Under American law prosecutors have a unique responsibility to not only enforce the law but to ensure that justice is done. Yet time after time even when confronted with exonerating DNA evidence overzealous  prosecutors fight post conviction relief. 

In a book by two psychologists called Mistakes Were Made (but not by me!): why we justify foolish beliefs, bad decisions and hurtful acts, the authors detail how and why prosecutors insist on guilt even when they find overwhelming evidence of innocence. Deceptive blinders, tunnel vision and self justification create a situation where a prosecutor believing himself to be good couldn’t possibly be the kind of person who sends the wrong man to prison and ignores all evidence that contradicts that assessment. 

Law professors also delved into the problem in an essay called The Multiple Dimensions of Tunnel Vision in Criminal Cases noting that over 170 people convicted of heinous crimes have been proven innocent by DNA evidence since 1990, but that hundreds more have been exonerated over that time period with other evidence establishing that the criminal justice system fails to accurately determine guilt. Even in preliminary stages of criminal cases rather than merely accumulating only the evidence required to convict, prosecutors should also be looking at contradictory evidence of innocence. 

The American Bar Association sets forth the obligations for any prosecutor who learns of “new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted.” The prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

The requirements for prosecutors are clear. Seek justice promptly especially if the initial conviction was in error. The solution to the psychological problem of prosecutor’s tunnel vision and of not wanting to admit mistakes is to punish the overzealous prosecutors. Those prosecutors who fail in their obligations to seek justice promptly should not be fired, but should also be stripped of their law licenses.

Too often prosecutors acting in bad faith betray the criminal justice system by misusing their authority by bullying innocent defendants into changing pleas with threats and additional criminal charges or by ignoring important evidence of innocence for those already falsely convicted. 


Clearwater Criminal Defense Attorneys are often asked, when can it be established that prosecutors have acted in bad faith? You might think threats from the prosecutors would be sufficient.  You could think that making those threats real be the filing of additional charges could be enough, but this America and you’d be wrong. And worse this is Tampa Bay, Florida so you’d be doubly wrong.
Here is an example from a recent federal court case where the court clearly found bad faith on the part of prosecutors where a Defendant is prosecuted more harshly because of non-criminal events that occurred after the original indictment was filed against him.
In this case a Defendant was warned that if he filed a motion to suppress there’d be a ‘seismic shift’ in his prosecution. Meaning that all hell would break loose which it did when the government filed a superseding indictment which contained additional charged counts against the Defendant.
Well that’s what the trial court thought. The appeals court made a vastly different decision noting that the Federal District Court denied due process to the prosecutors in not granting them notice nor an opportunity to explain their actions no matter how corrupt the prosecution

 The Drug Enforcement Administration had conducted an undercover investigation of Shaygan after one of his patients died from a lethal combination of prescription and illegal drugs. After Shaygan’s arrest, the government discovered additional evidence of violations of federal law, and Shaygan moved to suppress statements he had made to federal agents who, Shaygan contended, had violated his right to counsel.In response to that motion, Cronin warned Shaygan’s lead counsel of an impending “seismic shift” in the prosecution of Shaygan. Soon afterward, the government filed a superseding indictment with additional charges and supported those charges at trial with the testimony of several witnesses and documentary evidence.
Near the end of trial, the district court allowed a second cross-examination of two witnesses for the government after it came to light that those witnesses had cooperated in a collateral investigation about potential witness tampering by members of the defense team. The district court instructed the jury that the reopening of cross-examination was necessary to address misconduct by the government. In closing argument, Shaygan’s counsel compared that alleged misconduct to the Salem witch trials.
After the jury acquitted Shaygan of all charges, the district court held an inquiry about sanctions under the Hyde Amendment. The district court found that the prosecutors “acted vexatiously and in bad faith in prosecuting Dr. Shaygan for events occurring after the original indictment was filed.” The district court awarded Shaygan attorney’s fees and costs, publicly reprimanded Cronin and Hoffman, and referred those attorneys to disciplinary authorities. On appeal, the United States, Cronin, and Hoffman contended that the district court abused its discretion and committed fundamental errors. The United States argued that the district court erroneously ruled that the superseding indictment was “brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous,” and that the district court erroneously concluded that an award of attorney’s fees and costs under the Hyde Amendment could be supported by discrete incidents of bad faith, such as discovery violations, without regard to the overall litigating position of the United States. Cronin and Hoffman argue that the district court violated their right to due process, under the Fifth Amendment, when it denied them notice and an opportunity to be heard before it entered public reprimands of them. The Eleventh Circuit agreed with these arguments, and held that the district court abused its discretion when it imposed sanctions against the United States for a prosecution that was objectively reasonable, and that the district court violated the constitutional right to due process of the two lead prosecutors, Cronin and Hoffman, when it denied them notice of any charges of misconduct and an opportunity to be heard.

The process of Federal Sentencing even when a Defendant pleads with a waiver of appeal for collateral attack of the prosecutor is deemed unethical by the Florida Bar, but for threats by prosecutors to be carried for the mere filing of an evidentiary motion to suppress goes much further. Even if somehow legal, isn’t it unethical conduct? 
Leaving your Clearwater Criminal Lawyer with this sad insight about our Federal criminal justice system in Florida: even the threat of a ‘seismic shift’ combined with action on that threat by prosecutors leveling additional charges was not sufficient on it’s face to bring the prosecutors to heal nor to establish Bad Faith prosecution.