The Unethical Prosecutors Ethics Train Wreck

I went to law school to be a prosecutor, and was one for about two weeks after I passed the Massachusetts Bar. Then I was quickly disillusioned, and realized that the weird, intrinsically ethically-conflicted criminal justice system was something out of which I had to get, and the sooner the better. I never looked back, and the situation is even worse now than I thought it was then.

Netflix has truly eye-opening and disturbing documentary about the subject of John Grisham’s only non-fiction book (out of more than 40). Both the book and the film are called “An Innocent Man,” and involve two criminal cases, both murder-rapes of young women, in the small town of Ada, Oklahoma in the Eighties. The title is ambiguous, for there isn’t just one innocent man, but four, all wrongly convicted of rape and murder because of police and prosecutorial misconduct of head-exploding magnitude. At the end of the documentary, two of the men had been freed after serving 12 years for a murder and rape with no physical evidence that incriminated them, and the remaining two were pursuing appeals. (One of them, who had been on death row, was finally freed last summer. The other has had his conviction overturned, but the state is appealing. Both of the men had been in prison for 35 years.)

The prosecutor was the same for both murder cases, and his comments defy belief. In one case, the actual murderer was the prosecution’s prime witness against the innocent men convicted, and evidence implicating him at the time of the crime was withheld by the Ada police who were involved with killer in a drug scheme. More evidence, so-called Brady material that prosecutors are required by law to reveal to defense attorneys, was illegally withheld by the DA. Asked if he owed an apology to the two men the jury convicted when the uncovered evidence prompted their release, the prosecutor’s reply was that he had nothing to apologize for, because he did his job.

No, his job is to try and convict guilty people. That case was finally blown up by the Innocence Project and DNA evidence.

The other case is even worse, believe it or not. A missing girl was seen by a single witness, from a distance, at night, being pulled into a car by two men. An artist’s crude approximation of the witness’s description led to the arrest of one suspectn, who was first shown to the witness, and then the witness was asked to pick him out of a line-up. (That’s an illegal line-up trick, as you can guess.) The second suspect was arrested because he knew the first suspect, and because one of the sketches vaguely resembled him. The first suspect, a young man known in the town as “slow,” confessed following r many hours of grilling by police and gave a detailed description of what the two men had done to the girl, including where they had buried her. Then the second man was led to confirm his own participation in the crime as it had been described by his friend. The taped confessions (and not the illegal questioning leading up to them, which was not recorded) were the only evidence presented at their trial.

Decades later, the body of the victim was found in a shallow grave 30 miles from where the convicted men had said she was buried. She was clothed in a dress bearing no resemblance to the one the men described. Most disturbing of all, forensics showed no evidence of rape, and she had been killed by a single bullet to the back of the head, not by stabbing. The men got a new trial, and were convicted again, with the same DA arguing for their guilt. His explanation: the girl was dead, they confessed to the killing, and the details don’t matter.

Among the 800 pages of Brady material withheld from the two men’s lawyers: a man who resembled one of the sketches had come to police and confessed to the murder before they were convicted.

Continue reading

Ethics Heroes: The California State Legislature And Gov. Jerry Brown

governor-brown

Usually, when Ethics Alarms headlines California’s lawmakers, it is because they have done something irresponsible, like in this postthis one,  and my personal favorite, this one, in which Governor Jerry Brown signed a minimum wage law that he admitted might not make economic sense, because it was consistent with partisan fantasies.

But a blind pig might find a truffle, every dog has its day, and even a stopped clock is right occasionally. California just passed a desperately needed law that no other state has had the courage to pass. Its purpose: take serious measures to stop prosecutorial misconduct that sends innocent people to jail, a problem that is rampant everywhere in the U.S., but particularly bad in the Golden State.

Brown just signed into law a new statute making it a felony for prosecutors to alter or intentionally withhold evidence that could be used to exonerate defendants. Violators could be sentenced to up to three years in prison. That’s not nearly enough punishment when the crime often robs innocent citizens of decades of their lives, but it sends an important, and one hopes an effective, warning…with teeth. Continue reading

Ethics Quote Of The Day: Baltimore Judge Barry G. Williams

Prosecutors are not supposed to play this game...

Prosecutors are not supposed to play this game…

“I’m not saying you did anything nefariously, I’m saying you don’t know what exculpatory means.”

—- Judge Barry G. Williams, presiding in the Baltimore trial of Officer Caesar Goodson Jr for his alleged role in the death of Freddie Gray, excoriating the prosecution for illegally withholding Brady evidence from the defense.

There is more evidence that the Baltimore prosecution of six police officers for the death of Freddie Gray a year ago is less a matter of seeking justice than it is a sacrificial offering of  innocent law enforcement professionals to avoid civil unrest.

