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Prosecutorial misconduct, ineffective defense counsel, inexpert judges plague system

By Thomas K. Carberry,

Published February 9, 2008 at 8:48 p.m.

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The Timothy Masters case illustrates three related, but not exclusive, reasons the United States has the very worst criminal justice system in the civilized world.

First, we have a scourge of prosecutorial misconduct that has permeated our justice system for decades all over the country. Prosecutors commit misconduct because they know they can get away with it, and even if caught the courts probably will do nothing about it.

More than 60 years ago, 2nd U.S. Circuit Court of Appeals Judge Jerome Frank wrote: "This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel's alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, 'Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of "disapproved" remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.'

"Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court - recalling the bitter tear shed by the Walrus as he ate the oysters - breeds a deplorably cynical attitude towards the judiciary."

Nothing has changed.

Second, ineffective assistance of defense counsel happens routinely.

Although we have many excellent criminal defense lawyers, the terrible ones greatly outnumber the good ones. Again, the courts have set the standard for constitutional effective assistance of counsel so low that if a person has a law degree and can fog up a mirror, they have provided effective assistance.

Finally, we have courts filled with judges selected on the basis of who they know, rather on what they know. Our judiciary, both federal and state, and around the country, will do virtually anything to uphold a conviction. Our courts will do almost anything to let evidence in for the prosecution, no matter how spurious, and they will do almost anything to keep exculpatory evidence out. The opinions of the Colorado Supreme Court and Court of Appeals in the Masters case illustrate this point.

Unfortunately, for every Timothy Masters who finally gets justice, we have thousands of other innocent people rotting in prison because of our broken judicial system.

Thomas K. Carberry is a lawyer. He is a Denver resident.

Comments

  • February 10, 2008

    12:08 a.m.

    Suggest removal

    kathyM writes:

    If our legal system is so bad, then go practice in China, whose legal system is so very superior.

  • February 10, 2008

    12:14 a.m.

    Suggest removal

    kathyM writes:

    And if you look at how many more defense attorneys there are compared to prosecuting attorneys, I would guess that for every prosecutorial bungle, there are 10,000 defense counsel screw-ups. Defense attorneys are not immune from influence, money, and peer pressure.

  • February 10, 2008

    6:54 a.m.

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    stevea writes:

    Gee, kathyM, if our legal system is so bad, then go whine your meaningless drivel in China.

    I would guess that for every "So go to China" brain fart from somebody who is incapable of abstract thought, there are 10,000 concerned people who would like to improve things. They're just embarrassed to be seen with the morons from the "Go to China" crowd. I'm harder to embarrass than most, so here I am.

    Thank you for your well-reasoned, thoughtful bleating.

  • February 10, 2008

    7:17 a.m.

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    jgd writes:

    Say what you may about the legal system in China, but how many crimes in China are committed by "repeat offenders"? My guess who be very few, if any!

  • February 10, 2008

    9:27 a.m.

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    BS writes:

    If you are misrepresented, good luck finding a lawyer to help you do anything about it.

  • February 10, 2008

    10:28 a.m.

    Suggest removal

    DougH writes:

    Mr Carberry uses one instance of a miscarriage of justice and a 60 year old quote to condemn the entire U.S. Judicial system. Saying that thousands of innocent persons are rotting in jail is quite a swipe at the ability of defense lawyers. Mr. Carberry would do well to provide some actual facts before leveling such an outrageous charge at the justice system.

  • February 10, 2008

    12:36 p.m.

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    David_R writes:

    As a practicing attorney (practicing being an operative term in our legal system)I can agree with many concerns and perceived weaknesses that Mr. Carberry is lamenting over. However, I cannot condemn the entire system as he does.

    Yes, there are many defense attorneys who shouldn't be entering the courts on behalf of the accused. Also, there are many sitting judges who are there for the wrong reasons (political favors, etc.) who have no business being on the bench. And, as is being exposed more and more frequently, there is prosecutorial misconduct -- whether it be intentional (quite infrequently), or a case where objectivity is obscured and/or a pure desire to win at all costs prevails.

