Entries categorized "Prosecutorial Misconduct"

Corrupt Cops and Prosecutors Lose Lawsuit Against John Grisham

A bunch of corrupt and/or incompetent police and prosecutors had an innocent man sent to prison to rot for over a decade.  John Grisham wrote a book about the police and prosecutors.  What do you suppose happened?

Did Scalia's new police professionals reflect on how they sent an innocent man to prison?  Did they seek to improve police procedures in light of their glaring error?  Hah!

Instead, they sued for intentional infliction of emotional distress.  You see, Grisham's book hurt their feelings.  To a bunch of narcissists, their hurt feelings matter more than the harm they cause others.  It's so bizarre to the few of us who are healthy.  To a narcissist, other people are props in their plays.  What happens to other people is only interesting insofar as it relates to the main event - who is always the narcissist.

Some dude went to prison for a decade, and instead of agonizing over their corruption and incompetence, they niggled over a narcissistic injury.  That's exactly how we'd expect them to behave.  It's good to see the bad guys lose again:

In 1988, Ronald Williamson and Dennis Fritz were wrongly convicted of the rape and murder of Debra Sue Carter. Both men were later exonerated after spending over a decade in jail. Their painful story caught the attention of renowned legal-fiction author John Grisham, who wrote a book about Williamson appropriately titled The Innocent Man. Fritz also wrote a book, Journey Toward Justice, detailing the horror of his years of unjust confinement.

Each of the plaintiffs in this case—Oklahoma District Attorney William Peterson; former Shawnee police officer Gary Rogers; and former Oklahoma state criminologist Melvin Hett—played a role in the investigation or prosecution and conviction of Williamson and Fritz. Neither The Innocent Man nor Journey Toward Justice paints the plaintiffs in a positive light.

Following the release of these books, plaintiffs filed suit in Oklahoma district court seeking relief for defamation, false light invasion of privacy, intentional infliction of emotional distress, and civil conspiracy. They named Grisham, Fritz, anti-death penalty advocate Barry Scheck, and author Robert Mayer—along with their respective publishers—as defendants. The district court dismissed the suit for failure to state a claim upon which relief can be granted. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


Troy Benson is an Unethical Prosecutor

The Recorder is reporting:

A Santa Clara County, Calif., Superior Court judge cited "grossly shocking" prosecutorial conduct in dismissing a child sexual assault case Wednesday. 

In a written order (pdf), Judge Andrea Bryan described a "rare and concerning case of egregious prosecutorial misconduct" following a reversal for a Brady violation in defendant Augustine Uribe's case. She added that Deputy District Attorney Troy Benson's "numerous acts of misconduct, culminating in his false testimony in this proceeding, strikes at the foundation of our legal system and is so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed."

The judge's order is available here.  Prosecutorial misconduct, incidentally, is spreading like wildfire throughout California.  Some collected instances are available here.  


William Welch II is Still a Federal Prosecutor

Remember the laundry list of prosecutorial abuses in the Ted Stevens prosecution?  If not, click here and start scrolling.  William Welch's prosecutor's misconduct was so outrageous that U.S. District Judge Emmet Sullivan initiated contempt proceedings against him.  What has happened to Welch?

Mike Scarcella is reporting that "Welch is taking a post as a prosecutor in Springfield, Mass., where he spent much of his career []."

Is that how the Department of Justice punishes prosecutorial misconduct?  By keeping the unethical prosecutors on the payroll?  By moving the unethical prosecutors to another jurisdiction?  

It seems that the Department of Justice has no respect for the law - at least when it's asked to apply the law to unethical prosecutors.  

Indeed, Assistant Attorney General Lanny Breuer praised Welch: 

Breuer called Welch an "extremely smart and thoughtful lawyer. I think he's a dedicated public servant who's devoted his entire professional life to serving the American people."  The Public Integrity Section, Breuer said, is "one of the greatest jewels" of the criminal division. He said he wants to find a "great leader" through a national search. "Bill's shoes will be hard to fill," Breuer said.

Breuer, incidentally, is resisting efforts to reform the Department of Justice.  


