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All available data suggests that state bars rarely discipline prosecutors for ethical violations. A Michigan District Attorney’s office has decided to argue that the bar’s lack of action should weigh more heavily than a judicial finding of misconduct when it comes to a defendant’s right to a fair trial.

It is not uncommon to see state bars decline to pursue charges against prosecutors by citing appellate decisions that uphold convictions where the alleged unethical conduct occurred, such as in David Brown v. State of Louisiana, which we covered earlier this year. In Brown, the bar’s rationale for not handing down discipline where the prosecutor withheld exculpatory evidence turned on the state supreme court’s implausible finding that evidence was neither favorable nor material under Brady. Troubling as that response may have been, it does not compare to the absurd reasoning of one Michigan prosecutor’s office as to why it should not have to retry a homicide defendant. In this case, an appellate court found that a prosecutor intimidated a witness into not testifying at trial, which benefited the State because it was able to use that witness’s more damaging prior testimony against the defendant. In response to this finding, the Saginaw County DA’s office is arguing that the lack of any charges brought against the prosecutor who tried the case—either by the state bar or as a criminal matter by other prosecutors—is evidence that his misconduct did not in fact warrant a new trial.

The case involves the 2015 homicide convictions of Devaun Lopez and Jarriel Reed in Saginaw County. The two men were charged with shooting and killing Terry Johnson on Saginaw’s West Side in 2013. Mr. Lopez and Mr. Reed were tried jointly but represented separately. Each maintained innocence.

The State’s key witness, Dennis Hoskins, was friends with Mr. Lopez and Mr. Reed. According to law enforcement, all three men were present during a crime that took place a week before Terry Johnson was killed. The State alleged that in that incident, Mr. Hoskins fired a gun at three men from the passenger seat of a vehicle in which Mr. Lopez and Mr. Reed also sat. At a preliminary hearing in the case against Mr. Hoskins, Mr. Lopez testified that he was not present during that shooting. He later pled guilty to perjury charges in connection with this testimony and received a five-to-ten year sentence.

At the preliminary hearing in the joint murder trial, Mr. Hoskins testified that both Mr. Lopez and Mr. Reed admitted that they were involved in the shooting that resulted in Mr. Johnson’s death. Defense attorneys at the preliminary hearing pointed out that Mr. Hoskins had waited until he had been locked up on the separate shooting charge to provide police with this evidence incriminating his friends. They also elicited testimony from Mr. Hoskins confirming that he provided the evidence with the hopes of being released from jail.

A recent mlive.com article by Andy Hoag explains what happened next:

One week before the trial, [prosecutor] Trice filed a motion asking [Judge] Jackson to declare Hoskins unavailable. That was based on a voicemail that Trice received from Hoskins’ attorney Robert Dunn, who said Hoskins no longer was willing to testify.

At a hearing one day before the trial, Hoskins said, “I wish to testify at trial.” The next day, before jury selection, Trice told Jackson that “it was brought to my attention” that as Hoskins was leaving the courtroom the previous day, “he made comments to (Lopez and Reed) to the effect that, ‘I’ve got you covered, bro.’” Trice told Jackson he interpreted that statement to mean Hoskins “may intend to perjure himself during this trial or give testimony that’s inconsistent with his [previous] testimony.”

At that point, Trice and Reed’s attorney, Edwin Johnson III, discussed what Johnson described as Trice threatening Hoskins the day before. Trice said that after Johnson first brought up the possibility of Hoskins facing perjury charges, he said he told Hoskins he could “possibly” face a perjury charge if his testimony was inconsistent.

Lopez’s attorney, James Gust, described Trice’s comments as “more of a threatening, kind of an aggressive statement.”

Despite the defense’s arguments, the trial court agreed with the prosecution that the witness was now “unavailable.” That finding enabled the State to introduce the testimony Mr. Hoskins gave at the preliminary hearing at the trial over the defense’s objections. The jury, relying on this highly inculpatory testimony, found both Mr. Lopez and Mr. Reed guilty. As a result, the trial court sentenced both men to life-without-parole sentences.

