Shepard, who has been obsessed with Watergate for decades and has written three previous books about the scandal, forced the release of a secret prosecutors’ “road map” used to convince a grand jury to indict key Watergate figures and spur the impeachment inquiry. He also claims his research shows that Watergate prosecutors were coordinating with Judge Sirica, which was one reason many of them, included the sainted Special Prosecutor Archibald Cox, improperly took documents with them when they left the case. Amusingly (I guess), the Washington Examiner calls this “a big legal no-no.” That’s one way of putting it, I guess—a stupid way. If true, it’s grounds for disbarment for the lawyers and impeachment for the judge.
“It looks to me as if Judge Schroeder has stacked the deck: he allowed enough improper summation conduct from the State to ensure a reversal if Rittenhouse is convicted, and also allowed sufficient cheats by the defense to make an acquittal more likely.”
That statement is still accurate as far as it goes, but a friend, colleague and experienced trial lawyer just called to remind me that improper statements or actions in summary arguments in civil and criminal cases that would otherwise justify a mistrial are considered waived if opposing counsel doesn’t make a timely objection.
The judge can (and should) also intervene if an attorney crosses the ethical and legal lines in closing, but my friend emphasizes that most judges won’t, preferring to leave that task to the lawyers. Attorneys, meanwhile, are very reluctant to interrupt an opponent’s closing argument to object. If they do and are over-ruled, they lose credibility with the jury. Mid-closing interruptions are also seen as Golden Rule breaches, though that should not matter: the lawyer’s duty to the client surpasses any obligations to opponents.
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.
Texas attorney Weldon Ralph Petty Jr was a busy guy at the Midland County courthouse. By day he appeared before judges as an assistant district attorney. By night, he worked as a law clerk for some of the same judges, sometimes advising them regarding the criminal cases he was prosecuting. This went on for more than a decade.
You don’t have to be a legal ethics whiz to figure out that such conduct isn’t ethical. Prosecutors are barred from privately communicating with judges about cases or matters even indirectly related to their cases. Judges and their clerks are forbidden from disclosing the discussions and in chambers considerations regarding cases to prosecutors or defense attorneys.
Thus Petty, 78, was flagrantly violating ethics rules by simultaneously acting as a prosecutor and a paid adviser to supposedly impartial judges, who were also breaching judicial ethics to a spectacular degree by allowing him to do so. A February story published by USA Today first reported that Petty was paid by judges as a clerk in at least 350 cases from 2001 until his retirement as an assistant district attorney in mid-2019. Seventy-three defendants, maybe more, that Petty prosecuted are in prison. A court opinion issued April 28 calls for overturning Midland County’s only death penalty case due to Petty’s prosecutorial misconduct and the judge’s failure to recuse himself, so Clinton Lee Young, who has been on death row since Petty prosecuted him in 2003, will get a new trial.
Continuing with the observations regarding this remarkable document…
4. I was once involved in an anti-trust lawsuit triggered when all of the competitors of the company I was working for gathered together and conspired on ways to sink my employer’s business. Before the minutes of the meeting, the group’s lawyers prepared a statement that that the group absolutely intended to obey all anti-trust laws, and the meeting would embody the ideals represented in those laws. Then they went ahead and, based on a recording of the meeting, planned ways to conspire against our business in direct violation of the laws they claimed to hold in such high esteem.
It was really comical; these idiots though that by having everyone sign a statement that they weren’t doing what they obviously were doing, this would provide some plausible deniability.
5. We now know that Rice’s bizarre memo was written upon the advice of the White House Counsel’s Office. Rice says she waited 15 days because it was her first opportunity to do so, since she had been so darned busy. It would be a more likely srory if Rice had any credibility at all, which she does not.
6. Let’s let Andrew McCarthy try to explain what’s going on here. The anti-Trump news sources will never give him a forum, so he’s related to Fox News, but McCarthy was spot-on in predicting the course of the Mueller investigation, as is as knowledgeable on the machinations of the Deep State as anyone. He explained in part,
….Rice has gone from claiming to have hadno knowledge of Obama administration monitoring of Flynn and other Trump associates, to claimingno knowledgeof any unmaskings of Trump associates, toadmitting she was complicitin the unmaskings, to — now — a call for the recorded conversation between retired general Michael Flynn and Russian ambassador Sergey Kislyak to be released because it would purportedly show that the Obama administration had good reason to be concerned about Flynn (y’know, the guy she said she had no idea they were investigating).
