Hiding Evidence

Lawrence J. Zimmerman

Hiding Evidence in a Criminal Trial

I was reading the New York Times on Sunday when I came across this article about a woman wrongly convicted of killing her mother in Memphis, Tennesse. When I read that a prosecutor, such as the one in this case, historically has withheld evidence and played games with peoples lives, it truly makes me sick. For starters, most prosecutors are good people who took the job for the right reasons; however, there have been times when they have proven my opinion wrong. The justice system is not set up to be a win at all costs for the government. In fact, it is a prosecutor’s ethical duty to do justice and sometimes justice means dropping a case. Withholding evidence that may indicate innocence is sickening. Why would someone want to not only put an innocent person behind bars but also let the guilty person roam the streets? Clearly, as in the case above, some people have a desire for a higher position so they will use a particular case, especially one with publicity, as a springboard for a higher position. I love the tv show “Billions” on Showtime, and if you are familiar with the show, it is much easier to root for Bobby Axelrod the so called “financial villain” than it is to root for the so called “good guy” US Attorney Chuck Rhodes. While Bobby may conduct his business in questionable ways, Chuck conducts the government’s prosecutions in the same questionable ways. And, Chuck does it only to further his political career and gain more power. Plus, he is the US Attorney who should always conduct his prosecutions in honorable ways.

I won a case a few years ago in Fulton County Superior Court in a motion for new trial hearing. The accused was convicted of Aggravated Child Molestation and was sentenced to 25 years in prison. We discovered, after I was hired post-trial, that the prosecuting attorney failed to reveal evidence extremely helpful to the defense team. It was so bad that the judge said on the record that it was the most egregious case of misconduct he had seen in his 18 years on the bench. We reversed the conviction. After the reversal, a law professor at Georgia State picked up on the case due to the publicity and referred the matter to the State Bar of Georgia. Well guess what the people in Power said about what the Power people did? You guessed it, they said that the prosecution (Power people) made an oversight and it was not intentional. Meanwhile, my client spent a year and a half in prison for a crime he did not commit, and he was on his way to serving 25 years but for our discovery of this exculpatory evidence. Who pays for these oversights? Nobody. As a criminal defense lawyer, if I made such an oversight, I would be sued for malpractice. And, maybe this particular prosecutor really did make an oversight; however, I had information sent to me anomously from a prosecuting attorney at that same office that this “oversight” was sanctioned by a higher up. So, while this prosecuting attorney did the right thing by seeking counsel from a supervisor, the supervisor betrayed the prosecutor with unethical advice and betrayed my client who put his faith in the jury system.

While our system of justice is considered an adversarial one, it is one that should be transparent when the government levels its target at one of its citizens. In the federal courts, Congress has legislated that there is no transparency. Legally, the government does not have to provide you with a statement of a witness until after that witness has completed their direct examination (testimony). How can one fairly cross-examine a witness without first having their statement? How can one investigate that witness without knowing if they are going to be a witness? In federal court there is no law that the government must provide you with a witness list. When I hear people say that the deck is stacked against the police or the government, it is completely untrue. It is stacked against the citizen, and it is why it is very important to have a strong lawyer in your corner.

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