Prosecutorial Misconduct

Prosecutorial Misconduct

41. The prosecutor plays a critical role in the criminal justice system.@ ABA Report on Florida at 107. And, even more so in a capital case, where the prosecutor had Aenormous discretion@ in determining whether to seek the death penalty. Id.

Yet, the Florida Supreme Court regularly orders new trials in capital cases because of prosecutorial misconduct. Floyd v. State, 902 So. 2d 775 (Fla. 2005); Mordenti v. State,894 So. 2d 161 (Fla. 2004); Cardona v. State, 826 So.2d 968 (Fla. 2002); Hoffman v. State, 800 So.2d 174 (Fla. 2001); Rogers v. State, 782 So.2d 373 (Fla. 2001); State v. Huggins, 788 So.2d 238 (Fla. 2001); State v. Gunsby, 670 so. 2d 920 (Fla. 1996); Gorham v. State, 597 So.2d 782 (Fla. 1992); Roman v. State, 528 So.2d 1169 (Fla. 1988); Arango v. State, 497 So. 2d 1161 (Fla. 1986).

On occasion, the Florida Supreme Court has found the prosecutorial misconduct was only sufficiently prejudicial at the penalty phase to warrant the grant of penalty phase relief. Young v. State, 739 So. 2d 553 (Fla. 1999); Garcia v. State, 622 So. 2d 1325 (Fla. 1993). And on a number of occasions, the Florida Supreme Court has determined that the prosecutor acted improperly, but prejudice was insufficiently established to warrant relief from either the conviction or the death sentence. Guzman v. State, 2006 Fla. LEXIS 1398 (Fla. June 29, 2006); Smith v. State, 931 So. 2d 790 (Fla. 2006); Ventura v. State, 794 So. 2d 553 (Fla. 2001); Duest v. Dugger, 555 So. 2d 849 (Fla. 1990).

42. Despite the numerous instances of prosecutorial misconduct in Florida capital cases, no investigation has been launched nor program instituted to stamp out such misconduct. Despite the frequency of prosecutorial misconduct, whether warranting or new trial, coupled with the fact that Florida leads the nation in the number death row exonerations, no alarms have gone off, no bells have rung, nothing has been done to investigate the causes for the pattern of prosecutorial misconduct and frequency of exonerations.

The State of Florida by its conduct has demonstrated that the situation is acceptable, and that the risks that an innocence man or woman will be convicted, or that guilty man or woman will receive an undeserved death sentence are okay.

43. However, the ABA=s assessment team stated that to stop prosecutorial abuses, Athere must be meaningful sanctions, both criminal and civil, against prosecutors who engage in misconduct.@ ABA Report on Florida at 108.

In fact, the United States Supreme Court has recognized that a prosecutor is:
the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935). Thus, there should be a higher ethical obligation because the prosecutor carries with him power derived from his position which must be held in check, just as each branch of government is subject to checks and balances. Florida=s willingness to tolerate prosecutorial misconduct violates the promise of Furman.

44. The ABA Report further recommends that each prosecutor=s office have written polices governing the exercise of prosecutorial discretion. Id at 125. This is necessary given Florida=s history to try to eradicate arbitrary factors from not just the trial, but in the exercise of prosecutorial discretion to seek death in the first instances. Without such policies or guidelines, Florida=s death penalty scheme Asmacks of little more than a lottery system.@ Furman, 408 U.S. at 293 (Brennan, J., concurring).

45. Time and time again, prosecutors violate the rules B the rules of discovery, the rules of evidence, the rules of due process.

The Florida Supreme Court often identifies capital cases where the prosecutor went to far, or was guilty of a discovery violation, yet, the Court refuses to grant relief because the defense failed to object and/or the error was Aharmless@ or insufficiently prejudicial.

The failure to do anything about the numerous instances of prosecutors not following the rules, or in essence excusing the misconduct because of an apparent Ano harm no foul@ rule, actually encourages prosecutors to convert the Berger limiting principle into a perversion of itself, to make it into a self-righteous justification that because winning is justice, winning is everything, and therefore, the ends justify the means.

The acceptance of prosecutorial misconduct as merely a kind of error, like a deficient jury instruction, certainly offers a ready explanation for Florida=s leadership of death row exonerations.

It also constitutes a violation of Furman that turns the capital process, not into a search for truth or for justice or for the objectively right result, but into a game of relativity, where all that matters is winning, and the rules of law become akin to the rules found inside a board game - merely a means to winning a conviction and a sentence of death.