Prosecutorial Misconduct in Criminal Cases

April 9, 2024 Don Pumphrey, Jr. Criminal Defense Social Share

The criminal justice system in Florida requires representation in the form of both a defense attorney and a prosecutor. The prosecutor’s responsibility includes assessing, presenting, and explaining evidence obtained in a criminal case. The State holds the burden of proving a defendant’s guilt beyond a reasonable doubt.

When a lawyer is suspected of violating any of the rules outlined in Florida’s Rules of Professional Conduct, it is considered prosecutorial misconduct. This form of misconduct is defined as an act of breaking the law, court rules, or code of ethics while working as a prosecuting attorney. While misconduct can vary on a case-by-case basis, some examples of misconduct can include:

• Failure to disclose exculpatory evidence (information showing the defendant is either guilty or innocent);
• The use of an improper argument such as discussing facts that have not yet been presented or misstating any portion of the law;
• The improper use of press/media by disclosing information relating to the criminal trial that would impact the case;
• Any introduction of evidence that is considered false or misleading, such as encouraging a witness to lie on stand/under oath; and/or
• Using discrimination when selecting the jury.

Prosecutors alleged to have committed misconduct can severely impact a criminal trial. They can be removed from the case, be replaced with another attorney, or even face disbarment. It is important for anyone facing criminal charges in Florida to be aware of the potential misconduct that can take place by the State.

A skilled defense attorney in Tallahassee can represent you and ensure that your rights are protected during this tough time.

Responsibilities of a Prosecutor

The rules and responsibilities of a prosecutor in a criminal case are outlined under FL Bar R. 4-3.8:

1. The prosecutor must refrain from prosecuting a charge that he or she knows is not supported by probable cause;
2. The prosecutor must not seek to obtain a waiver of important pre-trial rights from an unrepresented accused person, such as the right to a preliminary hearing; and
3. The prosecutor must make timely disclosure of all evidence or information to the defense that tends to negate the guilt or mitigate the offense, and, in connection with sentencing, disclose all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

Florida Bar Rule 4-8.4 on Misconduct

The Florida Court Rules, codified under FL Bar R. 4-8.4, explains the prohibited acts by a prosecutor in a criminal case. A State attorney/prosecutor shall not:

• Violate the Rules of Professional Conduct, knowingly assist another person to do so, to do so through the acts of another person, or to attempt to do so;
• Commit a criminal offense that would adversely reflect the prosecutor’s honesty, trustworthiness, or fitness as a lawyer;
• Engage in any conduct involving dishonesty, fraud, deception, or misrepresentation (an exception would be regarding an undercover investigation);
• Engage in any conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly or through callous indifference, humiliate, disparage, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers based on:
  • Race;
  • Ethnicity;
  • Gender;
  • Religion;
  • National origin;
  • Disability;
  • Marital status;
  • Sexual orientation;
  • Age;
  • Socioeconomic status;
  • Employment; or
  • Physical appearance; and
• State or imply an ability to improperly influence a government agency or official or to achieve any results that would violate the Rules of Professional Conduct or other law;
• Knowingly assist a judge or judicial officer in conduct considered in violation of the applicable rules of judicial conduct or other law;
• Fail to respond, in writing, to any official inquiry by a bar counsel or disciplinary agency, when investigating the lawyer’s conduct;
• Willfully refuse to pay a child support obligation within a timely manner; or
• Engage in sexual conduct with a client or representative of a client that either exploits adversely affects the interests of the client or the lawyer-client relationship.

Important: When a lawyer is accused of violating, attempting to violate, or inducing or assisting another person to violate the Rules of Professional Conduct, they are subject to disciplinary action.

Case Text further explains that while lawyers are personally responsible for answering to the entirety of criminal law, they should be professionally answerable only for offenses that indicate the lack of characteristics relating to the practice of law. This includes alleged offenses that involve violence, dishonesty, or breach of trust, along with any serious interference with the administration of justice.

Process for Removing a Prosecutor in a Criminal Case

If a lawyer is suspected of prosecutorial misconduct, there are several actions that can be taken. If the court decides to remove and replace the prosecutor accused of a violation, the process can involve several steps:

• Investigation – Allegations of misconduct often lead to investigations into the lawyer’s conduct to determine the claim’s validity.
• Disciplinary action – If the investigation concludes with apparent evidence of prosecutorial misconduct, the lawyer could face disciplinary action in the form of being removed from the case, being suspended, or even getting disbarred in more severe cases.
• Legal proceedings – If the alleged prosecutorial misconduct broke a law, there could be legal proceedings that follow. This can include granting the criminal defendant(s) a new trial or charging the prosecutor with a criminal offense.
• Replacement – A prosecutor who is removed due to alleged misconduct will have to be replaced by another prosecutor, who can be from the same office or different jurisdiction depending on the case.

It’s worth noting that the process of holding prosecutors accountable for alleged misconduct can be complex. If you believe there was any misconduct in your criminal case, contact the defense attorneys with Pumphrey Law Firm to discuss your options.