DOJ's Fake Mea Culpa in Ted Stevens Prosecution

The United States Department of Justice has received significant attention for its prosecutorial misconduct in the Ted Stevens prosecution - among many other cases.  Mainly, DOJ has had a problem with turning over Brady material.  Named for Brady v. Maryland, Brady material is any evidence favorable to the accused.  Federal prosecutors are required, under the law, to turn it over.  Often they don't.

Promising to get tough on prosecutors, Attorney General Eric Holder has given several speeches apologizing for prosecutorial misconduct.  Taking General Holder at his word, the Judicial Conference began discussing an amendment to the Federal Rules of Criminal Procedure.  Under the amended rules, prosecutors would be required to disclose all Brady material to the defense.  That a new rule is even needed, given the existence of Brady v. Maryland, reveals DOJ's dysfunctional relationship with Brady material.  To federal prosecutors, turning over Brady material is like kissing one's sister.  

The new rule would not be perfect.  It would still allow prosecutors to decide what evidence to turn over to the defense.  Requiring prosecutors to turn over Brady material is question begging: How do we know if the prosecutor handed over Brady material when the prosecutor gets to decide what to turn over?  In the prosecution of Senator Ted Stevens, DOJ admitted that federal prosecutors withheld Brady material that they were required to hand over.  It wasn't until an FBI agent filed a whistleblower complaint that anyone knew about the Brady material.

Instead, the Federal Rules should adopt the same rules applicable in North Carolina - the same rules that freed the Duke lacrosse players.  Under open-file discovery laws, the prosecutor is required to turn over every police report and witness statements she receives.  Under an open-file discovery system, whether something is exculpatory is simply not an issue.  Hand over the files.

An ethical former prosecutor (do all the good ones leave?) supports open-file discovery:

When I was a prosecutor, I generally practiced open-file discovery. That means that if I had a piece of evidence, unless I had a specific, articulable, and legally sufficient reason to withhold it, I dumped it in a box with everything else and shipped it to the defense as soon as I received it. Few things got held back: internal strategy and case evaluation memoranda, the home addresses and personal identity information about witnesses, the identify of confidential informants, and very rarely reports revealing confidential investigative means and methods that had not yielded evidence against the defendant. In many cases I wound up holding back nothing at all. I didn’t bother with timing my disclosures to my own benefit; I generally sent things out the same day I received them myself.

At the Judicial Conference hearing, DOJ stated that it is opposed to reform.  Despite General Holder's many apologizes and promises, here was his answer to protecting against prosecutorial misconduct - reading lessons:

Under fire for its handling of the criminal case against former Sen. Ted Stevens, the Justice Department last week outlined a plan to ensure prosecutors play by the rules when dealing with evidence. But some criminal defense lawyers and judges say the reforms don't go far enough.

On Oct. 13, Assistant Attorney General Lanny Breuer traveled to Seattle to address of panel of lawyers and judges who are considering a change to the Federal Rules of Criminal Procedure that would place more stringent requirements on prosecutors to disclose case information to defense lawyers.

Breuer pitched what he called a "comprehensive approach" to reform -- a plan that includes mandatory annual discovery training for all prosecutors and the creation of a new position at Main Justice that will focus on discovery issues. Breuer also said the Justice Department would agree to put existing case law and federal statutes involving information sharing into one rule in the criminal procedure books -- making the rule a one-stop shop for disclosure obligations.

But Breuer said the department would fight any effort to require prosecutors to turn over all favorable information to the defense.

Mike Scarcella, "DOJ Outlines Changes After Backlash Over Handling of Stevens Case"; "DOJ Begins Search for Public Integrity Section Chief."

Books!  That's their answer.  When the Department of Justice tells federal judges that it's taking prosecutorial misconduct seriously, all know what DOJ means: They are going to buy some books.  

They refuse to be bound by actual rules - rules which may be enforced in a court of law.  The law is what the Department of Justice enforces - not what it follows.


Prosecutorial Misconduct in the Enron Prosecution

There was substantial prosecutorial misconduct in the prosecution of Ken Lay and Jeff Skilling.  Here are a few bullet points:

The Enron Task Force withheld exculpatory evidence.  There were several witnesses with evidence exculpating Ken Lay and Jeff Skilling.  How did the prosecutor prevent these witnesses from testifying?  Doesn't Brady v. Maryland require the government to hand over exculpatory evidence?  The Enron Task Force lawyers were clever.

