The genesis of this post was the recent action by the US 9th Circuit in California, in which the court recommended perjury charges against a prosecutor who had lied to the court. Please see our previous post on this case here.
When I first saw this, my initial reaction was “holy smoke!” This is precedent shattering. But when you read the details, the potential perjury charges were recommended because the prosecutor in question had lied while testifying. This situation does not cover a prosecutor’s lying in court when not officially sworn in and under oath, which is basically all the time.
That’s when I had the epiphany. Here’s my idea. Let’s have all trial counsel, prosecutors and defense attorneys, sworn in at the beginning of each trial. It’s so SIMPLE, and would COST NOTHING. At most, this would take 60 seconds of the bailiff’s time at the beginning of a trial, and then it’s done.
EVERYBODY is supposed to tell the truth in court, right? Any citizen who testifies swears an oath to tell the truth, and if they lie, they’re subject to perjury. Why should prosecutors be any different than the citizen? Of course, they will say they have a “code of ethics” that governs their behavior, but apparently this code of ethics has no legal teeth to it, because prosecutors lie in court routinely without consequence. Why should they not be exposed to the same legal rules as anyone else? What’s the big deal about just promising to tell the truth? Any truly honest, ethical person should gladly agree.
Here’s an example of how that could work. The judge asks the prosecutor, “Have you turned all relevant and germane evidence over to the defense?” The prosecutor will answer, “Yes, your honor, to the best of my knowledge.” THEN, if it is later determined that the prosecutor knowingly withheld evidence, it’s not just a Brady violation (which seems to have no penalty for the prosecutor), it’s perjury. The same situation would apply if the judge’s question is “Have you offered any incentives to this witness for his testimony?”
The LOGIC and FAIRNESS of this is undeniable and inescapable. How can anyone argue against it? It takes no time and it costs no money, and it levels the playing field.
Now, I’ve bounced this idea off a number of colleagues, and the uniform response has been, “Great idea, but it will never happen.” Of course the reason for this response is because of the politics involved. I seriously question whether you could ever get a state legislator to even sponsor such a bill, unless maybe they had a death wish. So I looked into what it would take to get such an issue on the ballot for a general election. Here in Ohio, this is called an Initiated Statute, and there is a constitutional process by which to undertake it. This process is positively daunting, and well beyond my meager capabilities. There has been only one such Ohio statute enacted within the last 10 years that I could find – the statewide smoking ban.
There must be a way. If you like the idea, I encourage you to run with it. Take it as your own. There must be a way. This is only fair.
Wrongful Convictions Blog 
Mr. Locke, Excellent article and solution to a serious problem in the courtroom.
This certainly would have prevented Courtney Bisbee’s wrongful conviction and all the damage and destruction that has been caused in her life and her families lives.
Reblogged this on FORENSICS in FOCUS @ CSIDDS | News and Trends and commented:
Lets include the forensic experts who should also tell the WHOLE truth. Not just the lawyers. Altho we all get sworn in before testifying, I would suggest this needs serious emphasis in the laissez-faire world of expert “free speech’ tailored to support just one side.
There have been cases of prosecuting attorneys lying in or to Ohio courts or officials with minimal or no sanction ‼
Thank you Phil. Continuing to bring these cases to the spotlight is the way to reform. They lie to fit the specifications of their theory. In our case, prosecutor Renee Dupuis lied and then went on to become a judge!
Sounds good to me, too. In the next edition of my book about STOPping wrongful convictions, it may be Proposal #81. The practice might be initiated in any individual case by a defense attorney or a judge or even a prosecutor asking that the prosecutor and defense attorney be sworn in. It could also be initiated as a court procedural rule at any level of a court system, and by any regional or state or federal bar association. As Phil suggested, it could also be done by a state law, whether initiated by legislators or by members of the public and voted on in a referendum.
Wake Up World https://www.facebook.com/joinwakeupworld/posts/855144387864468
I was wrongfully convicted to 20 years. I believe what happened to me was an injustice and I can’t get any help to expose them.
Reblogged this on Wrongly Convicted Group Website and commented:
Why not? Counter argument would be people might be reluctant to do the job, for fear of being accused. But same argument applies to witnesses – they could ahve fear of testifying. Why are lawyers entitled to special protection?
Love the idea because obviously the initiative is not forthcoming on its own. Here is another egregious example of prosecutorial misconduct against six innocent men. This former prosecutor is now a judge as well who is unethically quite vocal still about his stance regarding this case.
Click to access 10.30.14_Keith_Kutska_Motion_for_Retrial.pdf
And this week in Arizona: “During his federal contempt hearing, Arizona (Maricopa County) sheriff Joe Arpaio concedes under oath that he hired a private eye to investigate his judge’s wife. THE ARIZONA REPUBLIC 4/23/15 And this is the decades-long sheriff who paid to put the top prosecutors/politicians, ex-DA/MCAO Andrew Thomas (disbarred Aprll 2012) and DA/MCAO Bill Montgomery into office. How proud they must be, to be beholden to this tyrant, which has been nothing but a reign of terror on the community for decades. (ask exonerees, Ray Krone and now Debra Milke for their thoughts on Maricopa County and Arizona justice, and the “forensics lab”?
Insider Comments! AZ MCSO “Arpaio Cops to Investigating Federal Judge, Judge’s Wife, Confirming New Times Story”
by Stephen Lemons | Phoenix New Times 4/24/15
http://blogs.phoenixnewtimes.com/valleyfever/2015/04/arpaio_cops_to_investigating_federal_judge_judges_wife_confirming_new_times.php
Pingback: Sharing Views on Prosecutorial Reform | Wrongful Convictions Blog