How to Offset Prosecutorial Misconduct and Abuses

Prosecutorial misconduct and abuses does not have to go without offset or remedy. There are some things which can be done to counter the illegal activities of prosecutors.

Obviously, a victim-defendant is in a precarious position and may (justifiably or instinctively) feel that he/she should do nothing to upset the prosecutor.

The prosecutor is thinking along a similar line: He/she hopes that the victim and his/her lawyer does nothing to interfere with or disclose the prosecutor's illegal conduct.

Here are some things you, as a victim, or as the victim's lawyer, should consider to counter illegal activities by a prosecutor:

  1. Remembering that the right to sue a local or state government is often conditioned upon receipt of some type of notice within a short period of time (such as 90 days) after the state action in question, the victim/defendant can file a notice of (meritorious) claim against the prosecutor, the investigator, policepersons, municipality, police department, or other government entity or official
  2. Commence a (meritorious) lawsuit against the which instigated the criminal proceedings, on such grounds as defamation, interference, civil rights violation, slander
  3. Move to enjoin the prosecutor from further illegal conduct
  4. Move to dismiss the indictment or other criminal proceeding based on the prosecutorial misconduct or prosecutorial abuse
  5. File a complaint against the prosecuting attorney with the Disciplinary Committee maintained by the Courts or other government agency
  6. Move for a preliminary hearing (prior to an indictment) to obtain evidence from the complainant and/or others showing misconduct by the prosecutor
  7. Bring a (meritorious) civil action to obtain discovery which will be helpful in fighting the criminal action, recognizing there are problems relating to the defendant's 5th Amendment rights, which must be thought through carefully beforehand
  8. Go to the press with your plight
  9. Maintain a continuing relationship with the press concerning your criminal and any related civil proceedings
  10. Create a website publicizing and updating your plight
  11. Create a mailing list of interested persons in the news media to receive regular communications about what is happening
  12. Obtain an e-mail list of all members of the Senate and House of Representatives and e-mail your complaint to them, for their legislative assistants to consider; try to generate a congressional hearing in the Judiciary Committee of both houses to investigate the ongoing prosecutorial abuses, with the idea of writing and enacting curative legislation; [a problem exists in that various ISP's may not permit your mail to go through because such mailing would be called "spamming" or "spam", thereby giving these corporate dominators of internet the self-proclaimed right to stop your messages asking for help.
  13. Move for various evidentiary hearings to determine whether there was one kind or another of unlawful search and seizure
  14. Move for the disqualification of the prosecutor on the basis of prosecutorial misconduct
  15. Watch to see whether the selection of the judge is at random or selected by the prosecutor (through the prosecutor's communications with the clerk's office and request for "expedited" treatment of the defendant's own motion); this means that the prosecutor is requesting and getting a judge other than the one which normally would have heard the defendant's motion. This type of judge selection should be challenged by appropriate motion or inquiry.

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Copyright © 1998 by Carl E. Person