RECENT IDENTIFIED INSTANCES OF PROSECUTORIAL MISCONDUCT
Thanks to the Office of U.S. Rep. Joseph McDade
Scanned and Compiled by William Perry, Regional Director, The November Coalition
Pre-trial
Investigations/Case Preparation
Intentional intimidation of witnesses
Allowing Informants to Create and Allocate Criminal Liability: United States v. Taylor, 956 F.Supp. 622, 658-60 (D.S.C. 1997)
Abuse of the Grand Jury Process
Curry the favor of a grand jury panel: United States v. Breslin, 916 F.Supp. 438, 442, 443 (E.D.Pa. 1996)
Encouraging the grand jury to act with unnecessary hastily: United States v. Breslin, 916 F.Supp. at 443, 445 (E.D.Pa. 1996)
Misleading the grand jury to the belief that they were required to accept hearsay evidence: United States v. Breslin, 916 F.Supp. at 444-45 (E.D.Pa. 1996)
Inaccurate statement of the requirements for indictment: United States v. Breslin, 916 F.Supp. at 445-46 (E.D.Pa. 1996)
Prosecution, when considering the evidence as a whole, there is no probable cause:United States v. Ramming, 915 F.Supp. 854, 867-69 (S.D.Tex. 1996)
Prosecution in breach of a plea agreement: United States v. Holloway, 74 F.3d 249,251 (Ilth Cir. 1996)
Interference with the defendant's attorney-client relationship
allowing an attorney to act as an agent of the government and solicit incriminating evidence from his or her client: United States v. Sahri, 973 F.Supp. 134, 147 (W.D.N.Y. 1996); United States v. Marshank, 777 F.Supp. 1507 (N.D.Cal. 1991)
-- Surreptitious, improper acquisition of attorney work product: United States v. Horn, 811F.Supp. 739, 749 (D.N.H. 1992)
Abuse of process: use of court subpoenas for office interviews: United States v. Lilla-Chaparro, 115 F.3d 797, 804 (10th Cir. 1997)
Badgering witnesses, themselves under indictment, while promising the indictments against them will be dismissed if they testify for the government: United States v. LaFunente, 54 F.3d 457, 461-62 (8th Cir. 1995)
Threatening a witness with loss of immunity from prosecution if he testifies for thedefense: United States v. Schlei, 122 F.3d 944 991-93 (11th Cir. 1997)
Securing incriminating statements from the accused with assurances of he or shewould not be prosecuted: United States v. Dudclen, 65 F.3d 1461, 1468-469 (9th Cir. 1995)
Brady violations (failure to disclose exculpatory evidence or evidence that might be used to impeach government witnesses) -- extraordinary privileges afforded government inmate witnesses corruption: United States v. Doyle, 121 F.3d 1078, 1082 n.2 (7th Cir. 1997) (giving El Rukn inmate witnesses access to internal prosecution memoranda, drugs, sex and unlimited free telephone calls; and valuable gifts, including cash, clothing, 'walkman' radios, food, cigarettes and beer")
-- Failure to disclose the presentation of misleading evidence: United States v. Vozzella, 124 F.3d 389, 391, 392 (2d Cir. 1997)
-- Failure to disclose the presentation of false evidence: United States v. Alzate, 47 F.3d 1103, 1 107-11 (11th Cir. 1995); United States v. Duke, 50 F.3d 571, 576 (8th Cir. 1995)
-- Failure to disclose the criminal record of a government witness: United States v Duke, 50 F.3d 571, 576 (8th Cir. 1995)
-- Failure to disclose existence and extent of the criminal involvement of individual, the accused identified in her duress defense: United States v. Udechukwu, 11 F.3d 1 101, 1104 106 (1st Cir. 1993)
-- Failure to confirm (and denial) defense counsel suggestion that witness, whom the defense was unable to locate and who was central to the defense of the accused, had entered a plea bargain agreement with the government requiring his testimony, United States v. Kqjayan, 8 F.3d 1315, 1316-325 (9th Cir. 1993)
-- Failure to disclose evidence that witness who testified against that the accused had paid him to hold drugs had lied in earlier proceedings involving the same alleged conspiracy: United States v. Cuffie, 80 F.3d 514, 518-19 (D.C.Cir. 1996)