On appeal, Mr. Lopez argued the State should not have been able to use Mr. Hoskins’ preliminary exam testimony because the prosecutor “procured” the witness’s unavailability by threatening him. The idea that the prosecutor, Assistant District Attorney Trice, threatened Mr. Hoskins was underscored by the fact that ADA Trice falsely informed the witness that he could be looking at a “life” sentence for perjury. As the Michigan Court of Appeals explained in its opinion granting Mr. Lopez a new trial:

We begin by addressing the prosecution’s argument that Hoskins was merely “advised” of the possibility of prosecution for perjury and not “threatened” with such a charge. The record refutes this characterization. Despite that Hoskins was represented by counsel, the prosecutor not only invoked the specter of prosecution for perjury; he informed Hoskins that he risked incarceration “for life” if convicted. The prosecutor’s statements exceeded mere advisement, and crossed into the realm of threat and intimidation.”

Turning to the well-established rules of evidence and explaining how they protect defendants’ due process rights, the Court held that “[b]ecause the prosecutor’s threat procured Hoskins’ unavailability, the trial court erred by admitting Hoskins’ recorded testimony. We vacate and remand for a new trial.”

Now, the State is challenging the appellate court’s August ruling in the Lopez case at the Michigan Supreme Court. One must credit the prosecution for its ongoing creativity in this case. Apparently, its approach is to argue that the Court of Appeals was wrong to reverse Mr. Lopez’s conviction because the trial prosecutor’s actions never resulted in professional discipline or criminal charges. According to Andy Hoag at mlive.com, “[The State] argues it is ‘inexplicable’ that Trice’s statements constitute ‘conduct so flagrant it justifies the vacation of a valid conviction rendered by a jury, but (do) not arise to the level of conduct that would trigger ethical or criminal complaints.’”

It may seem opportunistic for the State to seek reinstatement of the conviction because other attorneys did not lodge complaints against Mr. Trice—who, oh by the way, is now a sitting judge. After all, professional discipline rarely follows even official judicial findings of prosecutorial misconduct. If the failure of the bar association to hand down discipline became a legitimate reason to revisit appellate courts’ rulings in underlying criminal cases, defendants will be deprived of relief that is already very hard to come by. Conflating back-end professional discipline with the merits of the claim for relief in a case like this would truly confuse institutional roles, purposes, and rules. But, the State of Michigan seems to feel there is little downside to suggesting that the availability of a remedy for prosecutorial wrongdoing should turn on the (in)action of disciplinary bodies that studiously avoid reviewing the work of the criminal justice system’s most powerful actors. The State’s outside-the-record argument seems laughable for a number of reasons, not the least of which is that researchers have exposed disciplinary bodies as doing little more than propagating a “myth” of accountability.

Lest the State differentiate between unicorns and mermaids, it also argues that the fact that no prosecutor has criminally charged Judge Trice for his conduct in the Lopez prosecution provides additional evidence that he did not intimidate Mr. Hoskins. Not only does this remarkable argument assume that other prosecutors—rather than judges—should decide what constitutes prosecutorial misconduct, it also turns the inquiry on an outcome that literally almost never happens. It should surprise nobody that prosecutors are reluctant to criminally charge other prosecutors (especially ones that work in the same jurisdiction or are now sitting on the bench as judges). Although a federal statute technically permits the prosecution of prosecutors who intentionally deprive defendants of their constitutional rights, “[i]n fact, in the 150 years since its adoption . . . only one prosecutor has been convicted under this statute.” In discussing prosecutorial accountability for wrongdoing, one scholar recently concluded that “prosecution” of prosecutors is so unlikely and far-fetched that it “barely warrants a mention.”

For those who fear that the culture of prosecutorial impunity will continue to reign, the prosecution’s appeal in Lopez raises red flags. The appellate court made a reasoned decision and concluded that the error here

was far from harmless. The prosecutor asserted during his closing argument, “what this case boils down to is the testimony of Denis Hoskins[.]” Our review of the record confirms that aside from Hoskins’ testimony, the evidence against Lopez was thin at best. The prosecutor correctly concluded in closing that “[I]t’s Mr. Hoskins’ testimony that signs, seals, and delivers only one conclusion, and that’s that the defendants who are sitting here today are guilty.” Therefore, we must vacate Lopez’s convictions and sentences.

The Michigan Supreme Court should not permit the State to seize upon the failure of our system of prosecutorial accountability and make a rare finding of misconduct vanish into thin air the same way they made Mr. Hoskins disappear at trial. Such magic undermines much-needed scrutiny of how prosecutors operate in our criminal justice system.

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