Due process and the danger of morally and ethically deficient prosecutors.

What's this "due process" business that we keep talking about and whats it got to do with our tales of mortgage fraud? What drew our attention to "due process" was this quote from one of Judge Beatrice Butchko's rulings during the Pastor Gaston Smith criminal case a few months back...

"...due process is general principle of law that prohibits the government from obtaining convictions brought about by methods that offend the sense of justice, and I think that law enforcement and prosecutors really need to have this in mind, because of the power that you have at your disposal."

Very interesting, "convictions brought about by methods that offend the sense of justice...", that's powerful. To better understand, let's look at "due process" as it appears in the constitution of the state of Florida, Article I, Section 9:

Due process.--No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.

Easy enough, one aspect of due process as we interpret it, is basically that the police and prosecutors have to play fair, once you're charged, as part of your defense, you're entitled to evidence, statements, etc that the state has. Common sense right? After all, how is a defendant supposed to put together a meaningful defense if they aren't given all the evidence that the state has? There are clear rules that the state has to abide by when it comes to evidence and the defenses discovery in order to prepare their defense. In other words, the state can't hide evidence, exculpatory or not, in a perfect world this wouldn't be an issue. Yet in the real world the states handling of evidence is a fertile breeding ground for misconduct. There are certain states that have "open file discovery", where whatever the state has in the case file has to be made available to the defense, that's great yet in states that don't have such laws, the citizens may be at the mercy of unscrupulous prosecutors or as we like to say at risk of getting "NIFONGED"!


So what would cause an unethical prosecutor to hide evidence from the defense or as we like to say "play hide and go seek" with the evidence? There could be several motivations for a dirty prosecutor to play these games, the desire to achieve a conviction at any cost, realizing perhaps that the case is weak and not wanting to hand over the defense the tools they need to win or maybe scrambling to save a case that should have never been filed. What do defense attorneys do when they're dealing with a prosecutor that's playing hide and go seek with evidence? They file motions to compel discovery such as this one that was filed against ASA Bill Kostrzewski in the Bernardo Barrera mortgage fraud case...

Fourth Motion to Compel Case f08-36522

What's that say? Does it say:

DEFENDANT’S FIRST MOTION TO COMPEL DISCOVERY 

Nope. Does it say:

DEFENDANT’S SECOND MOTION TO COMPEL DISCOVERY

Nope. Does it say:

DEFENDANT’S THIRD MOTION TO COMPEL DISCOVERY

Nope. As you can all see, it says...

DEFENDANT’S FOURTH MOTION TO COMPEL DISCOVERY

Tisk, tisk, tisk...

So what's the big deal you say? None, if you've been charged and don't mind a prosecutor hiding evidence from you!  Going back to the Michael Martinez deposition again and reading it over and over again, one thing struck us as strange from the deposition transcript, take a look...

So Mr. Martinez was interviewed by the police and the state attorneys at least five times?  So was anyone taking notes during these depositions?

Ok, so everyone one was taking notes, what for?  Obvoiusly for the purpose of reducing their notes into the form of a statement, the same statements that the defense keeps asking the state for!  From the FOURTH motion to compel...

12.On June 25, 2009, the State listed Co-defendant Martinez as a state witness.  The State also provided a copy of his plea agreement whereby he agreed to fully cooperate with the State and testify for the State in exchange for a below guideline sentence.  

13. Upon information and belief, the Defense believes that there are two statements (and possibly more) of Co-Defendant Martinez in the State’s possession. 

So where the statements at Mr. Kostrzewski?!  Let's go to that motion one more time...

14.Despite repeated requests and multiple court orders, the State has failed to provide Mr. Martinez’s statement. Upon information and belief, the Defense believes the State has had possession of Mr. Martinez’s statement for at least the last three months.   

Damn YO!  Why the hell would "veteran economic crimes prosecutor" Bill Kostrzewski be keeping these (and other) statements from the defendants?  How can a meaningful defense be put together when the prosecutors are playing "hide and go seek" with the evidence?  Isn't an integral component of "due process" handing over these statements to the defense?  "Due process", a constitutional guarantee that is

"so rooted in the traditions and conscience of our people as to be ranked as fundamental." (Snyder v. Massachusetts, 291 U.S. 97, 105, 54S. ct 330, 78L Ed. 674 (1933)).

What kind of nonsense is this?  How can a proper defense be prepared when the prosecutor isn't complying with his discovery obligaitons?  Earlier this week we witnessed the prosecutor telling a defendant to not answer questions during a deposition and now we see the same prosecutor keeping key evidence from the defense attorneys.  How can this be fair?  As we said before, this is nothing, as far as prosecutorial misconduct goes, this is just the tip of the iceberg.  Stay tuned.