DFW Crimes, Katheryn Haywood

Lack of Consequences: Statistics in Prosecutorial Misconduct

What is prosecutorial misconduct and how does it or might if affect my criminal case or the case of a loved one?  Are there consequences if the prosecutor in my case misbehaves?  Is there any remedy?

Prosecutors have huge and often unfettered power. Prosecutors are responsible for the testimony of the law enforcement officers who investigate criminal cases. Most people see cops and prosecutors as “the good guys,” putting criminals in prison, often on death row. Jurors tend to believe prosecutors when they proclaim someone’s guilt. Most people do not believe that prosecutors can and often do exaggerate facts, withhold evidence or model facts to fit their theory of a case.

Yet many studies have shown that when the stakes are the highest, when a trial involves a possible death sentence, prosecutors are prone to misconduct. For example, according the the Arizona Republic News Paper, in half of all capital cases in Arizona since 2002, prosecutorial misconduct was alleged by appellate attorneys. In some cases the misconduct was minor, presenting overly emotional pleas to the jury; In some cases flagrant, encouraging purjury and hiding exculpatory evidence.

And yet, in spite of these alarming numbers, the highest court in Arizona, like other courts throughout the land, were slow to overturn convictions and almost never sanctioned the prosecutors. There are seldom consequences for prosecutors, regardless of whether the miscarriage of justice occurred because of ineptness or misconduct.

And what of the cases that don’t proceed to trial. 97% of cases are resolved without a trial. This means the prosecutors’ decisions on what to offer, what evidence to disclose and how the plea negotiations are conducted is even more important than those cases that do proceed to trial. The Texas Penal Code defines the prosecutors job as to “insure justice is served,” not to win and not to hide the ball. This obligation is embodied in the Supreme Court’s 1963 holding in Brady v. Maryland, which required prosecutors to provide the defense with any exculpatory evidence that could materially affect a verdict or sentence.

Far too often, sadly, prosecutors fail to fulfill this constitutional duty and neither the system nor the courts seem willing to hold them accountable. In a stinging indictment of this systemic failure, Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit stated, “There is an epidemic of Brady Violations abroad in the land……and only judges can put a stop to it.”

In the case before that court the prosecutors failed to disclose that the chief scientist, whose lab tests were critical to the case, was “incompetent and committed gross misconduct.”

Seems clear. However the federal appeals court panel ruled that the overall evidence of the defendant’s guilt was so overwhelming that the failure to disclose the scientist’s firing and incompetence would not have changed the outcome of the trial.

The courts are erroneously and unconstitutionally ignoring obvious Brady violations time and time again arguing that in these cases “it is possible the defendant would have been convicted anyway,” according to Judge Kozinski, thus creating a “serious moral hazard.”

Couple this with the statistics which show that prosecutors are virtually never prosecuted for misconduct. According to the Center for Prosecutor Integrity, multiple studies over the past 50 years show that the courts punished prosecutorial misconduct in less than 2% of cases where it occurred. And the punishment was rarely more than a slap on the wrist, such as making the prosecutor pay for the cost of the disciplinary hearing. When The National Registry of Exonerations states that 43% of wrongful convictions are the result of official misconduct, it is easy to see that something doesn’t add up.

Part of the problem is that the duty to disclose “Brady materials” falls on the party charged with seeking a conviction and whom often believe in the guilt of the defendant. For this reason, the state and federal prosecutors have little incentive, other than moral and legal obligation, to turn over a single, often insignificant in their perspective, piece of evidence. One piece of exculpatory evidence may seem worthless in a mountain of evidence which demonstrates guilt, in the prosecutor’s mind. Couple this with the fact that there are almost NEVER consequences for failing to disclose exculpatory evidence, and the likelihood of a breach of the duty is all the more common.

As Judge Kozinski wrote, fighting prosecutorial misconduct is not only about protecting the innocent, but also about preserving “the public’s trust in our justice system.”

Without consequences to punish those who violate this sacred duty, whether a person is convicted or acquitted rests more on the shoulder’s of the prosecutor’s opinion than on the jury’s verdict.

