Tuesday, January 08, 2019

More prosecutorial misconduct...

...and yet again, another court finds no consequences.

The numerous instances of prosecutorial misconduct have been well-documented in this district (and around the country). Again and again, there have been no consequences for the prosecutors who have engaged in the misconduct or in the cases in which the misconduct occurred.

Another example is found in this unpublished opinion from the 11th Circuit, United States v. Foster.

In Foster, the district court found that there was insufficient evidence to support the jury’s verdict and granted a post-trial Rule 29 motion because the defendant withdrew from the conspiracy. The 11th Circuit reversed and reinstated the jury’s verdict. In Foster’s second appeal, decided today, the 11th Circuit found quite a bit of prosecutorial misconduct (without naming the prosecutor) in how it cross-examined a defense witness that was central to the withdrawal defense. Nevertheless, the court found that the misconduct was harmless:
On balance, we conclude that the prosecutor’s improper comments did not prejudicially affect Ms. Foster’s substantial right to a withdrawal defense. There is no doubt that Mr. Danzig supported Ms. Foster’s withdrawal defense; he testified that she refused to cooperate with his internal investigation of Hollywood Pavilion when he called her in 2008.
But hold on, the case was close enough that the district judge found that — without a finding of misconduct — that the evidence was insufficient.  So more misconduct and nothing happens.  No consequences for the prosecutor.  And the conviction remains intact.  I understand that people make mistakes and that generally we should give others the benefit of the doubt.  But I wonder how a defense attorney would be treated if he or she did the same thing.  Or better yet, how do judges treat defendants who ask for second chances?  If we want the misconduct to stop, courts need to start taking some action — dismiss cases, exclude evidence, and so on.  Otherwise, it will just keep happening over and over again.


Anonymous said...

Funny you fault the 11th circuit for not naming the prosecutor, but you don't name the prosecutor in your post. Why is that?

What specific "consequences" would you suggest are appropriate for the still unnamed prosecutor in this case? If any of the improper questions were not objected to, what "consequences" should there be for the defense attorney for ineffective assistance of counsel? And for the Judge for allowing the questions?

Have you ever requested sanctions or "consequences" for a prosecutor for misconduct, or do you just blog about it?

Anonymous said...


Talk less and listen more.

You ask about what specific consequences David would like to see. He told you: "If we want the misconduct to stop, courts need to start taking some action — dismiss cases, exclude evidence, and so on." Losing a case is a reasonable consequence, for most cases.

You complain that David doesn't name the prosecutor, but you fail to notice that David appears not to want to name him/her. Notice this statement: "I understand that people make mistakes and that generally we should give others the benefit of the doubt."

Last, you seem to be questioning David's courage in his criticisms when you say, "Have you ever requested sanctions or "consequences" for a prosecutor for misconduct, or do you just blog about it?" I point out, that unlike you (and me), David has the courage of making these criticisms in his own name, and not anonymously.

Anonymous said...

See U.S. v. Shaygan.

Anonymous said...

7:19 - do you even know anything about David O Markus? What is funny is your lack of knowledge about the person you speak about! Please do some research before you accuse people.

Bob Becerra said...

Without consequences for violation, most rules are just a pile of words strung together. I agree with David if you want misconduct to stop, Courts need to attach consequences to such misconduct.

Anonymous said...

Report them to the Florida Bar. The federal industrial complex has no power over them. Yeah, initially the bar would ignore them but eventually the dam would break. Would love to see those button down Windsor knot tying types explaining themselves to some staff lawyer in Tallahassee and then having the complaint sent to a committee in Miami.

the trjialmaster said...

Federal prosecutors very often do not belong to the Florida Bar, thus no jurisdiction.

Anonymous said...

Here's what happens when a defense attorney crosses the same line:


Anonymous said...

Closest thing to consequences:


In Shaygan(FLSD) and Stevens(DC), review of the misconduct ultimately shielded the prosecution teams from any sanctions because they apparently did not have proper 'notice' of their actions being reviewed.

Can't say any of these prosecutors ever extended the same courtesy to a single defendant.

Anonymous said...


The post opens about "numerous instances" of misconduct that are "well documented. "

The post says "No consequences for the prosecutor. And the conviction remains intact."

It therefore differentiates between consequences "for the prosecutor" and whether the conviction should be intact.

Given the above, I interpreted consequences "for the prosecutor" to refer to sanctions against the prosecutor, a bar referral, a public reprimand, or something along those lines. I apologize if i misinterpreted the post, but perhaps that's not necessary because you misinterpreted it.

As for failing to name the prosecutor, perhaps you should reread my post. I didn't say the prosecutor should have been named. But if dom isn't willing to name him or her, don't whine about the 11th circuit not doing so. Isnt it fair to call that hippocracy? Help me out on that one 847.

As to your ridiculous last point, my anonymity is irrelevant. Blogs are about the free exchange of ideas. Maybe i should just shut up and allow everyone here to give dom ataboys all day long! I think i will, after this last whimper, which will undoubtedly make you a happy camper!

Anonymous said...

Guys, the prosecutor went overboard - he isn't a bad guy and should not personally be sanctioned....the case should have been reversed because the cross went to a defense that placed the burden upon the defendant.

The review was not plain error, the objections to the improper questions were preserved.

Anonymous said...

The real lesson is this:

The Judge should have granted the motion for judgment of acquittal and not had the case go to the jury.


Rumpole said...

I'll tell you what happens when a defense attorney does it...they call it obstruction of justice and go to a grand jury. What these underhanded mooks get away with is reprehensible.

Anonymous said...

Well, you have Judges waiting to do a double back-flip to protect them.

Even if they have to push a fellow Magistrate under the bus for it.