by Dale Chappell

I have to admit that the idea of a citebook in the age of searchable databases was a little lost on me. “Who needs a citebook these days,” I would say. But then Richard, managing editor at CLN, asked me to take a look at a new citebook by Prison Legal News Publishing called The Habeas Citebook: Prosecutorial Misconduct (“THC”) and to give him my thoughts. So I did.

First, I want to say thanks to Richard — I’m keeping this book. You’re not getting it back. This book is a goldmine of information. This book proved me wrong about not needing a citebook these days.

If you have a prosecutorial misconduct claim or you think there’s even a possibility you might have a prosecutorial misconduct claim, you need this book. Sure, you could sit at a computer for hours searching for on-point cases to support your claim and trying to learn the perfect way to bring your claim to court.

Think of this book as the best “assistant” you could ever hire, one that’s an expert on prosecutorial misconduct. THC lets you invest your time into other important work, knowing that your “trusted assistant” has got this part covered.

And let’s face it, prosecutorial misconduct claims aren’t exactly easy to pursue. Even claims pointing out obvious and egregious errors by prosecutors are routinely denied by the courts. THC also includes these claims. Why? Because sometimes the best way to learn how to do it right is to learn from someone else’s mistakes the author of the book, Alissa Hull, says. She’s a managing attorney with Prisoner’s Legal Services of New York and a former staff attorney with the Human Rights Defense Center.

Of course, there are hundreds of successful cases in the book. Those are good to have as well. As I said, THC is a goldmine of information on the topic.

But it’s much more than just a collection of cases like most citebooks. Instead, Hull digs into every aspect of prosecutorial misconduct, so you can make an informed decision as to which prosecutorial misconduct claims likely represent the best chance for success. And she does it in a way that non-lawyers can understand and that lawyers will appreciate.

Providing a “play-by-play” of the contents is the best way to demonstrate how valuable THC is for anyone contemplating a prosecutorial misconduct claim. We’ll start right from the beginning, before it even gets into any cases: the Foreword.

Normally, I wouldn’t give much thought to a book’s Foreword, much less read one. But you’ve got to read this one. Susan Insolia Johnson, an investigating attorney in Vermont who specializes in getting innocent people out of prison, wrote the Foreword. In it, she doesn’t say how great THC is and why you should get a copy.

Instead, Johnson tells the moving story of a man, John Thompson, who spent 14 years of his life on death row because a prosecutor intentionally withheld exculpatory evidence in order to get a conviction. It’s moving not in a sad way but in a way that will make you want to get up and do something about prosecutorial misconduct. In fact, I have recommended Johnson’s Foreword to all my friends in the legal field. It’s good.

Johnson also points out that prosecutorial misconduct is the leading cause of wrongful convictions, and she provides ample evidence to back her claim. There are 106 footnotes in the Foreword alone, citing numerous sources to support her conclusions.

“There simply is no one holding prosecutors accountable,” she laments. Defense attorneys won’t say anything because they want to remain on the good side of prosecutors for future plea deals. Fellow prosecutors won’t say anything because they have to work with the offending prosecutors. Judges won’t say anything because, well, most judges were once prosecutors themselves.

So, who’s left to hold cheating prosecutors accountable? The defendants victimized by prosecutorial misconduct and the lawyers who bravely represent them.

That’s who this book is intended to help. It’s 16 chapters across 300 pages, containing over 1,700 cases dealing with prosecutorial misconduct claims. There’s also an Appendix with examples from actual prosecutorial misconduct claims filed in court, addresses for all the federal courts, a federal circuit division map, and a glossary of common legal terms.

Chapter 1: Introduction to Prosecutorial Misconduct

Attorney Hull begins her book with the basic question: “What is prosecutorial misconduct?” She answers this question in the first chapter, and importantly, she goes over what’s not prosecutorial misconduct. “There are many ways a person can be wrongfully convicted,” she says. “Prosecutorial misconduct is just one.” THC will show you how to spot a viable prosecutorial misconduct claim.

She also provides an informative overview of the lineage of cases under the Brady umbrella where prosecutors withhold evidence from a person accused of a crime. The Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that a prosecutor may not withhold evidence that’s material to a person’s defense.

Chapter 2: Ways to Bring a Challenge

This chapter goes over every available avenue to bring a prosecutorial misconduct claim in court. It ranges from the common direct appeal to post-conviction relief in state and federal courts, including appeals of those if they are denied.

Interestingly, Hull also includes losing prosecutorial misconduct claims and explains that knowing these can help you to distinguish your claim from losing ones, showing the court why your claim is not like the one that lost. Distinguishing unsuccessful claims from yours is a smart lawyer tactic. Knowing why someone lost won’t only help you avoid the same mistakes, but it will also help you convince the court to grant you relief by avoiding the arguments that didn’t work for that other person.