Katheryn Haywood for DWFCrimes.com


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‘Rape Culture’ Article in US News & World Report

Sex Crimes - 9069522



If you haven’t read Caroline Kitchen’s article about the rape culture that isn’t, you should.  In an effort to protect our college students and military service women from rape, we have lowered the standards used to prosecute, punish and penalize young men who are often falsely accused.    Should a young man be removed from school, denied Due Process or court marshaled in a military tribunal on evidence less than Beyond a Reasonable Doubt?   Shouldn’t the standards used to  protect each of us from criminal prosecution be the same as those which can be used to remove us from organizations or institution to which we otherwise belong?

This “preponderance of the evidence” standard is being used to demoralize and crucify our young men without a day in court, without the burden of proof necessary for a conviction.  We are accepting accusations as facts, as gospel.

If you haven’t read this article and you have a son, you need to educate yourself and beware.

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I have not been arrested, but I have been accused of a crime. What should I do?

Use caution. Unless you are certain that the accusation is only a minor one and will not result in criminal charges, it is best to consult with an attorney. This is especially true if a law enforcement official is asking you to give a statement or cooperate in an investigation. You should consult with an attorney before making any statements. What you say, no matter how well-intentioned, can be misconstrued and may be used against you in a subsequent prosecution. Even if you are promised leniency in exchange for your cooperation, you can never retract what you have already said. Therefore, it is best to consult with an attorney prior to making any statements in order to ensure that your rights are protected.

In addition law enforcement officials are allowed to LIE TO YOU. A police investigator can lie to you to attempt to gain your cooperation or confession. It is incumbent on you to consult with a professional criminal defense attorney before speaking with any government official!

Is it better to accept a plea bargin or go to trial?

Most cases in which criminal charges are filed can be resolved through skillful negotiation and without the necessity of trial. Negotiations can result in a wide variety of outcomes, ranging from a dismissal of charges to a plea bargain agreement involving incarceration. Of course, the choice of whether to accept a plea bargain must be made by the accused and should be made only after investigating the facts of the case and studying the available alternatives as well as the terms of the plea bargain offer. Though most cases are resolved without trial, sometimes trial presents a more attractive option. Therefore, it is important to keep the trial option open and to be represented by an attorney who is both willing and able to represent you at trial.

For example, in 99.9% of DWI trials, the punishment after a trial is the same as the plea bargain offer prior to trial. In other words, there is no real “risk” to proceeding to trial. While a trial will cost more than a plea bargain, the possibility of an acquittal may be worth the money to you.

What rights do I have and how do I assert them?

When your freedom is in jeopardy, remember that you have rights!!!!!!!!
If you are accused of a crime, your freedom is at stake. Whether or not you are ultimately convicted, you will be subjected to loss of freedom from the moment you are arrested.

You have the right…
You have the right to have a lawyer with you when you are being questioned. Do not waive that right by speaking to the police or anyone other than an attorney.
If you cannot afford an attorney, you have the right to have a lawyer appointed to represent you.
You have the right to remain silent. The police will tell you this. It is good advice, even though the police would prefer that you waive this fundamental right. The police may tell you that waiving this right will look better to the court. NEVER make this decision without first seeking the advice of an attorney.
You have the right to be informed that anything you say may be used against you in court.
You have the right to be informed of the specific charges against you.
You have the right to telephone a lawyer, a friend or a family member to notify them of your arrest.
You have the right to have reasonable bail set in your case pending trial.
You have the right to a public trial so that the state cannot convict you in secrecy.
You have the right to a trial by a jury of your peers. The prosecutor also has the right to request a jury trial even if you do not want one. The jury will listen to all the evidence presented at trial and then decide whether or not the state has met its burden of proving the charges brought against you beyond a reasonable doubt. If a jury finds you guilty, you have the right to choose whether your punishment is decided by a judge or by a jury.
You have a constitutional right to a speedy trial.
You have a constitutional right to confront witnesses. This means that your attorney questions them under oath, so that the jury can consider and determine their credibility.
You have the right to have witnesses testify on your behalf.
You have the right to have every element of the alleged criminal offense against you proven beyond a reasonable doubt. This is the burden of proof that the prosecutor — the attorney who represents the state of Texas — has to fulfill to get you convicted.

Someone has been arrested, what should we do?

There are normally two things to consider in the crucial moments which follow an arrest. The first is securing the person’s release from jail as soon as possible. There are a variety of ways this may be accomplished. Which particular procedure is best depends on the facts of each case. But in most cases hiring a respected bondsman is paramount. If an attorney posts the bond, you are required by law to remain with that attorney. IN other words, you cannot hire a new attorney in the future without forfeiting the bond you have already paid.