-- Failure to disclose that criminal investigation of the principle government witness: United States v. Kelly, 35 F.3d 929, 937 (4th Cir. 1994)
-- Failure to disclose threats against one government witness made by a second government witness: United States v. O'Conner, 64 F.3d 355, 359-60 (8th Cir. 1995)
"" See also, Inflammatory grand jury comments: Department of Justice, Office of Professional Responsibility, Annual Report for 1995 at 8
Post-indictment Contact in the Absence of Counsel
Conducting plea negotiations directly with an indicted defendant without notifying retained counsel and in violation of applicable ethical restrictions: United States v. Lopez, 765 F.Supp. 1433, 1456-463 (N.D.Cal. 1991)
Decision to Charge
Trial
Conflict of Interest
Attacking witness credibility with evidence not on the record: United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995); United States v. Mueller, 74 F.3d 1152, 1157 (11th Cir. 1996); United States v. Crutchfield, 26 F.3d 1098, 1100-103 (11th Cir. 1994)
Bolstering witness credibility with evidence not on the record: United States v. Henry, 47 F.3d 17, 21 (2d Cir. 1995); United States v. Johnson-Dir, 54 F.3d 1295, 1304 (7th Cir. 1995)
Vouching for government witness's credibility: United States v. Cotnam, 88 F.3d 487, 500 (7th Cir. 1996); United States v. Manning, 25 F.3d 570, 572-74 (1st Cir. 1994); United States v. Carroll, 26 F.3d 1380, 1389-390 (6th Cir. 1994)
Telling the jury how uncalled witness would testify if called United States v. Molina-Guevara,: 96 F.3d 698, 703, 704-5 (3d Cir. 1996)
Offering perjurious testimony: United States v. Brown, 121 F.3d 700 (1997)
Intentionally failing to correct erroneous testimony: United States v. Young, 17 F.3d 1201, 1202-203 (9th Cir. 1994)
Appealing to the emotions of the jury on matters other than the guilt of the accused -- Sympathy for witnesses: United States v. Morgan, 113 F.3d 85, 90 (7th Cir. 1997)
-- Prestige of the court, the government, or the prosecutors: United States v. Catillo,77 F.3d 1480, 1498 (5th Cir. 1996); United States v. Melendez, 57 F.3d 238, 240-41 (2d Cir. 1995); United States v. Richardson, _ F.3d _, _ (7th Cir. 1997); United States v. Carroll, 26 F.3d 1380, 1389-390 (6th Cir. 1994)
-- Religious beliefs: United States v. Levy-Cordero, 67 F.3d 1002, 1008 (1st Cir. 1995); United States v. Cartagena- Carrasquillo, 70 F.3d 706, 712-14 (1st Cir. 1995); United States v. Manning, 23 F.3d 570, 573 (1st Cir.1994); Arrieta-Agressot v. United States, 3 F.3d 525, 527 (1st Cir. 1993); United States v. Giry, 818 F.2d 120, 133 (1st Cir.1987)
-- Race and/or out of state residence of the accused: United States v. Cannon, 88 F.3d 1495, 1052 (8th Cir. 1996)
-- Prosecution suggestion of the bad character (violent and vicious criminal) of the accused: United States v. Procopio, 88 F.3d 21, 30-31 (1st Cir. 1996)
-- Persistent references to the poverty, to Christmas-time, to disadvantaged women and children, and to economic depression as appropriate backdrops to the crime with which the defendant was accused, United States v. Payne, 2 F.3d 706, 711-16 (6th Cir.1 1993)
-- Suggesting that funding for school districts was imperiled by the gambling related RICO activities of the accused: United States v. Vaccaro, 115 F.3d 1211, 1218 (5th Cir. 1997)
Arguing that the accused and witnesses for the defense have lied: United States v. Moore, 11 F.3d 475, 480-81 (4th Cir. 1993)
Ridiculing defense counsel and offering personal opinions on credibility of defense witnesses: United States v. Collins, 78 F.3d 1021, 1039-40 (6th Cir. 1996); United States v. Barr, 892 F.Supp. 51, 57 (D.Conn. 1995); United States v. Bautista, 23 F.3d 725, 733-34 (2d Cir. 1994).
