Wednesday, October 20, 2010

So you've been charged with a crime and want to defend yourself PART IV!!!

You've been charged and you need to defend yourself, you need all the tools possible with which to do so.  Somehow the cops and prosecutor that got you into this jam aren't being exactly cooperative, they won't hand over the detectives reports pertaining to your case, they take a year to give you statements you need to help prepare your defense and then when they finally do give you something it's damn near worthless.  So here you are a year into this nightmare, unable to prepare a proper defense, unable to get enough background to even prepare a halfway decent deposition, add to the mix the cop who built the case against you is ducking depositions and the prosecutor who's in charge of this mess mysteriously comes down with a case of swine flu the day before a crucial deposition, what are you supposed to do?  I can only imagine the level of frustration someone caught in this mess must be feeling, your legal bills must be mounting, you've been holding your breath for over a year trying to figure out a way to prove your innocence all the while those plea offers the prosecutor keeps pitching your attorneys start sounding sweeter and sweeter.  All of this can go away if you plead out to one of the many charges they've filed against you, they'll give you an adjudication withheld and a few years probation with a menial restitution to be paid in installments.  Once you've lived up to your end of the bargain, the charges go away and you can move on with your life.  Sounds tempting huh?  Sit back and be at the mercy of the state trying to defend yourself or plead out and get it all over with, even if you're innocent.  Sadly enough, this is the path of least resistance and the decision that most people trapped in the criminal justice system take.  I'm not telling you anything new, this is the sad truth about how things work.

But what if you wanted to defend yourself?  What if you're up against a less than honest prosecutor or a dishonest cop?  What if they have exculpatory evidence in their possession that they have withheld from you and your attorney?  We've discussed the landmark Brady V. Maryland case several times and the obligations of a prosecutor to turn over such exculpatory evidence, you'd think no prosecutor in their right mind would want to run afoul of these obligations right?  Yet when I bring up the subject of prosecutors withholding exculpatory evidence, I always get the "it happens all the time" bullshit.  Fantastic, "it happens all the time", it's the status quo therefore the poor schmuck who's trying to defend himself is fucked.  Even if you have unlimited resources to fund your defense, if you have a prosecutor that's hell bent on hiding evidence then you're up the proverbial creek without a paddle.

So now what?  The prosecutor is holding all the cards and you're fucked.  The prosecutor is busy interviewing people who've given favorable testimony that discredit the states victim and exonerates you and your codefendants but he decides to hide that evidence from the defense and threatens to arrest the witnesses if they discuss anything that they told the state with any of the defendants.  What kind of shit is that?  Even worse, imagine that there's key physical evidence that the prosecutor is sitting on that would further discredit their star witness and completely exonerate you, but again, the prosecutor decides to bury it.  By now those plea offers are sounding awful sweet aren't they?  If the prosecutor would have done the right thing, your nightmare could have been over, but instead he's chosen to win a conviction by any means necessary.

Hypothetical situation?  Could something like this have happened during the course of the Bernardo Barrera mortgage fraud case?  Could there have been some sort of witness testimony that was withheld from the defendants that implicated Mr. Barrera in the fraud therefore making the entire basis of the prosecutions case worthless?  What if there wasn't one witness who implicated Mr. Barrera, what if there was actually two who've given sworn statements directly implicating Mr. Barrera in the mortgage fraud?  I shudder to think what could happen if such testimony did exist and worse what could happen to the people who hid this evidence from the court.  

I wonder if a certain prosecutor reading today's blog post is beginning to get a bit nervous, how does that saying that you're so fond of using go Mr. Kostrzewski?
"You don't know what I know."
Damn straight.  Things are about to start getting good folks, we're about to see just what kind of prosecutor we've been dealing with over the last couple of years... 

1 comment:

  1. You think the State system puts a defendant in this position at a disadvantage? Take a look at the federal system with NO DEPOSITIONS at all! Forget ducking officials, you don't get them or the witnesses at all until trial! If you risk your freedom prepare to be ambushed. Just ask the plantation cops in the case you mentioned a few months ago.