The Chief Judge adopted the “groundbreaking recommendation” of the NY State Justice Task Force Report that from Jan. 1, all New York State trial judges must issue an order in every criminal case directing prosecutors to disclose evidence helpful to the defense. Judges must also order defense counsel to provide competent representation, which means having “a reasonable knowledge” of criminal and evidentiary law.
We snagged a member of the Force who agreed to speak to us anonymously.
Squawk: Seems like there’ve been several Task Forces about the criminal justice system over the past few years. How do they work?
A. The procedure is that we periodically meet for lunch at a big law firm and tell each other how wonderful we are. Then we issue a groundbreaking recommendation that makes the front page of the NY Law Journal and is never heard of again.
Q. But surely your recommendations about prosecutor misconduct will have some effect?
A. Darn tootin’. The first thing we decided was that “prosecutor misconduct” is an offensive, discriminatory term that should no longer be used. Unless you can prove beyond a reasonable doubt that the prosecutor acted from evil-minded conscious malicious premeditated wickedness.
Q. What should normal prosecutor misconduct be called?
A. The correct term is prosecutorial oopsy-daisy.
Q. How do prosecutors decide what evidence is favorable to the defense?
A. Same way you decide how many unicorns are in your garden. Favorable evidence is an imaginary creature dreamed up by defendants. If it existed, there wouldn’t be a prosecution.
Q. What about other kinds of prosecutorial oopsy-daisy? Let’s say the prosecutor materially misrepresents the evidence on summation?
A. That certainly calls for a good scolding. Why, only last week a case came out where the prosecutor told the jury, “the signs of defendant’s unbridled obsession were still on him in the form of a white t-shirt covered in the victim’s blood,” when there was actually nothing but three tiny droplets. The Appellate Division said it was a gross exaggeration and improper.
Q. And reversed the conviction?
A. Of course not. That prosecutor has suffered enough.
Q. What about your recommendation that defense lawyers have a “reasonable knowledge” of the law? Isn’t that setting the bar awfully low? What if an airline pilot announced, “Ladies and Gentlemen, I have a reasonable knowledge of how to fly a plane?”
A. Are you suggesting that the already-overburdened court system should allow a new trial just because the defense lawyer didn’t know what s/he was doing?
Q. Well, sort of. How do you expect change if courts never reverse convictions for prosecutor misconduct or defense counsel incompetence?
A. Who said anything about expecting change?
The elephant in the room
Appellate Squawk 