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Local prosecutors shirking their duty
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The local media have reported on two high-profile examples of misconduct involving prosecutors and police officers who have withheld evidence of innocence. In both instances, prosecutors have deflected blame by pointing to defense attorneys or the police as being responsible for withheld evidence.

Both examples are symptomatic of larger problems among Utah prosecutors and police. Law enforcement officials either do not understand their constitutional obligations to disclose evidence or they are turning a blind eye to their legal obligation to serve justice.

First, Utah County prosecutors have erroneously claimed in the Dr. Martin MacNeill homicide prosecution that they acted ethically by inviting defense attorneys to come to their offices to view their files. The prosecutors then blame defense attorneys for not learning of evidence that someone else may have committed a crime by asserting that defense attorneys have not visited prosecutors' offices.

This response not only falsely blames defense lawyers but also misleads the public as to prosecutors' obligations. As an initial matter, these prosecutors appear to have affirmatively lied to the defense when they claimed that the records actually given to defense attorneys included the exculpatory evidence. It did not.

Moreover, under the seminal U.S. Supreme Court case, Brady v. Maryland, prosecutors have an affirmative duty to hand over evidence of innocence to the defense. This duty extends to information that the police possess even if prosecutors are not aware of such evidence.

This ruling effectively requires prosecutors to affirmatively seek evidence that the police have uncovered that tends to support the innocence of the accused. The decision is designed to prevent prosecutors from hiding behind claims that they were not aware of evidence or that the police did not inform them about their investigations.

Prosecutors, as ministers of justice, must actively seek out evidence and do what is right as opposed to seeking to win cases.

In the second example, Salt Lake City prosecutors contend that they properly proceeded with a DUI prosecution even though the main witness is discredited Utah Highway Police Trooper Lisa Steed. Those prosecutors claim that they had no duty to disclose personnel files in which UHP supervisors concluded that Steed had falsely arrested several people for DUI and lied about her actions under oath.

Like their Utah County counterparts, Salt Lake City prosecutors seek to blame the police when the Constitution squarely requires them to seek out and disclose favorable evidence.

Both cases suggest a larger problem throughout the nation and in the state of Utah. Commonly, prosecutors assure defense attorneys that they have turned over all of the evidence in the case. Then, on the eve of a trial or just before an important court hearing, prosecutors announce that they have located new evidence that has become available.

This scenario is apparently based on prosecutors' interpretation of the law as only requiring them to disclose exculpatory evidence if and when, in their subjective judgment, it becomes material. Under this misguided application of the law, prosecutors essentially argue that they only need to disclose evidence when they subjectively believe that the defendant could find the evidence helpful.

For these reasons, the National Association of Criminal Defense Lawyers has asked Congress and state legislators to enact laws that require prosecutors to disclose all evidence in criminal cases. By deflecting responsibility and blaming others, prosecutors in both Utah County and Salt Lake City have misrepresented their duties to the public.

The U.S. Constitution is premised on the notion that governmental actors are inherently biased and will abuse their power if they are not checked. Unfortunately, these two prosecuting agencies are proving that fact to be true.

Kent R. Hart is executive director of the Utah Association of Criminal Defense Lawyers.

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