Untitled, Oil on Canvas, 48" x 72", Richard J Van Wagoner, Circa 2001, Courtesy Van Wagoner Family Trust**


Who knows what Trump really meant? Perhaps — or more than likely — he was just tossing red meat to his base as a putative show of strength. Obama was weak, Clinton was ‘Secretary of Status Quo,’ and under His Holy Watch law enforcement would be strong ‘again,’ respected, and aggressive against all those bad hombres out there. Not even those crooks at the ‘highest level’ — HILLARY — would be above the law in a Trump administration.

The ‘law and order candidate’ may not have anticipated his current quandary when giving that stump speech in Virginia Beach. Others have covered the ‘highest level’ of hypocrisy in Trump’s efforts to undermine the rule of law and the administration of justice at the ‘highest level’ of government. Usually a president preserves deniability, surrounding himself with people adept at insulating him and, if necessary, who are willing to take the fall for him. Not this one. Indeed, Trump preserves undeniability with all the power of his stub-sighted, self-deifying narcissism. Yes, I fired Comey because of that ‘Russier’ thing. Of course, I weighed in — I did what any father would do for his son.


Even the best modifiers are running out of adjectives. Conservative Peggy Noonan’s near complete emasculation of Trump in the Wall Street Journal, while laudable and among the best attempts at reaching his essence, is hamstrung by the limitations of language.

Trump’s depth of moral depravity may have few equals, and certainly is unprecedented at the ‘highest level’ of government in the United States…an eventuality most of us saw coming. Whether he or those within his circle have violated the law and whether a prosecutor, special or otherwise, can prove it beyond a reasonable doubt are different questions.

Although naturally skeptical of law enforcement and prosecutors, I trust Special Prosecutor Mueller and his team of professionals will exercise consummate discretion in collecting and evaluating evidence to determine what laws, if any, were violated and by whom, and whether the United States has a substantial likelihood of convincing a jury of those violations with proof beyond a reasonable doubt. I also trust that any resulting prosecutions will be in strict compliance with the United States Constitution and laws of the United States, not only because of the professionalism of the Office of the Special Prosecutor and the money Trump and those in his circle can throw at a defense, but because of the intense public and political scrutiny. The prosecution side will make no attempt at monkey business.

Not all criminal defendants are so lucky.

“Epidemic of Brady Violations Abroad in the Land”

While difficult to admit, I agree with a few words Trump uttered, although I derive a somewhat different meaning than he likely intended. “We must maintain law and order at the highest level.” What follows addresses one discrete area with extreme consequences in which the criminal justice system falls well short, and virtually nothing is being done to hold prosecutors accountable. Indeed, this last fact partially explains why the problem persists. Politicians and prosecutors easily spew the mantra “no one is above the law,” which invariably carries the silent caveat “except for prosecutors and their investigators.” My experience with internal affairs at the local and national levels provides me little hope. They protect their own.

“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, at whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

Attorney General Robert H. Jackson, Address Delivered at the Second Annual Conference of United States Attorneys (April 1, 1940), reprinted in 24 Judicature 18, 18 (1940)

Why does the United States have such a high number of wrongful convictions, approximately one-half of which result from prosecutorial misconduct? A well-respected and sometimes controversial Judge on the Ninth Circuit Court of Appeals asked whether ‘prosecutor’s play fair.’ His answer was no. There is, according to him, an ‘epidemic of Brady violations abroad in the land, a phrase that has caused much controversy but brought about little change in the way prosecutors operate in the United States.’ Hon. Alex Kozinski, Criminal Law 2.0, 44 GEO. L.J. ANN. REV. CRIM. PROC. iii, xxiii-xxvi (2015) (identifying an extensive, but by no means exhaustive, list of reasons for wrongful convictions while debunking a number of myths about the presumption of innocence, the reliability of forensic examiners and eyewitness identification, the reliability of confessions, and the fairness of prosecutorial techniques).

Untitled, Watercolor, 6" x 4", Richard J Van Wagoner, Circa 2010, Courtesy Van Wagoner Family Trust**

The United States Constitution and the constitutions of the various states guarantee due process rights to every individual accused of a criminal act. Seems that before we take away someone’s constitutional rights to liberty and property, and possibly life, we ought to play fair, and be sure we get it right. Central to the notion of due process is an implicit recognition that prosecutors and the government possess extraordinary power to investigate and bring charges against ordinary individuals. For that reason, the power to prosecute bears with it certain obligations. “In our judicial system, the prosecutor’s responsibility is that of a minister of justice and not simply that of an advocate, which includes a duty to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.” State v. Todd, 2007 UT App 349, ¶ 17, 173 P.3d 170. Prosecutors act as the representatives of “a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935).

