided to invent a mental disordered and slap it on a totally normal lady.

The case that the police brought to him featured a mentally disabled women. Somebody told this prosecutor she was slow or had issues and he ran with it.

The problem was that at trial no credible evidence was revealed that demonstrated any mental disability what-so-ever.

The big sin committed by the prosecutor was in his failure to accept these facts and to adjust accordingly. Throw in the fact that the case basically falling apart for the State and you get what we saw.

Defense attorneys learn early on to stay nibble during a trial. The case is never exactly like the client tells it, and the police reports regularly leave gaping holes.

Prosecutors, on the other hand, don’t have as much practice watching things go to hell right before their eyes. The first time it happens it can very unsettling.

This guy needs a little bit more practice.

That’s How I See It

This is just how I see these cases when I look beyond the misconduct. What do you see? Comment below and let me know.

The prosecution also has to balance their own rules of professional responsibility that they owe to the court.