I have already chronicled the disturbing pattern of the prosecution in this case, where premature and dubious charges were brought against the officers in the wake of destructive rioting and threats from African-American activists. Now it appears that a statement supporting the officers by Donta Allen, the man sharing the police van with Gray—who ended his trip fatally injured—was never made available to the defense. Because  the statement was potentially supportive of the officers in their defense, the material had to be handed over by prosecutors under the Supreme Court decision in Brady v. Marylandthe landmark 1963 case holding in 1963 that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

There were only two people present during Ray’s final ride, other than Gray himself:  Goodson, the driver, and Donta Allen, another arrested subject who was  separated from Gray by a thin metal screen.

Allen has  made wildly conflicting statements about what transpired. He initially told police that Gray was “trying to knock himself out” in the back of the van, then later denied that statement to the news media. However, Allen had a second session with police investigators a year ago, shortly after the charges against the officers were brought by City Attorney Marilyn Mosely. In that meeting, Allen reiterated and confirmed his original statement that suggested Gray was trying to injure himself. Prosecutors never brought his second statement to the attention of the defense.
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Ethics Hero: Dallas District Attorney Craig Watkins

Craig Watkins, a D.A. who understands his ethical priorities.

Craig Watkins, a D.A. who understands his ethical priorities.

In Law School, I had the honor of being instructed in the superb Georgetown Law Center Criminal Justice Clinic, by far the single best course of any kind I participated in at any level of my formal education. Our mentor in prosecutor ethics was Seymour Glanzer, the man who, as an Assistant U.S. Attorney, cut the deal with Nixon’s White House Counsel John Dean that cracked open the Watergate scandal.

Sy had one mantra he repeated to the clinic students often, trying the beat it into our heads forever: the prosecutor must be the center of justice and ethics for the criminal system. Defense attorneys have to defend the accused whether they are guilty or not, but prosecutors are charged with achieving justice, not convictions. “If you don’t have sufficient legal and reliable evidence to convict a defendant of a crime, or have any doubts about that client’s guilt, drop the case,” he told us.

His principles do not hold sway among many, perhaps even most prosecutors, to the shame of the criminal justice system. Too many see their duty as convicting as many accused as possible, putting the law-abiding public at ease by closing cases and filling prisons. Over-zealousness, sometimes to the extremes of withholding exculpatory evidence from defense attorneys while placing questionable eye-witnesses and unreliable experts on the stand under oath, is rampant in district attorney offices across the country.

The worst of the worst may have been Dallas. Vanessa Potkin, chief counsel of The Innocence Project at Cardozo Law School, argues that “no other county in the country beats Dallas. It’s a county that beats out most states in the country.”

It’s an indication of a system that needs reform, she says, with  “staggering numbers of the innocent put in prison.” That is why the recent steps taken by new Dallas District Attorney Craig Watkins are so important, and so necessary. Continue reading

KABOOM! TNT Promotes A Tainted Prosecutor As A Star

coldjustice

And all this time I believed that TNT reality star Kelly Siegler was a real star prosecutor who had actually convicted guilty people while observing the law and professional ethics.

Kaboom!

head_explodes

That was the sound of my brains exploding through the top of my skull, this time because they deserved to. I never learn.

Or is the state of prosecutorial ethics in the United States so wretched that Kelly Siegler is the best ex-prosecutor that TNT could find?

I’ll stick my neck out and say, “no.” I say that even though the state of prosecutorial ethics is pretty terrible. Kelly Siegler left her job as a Harris County, Texas district attorney in 2008 after successfully prosecuting 68 murder trials. In 2013, TNT signed her up to star in a reality show called“Cold Justice,” now in its third season on the cable network.

Good title! A state-court judge recommended a new trial for a Texas inmate named David Temple, prosecuted by Siegler in 2007  for allegedly killing his pregnant wife. He was convicted, but the court says the “legendary prosecutor” illegally withheld critical exculpatory evidence.  Wrote Judge Larry Gist in his opinion calling for a re-trial: “Of enormous significance was Siegler’s testimony at the habeas hearing that apparently favorable evidence did not need to be disclosed if the state did not believe it was true.”  Continue reading

A Prosecutor Is Sent To Jail For Unethical Conduct, And It’s About Time

Good.

Good.

In the resolution of a case already discussed on Ethics Alarms, Former Williamson County (Texas) District Attorney Ken Anderson has been  sentenced to serve 10 days in jail, pay a $500 fine and complete 500 hours of community service as punishment for intentionally failing to turn over exculpatory evidence that would have exonerated Michael Morton, who spent nearly 25 years in prison for a murder he did not commit. Anderson also was forced to surrender his law license and resign his post as a judge because of his ethical breaches in the 1987 case, ultimately overturned after DNA evidence proved that Morton did not beat his wife to death.

Ten days for the prosecutor who disgraced his profession, sullied the justice system and destroyed a life seems like a rap on the wrist, and even an insult to the man who had to spend  nearly 9000 days in jail because of Anderson’s deception. Consider, however: despite blatant prosecutorial misconduct, in every state and for centuries, with untold numbers of innocents jailed and executed, most never vindicated, this appears to be the first time on record that any prosecutor has been punished with jail time. Few, compared to the number deserving punishment, have been punished at all.

