Tuesday, February 26, 2013

Why won't the Supreme Court hear a prosecutorial misconduct case

There have been a bunch lately, but the Court keeps turning them away.  Justice Sotomayor issued a rare statement condemning the prosecutor (joined only by one other Justice), but why won't the Court take these cases? 

From her conclusion:

It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dig nity of our criminal justice
system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice. In discharging the duties of his office in this case, the Assis tant United States Attorney for the Western District of Texas missed the mark. 
Also troubling are the Government’s actions on appeal. Before the Fifth Circuit, the
Government failed to recognize the wrongfulness of the prosecutor’s question, instead
calling it only “impolitic” and arguing that “even assuming the question crossed the line,” it did not prejudice the outcome. Brief for United States in No. 11–50605, pp. 19-20. This prompted Judge Haynes to “clear up any confusion—the question crossed the line.” 478 Fed. Appx. 193, 196 (CA5 2012) (concurring opinion). In this Court, the Solicitor General has more appropriately conceded that the “prosecutor’s racial remark was unquestionably improper.” Brief in Opposition 7–8. Yet this belated acknowledgment came only after the Solicitor General waived the Government’s response
to the petition at first, leaving the Court to direct a response.
I hope never to see a case like this again.


Anonymous said...

They will. Right after a defense attorney gets on the SCOTUS (yes, this is a moment of levity)

Anonymous said...

Maybe David will be the first!

Anonymous said...

The answer to the question is that most federal judges consider the justice department to be part of the judiciary. Too many goverment lawyers abuse their positions and go unchecked b/c the jduges see them as on the same team.