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February 24, 2015 Articles

Procedural Due Process Rights in Cases of Prosecutorial Misconduct

By Michelle D. Golden

One of the aims of the American legal system is to protect individuals from government action that deprives them of their civil liberties. As such, the American legal system has a track record, from its inception, of protecting civil liberties from government encroachment or neglect. For example, in the Declaration of Independence, the Founding Fathers, in deploring the actions of King George III against the colonies, asserted the right to trial by jury and the principle of the rule of law. Furthermore, the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964), affirmed a defendant's right to a fair trial by making it easier to move civil rights cases from state courts to federal courts where civil rights activists could get a more fair trial. The Civil Rights Act of 1964 also gave defendants accused of criminal contempt under previous titles of the Act the right to a jury trial. In addition, the Civil Rights Act of 1965, Pub. L. No. 89-110, 82 Stat. 73 (1965), also known as the Voting Rights Act of 1965, gave African Americans the civil liberty of voting. The Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution are also a mechanism by which the legal system has protected certain civil liberties. The right to a fair trial, for example, is a due process concept often associated with human rights. U.S. Const. amend. VI; Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III), at art. 10 (Dec. 10, 1948). As with slavery, the Civil Rights Movement, and women's liberation, current events suggest new areas in which a premium should be placed on the protection of due process, particularly procedural due process rights in cases of prosecutorial misconduct, especially regarding policing and the use of force doctrine.

Due process rights protect a person's life, liberty, and property interests during legal proceedings. Black's Law Dictionary 57 (9th ed. 2009). In cases of prosecutorial misconduct, the prosecutor conducts the case in such a way that deprives the defendant of due process and the right to a fair trial. 21 Am. Jur. 2d "Prosecutorial Misconduct" § 429. According to legal scholar and former U.S. Court of Appeals for the Second Circuit judge Henry Friendly, the elements of procedural due process include: (1) an unbiased tribunal, (2) notice of the proposed action and the grounds asserted for it, (3) an opportunity to present reasons why it should not occur, (4) the right to call witnesses, (5) the right to know the opposing evidence, (6) the right to have the decision based exclusively on the evidence presented, (7) the right to counsel, (8) the making of a record, (9) the availability of a statement of reasons, (10) public attendance, and (11) judicial review. Henry J. Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1279–95 (1975). Although cases of prosecutorial misconduct may be hard to determine, Peter J. Henning, "Prosecutorial Misconduct and Constitutional Remedies," 77 Wash. U. L.Q. 713 (1999), it will almost always involve at least one of the aforementioned elements. This is because "the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial" or legal proceeding. Henning, supra, at 818.

According to an Associated Press poll of U.S. editors and news directors, the killing of unarmed blacks was voted the top news story of 2014. David Crary, "Police Killings of Unarmed Black Men Voted Top News Story of 2014," Huff Post Media (Dec. 22, 2014). State v. Wilson (Mo. Cir. Ct. 2014), where an unarmed 18-year-old African American, Michael Brown, was killed by a white police officer, received an enormous amount of media attention. The case involved policing and the use of force doctrine. In Missouri, where the killing occurred, "use of force" refers to the amount of restraint that a police officer may use to assuage an unruly situation or person. Mo. Rev. Stat. § 563.046; Ashby Jones, "Why Ferguson Officer Wasn't Charged: A Look at 'Use of Force' Doctrine," Wall St. J.L. Blog (Nov. 24, 2014).

On August 9, 2014, Michael Brown, a resident of Ferguson, Missouri, a suburb of St. Louis, got into an altercation with police officer Darren Wilson. "Tracking the Events in the Wake of Michael Brown's Shooting," N.Y. Times, Nov. 24, 2014. Shortly before the altercation ensued, Brown had robbed a local market. Wilson had been notified by police dispatch of the robbery and the suspect's description. Another police officer said the robbery suspect, Brown, and his friend Dorian Johnson had disappeared. When Wilson caught up with the two men walking down the street, he called for backup and stopped his police cruiser, blocking them. An altercation ensued with Brown and Wilson struggling through the window of the police vehicle until Wilson's gun was fired and Brown was wounded. Both Brown and Johnson fled. Wilson eventually got out of his car in pursuit of Brown. Brown stopped and turned to face the officer. The entire altercation eventually resulted in Wilson firing at Brown several times, all striking him in the front. During the entire altercation, Wilson fired 12 rounds; the last was likely the fatal shot. Witness reports differed as to whether and when Brown had his hands raised, and whether he was moving toward Wilson when the final shots were fired. Media outcry ensued because considering all the facts of the case, many believed that Brown did not have to be shot dead and that race played a factor in his death, with Wilson being a white police officer and Brown being an unarmed African American. Jack Healy, "Ferguson, Still Tense, Grows Calmer," N.Y. Times, Nov. 26, 2014.

In the justice system, prosecutors have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the outcome. That is why it is so important for prosecutors to play fair, not just to win.

"Rampant Prosecutorial Misconduct," N.Y. Times, Jan. 4. 2014. Furthermore, a prosecutor has the role of minister of justice and not just that of an advocate. Model Rules of Prof'l Conduct R. 3.8 cmt. Therefore, prosecutors have a responsibility to preserve a defendant's due process rights throughout the criminal proceeding, but it is also a responsibility owed the victim as well. For example, in federal criminal cases, the Crime Victims' Rights Act (CVRA) provides that victims be treated with fairness in criminal proceedings. 18 U.S.C. § 3771. According to the CVRA, victims in federal criminal proceedings have the right to notice of court proceedings, among other guarantees. 18 U.S.C. § 3771(a)(2).

After police officer Darren Wilson was acquitted of all charges, many questioned prosecuting attorney Robert P. McCulloch's tactics in using a grand jury to determine whether there was probable cause to indict Wilson for his actions. McCulloch said that his purpose was to make available to the public, the grand jury, and the Department of Justice all of the available evidence. David Zucchino, "Prosecutor's Grand Jury Strategy in Ferguson Case Adds to Controversy," L.A. Times, Nov. 25, 2014. However, many of McCulloch's critics pointed out that in deciding there was probable cause for Wilson to kill Brown, there was no challenge to Wilson's version of events. McCulloch's presentation of the evidence was seen by many in the public as abusive and a form of prosecutorial misconduct. Indeed, it can easily be argued that by not challenging the defendant's version of events, McCulloch did not conduct a fair legal proceeding.

By finding ways to remedy prosecutorial misconduct, the legal system can, in effect, preserve the procedural due process rights that are vital to the functioning of American democracy. Although a difficult task, the legal community has attempted for years to address the issue of prosecutorial misconduct. Sonja B. Starr, "Sentence Reduction as a Remedy for Prosecutorial Misconduct," 97 Geo. L.J. 1509 (2009). Some of the traditional remedies include sanctions, dismissal, and reversal of conviction. Legal scholars have proposed sentence reduction as a solution to the problem of prosecutorial misconduct. Starr, supra, at 1509. They have also proposed expanding double jeopardy "to encompass all types of prosecutorial misconduct." Henning, supra, at 816.

Keywords: litigation, minority trial lawyer, civil liberties, due process, fair trial, prosecutorial misconduct, policing, use of force

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