Justification and an argument for COMPLETE and THOROUGH Background Investigations of Everyone Related to a Criminal Prosecution.
Have you ever thought of conducting a complete and thorough background investigation of everyone related to a criminal prosecution? I’m not speaking just of an inquiry into the participants of a criminal case, i.e. the victims, the accused, and witnesses. What about looking into misconduct and background of the prosecutors and his/her team? How about the judge?
Take for example the allegations that a career prosecutor worked secretly alongside of the judge, outside the courtroom1. Ralph Petty worked as an assistant district attorney in Midland County, Texas, for 20 years. Like any prosecutor, he fervidly advocated for the government. But he wasn’t just any advocate, because he wasn’t just a prosecutor. Each night, Petty took off his proverbial DA hat and re-entered the courthouse as a law clerk for the same judges he was trying to convince to side with him by day. Wouldn’t that appear to be reason for action against one or both, or maybe a change of venue?
How would anyone know about this type of issue unless there was a background investigation being conducted? Chances of it being exposes were slim. After all, this went on for almost 20 years before it became public. Not only was the interaction between Petty and the judge improper, but Petty benefited financially, earning (in over 300 cases where the accused were denied their due process rights) an additional $250,000 due to his misconduct.
One of the big issues with this type of situation is the immunity offered to prosecutors because of the absolute protections given to prosecutors for job-related malfeasance. These prosecutorial immunity doctrines that provide government agents with a near-impenetrable shield against facing victims in civil court. The safeguard given to prosecutors is extra thick, affording them absolute immunity for duties carried out in their official scope, meaning they can knowingly impanel false testimony or introduce fabricated evidence and still be protected. According to Alexa Gervasi, an attorney at the Institute for Justice: “In 99 percent of cases when you try to bring in a prosecutor as a defendant, you lose immediately under prosecutorial immunity“.
How could this affect your case? While this might be one of those “I don’t know what I don’t know” situations, I think the outcomes would be self-evident. It would definitely be an uphill battle to have sanctions imposed, or venues changed, or possible recusals, or even a basis for appeal, but the rights of your client are paramount, and you are obligated to provide them the full representation that you are capable of. This isn’t just an argument for complete and thorough background investigations; it’s an argument for representing your client with every tool at your disposal.
If you have a situation that might involve misconduct of the prosecution or judiciary, give me a call. I’ll gladly work up a plan for you and your client.
1 For 20 Years, This Prosecutor Had a Secret Job Working For the Judges Who’d Decide His Cases, https://reason.com/2022/04/12/ralph-petty-prosecutor-secret-job-judges-who-decided-his-cases-prosecutorial-immunity/ by Billy Binion, 4.12.2022