Stating or implying to the jury that defense counsel has suborned perjury: United States v. Verna, 113 F.3d 499, 504 (4th Cir. 1997)
Suggesting or implying that the purpose of defense counsel is prevent the jury from discerning the truth: United States v. Frederick, 78 F.3d 1370, 1379-380 (9th Cir. 1996); United States v. Vaccaro, 115 F.3d 1211, 1218 (5th Cir. 1997)(prosecutor's statement to the jury that it was the job of defense attorneys to muddle the issues was clearly improper)
Commenting on the demeanor of the accused: United States v. Leal, 75 F.3d 219, 225 (6th Cir. 1996)
Commenting on the silence of the accused after notification of Miranda rights: United States v. Thomas, 943 F.Supp. 693, 699-701 (E.D.Tex. 1996)
Commenting, directly or indirectly, on the accused's failure to testify: United States v. Roberts, 119 F.3d 1006, 1015 (Ist Cir. 1997); United States v. Wihbey, 75 F.3d 761, 771 (1st Cir. 1996); United States v. Kallin, 50 F.3d 689, 693 (9th Cir. 1995); United States v. Cotnam, 88 F.3d 487, 497-500 (7th Cir. 1996); United States v. Hardy, 37 F.3d 753, 756-59 (1st Cir. 1994)
Commenting on the accused's invocation of his privilege against self-incrimination before the grand jury: United States v. Bustamante, 45 F.3d 933, 946 (5th Cir. 1995)
Calling a witness the prosecutor knows will validly invoke a privilege with adverse inferences for the accused: United State v. Brown, 12 F.3d 52, 54 (5th Cir. 1994)
Arguing for the conviction of the accused on the basis of an earlier conviction of an alleged co conspirator: United States v. Mitchell, 1 F.3d 235, 238-42 (4th Cir. 1993)
Knowing reference to inadmissible or unsupported evidence during the prosecution's opening statement: United States v. Millan, 812 F.Supp. 1086, 1088-89 (S.D.N.Y. 1993)
Urging conviction by reference to inadmissible evidence: United States v. Adams, 74 F.3d 1093, 1096-98 (11th Cir. 1996)
Securing conviction on allegations stated as facts but not in evidence: United States v. Berry, 92 F.3d 597, 598-99 (7th Cir. 1996); United States v. Morseley, 64 F.3d 907, 912 (4th Cir. 1995)(it was unquestionable improper for the prosecutor to tell the jury in his closing argument that the accused had confessed when he had not); United States v. Anderson, 61 F.3d 1290, 1299 (7th Cir. 1995)(it was improper for the prosecutor to inform the jury that the accused had ruined "literally thousands and thousands of lives" even though the government offered no evidence to support such a statement); United States v. Blakey, 14 F.3d 1557 (11th Cir. 1994)(unsupported argument to the jury that the accused was a professional criminal"); United States v. Bautista, 23 F.3d 725, 733-34 (2d Cir. 1994)
Misleading the court and jury: United States v. Forlorma, 94 F.3d 91, 94-5 (2d Cir. 1996); United States v. Vouella, 124 F.3d 389, 391, 392(2d Cir. 1997); United States v. Alzate, 47 F.3d 1103, 1107-11 (Ilth Cir. 1995); United States v. Udechukwu, 11 F.3d 1101, 1104 106 (Ist Cir. 1993); United States v. Kojayan, 8 F.3d 1315, 1316-325 (9th Cir. 1993)
Repeated references to the past criminal record of the accuse during closing argument: United States v. Jackson, 41 F.3d 1231, 1233 (8th Cir. 1994)
Intentional misrepresentations of the law to the jury: United States v. Thomas, 943 F.Supp. 693, 699-701 (E.D.Tex. 1996)
Reference to invocation of the Fourth Amendment rights: United States v. Thomas, 93 F.3d 479, 487 (8th Cir. 1996)
Less Recent Federal Cases Citing Instances of Prosecutorial Misconduct
Pre-trial
Investigations/Case Preparation
Bombarding individual with undercover solicitations to commit a crime whose prosecution is characterized to targeted individual as constitutionally suspect: Jacobson v. United States, 503 U.S. 540 (1992)
Intentional intimidation of witnesses
-- threats of prosecution: United States v. Smith, 478 F.2d 976, 979 (D.C.Cir. 1973)
-- prosecution interviews with witness before beginning of the case for the defense during which the prospect of incrimination was discussed: United States v. Morrison, 535 F.2d 223, 228 (3d Cir. 1976)
