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YOU MEAN PROSECUTORS CAN BE TRUSTED?

With former DA Michael Nifong's ethical lapses and eventual disbarment receiving national headlines over the past year or so, we found the case of People v. Marks to be particularly intriguing.

In that case, the defendant requested a hearing to stop or suppress certain evidence from being used against him at his criminal trial.

Claiming that the two police officers were unavailable to testify in opposition to the request, the government sought to adjourn the case. Rather than postpone the matter, the Justice Court of the Town of Newburg granted relief in the defendant's favor. (The Justice Court apparently did not find the prosecutor's excuse to be credible in the absence of "further proof.")

On appeal, the Appellate Term, 9th and 10th Judicial Districts, reversed.

Since prosecutors are "officers of the court," held to an "'unqualified duty of scrupulous candor,'" the AT did not believe the representations needed to be verified, particularly in light of the stated efforts to obtain the officers' presence. And, even if the prosecutor could have been more diligent in securing the witnesses, since they were unavailable, the appellate court believed the trial judge erred by denying the postponement. 

Huh?

Just because witnesses are supposedly "unavailable" means a criminal case should be adjourned as a matter of course?

How do unsubstantiated representations made by any officer of the court rise to the level of "facts" or unequivocally evidence "diligence and good faith?"

If the police officers were truly unavailable -- one was supposedly having "knee surgery" while the other was attending "mandatory K-9 training" -- why weren't those "facts" independently verifiable?

When liberty is at issue and a citizen faces the possibility of incarceration, how is it not in the interests of justice to ensure that "facts" are truly "facts," and that some "checks" against possible prosecutorial misconduct are in place?

We're of the opinion that, as far as this case is concerned, the AT's decision missed the mark.

For a copy of the Appellate Term's decision, please use this link: People v. Marks

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