Brief in Support of Appellant of Amici Curiae National Association of Criminal Defense Lawyers, Maryland Criminal Defense Attorneys Association, and the Innocence Network.
Argument: NACDL’s amicus brief argues that the State’s misconduct in this case was truly startling; indeed, it is among the most serious examples of prosecutorial misconduct in amici’s collective experience. The record shows that the prosecution: (1) suppressed “a fountain of favorable evidence from the defense”; (2) “[s]ponsored dubious claims from a credibility-ravaged witness who tainted every other prosecution witness”; (3) “made serial false representations to the defense, to jurors, and to the trial court about critical exculpatory evidence”; and (4) testified falsely under oath to hide its misconduct. This misconduct was an attempt to shore up a weak case in which there was no physical evidence to link Mr. Smith or his co-defendants to the crime, and there was physical evidence that pointed away from them. Authority from jurisdictions throughout the country supports the dismissal of the indictment under these circumstances. Prosecutorial conduct that is “so grossly shocking and outrageous as to violate the universal sense of justice” requires dismissal of a resulting prosecution on due process grounds. A case also can be dismissed under a court’s supervisory powers even if “the conduct does not rise to the level of a due process violation.” The egregious misconduct found by the court of appeals satisfies either standard. Retrial would not adequately address the egregious misconduct that occurred in this case because (1) the extensive misconduct here was unusually extreme and shocks the conscience, and it created pervasive prejudice that would prevent Mr. Smith from receiving a fair retrial, and (2) any remedy short of dismissal would be inadequate to deter the type of intentional, willful, and reckless misconduct that the court of appeals recognized and the State now admits. While dismissal is an extreme remedy, courts have invoked it regularly in cases with extreme facts of the type found here.
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant.
Argument: Harmless error is an inadequate standard for review in cases of pervasive and far-reaching prosecutorial misconduct. The present case included an invasion and use of an accused’s attorney-client privileged conversations and attorney work product privileged documents. Because of the toxic effect on the proceedings, alleged prosecutorial misconduct cannot be adequately measured by the evidence against the accused in harmless error analysis. Rather, when prosecutorial misconduct is obviously illegal or forms a pattern of unlawful behavior it so offends the Due Process clause that the court should treat it as a structural error. Amici assert the prosecutorial misconduct in the present case is analogous to the “interested prosecutor” a recognized structural error. Amici argue the Court should treat the present prosecutorial misconduct as a structural error and dismiss the case. Such a result serves both the interests of the defendant in a fair proceeding and the public in seeing justice done.