-- "Prosecutor's eleventh hour telephone call to witness's attorney reminding him of potential fifth amendment problem if witness took the stand": United States v. MacCloskey, 682 F.2d 468, 479 (4th Cir. 1982)
-- Conditioning a potential defense witness's plea bargain on his continued agreement not to testify at the trial of the accused: United States v. Henricksen, 564 F.2 197, 198 (5th Cir. 1977)
Abuse of the Grand Jury Process
-- Use of grand jury subpoenas directed against the attorney of the target of the investigation to disrupt attorney-client relationship and otherwise harass the attorney and his client: In re Grand Jury Matters, 593 F.Supp. 103 (D.N.H. 1984), afSd, 751 F.2d 13 (1st Cir. 1984).
-- Inflammatory remarks before the grand jury suggesting that a target of the investigation may have "bugged" the grand jury room to discover witness testimony against him: United States v. Griffith, 756 F.2d 1244, 1246-249 (6th Cir. 1985)
-- Suggesting, without foundation, organized crime links to the target of a grand jury tax investigation and commenting on the veracity of witnesses before the grand jury, conduct characterized as "improper, reprehensible, and unacceptable": United States v. Serubo, 604 F.2d 807, 814-16 (3d Cir. 1979)
-- Intentional presentation of incompetent and misleading evidence to the grand jury for "no other purpose than [improper] calculated prejudice": United States v. Samango, 607 F.2d 877 (9th Cir. 1979)
-- Intentional presentation of false, disparaging, unsworn and irrelevant evidence: United States v. Hogan, 712 F.2d 757, 760-61 (2d Cir. 1983)
-- Using a "forthwith" grand jury subpoena duces tecum in lieu of a search warrant when grand jury was not in session: United States v. Hilton, 534 F.2d 556, 565 (3d Cir. 1976)
-- Offering extensive, frequent comments amounting to unsworn testimony and misstatements of the law, coupled with use of "forthwith" subpoenas, plays upon jurors' patriotism, and heavy-handed questioning of witnesses: United States v. Sears, Roebuck and Co., Inc., 518 F.Supp. 179 (C.D.Cal. 1981), rev'd, 719 F.2d 1386 (9th Cir. 1983)(prosecutors "abusive" and "overzealous" misconduct was not sufficiently prejudicial to want dismissal of the resulting indictment)
-- Advising grand jury that an important government witness would not be testifying before them because if he did organized crime, with whom the targets of the investigation were associated, might harm him: United States v. Riccobene, 451 F.2d 586, 587 (3d Cir. 1971)
-- Leaking information on matters occurring before the grand jury to the press: In re Grand Jury Investigation (Lance), 610 F.2d 202 (5th Cir. 1980)(reversing a lower court denial for a hearing on whether sanctions where appropriate for such disclosures);Barry v. United States, 865 F.2d 1317 (D.C.Cir. 1989)(same)
-- Knowingly permitting indictment based at least in part on material, perjured evidence: Untied States v. Basurto, 497 F.2d 781, 784-87 (9th Cir. 1974)
-- Misleading grand jury by unauthorized and "swearing in" designation IRS agents as "agents of the grand jury": United States v. Kilpatrick, 594 F.Supp. 1324, 1328-330 (D.Colo. 1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), afSd sub nom., Bank of Nova Scotia v. United States, 487 U.S. 250 (1987)(on grounds district court dismissal of indictments was inappropriate remedy)
-- Misleading grand jury through the exclusive use of hearsay summaries to the secure the indictment of one of accused: United States v. Kilpatrick, 594 F.Supp. 1324, 1339-341 (D.Colo. 1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), affd sub nom., Bank of Nova Scotia v. United States, 487 U.S. 250 (1987)(on grounds district court dismissal of indictments was inappropriate remedy)
-- Permitting unauthorized disclosure of grand jury materials to IRS employees with no criminal law enforcement-related responsibilities: United States v. Kilpatrick, 594 F.Supp. 1324, 1331-332 (D.Colo. 1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), aff'd sub nom., Bank of Nova Scotia v. United States, 487 U.S. 250 (1987)(on grounds district court dismissal of indictments was inappropriate remedy)