The prosecution was not just against Lay and Skilling: It was also against 100 unindicted co-conspirators.  Witnesses who were willing to testify on Lay' and Skilling's behalf feared that they were one of the unindicted co-conspirators.  Would-be witnesses asked DOJ for a promise not to prosecute them.  DOJ denied the request.

Lawyers then asked the trial court to grant immunity to these witnesses.  The trial court, U.S. District Judge Sim Lake, denied the request.  Why?  Because the prosecution team told the court that there might be future prosecutions.  We all knew this was a lie.  The trial court accepted the explanation

The witnesses who could have offered Brady material refused to testify on Lay's and Skilling's behalf.  They instead stated they would "plead the Fifth" if called to testify.

Since the Lay and Skilling convictions, there have been no prosecutions of the unindicted co-conspirators.  That, again, is unsurprising.  Everyone but Judge Lake saw through the ruse.  Perhaps Judge Lake wasn't looking closely enough? 

The Fastow plea agreement.  The only solid witness against Lay and Skilling was Andrew Fastow.  Fastow plead guilty, and cooperated with the government.  According to the plea agreement, Fastow was supposed to receive 10 years in prison. 

At trial, Fastow was cross-examined under the assumption that he'd get 10 years.  After the guilty verdicts, Fastow's lawyers moved for a 6 years prison sentence. The prosecutor did not object. The judge sentenced Fastow to 6 years instead of the agreed-upon 10.  

Fastow's sentence was lawlessly reduced by 40%.  Might a jury had viewed Fastow more skeptically had they known that he'd only receive 6 years in federal prison?  Of course.  Nevertheless, the trial court refused to grant Skilling a new trial based on the lie about Fastow's prison sentence.

Fastow's perjury at trial/the Enron Task Force's violation of Brady v. Maryland.  Tom Kirkendall summarized this issue well

Fastow testified at trial that he told Skilling about the Global Galactic agreement, which purportedly documented a series of illegal "side deals" between Fastow and former Enron chief accountant Richard Causey that guaranteed Fastow would not lose money on certain special purpose entities that he was managing. Skilling denied any knowledge of the purported agreement.

After Skilling's conviction, the Skilling defense team discovered Fastow interview notes that the Enron Task Force had failed to disclose to the Skilling team prior to trial. Among other things, those notes revealed that Fastow had told the Task Force lawyers that he didn't think he had told Skilling about the Global Galactic agreement. The Fifth Circuit characterized the Task Force's non-disclosure as "troubling" in inviting Skilling to file a motion for new trial with the District Court.

Only in the Fifth Circuit Court of Appeals is prosecutorial misconduct merely "troubling."  

The Enron prosecution was a blight on the criminal system.  Even accepting the dubious legal theories under which Skilling and Lay were prosecuted: Prosecutors violated the law in order to obtain their convictions.  In every sense of the world, the prosecutors were unethical.  Incidentally, the same honest service statute used against Skilling applies to prosecutors.  Why hasn't a prosecutor ever been prosecuted for violating the honest services statute?  To ask the question is to play naïve.

Although this is a post about prosecutorial misconduct, it's obvious that the prosecutors could not have violated federal statutory and constitutional law had the trial judge not deferred to the unethical prosecutors.  U.S. District Judge Sim Lake made the mistake of taking the Enron Task Force on their word.  Whether Judge Lake has any regrets remains an open question.

Judge Lake certainly has not granted a new trial, even when faced with substantial evidence of prosecutorial misconduct.  Judge Lake has not demanded that the prosecutors who lied to him appear before him in court.  Nor has he reported the unethical prosecutors to the State Bar.

One will have to wonder, then, whether Judge Lake's erroneous rulings were the product of a misunderstanding of the law, or a misunderstanding of the role of the judiciary?  In our constitutional system of separated powers, judges are judges - not prosecutors.


Pottawattamie County and Racial Justice

We've discussed the legal issues raised in Pottawattamie County extensively.  In a recent amicus brief, Mark Herrmann, on behalf of Black Cops Against Police Brutality, looks at the case from a different angle.  