Chapter 3: State Habeas Writ and Post-Conviction Relief Statutes

This chapter helpfully lists the post-conviction relief statutes and other rules and statutes relating to post-conviction relief for every state. It tells you the purpose of each statute such as the different statutes in Florida for post-conviction relief and the separate statute for post-conviction DNA testing.

Chapter 4: State Court Decisions

Here are over 1,000 cases across 110 pages providing case law explaining the procedural process for bringing habeas corpus and post-conviction actions in every state. This is also in addition to case law for each state on prosecutorial misconduct claims under direct appeal and post-conviction relief. This is the “meat and potatoes” of a traditional citebook, and THC delivers.

Chapter 5: An Overview of Federal Habeas

This chapter merits a close read because it’s so important. It’s a section adapted from the popular book by attorney Kent Russell, California Habeas Handbook 2.0, which has helped countless prisoners pursue post-conviction relief in California and federal courts.

Russell gives a “cradle to grave” look at the life of a federal habeas corpus proceeding. He goes step-by-step through a habeas proceeding, from the filing of the petition and its exhibits and papers, to the government’s response, to the court’s decision, and then through an appeal, should one be needed.

The explanation is classic Kent Russell and easy to grasp. He also dives into the impact that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) has on prisoners filing for habeas corpus relief in the federal courts.

This chapter is a must-read for anyone filing a habeas corpus petition in federal court.

Chapter 6: Misstating the Law to the Jury

This chapter goes over why it’s important to clearly explain how the prosecutor’s misconduct negatively affected the outcome of your case. Hull stresses that it’s not about how egregious the prosecutor’s misconduct was but how that misconduct impacted your case.

There is case law from every federal court on instances of prosecutorial misconduct involving juries, focusing on the prosecutor’s actions in front of the juries that may have changed the outcome of the case.

Chapters 7 and 8: Federal Habeas — Brady — Generally and Impeachment

These chapters are a more detailed look at Brady violations that were touched on in Chapter One’s overview of Brady. There is a plethora of Supreme Court cases applying Brady to prosecutorial misconduct cases, as well as case law from every federal court on the subject.

Chapter 8 specifically deals with the Supreme Court’s extension of Brady in Giglio v. United Sates, 405 U.S. 150 (1972), to evidence that was withheld by the prosecutor that could have impeached the prosecution’s witness. There’s also a collection of case law from virtually every federal court on the topic.

Chapters 9 and 10: Federal Habeas — Perjured Testimony and Inflammatory Remarks

What happens when the prosecutor allows its witness to lie on the stand — sometimes even telling him to lie — or when the prosecutor makes inflammatory remarks about you in front of the jury? These two chapters deal with that problem, providing case law from every federal circuit and the Supreme Court.

Chapter 11: Federal Habeas — Discretion in Jury Selection

This chapter is an explanation of Batson v. Kentucky, 476 U.S. 78 (1986), where the Supreme Court held that the prosecution striking jurors for racial reasons (e.g., to get an all-white jury) is unconstitutional. As with all the other topics in the book, there is an extensive collection of case law from the federal courts on the issue.

Chapter 12: Federal Habeas — Witness Threatened

Chapter 12 goes into how Brady applies to threats by a prosecutor to a defense witness, with cases from the courts on this interesting dilemma.

Chapter 13: Federal Habeas — Procedural Bars to Claims

Hull covers in this chapter the “complications” that filers face with prosecutorial misconduct claims, including procedural hurdles, with cases on how to deal with them to avoid being barred from raising your claim in court.

Chapters 14 and 15: Federal Habeas — Right to Not Testify and to Remain Silent

Prosecutors usually can’t comment on your decision to not testify as a sign of your guilt. This right is protected by the well-known Fifth Amendment privilege. Chapter 14 goes into the five-part test used to assess when such a claim on this topic might be successful.

Chapter 15 reviews the Supreme Court’s seminal case in Miranda v. Arizona, 384 U.S. 436 (1966), which held that the police must warn a person accused of a crime of their right to remain silent. The chapter explains how to determine whether the prosecutor mentioning your silence rises to actionable prosecutorial misconduct. It also goes over when a prosecutor is allowed to mention your silence, and it does not constitute prosecutorial misconduct.

Both chapters include cases from all the federal courts on these claims.

Chapter 16: Federal Habeas — Miscellaneous

Here, the book goes over many other evidentiary topics relating to prosecutorial misconduct, providing cases from all the federal circuits for further study on the issues.

Conclusion

The U.S. Department of Justice (“DOJ”) has a motto carved into the entrance to its headquarters: “The United States wins its point whenever justice is done one of its citizens in the courts.” Is “justice” really done when prosecutors cheat in order to win?

In an age of lies being spun and reframed as “mistruths” and “affirmative misstatements” by the very officials in charge of the DOJ, a book like The Habeas Citebook: Prosecutorial Misconduct is needed to help successfully expose misconduct by prosecutors. 

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