Prosecutorial Misconduct for Civil Asset Forfeiture

A prosecutor’s actions and dubious conduct in handling a civil asset forfeiture led to Rule 11 sanctions against the state and likely bar sanctions against the attorney

In re $26,305 in U.S. Currency, 2016 BL 426593, Ariz. Ct. App., Div. 2, No. 2 CA-CV 2015-0171, 12/20/16.

The Arizona Court of Appeals affirmed a Rule 11 sanction against the state and referred a prosecutor to the state bar for abusing the state’s civil asset forfeiture action. After a truck and nearly $26,000 were seized by police, the state proceeded with a civil forfeiture action as to the vehicle and cash. The driver of the vehicle filed a claim for the money and the owner of the vehicle filed a claim for the truck. Later, the state represented that they have filed proper notice about the forfeiture and had not received any claims for the seized property, which was ultimately untrue. The appellate court found that the prosecutor “failed to conduct any reasonable inquiry into whether the application for uncontested forfeiture was grounded in fact or law.” Additionally, the prosecutor ignored court orders to address the claims filed for the truck and money, which almost led to contempt orders.

http://www.bloomberglaw.com/public/document/In_re_26305_in_US_Currency_No_2_CACV_20150171_2016_BL_426593_Ariz.

Misstatement of Essential Element for Crime Requires Murder Conviction Reversal

A murder conviction was reversed due to a prosecutor’s misstatement of law regarding an element of the crime that was central to the evidence presented at trial

United States v. Williams, 2016 BL 287661, D.C. Cir., No. 12-3029, 9/2/16.

   The D.C. Circuit found that a prosecutor’s misstatement of law was egregious enough to warrant a reversal of a murder conviction because it implicated the mens rea requirement of the crime. The court found that the prosecutor misstated the law which could have “led some jurors to believe they could not consider the victim’s consenting behavior,” even though the jury instructions were accurately presented. The court feared that the instructions, however, did not go far enough to cure the inaccurate closing argument by the prosecutor. The court emphasized that the intent statement made by the prosecutor was problematic because “it effectively forbids the jury from considering certain evidence, rather than merely telling the jury which elements it must find and how to weigh the evidence.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Williams_No_123029_Consolidated_with_133058_2016_?1474479965

Prosecutor Baiting a Mistrial Bars Any Future Retrial for the Same Crime

After making flagrant statements at trial in an attempt to provoke a mistrial, a prosecutor created a double-jeopardy bar against retrying the same defendant

State v. Zisa, N.J. Super. Ct. Law Div., No. 10-10-01812-I, 8/23/16.

   The New Jersey Supreme Court found that purposefully unprofessional conduct on behalf of the prosecution team in a criminal trial in an attempt to bait a mistrial bars a retrial of a defendant. This case follows a similar line of cases stemming from Oregon v. Kennedy, which barred retrials after a successful defense motion for a mistrial if the defendant could show that the prosecutor in the case purposefully provoked the defense to make the mistrial motion in the first place.
 

   The court reached its conclusions because the prosecutor continuously made inadmissible, improper, and prejudicial statements about the evidence and facts about a state witness, even though it was unsubstantiated and inadmissible. The court said, “It strains credulity that such a seasoned prosecutor, with years of trial experience, could be so ignorant to the rules of evidence.” Additionally, the court noted the prosecutor’s unusual ambivalence towards the five mistrial motions made by the defense. 
 

http://src.bna.com/ibq

Late Attempt to Seal Wiretap Not Justified by Prosecutor's Workload

Federal law requires that intercepted communications be "immediately" presented for sealing once the warrant expires, and a prosecutor's preoccupation with another case is not a good excuse for noncompliance.

 

Finney v. State, 2016 BL 68689, Ga., No. S15A1739, 3/7/16

     The Georgia Supreme Court ruled that the upcoming oral argument which the prosecutor was worried about was not a surprise development that the state was forced to handle. The court also determined that the prosecutor's preoccupation with the upcoming oral argument did not explain why other lawyers in the office could not have filed the motion, or why the matter was not dealt with until eight days after the oral argument had concluded. See, 18 U.S.C. § 2518 (1) - (6).

http://www.bloomberglaw.com/public/desktop/document/Finney_v_State_No_S15A1739_2016_BL_68689_Ga_Mar_07_2016_Court_Opi?1458316618

Minority Jurors Are Not Interchangeable Commodities

Attorneys may not justify a peremptory strike by indicating that they intend to replace the person with another juror of the same race, because that is not race- neutral.

 

Ray-Simmons v. State, 2016 BL 49211, Md., No. 28, 2/22/16

     A prosecutor attempted to justify a peremptory strike of a black man by saying that she planned to replace him with "another black male" from the other prospective jurors.  The Maryland Court of Appeals ruled that this violated Batson because that rationalization was neither race- nor gender-neutral.

     The court indicated that the prosecutor's suggestion that minority jurors are interchangeable saved the defense from having to make out the prima facie case of discrimination. The court said that "[a] desire to replace a juror with another unspecified member of the panel does not explain in any way, race-neutral or otherwise, the prosecutor's reasons to strike that particular juror."

     Because the original case happened four years ago, and the circumstances surrounding the challenge could not be reconstructed easily, the Court of Appeals ordered a new trial.

http://www.bloomberglaw.com/public/document/RaySimmons_v_State_No_28_2016_BL_49211_Md_Feb_22_2016_Court_Opini