-- Allowing improper use of grand jury materials for purposes of IRS audits unrelated to any criminal investigation: United States v. Kilpatrick, 594 F.Supp. 1324, 1332-334 (D.Colo. 1984), rev'd, 821 F.2d 1456 (IOth Cir. 1987), afSd sub nom., Bank of Nova Scotia v. United States, 487 U.S. 250 (1987)(on grounds district court dismissal of indictments was inappropriate remedy)
-- Widespread disclosure of matters occurring before the grand jury in "target letters": United States v. Kilpatrick, 594 F.Supp. 1324, 1334-335 (D.Colo. 1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), aff'd sub nom., Bank of Nova Scotia v. United States, 487 U.S. 250 (1987)(on grounds district court dismissal of indictments was inappropriate remedy)
-- Improperly informing witnesses that grand jury secrecy provisions applied to them: United States v. Kilpatrick, 594 F.Supp. 1324, 1335-336 (D.Colo. 1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), aff'd sub nom., Bank of Nova Scotia v. United States, 487 U.S. 250 (1987)(on grounds district court dismissal of indictments was inappropriate remedy)
-- Provide witnesses with pocket immunity in the form of assurance letters without authorization: United States v. Kilpatrick, 594 F.Supp. 1324, 1336-338 (D.Colo. 1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), affd sub nom., Bank of Nova Scotia v. United States, 487 U.S. 250 (1987)(on grounds district court dismissal of indictments was inappropriate remedy)
-- Intentionally calling witnesses before the grand jury with the knowledge that they would claim their privilege against self-incrimination in order prejudice the grand jury against the target of the investigation and their activities: United States v. Kilpatrick, 594 F.Supp. 1324, 1338-339 (D.Colo. 1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), aff'd sub nom., Bank of Nova Scotia v. United States, 487 U.S. 250 (1987)(on grounds district court dismissal of indictments was inappropriate remedy)
-- Threats and verbal abuse of an expert witness for disagreeing with the legal theories espoused by the IRS: United States v. Kilpatrick, 594 F.Supp. 1324, 1343 (D.Colo 1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), affd sub nom., Bank of Nova Scotia v. United States, 487 U.S. 250 (1987)(on grounds district court dismissal of indictments was inappropriate remedy)
-- Post-indictment interview of the employees of the accused out of the presence and without notice to counsel: United States v. Kilpatrick, 594 F.Supp. 1324, 1342 (D.Colo. 1984), rev'd, 821 F.2d 1456 (10th Cir. 1987), affd sub nom., Bank of Nova Scotia v. United States, 487 U.S. 250 (1987)(on grounds district court dismissal of indictments was inappropriate remedy)
Decision to Charge
Selective Prosecution
-- on the basis of race:
-- on the basis of religion:
-- solely on the basis of national origin:
-- based on the exercise of First Amendment rights: United States v. Steele, 461 F.2d 1148 (9th Cir. 1972)
Post-Indictment Contact
Trial
Conflict of Interest
-- Prosecuting a case is which the prosecutor is an essential witness: United States v. Torres, 503 F.2d 1072, 1083 (2d Cir. 1974)
-- Allowing an attorney representing the government in a related civil matter to prosecute: United States ex rel. S.E.C. v. Carter, 907 F.2d 484, 488 (5th Cir. 1990)
Use of or failure to correct clearly perjurious testimony: United States v. Rivera Pedin, 861 F.2d 1522, 1529-530 (11th Cir. 1988)
Arguing to the jury, after repeated admonishment by the court, that the government only prosecutes the guilty: United States v. Stefan, 784 FG.2d 1093, 1099-1100 (11th Cir. 1986); United States v. Smith, 982 F.2d 681, 684 (1st Cir. 1993)
Comments, direct or indirect, upon the failure of the accused to testify: United States v. Leeuire, 943 F.2d 1554, 1565-568 (11th Cir. 1991); United States v. Eltayib, 88 F.3d 157, 172 (2d Cir. 1996)
Comments upon the failure of the accused to present evidence, either generally or specifically: United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237-238 (5th Cir. 1990)