    Even with these frailties we have objectively the best, fairest criminal judicial legal system available in the world. Contrary to the statement by "BS" above, there is a plethora of attorneys willing to take on the case of the convicted; and, it's one of the more rapidly growing specialties, or avocations in law.

    We do need to continually weed out the overzealous and incompetents in the profession. As part of that process we have to develop a more open and objective legal and judicial review process. We presently have the normal operating reflex of protecting the incompetent or politically connected in order to "protect the integrity and public confidence" of our legal system. In other words, we are currently at the whim and prejudices of the fox guarding the hen house. The public confidence is waning faster than can be contained with smoke and mirrors.

    Don't throw out the baby with the bathwater; change the bathwater.

  • February 10, 2008

    5:01 p.m.

    Suggest removal

    kathyM writes:

    Oh my wounded psyche! I just can't take a reflected twisting of my argument and the name calling!

    YOU are the one whining that our legal system sucks. Imperfect as it is, I'LL still take our legal system over any other legal system in the world.

    Since you missed it the first time, I will repeat my point that defense attorneys are NOT immune to influence, money, or peer pressure.

    See you at the next Mensa meeting.

  • February 10, 2008

    8:27 p.m.

    Suggest removal

    aeb1barfo writes:

    David-R: sucking up a little too much, are we?

    Why not try this novel approach:

    ELIMINATE LAWYERS FROM THE BENCH!

    Having any law degree would automatically bar service on the bench.

    Then THE PEOPLE ( not our " learned elite " ) might get represented properly...After all, THE PEOPLE is part of the language used in criminal court....

    And we would be able to REALLY take care of prosecutorial misconduct. A stay in their own jail might just cool off some of the " win at any cost " civil SERVANTS...

    And we might see a little more COMMON SENSE on the bench. That would be refreshing...

  • February 11, 2008

    6:09 a.m.

    Suggest removal

    vudumom writes:

    Do they even prosecute people in Denver?The defense attorneys must love Denver they never have to put on a defense.They just plea bargain every case and overcharge the client or make money for doing nothing.Denver only prosecute's cop killers and girlfriends of dead cop killers.Oh,and they like to get bitch-slapped by the Mexican government telling our government how to dole out justice.

  • February 11, 2008

    11:59 a.m.

    Suggest removal

    rg writes:

    I called attention to our legal system's flaw and Lawyerdom jailed me for six months and assessed me $1300: UPLC vs Grimes 654 P.2d 822. Lawyerdom is a dictatorship that controls the 3rd branch of government with an iron hand: Only lawyers can sit on the bench while any citizen can seek to sit on the other two branches. http://www.geocities.com/r22037/think...

    Lawyerdom has a vested interest in the status quo. While in law school, Justice Kirshbaum (then a judge) told his class: "Tell the judge the topic and he will tell you how it will turn out and evidence has nothing to do with it." It is called Judicial Nullification. Colorado does have a preferable system of judicial which is by appointment as opposed to election. I would like to see a judicial college where lawyers were barred from attending and only non-lawyers could become judges.

    I am a firm believer that DNA is the Finger of God that exonerates and convicts; therefore, if DNA exonerates Masters does it convict Troy Brownlow: http://www.topix.net/forum/county/ada...

  • February 11, 2008

    12:20 p.m.

    Suggest removal

    rg writes:

    Addendum: I heard the hamburger lawyer on the Bench say: I could have found X Counsel in contempt 10 times and if he had been a pro se litigant I'd have found him in contempt the first time. The brutal reality is that the Bar Controls the Bench.

  • March 5, 2008

    1:27 p.m.

    Suggest removal

    RobinHood writes:

    DougH: "Mr Carberry uses one instance of a miscarriage of justice and a 60 year old quote to condemn the entire U.S. Judicial system. Saying that thousands of innocent persons are rotting in jail is quite a swipe at the ability of defense lawyers. Mr. Carberry would do well to provide some actual facts before leveling such an outrageous charge at the justice system."

    Unfortunately, they only gave him enough space for one. I know of hundreds.

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