Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

WHY LAW ENFORCEMENT MISCONDUCT PUTS YOU IN DANGER IN FEDERAL AND STATE COURTS

As any regular reader of this blog knows, the idea that law enforcement, including prosecutors, and the truth, go their separate ways at times is sad, but true.

One of the more often cited examples is contained in a dissent opinion of Chief Judge Alex Kolinsky of the United States Appeals Court for the 9th Circuit. It was in the federal matter of United States v. Olsen.

The issue was the turning over of Brady material to the defense. Brady material is material which the prosecution discoveres which is actually evidence which exculpates a criminal defendant. The law is clear that such material must be turned over to the defense post haste. This is because the prosecutor’s job is not simply to get a conviction…it is to do justice.

In Olsen, the issue had to do with a violation of the Brady rule, thus prejudicing the defense who went to trial without knowing about this exculpatory evidence.

Naturally, mistakes can happen. The problem is when these “mistakes” happen time and time again. In Olsen, Judge Kozinski began with, “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

Kozinski indicated that “Protecting the constitutional rights of the accused was just not very high on this prosecutor’s list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one’s daily errands signifies a systemic problem: Some prosecutors don’t care about Brady because courts don’t make them care.”

We in Massachusetts have seen many instances of the years of federal court judges revealing Brady violations and other misleading conduct made by the Department of Justice.

Meanwhile, the rules relating to discovery in the federal criminal justice system enable the prosecution to keep vital discovery from the defense up until briefly before trial. Despite arguments by the defense bar that this makes it impossible to fully prepare to rebut a case that the government has long-since put together and tried to perfect in unfair.

Despite various violations of Brady and the like, these arguments have not persevered.

Attorney Sam’s Take On Why This Matters To You

No, not every prosecutor is a liar. The same with police officers. When they lie, is it because they woke up one day with an insatiable urge to get you?

Of course not. Maybe they really “remember” it that way. Perhaps, as advocates, they have talked themselves into it.

It could be that they are simply basing their argument on untruths told to them.

Maybe they are covering their behinds…something that seems to be the golden rule in today’s criminal justice system.

It does not really matter to you, though, as to the why, does it? The fact is, either you or a loved one may be looking down the barrel of a multi-year sentence and are confronted with the seemingly impossible…proving a negative.

And, since law enforcement did not include you in their strategy and investigation, you do not really know what they are going to do next. Fortunately, you have retained the services of an experienced criminal defense attorney, but will that be enough?

“But, Sam, I told you that I never commit crimes”.

Yes, I remember. But if someone is willing to either testify to a lie or a mistake, how safe does that leave you?

“You mean someone would take the stand and lie?”

Happens all the time. Not only that, but even if you feel the case against you would have to be very weak (given its untruth), do you really want to be floating around the criminal justice system long enough to prove your point?

“What do you mean ‘long enough’

Unlike the one hour legal dramas or documentaries you see on TV, REAL criminal matters often are pending for about a year or more. There is a lot to do…including trying to discovery the government’s case against you.

In the meantime, as discussed many times, you are in jeopardy of losing your job, your home, your family, etc.

This is why these stories matter to you. This is why, under the most selfish of reasons, the integrity of your criminal justice system matters to you.

You feel you would never commit a crime? Ok, then, wouldn’t it be nice if your innocence actually mattered?

In terms of Brady material, if there was evidence which tended to show that you were actually innocent…wouldn’t it be dandy if you and your lawyer actually knew about it and could use it to gain your freedom?

Just Sayin’…!

For the full story upon which this blog is based, please go to: http://www.huffingtonpost.com/2013/12/11/blistering-9th-circuit-di_n_4426802.html

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