Example Case of Corey Smith’s Prosecutor

The prosecutor in a death penalty case has been removed after the Miami-Dade circuit judge cited several instances of alleged misconduct.

According to the local report, longtime senior prosecutor Michael Von Zamft has resigned as a prosecutor after being removed from representing death row inmate Corey Smith. Smith was previously sentenced to the death penalty after being convicted of four murders that took place in the 1990s by the John Does, an alleged violent drug gang based in Liberty City.

Given Florida’s legal changes to the death penalty statute, Smith was being resentenced in accordance with the most recent court decisions. However, an investigation into Von Zamft began after an August 2022 jail call that discussed setting up a jailhouse meeting and the potential of making a credible witness “unavailable.”

The misconduct the prosecution is being accused of includes manipulating witnesses, improperly withholding relevant information from the defense, and trying to schedule a jailhouse meeting between inmates and a third inmate known for helping prosecutors make cases against other inmates.

The 2022 call in question involved Von Zamft and Latravis Gallashaw, another partner of John Does who had been convicted of both murder and drug trafficking. Gallashaw was allegedly seeking a reduction of his 70-year federal sentence by claiming to cooperate with the case’s prosecutors. The circuit judge claimed that the “smoking gun” evidence of misconduct took place during the following phone call exchange:

“Von Zamft: She gave full and complete testimony in the last trial.

Gallashaw: Yeah.

Von Zamft: If I call her and she refuses, then I will find a way to make her unavailable, and then I can read her whole testimony.

Gallashaw: You would want to do that?

Von Zamft: No. I don’t want to do it. I’d rather she testified and did a good job. But can I count on it? No.”

The person being referred to in the phone conversation was Tricia Geter, a former girlfriend of Smith’s who had become the key witness in the last trial that resulted in his death sentence. In her testimony last month, Geter claimed that Von Zamft told her, “If she was dead, he would simply read her prior testimony into the record” the judge said as a recount from her order.

Craig Whisenhunt, one of the attorneys on the defense counsel, explained that Geter had “developed a fear or concern that Michael Von Zamft would prefer her to be dead, that his case and his ability to prosecute Corey Smith would be improved if she were out of the picture.”

The other form of alleged misconduct revolved around an apparent meeting Von Zamft tried to set up at the prison courtyard between Gallashaw, Demetrius Jones (another former John Does member), and a third inmate the prosecutor has used in previous cases:

“Gallashaw: And you don’t know about rehabilitating Jones, huh?

Von Zamft: Which one?

Gallashaw: Jones. Meat head.

Von Zamft: Yeah. His problem is—well, Jones, I’ve told you. His contradictory statements. I’ve asked to allow you, Jones, and [third inmate] to go to the, you know, courtyard together. I’ve asked them to do that, but Corrections has not agreed.”

Judge Andrea Ricker Wolfson found that even attempting to set up that type of meeting behind bars “reeks of the appearance of impropriety,” adding that the State’s withholding of critical records was incompetence at best.

It is unclear whether an investigation will be conducted into the matter. Judge Wolfson gave the rare order of removing the prosecutors from the death penalty case, claiming that while she did not believe the prosecution’s desire to “eliminate” Geter meant to kill her but that he may have instead found a way to make her unavailable.

Within hours of giving her order, Von Zamft resigned as a prosecutor. His co-counsel was also disqualified from continuing to represent the case. The third prosecutor in question resigned before they could be disqualified. Now the death penalty case of Smith is in jeopardy. The report indicates that Judge Wolfson is considering to throw out Smith’s convictions and retry him, however this would be 25 years after his initial arrest.

The following is a statement by State Attorney Katherine Fernandez Rundle regarding the case:

“I will ask my top litigators to examine every aspect of this case and determine the best path forward. The 24-year-old case is massive, and it will take my team some time to ensure that we are proceeding in accordance with the law and with justice. Be assured that we will get the job done.”

Defense attorney Whisenhunt provided his own statement on the case and Von Zamft’s actions:

“Manipulating testimony to pursue something that was untrue and to encourage someone to lie or mislead the court is not only a grievable offense as an attorney and reprehensible behavior, it is also in and of itself criminal conduct…[Von Zamft] did in fact end his career with Corey Smith, but just not the way he envisioned.”

Contact the Defense Attorneys with Pumphrey Law Firm

If you or someone you care about is facing criminal prosecution and you believe there has been some form of misconduct by the prosecution team, you should contact a defense attorney as soon as possible. The legal world is often challenging to navigate, which is why entrusting a lawyer with years of experience is highly advised.

The defense team with Pumphrey Law Firm understand how stressful facing a potential conviction can be. When you contact our office, we will provide you with a free consultation to go over the surrounding facts of your case. From there, we can establish any potential defense strategies to challenge the State’s case. If there has been any form of misconduct, we will do everything we can to prove that in court and fight to have your case dismissed or lessened to a lower offense. Call our office at (850) 681-7777 to get started on your case today.

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