Repeatedly accusing defense counsel, in the presence of the jury, of intentionally misleading the jurors and witnesses and of lying in court: United States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987)
Attacks upon the role of defense counsel and upon the integrity of defense counsel: United States v. Friedman, 909 F.2d 705, 707-10 (2d Cir. 1990)
Encourage misrepresentations in order to bolster the perjured testimony of a government witness: United States v. Eyster, 948 U.S. 1196, 1204-206 (11th Cir. 1991)
Misrepresentation, in the presence of the jury, that the defendant accused of harboring illegal aliens had himself entered the country illegally: United States v. Santana-Camacho, 833 F.2d 371 (1st Cir. 1987)
Emphasize to the jury of the similarities between the accused and a codefendant/witness who had pled guilty: United States v. Dworken, 855 F.2d 12, 29-32 (1st Cir. 1988)
Presentation of emotional evidence of the violent acts of an accused charged with fraud, attempting to impeach a defense witness with prejudicial questions for which there was no evidentiary basis, and arguing guilt on the basis of counts dismissed by the court and contrary to the evidence: United States v. McBride, 862 F.2d 1316 (8th Cir. 1988)
Calling upon the jury "to get even for all the wrongs imposed on the good people of our society" by convicted the accused: United States v. Doe, 860 F.2d 488, 492-94 (1st Cir. 1988)
Inviting a guilty verdict based on the out of state residence of the accused: United States v. Williams, 989 F.2d 1061, 1071-72 (9th Cir. 1993)
Vouching for the credibility of government witnesses: United States v. Williams, 989 F.2d 1061, 1071-72 (9th Cir. 1993); United States v. Kerr, 981 F.2d 1050, 1054 (9th Cir. 1992); United States v. Eyster, 948 U.S. 1196, 1204-206 (11th Cir. 1991); United States v. Simtob, 901 F.2d 799, 805-6 (9th Cir. 1990); United States v. Eltayib, 88 F.3d 157, 172 (2d Cir. 1996)
Characterizing the testimony of the accused and defenses witnesses as lies: United States v. Smith, 982 F.2d 681, 684 (1st Cir. 1993); United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237-238 (5th Cir. 1990)
Graphic comment suggesting a lack of patriotism on the part of the accused: United States v. Rodriquez, 765 F.2d 1546, 1560 (11th Cir. 1985)("We remind counsel for the government, however, that prosecuting attorneys are no longer permitted to indulge themselves, or their audiences, in unrestrained, abusive histrionics, giving their personal evaluations of what a low-down fellow the defendant really is")
Post-trial
Contact in the Absence of Counsel
-- Questioning a defendant, without notifying his counsel, concerning matters arising in a sentencing-related medical examination: United States v. Adonis, 744 F.Supp. 336, 345-47 (D.D.C. 1990)
Federal Cases Identifying Conduct That Would Constitute Prosecutorial Misconduct
Pre-trial
Investigations/Case Preparation
Grand jury abuse
-- Calling a witness before the grand jury solely for the purpose of prosecuting the witness for perjury on the basis of his testimony: United States v. Chen, 933 F.2d 793, 796 (9th Cir, 1991)
Improper acquisition of defense strategy with resulting injury to the accused or benefit to the government: United States v. Cross, 928 F.2d 1030, 1053 (11th Cir. 1991)
Decision to Charge
Selective Prosecution
-- on the basis of race: United States v. Armstrong, 116 S.Ct. 1480 (1996)
-- on the basis of religion: United States v. Cyprian, 23 F.3d 1189, 1 195-196 (7th Cir. 1994)
-- on the basis of gender: United States v. Redobndo-Lemos, 955 F.2d 1296, 1298-1300 (9th Cir. 1992)
-- solely on the basis of national origin: United States v. Al Jibori, 90 F.3d 22, 25 (2d Cir. 1996)
-- based on the exercise of First Amendment rights: United States v. Smith, 812 f.2d 161, 163 (4th Cir. 1987)
Vindictive Prosecution -- prosecution based on prior invocation of constitutional rights (ordinarily rights of criminally accused): United States v. Godwin,, 457 U.S. 368, 372-80 (1982)
Prosecution in breach of a plea agreement: United States v. Digregorio, 795 F.2d 630, 638 (S.D.N.Y. 1992), citing United States v. Fields, 592 F.2d 638, 647-48 (2d Cir. 1979), inter alia.