The second concern is to preserve and develop the arrested person’s ability to defend against the accusations. It is best for the accused to refrain from making statements to anyone concerning the case until he or she has been fully able to consult with an attorney.

In almost EVERY SITUATION, it is best to remain silent. This is YOUR RIGHT. Exercise it!

Five Rules of Survival in the Criminal Justice Jungle

Rule No. 1: Never under any circumstance consent to a search. NEVER. Do not consent to a search of your car. Don not consent to a search of your home. Do not consent ot a search of your friend’s apartment. Do not consent to a search of your person. Do not consent even if the police tell you they have a warrant. Do not consent. EVER.

Rule No. 2: Never physically resist a police officer. Physical resistance is always illegal (unless the police are using excessive force against you, then you may offer “reasonable force” in self defense.) Remember: You SAY “I do not consent” – you DO nothing to resist.

Rule No. 3: When you are a suspect in a criminal case, NEVER give any statements to the police, and never sign anything. Do not give written statements to the police. Do not give verbal statements to the police. Do not talk to them at all, except to say “My lawyer has told me not to answer any questions.” When they ask you a question, you ask to see your attorney. The sole exception: You must provide the police with your legal name, date of birth, and address for identification purposes. It is illegal for you to fail to do so upon request.

Rule No. 4: If you have been drinking alcoholic beverages, avoid the police if at all possible. If a police officer smells alcohol on your breath, you are very likely to be arrested for DWI (if you are driving) or public intoxication (if you are not driving). If you must have contact with a police officer when you have been drinking, try to keep the contact as short as possible and try not to let the officer smell your breath. Never under any circumstances argue with a police officer if you have been drinking. That’s a guaranteed trip to jail.

Rule No. 5: Do not be an ass to police officers. Be polite. Police have far too much power in the streets for you and I to smart off to them. The streets are their “home field”. If you need to say something derogatory about the police, wait until we get them into the courthouse – that’s our “home court”.

Can a defendant be acquitted if he or she was on drugs when the crime was committed?

Defendants who commit crimes under the influence of drugs sometimes argue that their mental functioning was so impaired that they should not be held accountable for their conduct. Generally, however, voluntary impairment does not excuse criminal conduct, since people know or should know that drugs affect mental functioning, and they should therefore be held legally responsible if they commit crimes as a result of their voluntary use. An exception to this rule may exist in cases involving a crime that requires “specific intent,” in which the offender must have intended the precise result that occurred but arguably could not have formed that intent in his or her drugged state.

Do I need a lawyer to represent me even I am innocent?

Every criminal defendant needs an attorney. Innocent defendants are perhaps in even greater need of zealous representation throughout the criminal process to ensure that their rights are protected and that the truth prevails. Even innocent people end up in jail, so the best way to prevent that miscarriage of justice is to employ the services of a seasoned veteran of criminal defense law, particularly one with experience defending against drug charges.

If I simply intend to plead guilty, why do I need a lawyer?

Even if you are guilty of the drug crime with which you are charged, it is imperative that you seek the advice of experienced counsel so that you can minimize your sentence and maximize your opportunities to move ahead toward a brighter future. Criminal defense attorneys are needed to equalize the balance of power between the defendant and the prosecution and to ensure that the constitutional rights that are guaranteed to all criminal defendants, whether guilty or not, are preserved.

Federal and juvenile referrals to trusted peers available on request. I can introduce you to an attorney who handles federal or juvenile dope cases and even stay on as a consultant if you prefer

What defenses can be raised in drug cases?

The most common defense raised in drug cases is to challenge the search and seizure that resulted in the police finding the drugs. If the police violated the defendant’s Fourth Amendment search and seizure rights, the court will suppress, or throw out, the drugs as evidence. The prosecution will then have far less evidence to prove the case beyond a reasonable doubt and the case could even be dismissed.

In marijuana cases, I may attempt to “nullify” the jury which means to ask the jury to disregard the law and to acquit you. If the jury develops sympathy for you and antipathy for the law, we may be able to get the jury to disregard the law and decide the case based on fairness and equity.


10.0Katheryn H. Haywood
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