Fall 1996
Jack King, Director of Public Affairs
202-872-8600, media@nacdl.com
Refuge From Federal Injustice Available In State Courts
In the fifties and sixties, when our society was undergoing a battle for justice and fairness brought about by the movement for racial equality, the one place where citizens could go for refuge from governmental excess and injustice was the federal courthouse. Now, as federal courts have bent more and more in the direction of the executive branch and have given less and less scrutiny to the exercise of police and prosecutorial power, the place for refuge has increasingly become the state courts. The Supreme Court of West Virginia, for one example, has recognized that the Supreme Court good faith exception for baseless search warrants breeds corrupt police practices and disrespect for the law. They will not follow Leon. The State Constitution of West Virginia provides greater protections than does the Constitution of the United States. Other state supreme courts have rendered similar opinions in other cases.
Recently, the appellate courts of Ohio rejected conduct by a state prosecutor who used a tactic common among federal prosecutors. He used forced immunity and coerced grand jury testimony to run roughshod over a defendant and his wife in an effort to get a conviction at all costs. The case, Ohio v. Asher, Appeal No. C-950531 decided on 17 July 1996 by the First Appellate District of Ohio, condemned the prosecutor's actions as an abuse of the grand jury process. The grant of immunity was improperly used, said the appeals court, to manipulate and coerce a witness into giving the prosecution whatever they wanted by way of testimony. Federal prosecutors, in contrast, think nothing of abusing brothers, sisters and parents, as well as lifelong friends of some targeted person by forcing them to face up to a year and a half in jail without any trial if they are unwilling to cooperate with the prosecutor against their own family or close friends.
The Ohio court in Asher, reiterated and affirmed the view that such coercion of a witness, any witness, whether for the prosecution or the defense, and whether by the Court or the prosecutor, can so taint that witness' testimony, that the due process rights of the defendant are prejudiciously affected. Relying on Lisenba v. California, 314 U.S. 219 (1941), the Ohio appeals court reaffirmed that the concept of due process not only exists to exclude presumptively false evidence but also to prevent fundamental unfairness in the use of evidence, whether true or false, against an accused. Without fairness, there is no due process. Mr. Asher had committed no crime. The appellate decision could have rested on that fact alone. Because the prosecutor had engaged in outrageous conduct by employing use immunity and the grand jury to coerce the wife to testify against the husband, the Court, mindful of its duty to ensure the integrity of the system, took time to comment on the prosecutor's coercive and unfair conduct. Would that more federal courts were to do the same.
National Association of Criminal Defense Lawyers (NACDL)