ANALYSIS BY JORDAN KUSHNER
AND JANET NYE
On the Minneapolis Issues Forum, Jordan Kushner offered a master class on the consequences of a prosecuting attorney lying to a judge:
“[There is] repeated insistence that Moriarty’s office should have asked for continuance before dismissing the case – most likely not realistic. The Star Trib’s coverage indicates that her office proposed a joint motion for a mistrial with the defense, but the defense refused to join. This would have been their best chance because a mistrial would have allowed for a substantial delay to allow the new prosecutor time to prepare and not have to start in the middle. The problem is that unless the defense supported the mistrial, it would have still resulted in the case being dismissed because of the constitutional protection of double jeopardy. Not surprisingly, the defense did not go for it. The longest imaginable continuance, if any, that the judge would have granted in the middle of a trial would have been one day, and that would probably not have been enough. You don’t just interrupt a criminal trial in the middle and ask the jury to come back in another week – or even a few days later.
“Of course, it was not the note, but the lie about the note. Furthermore, what has not been mentioned in these threads is that the prosecutor did not just lie to the judge about the note, but also encouraged the staff person who passed the note to alter it in order to conform to the prosecutor’s lie about the note. This enlistment of a staff person who was a subordinate to the prosecutor to fabricate evidence to cover up was even worse than the lie itself. Moriarty made a painful but principled decision.”
Also on the Issues Forum, Janet Nye wrote:
“[You cannot be] saying that because the perpetrator is clearly a danger to society, conviction by illegal means (falsifying evidence) is permissible? To dismiss the case was certainly justified because the prosecutor lied in a communication to the judge. Even when an alleged crime is particularly heinous, as this one was, lying to the judge by the prosecution or by the defense attorney is illegal, and can trigger a mistrial. The law is ostensibly about getting to the truth of a situation.
“Mary Moriarty did the right thing. In a position that has heretofore put up with sham ‘investigations,’ presided over by the corrupt and careless BCA and police-friendly Hennepin County Attorney Mike Freeman, it is a huge step in the right direction to have a person in charge who will defend lawful procedure. The prosecuting attorney cannot claim ignorance of the law, as ethics are an essential part of a lawyer’s education.
“Why this prosecuting attorney made such a stupid move is anyone’s guess, but it cannot be said that she was unaware of the scrupulous rules she was subject to. All attorneys are rigorously schooled in proper procedure. It’s a mystery why she did what she did, because a possible rapist has gone free because of her actions. The blame lies with her, not with Mary Moriarty.”