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Deterrence theory and prosecutorial misconduct

I got into an argument with several lawyers - well, more of a discussion, because as you all know, we lawyers don't get into arguments - about a post I did a couple weeks back.  It was about an oral argument in the 9th Circuit, where a prosecutor who argued the case got raked over the coals because the prosecutor who tried the case lied during the trial.  My friends were unimpressed.  Big deal, so the prosecutor had to spend 15 minutes being uncomfortable.  That's going to change anything?

Yes it would, I insisted.  It's like the 4th Amendment's deterrence theory:  cops know that the evidence they seize will get thrown out if it's the result of an illegal search, so they don't make illegal searches.

Okay, bad example.  Like I said, it's a theory.

And I figured that this would work the same way.  If malfeasance, in the form of misconduct, were made public, prosecutors' offices would penalize those miscreants.

Like I said.  It's a theory. 

Carmen Marino and Eddie Walsh go a long way toward disproving it.

Carmen's not around anymore, but he was a big deal here in the county prosecutor's office for years.  Probably the top lawyer in the major trial division.  And he was notorious for hiding evidence and otherwise doing stuff inconsistent with the prosecutor's avowed goal of "seeking justice."  There's a 6th Circuit case from the late 1990's that lovingly details, in a footnote, the numerous cases, a number of them murder cases, which were reversed because of Marino's misconduct or failure to turn over exculpatory evidence.

Oh, and did he pay a price for that.  He retired in the early 2000's, on full pension.  Up until 2009, the county prosecutor's office handed down an annual award to the person deemed to be their best prosecutor. 

It was named after Carmen Marino.

Eddie Walsh isn't around anymore, either.  He died.  He was in the major trial division during Marino's heyday.

Two stories about Walsh.  A year ago, I had a guy contact me from Lorain County Correctional.  He'd been sitting in there on a murder conviction since 1994.  Killed his wife, they said.  He claimed the gun went off accidentally, when the wife tried to grab it out of his hand.

Through a lot of effort, we found the wife's hospital records.  (She was taken there after the shooting, and it took her about two hours to die.)  There were at least five separate pages with notations in the records of her telling the nurses that the gunshot wound had been self-inflicted.  In fact, that's exactly what it said on the cover sheet:  GUNSHOT - SELF-INFLICTED.

We finally got hold of the medical records that Walsh had given to the defense attorneys and submitted to the jury at trial.  All the papers in the records where the victim said the gunshot had been self-inflicted had been removed.  The statement on the cover sheet had been blacked out.

I told that story to a bailiff who's been around a long time, and he shared with me his Eddie Walsh story.  Eddie was the lead prosecutor in a murder case, and the defense attorneys asked him at a pretrial about reports that the victim had a gun. Eddie glanced in his file, shuffled some papers around - this was well before open discovery - looked back up at the defense attorneys, shrugged his shoulders, and said, "Nope.  No gun."

A month later, the case was set to go to trial, but Eddie was trying a case in another room.  The supervisor came up in his stead, and the first words out of his mouth were, "Okay, I know we gotta work something out, since they found a gun under the victim's body."

When I filed the motions on my murder case, the assistant prosecutor told me, "As soon as I saw it was Walsh, I knew there was a problem."  Apparently, that escaped the office's attention fifteen or twenty years ago.

And that brings us to the State v. Hunt, a case out of Franklin County in 1994.  (The case cite is 97 Ohio App.3d 372; as Casey Stengel said, "You can look it up.")  The court reversed a conviction for felonious assault, finding that the prosecutor had engaged in misconduct by repeatedly asking questions which were improper or without any basis. 

No big deal, right?  But the panel also said that "on several occasions, this court has had cause to comment on the conduct of this particular assistant prosecuting attorney amidst allegations of prosecutorial misconduct."  It cited three other cases where the issue had been raised, and concluded,

A certain pattern of conduct seems to have emerged concerning this assistant prosecuting attorney. Zealous prosecution of criminal cases is expected and admired; however, continually crossing the line corrupts our system of justice and will not be tolerated. We refer the prosecutor to DR 7-103 and EC 7-13.

She paid a heavy price for that, too.  She's now the chief counsel of the criminal division in a major Ohio county.

I'm not naming her because that was a long time, ago, and maybe she cleaned up her act.  Maybe the prosecutor's office was so distressed by the results in those cases that they demoted her to child support enforcement, or at least sat her down and had a good long talk with her.

Maybe.  Maybe not.

Hell, maybe they even named an award after her.

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