It’s a start. It’s a precedent.

The justice system just became a little more accountable.

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Pointer: Legal Ethics Forum

Sources: New York Times, ABC KVUE

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work or property was used in any way without proper attribution, please contact me, Jack Marshall, at  jamproethics@verizon.net.

Judge Ken Anderson: A Judge With An Ethical Obligation To Resign

Ken Anderson

Regret isn’t enough.

Ken Anderson has been a Williamson County (Texas) district judge since 2002, but in 1987  he was the district attorney who prosecuted Michael Morton for fatally beating his wife to death. Morton was convicted and served 25 years in prison before DNA tests proved he was innocent. (This is yet another triumph of The Innocence Project.) Another man has been arrested for the murder of Morton’s wife Christine, as well as a second woman he allegedly killed in similar fashion while Morton was behind bars.

Last week, a five day hearing examined Judge Anderson regarding his conduct in the case, in a special court of inquiry to determine whether he engaged in criminal wrongdoing as well as unethical prosecution. Among the questions raised was why Anderson never divulged to Morton’s defense team a police report that Morton’s neighbors had said that they saw a suspicious man walking into the woods behind the Morton home shortly before the murder, and why Morton’s three-year-old son’s statement that “a monster,” not his father, beat the child’s mother to death was similarly withheld. On the stand enduring five hours of questioning, a tearful Anderson could only say that he didn’t remember not turning over the evidence to the defense, while defense attorneys adamantly insisted that they never received it. The hearing also revealed that Anderson kept his lead investigator from testifying at trial, when his testimony would have ensured that the child’s statement and the report about the stranger were raised in court, as well as allowing defense attorneys to cross-examine the investigator regarding his peculiar theory of the case.The theory, which was subsequently endorsed by DA Anderson, was that Morton become homicidal after his wife fell asleep when he sought to have sex with her, and donned his scuba wet suit so his son wouldn’t know it was him beating her to death. Continue reading

Unethical Quote of the Week: Wrongly Imprisoned Victim John Thompson

“I don’t think training would have had anything to do with nothing really, to be honest with you, because you could have trained them and they would still do it. You need to punish them for doing it, then they won’t do it.”

John Thompson, who was wrongly and illegally convicted of murder in Louisiana and spent 14 years on death row because prosecutors withheld exculpatory blood evidence from his lawyers and his trial. His civil suit against the prosecutor’s office, run by Harry Connick, Sr. (yes, the singer’s father) for millions in punitive damages, on the theory that the prosecutors who framed him were inadequately trained, was overturned last week by the U.S. Supreme Court.

This statement apparently was made by Thompson last October, when the Supreme Court took the case, and I missed it. It surfaced again this morning in a Washington Post editorial calling for harsher punishment for prosecutors who violate the rights of accused suspects and send innocent people to prison or execution. The Post has never been more right, and the $14 million originally awarded to Thompson by an appalled jury for his ordeal is still inadequate compensation for the 18 years he spent behind bars because of a prosecutor’s dishonesty.

But the theory used to get Thompson his money—that the tragedy would have been prevented if Connick’s office hadn’t been negligent in training its lawyers in prosecutorial ethics—was a sham, and deserved to be rejected by the Court, no matter how much Thompson deserved the money, or indeed, ten time the money. Continue reading

The Training Myth and Connick v. Johnson

The U.S. Supreme Court is deliberating on the issue of whether a District Attorney’s office can be held liable when individual prosecutors commit serious misconduct, on the grounds that the government breached its duty to train its prosecutors and ensure their competence. The case is Connick v. Thompson, and it began when it was discovered that a New Orleans man had been sent to Death Row for 18 years for a crime he hadn’t committed. John Thompson was innocent, and a lab report proving that the blood found at the crime scene belonged to someone else would have proven it. Prosecutors withheld the evidence from the defense attorneys.

When Thompson was freed he was understandably angry, but the options for redress when the criminal justice system ruins your life are severely and unjustly limited. In 1976, the Supreme Court decided in Imbler v. Pachtman that prosecutors have absolute immunity from lawsuits, even when there is genuine, malicious and illegal conduct. The Court acknowledged that its ruling “does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty,” but declared the alternative was worse: making prosecutors timid and fearful of making a mistake that could leave them penniless. The Court suggested that professional discipline would be enough to keep prosecutors honest, but that hasn’t been the case: a USA Today study found that even in egregious cases of prosecutorial misconduct, attorneys who put innocent people in jail almost never had to endure any punishment at all. Thompson sued the District Attorney’s Office on a theory of negligent training, and won 14 million dollars from a sympathetic jury. Now the Supreme Court is deciding whether such suit can stand in light of the ruling in Pachtman.

It should, but the theory behind the lawsuit is a myth, and I suspect that everyone knows it. Continue reading