Author Archives: Phil Locke

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.

[Editor’s note: this piece has been very difficult to write.  I’ve been working on it for months, and have deliberated about publishing it at all; I think because the objective it advocates is so daunting.  But I do think it goes to the heart of so much that is wrong with the justice system. I do not have hard data to support my position, and I doubt such data will ever exist, but I do have decades of study and careful observation.  I only report what I observe. Please read it, and just think about it.]

This article will be both editorial and somewhat philosophical, at least to the extent that it expresses conclusions on my part, so please bear with me. But it does address an issue that I believe is one of the key flaws in the justice system – and one that seems to be universally overlooked, not recognized, or dismissed. My hypothesis is that having “prosecutor” be an elected political position has a very deleterious influence on their performance of that job, and that this circumstance is not merely a contributor, but a root cause contributor, to wrongful conviction.                                                        (Note:  We are not considering federal prosecutors here, because they are not elected, and they need to be a whole separate subject.)

First, some personal background.  I grew up in an intensely political family.  I’ve seen politics at work “up close and personal.” My father was an elected official for over 30 years, until he retired.  My mother was very active in both state and local politics, and had seriously considered running for Congress.  We even used to have the Congressional Record delivered to our home.  I have very clear memories of, as a youngster, being down in the basement stuffing “sample ballots” into envelopes for delivery to voters.  My mother once told me about how intoxicating and addicting politics can be, and how easy it was to get caught up in it.  And (in my opinion) this is not driven by an overwhelming and compelling desire to serve the public – it is driven by an overwhelming and compelling desire for power and personal gain. No politician would ever admit this – probably not even to themselves; but you just can’t convince me otherwise. My apologies to the politicians out there, but that’s how I see it.  There may be some virtuous motives to start, but once you’re in it, you’re hooked. So what’s the point of all this?  It’s that I have observed and learned throughout my life that political positions, by their very nature, create a set of pernicious personal motivations for the office holder that can be, and usually are, contrary to the intent and spirit of the office.

Continue reading →

I am not an attorney, but in my layman’s, non-legal opinion this is potentially (and I say only potentially) huge.

The US Ninth Circuit has advocated criminal perjury prosecution for a prosecutor who lied to the court.  See our previous post about lying federal prosecutors here – in this case, the offending prosecutor got off with just a stern rebuke by the judge, which is sadly typical.

The Ninth Circuit has “recommended” perjury prosecution for a prosecutor who lied about benefits offered to a jailhouse snitch for his testimony.  Incentivizing testimony from snitches is nothing new.  It happens routinely.  But think about this.  If a defense attorney offered benefits to a witness for their testimony, it would be bribery, and the attorney could be prosecuted.  If a prosecutor offers benefits to a witness (snitch), it’s called “cooperation.”  What’s wrong with this picture?!

Now, here’s the “catch” about the recent Ninth Circuit lying prosecutor incident. The case involves a prosecutor who lied while testifying under oath.  So, the big question in regard to this is – what happens if a prosecutor lies in court at times when he’s not actually testifying under oath?  As I said, I’m not an attorney, but one would think that, logically, lying in any capacity in any court proceeding would be considered perjury, but ….. sadly, “the law is not always logical, but the law is always the law.”

See the full Observer story on the Ninth Circuit action here.

We’ve previously reported on the Marissa Alexander case here.

This is one of the stupidest prosecutions I’ve seen in my years of doing this.  Angela Corey, the Florida State’s Attorney in the case, should be ashamed for setting such a shining example of prosecutors run amok.

Marissa fired a warning shot at her enraged and abusive husband, who had threatened to kill her, in fear for her life.  She was charged, tried and, despite the fact that Florida has it’s infamous “stand your ground” law, was convicted and originally sentenced to 20 years. She successfully appealed, and was facing a new trial — with a potential 60 year sentence.

Please see the Daily Kos story here.