No New Trial: Shady Tactics Don't Equal Prosecutorial Misconduct - U.S. Sixth Circuit
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No New Trial: Shady Tactics Don't Equal Prosecutorial Misconduct

Diamonds are a girl’s best friend, except when the girl is so hung up on them that she commits fraud to have more money to spend on jewelry. And therein lies the rub for Pamela Holder, who lost her appeal for a new trial in the Sixth Circuit Court of Appeals this week.

In June 2008, the government charged Fred and Pamela Holder with two counts of bank fraud and two counts of wire fraud for falsifying documents to obtain loans to acquire a home and sell it for a profit.

The Holders were accused of convincing a straw buyer to borrow $2.4 million to purchase a $1.4 million home. Pamela prepared and sent falsified documents to get the loan, moved into the house, and spent part of the balance of the money on jewelry, according to the AP.

Prior to trial, the government indicated to Pamela's attorney that it intended to pursue a non-prosecution agreement with Brenda Leeper, a third party involved in the case who was scheduled to testify. Pamela's attorney largely based his case on impeaching Leeper's testimony, which backfired because the prosecution opted not to execute the non-prosecution agreement, and failed to share that fact with the defense.

Pamela was convicted, and moved for a new trial on the grounds of prosecutorial misconduct and ineffective counsel.

On Pamela's claim that the prosecution's failure to disclose information about a non-prosecution agreement with Leeper constituted prosecutorial misconduct, the Sixth Circuit Court of Appeals found that the prosecutor's actions were unprofessional and lacked impartiality, but did not warrant a new trial. The court said that failure to disclose the non-prosecution agreement had little to no effect on the jury's guilty verdicts.

Pamela's ineffective counsel claim was also tied to the alleged prosecutorial misconduct. In his opening statement, her attorney - misled by the prosecutor's proposed jury instruction and statements - promised that he would impeach Leeper with proof of a non-prosecution agreement. Unfortunately for Pamela, the attorney could not keep his promise because there was no such agreement.

The Sixth Circuit Court of Appeals found that Pamela Holder did not demonstrate a reasonable probability that the prosecution's disclosure of the nonexistence of the non-prosecution agreement would have yielded a different outcome.

Do you agree, or is the Sixth Circuit rewarding the prosecutor's bad behavior with a shiny new conviction?

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