In a blog posting about Pottawattamie County, Herrmann highlights the racial issues that we've ignored:

Two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They sued the prosecutors for having violated their civil rights. The prosecutors contend that they have absolute immunity from liability.

It's a fantastic point, especially when one considers that 42 U.S.C Section 1983 is the codification of the Ku Klux Klan Act of 1871.  Section 1983 was enacted because white officials, acting under color of law, terrorized innocent black Americans.  Isn't that exactly what happened in Pottawattamie County?  

The Black Cops amicus brief

recounts some sad examples from American legal history of where white cops have manufactured false evidence against black defendants. For example, in Brown v. Mississippi, 297 U.S. 278 (1936), white officers were investigating the murder of a white man. Acting without probable cause, the officers seized a black man named Arthur Ellington from his home, strung him up to a tree, and whipped him. He refused to confess.

Herrmann's post on Pottawattamie County is available here.


Pottawattamie County v. McGhee: DOJ's Amicus Brief

The Supreme Court will soon hear oral arguments in Pottawattamie County v. McGhee.  In McGhee, the issue is this: Should prosecutors who fabricate evidence, leading to a wrongful conviction, be absolutely immune from suit?  Absolute immunity from suit means that a wrongfully convicted person may not sue - at all or under any circumstances.   

Recently the Department of Justice filed an amicus brief (via Jonathan Adler) arguing that prosecutors who fabricate evidence should be entitled to absolute immunity.  Let's examine DOJ's arguments:

If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involv ing a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors

How many prosecutors ever face criminal prosecution for misconduct?  The Department of Justice would clearly have this data.  Other than Mike Nifong, has any prosecutor in recent memory been prosecuted for misconduct?  What about "professional disciplinary proceedings"?  

At least unethical prosecutors, according to DOJ, get disbarred or fired.  That, too, is a false claim.

In a lengthy post, I showed that the Department of Justice does not punish prosecutorial misconduct. Unethical state prosecutors similarity escape punishment.    

The California Commission on the Fair Administration of Justice compiled data on prosecutorial misconduct. They had to do a lot of leg work, though, as no District Attorneys' offices do not monitor prosecutorial misconduct.  How can you punish misconduct if you don't keep track of it?

CCFAJ's report was revealing, and disappointing:

Research identified 347 of the prosecutors and 30 of them were found to have committed misconduct more than once. Two of them actually did it three times. So what happened to them? In only one case was there a sanction - the prosecutor was disciplined by the State Bar.

More here.  Recognizing that prosecutorial misconduct was a problem, a California State Bar lawyer, Scott Drexel, tried punishing prosecutors.  How did police and prosecutors respond?  They successfully lobbied to have the lawyer fired:

Drexel also raised hackles in the law enforcement community by going after several well-known prosecutors for misconduct, including Santa Clara County prosecutor Benjamin Field. Accused of offenses including withholding exculpatory evidence, which Field's supporters were quick to point out involved cases more than a decade old, Field ended up having his license suspended for four years.

Instead of being given an award from ethical prosecutors, Drexel "raised hackles."  Prosecutors, like every other organized guild, seeks self-protection and self-promotion.  Prosecutors are not interested in uprooting unethical prosecutors from their offices.

The Department of Justice itself does not take prosecutorial misconduct seriously.  State Bar Associations do not punish prosecutorial misconduct.  Lawyers who fight misconduct lose their jobs.  

Thus, the only remedy available to a wrongfully-convicted citizen is a civil rights lawsuit.  The Department of Justice's assertions in its amicus brief ignore the reality of prosecutorial misconduct.  Accordingly, its reasoning must be rejected, and absolute immunity must be denied.


Prosecutors Can't Lie: They are "Truthful, but Inaccurate"

Remember Rachel Cannon, the federal prosecutor who lied to U.S. District Judge Joan Lefkow?  She has issued her apologia, and she ain't no Socrates:

The prosecutors from U.S. Attorney Patrick Fitzgerald's office on Sept. 18 filed a motion for reconsideration in the case, telling U.S. District Judge Joan Lefkow that the government witness who she determined gave false testimony at the trial actually "was truthful, but inaccurate."

