Tuesday, August 24, 2010

What happens to a criminal case when there is willful misconduct by the prosecutor?

The prosecutor purposely violated office policy and contacted the defendants job stating their office will be doing a press release and in order to not have the company named in that press release they need to terminate the defendant. Additionally, the prosecutor faxed a copy of the complaint to the defendant's employer which is another violation of DA's office policy. Please note that the employer is not a victim nor was the defendant employed by their current employer when the alleged crime took place. The employer had no knowledge of the charges nor has connection to the matter in any way. The DA simply attempted to have the defendant fired from a job. Mind you the defendant is not a threat to the public's safety so there was no reason to call their job.

The DA did this all within 5 business hours of the defendant being released after self-surrenduring. This by definition is willful misconduct. Willful misconduct generally means a knowing violation of a reasonable and uniformly enforced rule or policy. It means intentionally doing that which should not be done or intentionally failing to do that which should be done, knowing that injury to a person will probably result or recklessly disregarding the possibility that injury to a person may result.

That being said, what happens to the criminal case that the prosecutor is charging? Is he removed? Does the Attorney General step in due to willful misconduct by the DA's office? Is the case called a mistrail and started again? Is it dismissed with prejudice and its over?

PS - The Sr. Deputy DA stated they will start an investigation immediately on this matter as it doesn't fall within the policy and guidelines of the DA's office.What happens to a criminal case when there is willful misconduct by the prosecutor?
There are two (2) separate issues: 1) The original criminal case, and 2) the alleged ';misconduct'; of the prosecutor.

Let's be clear. I do not see how # 2 impacts # 1. Unless I am missing something, any wrongdoing by the Asst. DA has no bearing on the guilt or innocence of the defendant in the original criminal action. That said, it doesn't mean his actions (showing bias or prejudice) couldn't be used as leverage or material for cross-examination. Outside of that, it will have very little impact on the trial itself.

To answer all your questions. He could be removed, but unlikely. The Attorney General will likely not become involved in the criminal case. The trial has not started, so there can be no mistrial. The decision to dismiss could happen, but it will likely be the elected prosecutor's decision, unless he/she believes this has created a conflict and appoints a special prosecutor.

Note: In Indiana, where I practice, there is a law requiring the prosecutor to inform the employer if there employee is charged with certain violent or sexual offenses. Hope this helps.What happens to a criminal case when there is willful misconduct by the prosecutor?
If prosecutorial misconduct is proven, the judge declares a mistrial. Though usually the prosecutor can call for retrial, in these cases, double jeopardy attaches.

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