To underestimate the pervasiveness of grocery clerks with checklists controlling every facet of life, law included, is a terrible mistake.  Even the 10th Circuit Court of Appeals, masters of their domain when it comes to keeping drug dealers convicted and imprisoned, will jump as high as need be to appease the grocery clerk.

Consider what happened in United States v. Ortiz, a sweet little drug appeal where the court found that the prosecutor engaged in misconduct, your improper questioning to reveal that the defendant’s expert had testified on his behalf in his previous trial. Oops, did that reveal defendant’s propensity toward crime. Sorry, judge; it just slipped out. Let’s pretend it never happened, and we’re sure the jury will ignore it. 

First iteration of the decision, prosecutor committed misconduct, so the court found . . . wait for it . . . prosecutorial misconduct.  It seemed appropriate at the time.

But then came the grocery clerk.  Via the Tenth Circuit Blog :

U.S. v. Ortiz, 2011 WL 1388789 (4/13/11) (N.M.) (unpub’d) – This amending of a prior decision provides an interesting insight into how the US Attorney’s Office works, or doesn’t. In the original decision, the 10th Circuit said an AUSA’s improper questioning constituted prosecutorial misconduct. The government won anyway because it was found not to be prejudicial enough to warrant a new trial.

Nonetheless, the government moved to amend the decision because a court finding of misconduct triggers a whole investigation by Eric Holder’s folks in D.C. But if the court just says the prosecutor did something improper, that does not trigger an investigation. The 10th obligingly changed its wording to say: “the prosecutor asked an improper question that Ortiz alleges rose to the level of prosecutorial misconduct.” Problem solved.

A bit subtle, but when dealing with grocery clerks with checklists, it’s all in the nuance.  The trick is that the words “prosecutorial misconduct” are no longer what the court found, but what the defendant alleged, a critical distinction because if the court finds prosecutorial misconduct, then the grocery clerk must check it on the list and, wham, bam, the wheels of the Department of Justice start to grind.  That’s bad for the AUSA at issue, not to mention his superiors.

Of course, it doesn’t seem to trouble the 10th Circuit much that a prosecutor in fact engaged in impropriety.  Certainly not as far as the defendant is concerned, the court holding that it failed to reach the level of prejudice worthy of giving the defendant a fair trial.  But then, the court did see fit to include this explanation of its outcome:

And the sheer quantity of drugs, with an estimated wholesale value of nearly $400,000, “might also, and legitimately, lead a jury to consider it less likely that the drugs would be transported without the driver’s knowledge.” Id. The evidence was more than sufficient to permit a rational jury to find that Ortiz knowingly transported the drugs found in his trailer.

I mean seriously, is this the sort of defendant who gets a fair shot?  And since they weren’t reversing the conviction anyway, given the “sheer quantity of drugs” based on the government estimate of wholesale value (always a reliable number), why hold a prosecutor responsible for what actually happened? 

I’ve often discussed the failure of courts to use their fiat as a disincentive to prevent prosecutorial misconduct.  It’s not like anyone seriously suggests that courts will impose meaningful sanctions against the government for misconduct, but at least affirmatively call the government out for its ironic violation of the law while prosecuting the defendant for his alleged violation of the law.

Here, the court has made an active choice to relieve the prosecution, which it found to have engaged in misconduct, from any consequences, even the most trivial internal ones levied by the grocery clerks.  Well, that will certainly serve to restore faith in the system and cause prosecutors everywhere to shake in their boots. 

Lest anyone think this is merely a poor choice by a panel from the 10th Circuit, consider the decision of the California Supreme Court in People v. Higgins :

This is not a case in which the prosecutor engaged in a few minor incidents of improper conduct. Rather, the prosecutor engaged in a pervasive pattern of inappropriate questions, comments and argument, throughout the entire trial, each one building on the next, to such a degree as to undermine the fairness of the proceedings. Although we are not convinced that any individual instance of the prosecutorial misconduct of which Higgins complains would, by itself, require reversal, we conclude that the cumulative effect of all of the misconduct does require reversal.

Brutal.  Pervasive pattern of misconduct.  An outrage. So bad that it must be stopped.  And then, depublished.

These are fine, upstanding prosecutors, aside from engaging in misconduct. It wouldn’t be right to hold them responsible and harm their careers, so a few changed words, a press on the “depublish” key, and faith in the system is restores, as if it never happened.  The grocery clerks are happy again.

H/T Michael Drake