The Apology of Cannon.


Prosecutor Goes Underneath Her Robes: Verla Sue Holland and Attorney Tom O’Connell's Affair

It's not often that you get an unethical prosecutor and a judge in the same case.  Then again, we are talking about Texas:

 The question of whether a romantic relationship between a judge and prosecutor is unfair won’t be decided by the Texas Court of Criminal Appeals.
...
 The Court denied Hood the right to pursue his claim that he did not receive a fair trial because Judge Verla Sue Holland and then district attorney Tom O’Connell were romantically involved.


In a criminal case, you can't raise new issues on appeal.  A "new" issue is one that you should have discovered through the use of reasonable diligence, and raised at trial.  The Texas Court of Criminal Appeals held that the inmate's lawyers should have been able to discover the affair between a judge and prosecutor.  How?

The judge and prosecutor kept their affair a secret.  How was anyone supposed to uncover this?  Imagine, too, hiring a private investigator to follow a judge.  What do you think would have happened to a lawyer caught snooping on a judge?

Texas justice remains a joke.  Does Tom O'Connell still have his law license?  If so, why?


Pottawattamie County v. McGhee: Fabricating Evidence is All in a Day's Work

In Pottawattamie County v. McGhee, the Supreme Court will decide whether a prosecutor should be entitled to absolute immunity from suit for "obtaining, manufacturing, coercing and fabricating evidence before filing formal charges."  Absolute immunity from suit, in the context of civil rights cases means this: Even if the prosecutor fabricated evidence, he may not be sued.  

Pottawattamie County has not received the attention is deserves, primarily because it involves intricate questions of Section 1983 law.  In one Law.com article, however, we get to hear a prosecutor's take on Pottawattamie County.

One of the people who joined a slippery and dishonest amicus brief (which we discussed here), said:

"Every prosecutor makes decisions every day that somebody could just go ahead and file a lawsuit over. If there is no immunity…anyone with a filing fee can sue, whether their case is meritorious or not," said James Fox, chairman of the National District Attorneys Association.

This is one of those things we call lawyer's lies.  Fox's words are literally true; but in context, they are false.  Here's why: Pottawattamie County does not present a binanary choice of immunity-or-no-immunity.

In Section 1983 cases, a prosecutor may be entitled to two types of immunity - absolute, and qualified.  Under absolute immunity (the issue in Pottawattamie County), a prosecutor cannot be sued, even if her conduct was immoral, unethical, and unlawful.  However, a prosecutor who is not entitled to absolute immunity may still (always) assert qualified immunity.  

Under qualified immunity, a prosecutor will escape a lawsuit if she can show that she did not violate a clearly-established right.  Qualified immunity provides a lot of protection from lawsuits.  Qualified immunity would not protect a prosecutor who obtains, manufactures, coerces, and fabricates evidence.  Nor should it.  In even debately close cases, though, qualified immunity will protect a prosecutor who acted in good faith. 

Thus, even if the Supreme Court holds (as it should), that a prosecutor is not entitled to absolute immunity for manufacturing evidence, the prosecutor will still be entitled to qualified immunity from suit.  Thus, the good prosecutor fibbed.  He also revealed a heart of darkness.

The prosecutor continued:

"Clearly, from my perspective, absolute immunity is critical because, otherwise, why would anyone want to be a prosecutor if they're going to end up with personal liability for doing their job?," Fox said.

How is manufacturing and fabricating evidence part of a prosecutor's job duties?  Seriously: How is it?

How can any ethical prosecutor argue in favor of absolute immunity?  Here is what the Eighth Circuit Court of Appeals (no oasis of liberal activism) held:

We find immunity does not extend to the actions of a County Attorney who violates a person’s substantive due process rights by obtaining, manufacturing, coercing and fabricating evidence before filing formal charges, because this is not “distinctly prosecutorial function.” The district court was correct in denying qualified immunity to Hrvol and Richter for their acts before the filing of formal charges.

According to Prosecutor Fox, prosecutors accused of "obtaining, manufacturing, coercing and fabricating evidence" are just "doing their job."  Let's hope that the United States Supreme Court disagrees.