The United States Constitution requires the prosecuting entity (the “state”) to produce all “material” information bearing on the allegations against the defendant. To that end, the state must produce any exculpatory evidence as well as any evidence that could be used to impeach (challenge or undermine the credibility of) its witnesses at trial. The criminal defendant stands at a considerable disadvantage. The state typically has vast resources to investigate its claims, certainly more than most defendants have. The prosecution can compel the production of documents from third parties, seize evidence through warrants and subpoenas, compel the “cooperation” of witnesses through grand jury proceedings, threats of prosecution, grants of immunity or promises of leniency, and otherwise gather information relating to its theory of the case. Short of the government’s good faith, the criminal defendant usually has no way of knowing the full extent of how the prosecution has investigated, whom it has interviewed, what documents have been seized, and what the prosecution knows or thinks it knows about the case and the witnesses.

It is precisely for this reason that the United States Supreme Court has repeatedly held that fundamental fairness and due process require the prosecution, as gatekeeper of the evidence and material information, to provide exculpatory and impeachment evidence to criminal defendants. The Supreme Court explained:

“Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its citizens in the courts.’ A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice[.]Brady v. Maryland, 373 U.S. 83, 84 (1963)

Systemic Flaw: The System Must Provide A Mechanism To Police Prosecutors And Hold Them Accountable For Brady Violations

In my view, Judge Kozinski’s indictment is of the system and a few bad eggs and not of prosecutors as a whole. My experience is that most prosecutors understand their role and responsibility and conduct themselves at the highest ethical level to assure the prosecution comports with all constitutional requirements. That said, the prosecution’s gatekeeping function and its constitutional mandate suffer at times from a systemic flaw that presents serious issues for our criminal justice system. Namely, it is the state, the prosecuting entity, that acts as the guarantor of due process. Nearly no oversight mechanism exists to test the quality of the state’s good-faith review and production of exculpatory evidence. It is the state, the prosecutor, who decides whether evidence in its file is ‘material’ to the defense and therefore subject to production. Allowing a prosecutor (who is invested in winning the case by obtaining a conviction) to make that decision is, to say the least, problematic, particularly given the lack of consequences for a violation. A defendant will seldom be able to discover a constitutional violation if the state elects not to disclose material information to which it is exclusively privy. A defendant’s discovery of an error compromising the fairness of the proceeding occurs, if at all, almost always after the fact. Sometimes decades after the fact.

The Innocence Project focuses its efforts on reversing wrongful convictions based upon DNA evidence. Many of the cases it accepts and investigates ended in convictions resulting from the state’s withholding of exculpatory evidence. DNA becomes necessary, in part, because of the difficulty in reversing the momentum of a wrongful conviction years, sometimes decades, after the fact. This difficulty is increased by barriers erected in the legal system to assure finality.


In recent years, there have been several high-profile examples of prosecutorial misconduct in which prosecutors failed to produce exculpatory evidence, including the prosecution of former United States Senator Ted Stevens and prosecutions involving Enron executives. NOT GUILTY: The Unlawful Prosecution of Ted Stevens, Rob Cary (Thomas Reuters 2014); LICENSED TO LIE: Exposing Corruption in the Department of Justice, Sydney Powell (Brown Books 2014). Others include:

(“This type of prosecutorial error is almost never punished.”)


A thoughtful recent article co-authored by criminal defense attorney, the late Kent R. Hart, and three-term Davis County Attorney Troy Rawlings, outlines the problem and suggests reforms that could go some distance in correcting the systemic flaws. Kent R. Hart & Troy Rawlings, The Need for Legislation to Reform Brady Practices in Utah: Requiring Prosecutors to Disclose All Favorable Evidence to the Defense, 2 UTAH J. CRIM. L. 32 (2016)

*My brother the fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to lastamendment.com

**My daughter Angela Moore, a professional photographer, photographed nearly 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in lastamendment.com are hers.




Criminal defense and First Amendment attorney.

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Criminal defense and First Amendment attorney.

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