Interference with the Attorney-Client Relationship
Manifestly and avowedly corrupt intrusions: United States v. Schwimmer, 924 F.2d 443, 477 (2d Cir. 199l)(noting a similar view expressed in United States v. Gartner, 518 F.2d 633, 637 (2d Cir. 1975)
Delays
Pre-Indictment Delays
-- Intentional pre-indictment delay, prejudicial to the defendant, and perpetrated for by the government for reasons of tactical advantage: United States v. Lovasco, 431 U.S. 783, 795 n.17 (1977)
Post-Indictment Delays
-- Intentional post-indictment delay, prejudicial to the defendant, and perpetrated for by the government for reasons of tactical advantage: United States v. Marion, 404 U.S. 307, 324 (1972)
Trial
Conflicts of Interest
-- Prosecuting a case in which the prosecutor has a personal, pecuniary interest in the outcome: United States v. Heldt, 668 F.2d 1238, 1275 (D.C.Cir. 1981)
-- Prosecuting a case in which the prosecutor's interests in his personal and professional reputation are threatened by a bona fide civil action alleging bad faith in the performance of official duties: United States v. Heldt, 668 F.2d 1238, 1275 (D.C.Cir. 1981)
-- Prosecuting a case using information secured from the accused when the prosecutor was acting as the attorney for the accused: Wilkins v. Bowersox, 933 F.Supp. 1496, 1521-522 (W.D.Mo. 1996)
Representing the United States in both regulatory and criminal proceedings: United States ex rel. S.E.C. v. Carter, 907 F.2d 484, 488 (5th Cir. 1990)("SEC attorneys' previous involvement in underlying civil case created a potential for conflict and an appearance of impropriety. This overt and substantial interest in the case and the misstatements in the SEC attorneys' brief undermine our confidence in these prosecutions ... appoint of the SEC attorneys as special prosecutors was plain error")
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Escalation of the Debate Over Abuse of Prosecutorial Powers:
* Federal Court Rejects Leniency Promises - 10th Circuit U.S. Court of Appeals rules that promising lighter sentences in exchange for damaging testimony is tantamount to bribery. (U.S. v. Singleton - Full Text of Decision)
* Media Coverage of U.S. v. Singleton.
* United States Code, Title 18, Section 201©(2) - The Bribery Statute.
* 11th CIRCUIT LEGAL RULING FUELS PLEA BARGAIN DEBATE - Judge Zloch supports bribery interpretation. (U.S. v. Lowery - Full Text of Decision)
* Media Coverage of U.S. v. Lowery.
* Michigan Decision Supports the Status Quo.
* STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION - from the American Bar Association.
* RECENT IDENTIFIED INSTANCES OF PROSECUTORIAL MISCONDUCT
* S. 2311 - Effective Prosecution and Public Safety Act of 1998
* H.R. 3396 - Citizens Protection Act of 1998 - A bill to establish standards of conduct for Department of Justice employees, and to establish a review board to monitor compliance with such standards.
* House Pushes Tighter Ethics for U.S. Prosecutors - by Vicki Allen, Reuters News Service - Commentary on H.R. 3396.
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For further commentary, visit these criminal law web sites:
The National Association of Criminal Defense Lawyers (NACDL)
Punch and Jurists - The Cutting Edge Guide to Federal Criminal Law
We the Sheeple - A Criminal Justice Bulletin Board