Search Site
Menu
IBC Centre, 130 East Travis Street, Suite #425 | San Antonio, TX 78205
CALL FOR CONSULTATION 210-598-8629
Justice For All

Seeking Justice, Not Just Convictions

First, let me just say that I know a lot about prosecutors.  I used to be one.  And as a criminal defense attorney, I still interact on a daily basis with federal, state and municipal prosecutors.  Most do their job professionally and diligently. Therefore in my experience, the vast majority of prosecutors are honest and ethical; they operate above the line, not below it.  This is extremely important because a lawyer is only as good as his or her word, and this is particularly true in criminal litigation because an accused citizen’s liberty is at stake.  If the defense lawyer cannot trust the prosecutor, where does that leave the Defendant?  If the prosecutor is seeking only a conviction, not justice, then very bad things can happen – like life sentences and death penalties for people later proven to be innocent!

Historically, not much has happened in the way of discipline when a prosecutor strayed from his or her ethical duties. Once in a while the Bar Association of a particular State might become involved through the grievance procedure, and in extreme cases issue some type of reprimand or sanction.  But by and large, prosecutors can claim immunity for all their official acts, and not worry much about legal or disciplinary proceedings.  This is of course a good thing to the extent prosecutors are able to zealously and vigorously prosecute criminals.  However, it becomes a bad thing when the prosecutor is merely seeking a conviction, and is willing to manipulate the evidence to achieve the win.

Civil liability

Recently, a number of developments have arisen that examine the extent of prosecutorial immunity, and when it does or does not apply.  These cases include the recent Pottawattamie[1] decision from Iowa.  In this case, prosecutors were held civilly liable for money damages, notwithstanding their claims of immunity.  This “piercing of immunity” case is one of the first examples of its kind, and deals with extreme prosecutorial misconduct: fabricated evidence, coerced confessions, and the presentation of perjured testimony.  Innocent people went to prison because the Pottawattamie prosecutors appeared willing to do literally anything to convict the citizens they believed guilty.

I don’t believe the threat of civil liability and money judgments will have a chilling effect on any legitimate prosecution; but it will hopefully discourage cheating to secure a conviction.  The outright deception on the Court and the defense that occurred in Pottawattamie illustrates the extreme misconduct that must exist for a prosecutor to lose prosecutorial immunity.  Fortunately, these types of situations are extremely rare and hopefully will become even more so with the holdings of cases like Pottawattamie.

Brady Violations

A more common scenario concerns prosecutorial misconduct in discovery practice, particularly those decisions that revolve around what is evidence material to guilt/innocence. Disclosure of Brady[2] materials requires that all exculpatory material be turned over to the defense.  If the prosecutor has sole discretion to decide what is exculpatory, it is akin to the proverbial fox guarding the chicken coop. What about the required disclosure of all favorable material as proposed by the model rules of the American Bar Association?[3] It is broader than Brady because it requires the disclosure of all evidence or information favorable to the defense, without regard to the anticipated impact of the evidence or information on a trial’s outcome.  Following this standard would take a lot of the guesswork out of deciding what should be turned over to the defense, and also be a whole lot more fair.

Conclusion

None of the developments discussed here should have a “chilling effect” on ethical prosecutors.  Rather the real benefit of the courts and Bar Associations more closely enforcing ethical prosecution would be to “freeze” activity by the few prosecutors who operate outside the rules.  No one should have an objection to the process being fair.  After all, who really wants an innocent person to go to jail while the guilty perpetrator goes free?

Kevin Collins is a San Antonio Criminal Defense Lawyer, former Prosecutor, and is Board Certified in Criminal Law and Juvenile Law by the Texas Board of Legal Specialization and also a member of the Criminal Law Section of the San Antonio Bar Association. For more information please visit www.sanantoniocriminallawyertx.com or call 210-598-8629.

 


[1] McGhee v. Pottawattamie, 547 F.3d 922 (8th Cir. 2008).

[2] Brady v. Maryland, 373 U.S. 83 (1963).

[3] Rule 3.8 (d) Special Responsibility of a Prosecutor, ABA Rules of Model Conduct, states that the

prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information

favorable to the defense without regard to the anticipated impact of the evidence or information on the

outcome of a trial.

Leave a Reply

Your email address will not be published. Required fields are marked *

COVID-19 Notice
We are here to help and support you through these generally challenging times with your specific legal issues. You will be able to reach me or my staff through our main telephone numbers, and of course by email: [email protected] Phone conferences for existing and potential clients are available, as is the video conference feature through the Zoom app. Zoom may present some privacy challenges so phone conferences are preferred. Please take care of your health by following the measures recommended by the CDC, and by state and local authorities.
Firm Recognition
  • Three Best Rated
Client Reviews
  • google
    5.0/5.0

    Kevin is the best criminal defense attorney in San Antonio hands down. He fought for me and handled my federal case with the highest degree of professionalism. I am very fortunate to have had Kevin represent me because he achieved a result beyond eve...

    Read more

    Artom Bogdanovich

  • google
    5.0/5.0

    I don't think there is ever a way to thank Mr. Collins for everything he has done for my family. My husband hired him on a very difficult case. For any concern or question he and his staff were there to help, and always let us know he was on our side...

    Read more

    Samantha Renee

  • google
    5.0/5.0

    I don't think there is ever a way to thank Mr. Collins for everything he has done for my family. My husband hired him on a very difficult case. For any concern or question he and his staff were there to help, and always let us know he was on our side...

    Read more

    Samantha Montoya

  • lawyers
    5.0/5.0

    Kevin Collins is an absolute professional. He worked diligently and got me the best outcome possible in what was a very grim situation. He was always there when I needed him, just a phone call away. He was always straightforward and always kept me in...

    Read more

    Client

  • google
    5.0/5.0

    Mr. Collins was recommended by my brother, we both had the same kind of case going on... Mr. Collins was so helpfully he walk me through all this process and give me the best advice for my case I'm truly thankful with him for the time and effort he p...

    Read more

    Angel Perez

See all reviews
Case Results
State of Texas v. J.T. Furnishing Alcohol to a minor dismissed after start of trial despite death caused by accident
View All
Videos
Contact us

Quick Contact Form