Naturally, we have now learned that Rice was deeply involved in the Obama administration’s Trump–Russia investigation, including its sub-investigation of Flynn, a top Trump campaign surrogate who was slated to replace Rice as national-security advisor when President Trump took office.
Also not so amazingly, the fact-checker was Prof. Jonathan Turley, a rare academic and legal professional who has the integrity to go where the facts take him, not his colleagues’ partisan agendas. Unfortunately, his refusal to join the “resistance” has resulted in his being vilified, as well as exiled to Fox News if he wants to be heard.
Barack Obama was heard on a private call to say that the “rule of law is at risk” after the Justice Department moved to dismiss the case against former national security adviser Michael Flynn. As with so many other narratives the Left has pushed in the past three years, this one is exactly the opposite of reality. Recently declassified documents show that the Obama FBI and Justice Department engaged in illegal investigative and prosecutorial misconduct, targeting Flynn and framing him as part of their efforts to bring down President Trump. They also suggest that President Obama was aware of the operation. Such abuses for political gain pose the real threat to the rule of law.
Obama is reported to have said that “There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free.”
In 2008, a Texas jury found that Paul Storey (left) had murdered Jonas Cherry (right), and the prosecutor, Christy Jack, told the same jury deliberating on the proper punishment, “It should go without saying, that all of Jonas’s family and everyone who loved him believe the death penalty is appropriate.”
Storey was indeed sentenced to death by the jury’s vote. Cherry’s family, however, opposed the death penalty, and said they always had. In 2016, they issued a video reaffirming their principled objection to executions,
Responding to the video, one of the jurors, Sven Berge, made a sworn statement in 2017 stating, “Had I known that Jonas Cherry’s parents were opposed to Paul Storey receiving the death penalty, I would have never have voted for death.” The Texas Court of Criminal Appeals, upon a writ of habeas corpus filed by Storey’s lawyers, stayed Storey’s impending execution and ordered Judge Everett Young to investigate whether Jack’s statement had affected the jury’s decision. After a three-day hearing, he ruled last year that ProsecutorJack’s statement was improper and prejudicial, because it constituted prosecutorial misconduct “to interject the wishes of the victim’s family for the jury to return a verdict of death.”
Not only that, Judge Young also found that the Jack’s statement to the jury was false. This meant that the judge rejected testimony from Jack defending her claim that the family wanted Storey to die. She had testified under oath that Jonas Cherry’s father approached her during the trial to say he had changed his mind about opposing the death penalty. The judge recommended that Storey’s death sentence be reduced to life without parole.
As if that wasn’t enough to confuse things, a Texas appeals court, in a 6 to 3 ruling, has held that new evidence about the prosecutor’s apparent falsehood did not justify reducing Storey’s sentence, not because a lie sent him to Death Row, but because defense lawyers waited too long to raise the issue and should have been more diligent in seeking Cherrys’ views on capital punishment. One of the dissenting judges, In Judge Scott Walker objected to the opinion’s assertion that lawyers should to “go prying into the private feelings of a murder victim’s family without a very good reason for doing so,” other than beginning with the presumption that “prosecutors misrepresented the truth or even lied.”
As it stands now, however, Storey’s execution will proceed.
Usually, when Ethics Alarms headlines California’s lawmakers, it is because they have done something irresponsible, like in this post, this 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 →
“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. Maryland, the 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. Continue reading →
I thought Eliot Spitzer set a high bar for hypocritical prosecutors, but Ingham County (Michigan) Prosecutor Stuart Dunnings makes him look like a piker.
Dunnings, a well-respected prosecutor since 1997 and an outspoken advocate for ending human trafficking and prostitution, is facing fifteen criminal charges in Ingham, Clinton and Ionia counties, including ten counts of prostitution, pandering and four counts of willful neglect of duty.
Investigators connected to a 2015 federal investigation into a Michigan-based human trafficking ring determined that between 2010 and 2015, Dunnings paid for sex hundreds of times with many women whom he contacted using escort websites. Dunnings also allegedly induced one woman to become a prostitute,leading to the pandering charge, which carried a maximum sentence of 20 years. The prosecutor’s brother, Lansing attorney Steven Dunnings, was also charged with two counts of prostitution.
Ethics Alarms frequently finds itself annoyed by mistaken, incorrect or unfair accusations of hypocrisy, and is grateful to Dunning, who claimed to be dedicated to wiping out human trafficking and prostitution while he was really supporting both with his patronage, for giving us a clear and unequivocal demonstration of what real hypocrisy looks like.
Ethics Alarms 