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.