When Prosecutors Admit to Cheating

Federal attorneys in San Diego knew they had gotten an unfair conviction. And to their immense credit, they asked an appeals court to make things right.
Laura E. Duffy, right, United States Attorney Southern District of California, at a news briefing in 2012 (Ross D. Franklin/AP)

The story of a prosecutor doing an honorable thing, a courageous thing, should not be a news story. It should happen every day. But too often prosecutors do not act honorably. Too often they make mistakes and do not admit them. Too often they cheat, at trial or afterward on appeal, in their zealous attempt to secure or to defend a conviction. And too often our nation's judges are unable or unwilling to identify these instances to bring a measure of justice to the wrongfully convicted.

So the story of Laura Duffy, the prosecutor, and John Maloney, the wrongfully convicted man, is inspirational. Not because Duffy acted professionally throughout this case—she and her colleagues surely did not. Not because prosecutors promptly acknowledged their error and quickly moved to correct it—they didn't. But because in the end they did do the right thing. 

What we have here, then, is the public acknowledgment by a prosecutor that an injustice was done in a pending case. More than that, we have a glimmer of the process by which this reckoning occurred. This is no small thing. One longtime defense attorney, who has evaluated countless trials including many in which prosecutors engaged in the type of official misconduct we see here, emailed back "Holy Shit" when I wrote to him about the results of this case. That gives you a sense of how remarkable United States v. Maloney turned out to be.

The story goes like this: A few years ago, federal prosecutors in San Diego convinced a jury to convict John Maloney of the felony charge of "knowing possession of marijuana with intent to distribute." The feds did so by cheating during the closing argument of the trial. During the rebuttal part of their closing argument to jurors, when they knew that neither Maloney nor his attorney could respond, prosecutors suggested at length that the defendant must have lied about his trip because he had no luggage with him.

The inference during the closing argument was clear. If Maloney was lying about the trip, if he had no luggage with him, than he must have "known" that he had the marijuana in question and thus was guilty of the crime with which he was charged. That's what the jury found, anyway, and it's what the 9th U.S. Circuit Court of Appeals initially found as well. The problem was: there was no evidence introduced at trial, either way, about Maloney's luggage on that trip. And prosecutors knew it.

Prosecutors knew it when Maloney's attorney immediately asked the trial judge for the chance to present a "sur-rebuttal" that would have clarified the record—a request the judge denied. Prosecutors knew it when Maloney's attorney asked a second time for a sur-rebuttal—and was again denied. Prosecutors knew it when Maloney's attorney asked for a mistrial— and was denied. And they knew it (and candidly said so) when Maloney's attorney made this argument to a three-judge panel of the 9th Circuit and was again (inexplicably) denied.

The 9th Circuit, to its credit, took another look at this case. Last fall, during oral argument (the video of which you can watch here), members of the federal appeals court bluntly urged Duffy over and over again to admit that the closing argument in the Maloney case was unprofessional, and perhaps unethical, and in any event a mistake of law. (Will Baude, the University of Chicago law professor, has well covered this case. Here is his piece on this argument. Here is his piece from Monday.)

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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