Guest Shot: Overzealous prosecutors, cross-examine yourselves

Originally published in the Los Angeles Times: http://tinyurl.com/jwqqa

Hunger for convictions leads many prosecutors to hide evidence that could prove innocence.
By Alan Hirsch

ALAN HIRSCH, a visiting professor of legal studies at Williams College, created and operates www.truthaboutfalseconfessions.com.
June 21, 2006

BY ALL APPEARANCES, the sexual assault case against three members of the Duke University lacrosse team involves serious prosecutorial misjudgment, if not downright misconduct.

Michael B. Nifong, the Durham County, N.C., prosecutor, made public accusations long before the conclusion of the investigation and now forges ahead even as DNA, witness statements, medical reports and other evidence lead impartial observers to find the case ridiculously weak.

Sadly, such conduct is not uncommon. Prosecutors blatantly or subtly overstep professional bounds all too frequently. In a 2003 study, the Center for Public Integrity found that, since 1970, trial and appellate courts cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences in more than 2,000 cases. In thousands more, courts labeled prosecutorial behavior inappropriate but upheld convictions nevertheless.

The New York-based Innocence Project, whose DNA testing has led to the exoneration of 180 wrongly convicted people in the last 15 years, has studied these cases. It cites the following prosecutorial abuses as contributing to the punishment of the innocent: suppression of information favorable to the defense, knowing use of false testimony, improper closing arguments, coerced witnesses, false statements to the jury and fabrication of evidence.

Maybe such shenanigans will seem unsurprising — just a case of lawyers being lawyers. As the joke goes, what's the difference between lawyers and liars? The pronunciation. (I can make the joke. I'm a lawyer.) But prosecutors are supposed to be different. They are public servants who are supposed to be committed to justice rather than the single-minded pursuit of victory. The Supreme Court has referred to their "twofold aim": to ensure that "guilt shall not escape or innocence suffer."

Why is the second half of that command often neglected? Why do some prosecutors seem indifferent to the risk that their behavior will result in punishment of the innocent? The answer to these questions involves a combination of at least three factors.

First, the asymmetry of the criminal justice system arguably places unrealistic demands on prosecutors. Defense attorneys may pursue acquittals without regard for truth and are subject to few ethical constraints. For example, defense attorneys generally are not bound to share evidence unfavorable to their client, but a prosecutor's failure to share exculpatory material is a serious no-no likely to result in a conviction being reversed. Prosecutors understandably aren't fond of unequal combat. With trials structured as zero-sum competitions featuring a clear winner and loser, they resist allowing their opponent overwhelming tactical advantage.

Personal ambition compounds competitive instincts. Many prosecutors are elected. They wish to be re-elected and often aspire to higher office. One rarely wins popular acclaim for the indictment not brought (because of doubts as to guilt or because evidence was illegally obtained) or the case lost (because of appropriate restraint). Professionalism in prosecution can be subtle and unpublicized, whereas wins and losses are out there for everyone to see. Moreover, restraint is easily mistaken for weakness, rashness for strength. Today, Nifong receives criticism for prosecuting the lacrosse players, but at the time he charged ahead with the decision, public pressure pushed toward aggressive action.

Another cause of prosecutorial misconduct is the deep-seated human need to rationalize away our errors. It would be awfully difficult now for Nifong to admit — to himself — that he shouldn't have brought charges. He retains the discretion to drop the charges, but it would amount to an admission that he has shattered the lives of several innocent people. Who among us is capable of acknowledging mistakes of such magnitude?

The role of rationalization is on clearest display after DNA exonerates those already convicted. The occasional brave prosecutor will apologize and take action to release the man he or his office wrongly put behind bars, but more often the prosecutor refuses to admit the obvious. Though he routinely argues to juries about the infallibility of DNA evidence, now he isn't so sure. Or, though he advanced a theory about the defendant's guilt with certainty, he now abandons that theory while nevertheless maintaining the belief in guilt.

Consider the case of Earl Washington, a mentally retarded man convicted of rape and murder in Virginia who never should have been prosecuted. The case against him consisted of a wildly inaccurate confession, whose errors included misidentifying the race of the victim. Some time after Washington's conviction, DNA testing ruled him out as the source of the seminal fluid found in the victim. The prosecution merely changed its theory of the case, arguing that Washington was not the rapist but an accomplice. They stuck to that story (supported by zero evidence) even after Washington received a pardon and even though no neutral observer has found his guilt a realistic possibility.

Prosecutorial misconduct should not surprise us. Prosecutors are lawyers (intent on victory), politicians (craving popularity) and human beings (needing to rationalize serious errors). The question is what medicine can be prescribed to treat the malignant influences on their behavior. The solution begins with the right kind of public pressure. We must judge prosecutors by much more than how many headlines and convictions they muster.

What is Tennessee Afraid Of?

Sometime after 1:30 a.m. on July12, 1985, 19-year-old Suzanne Collins went jogging near a Navy base north of Memphis, Tennessee. She never came back. Suzanne was kidnaped, beaten to death and sexually assaulted with a sharpened tree limb.

Sedley Alley was arrested almost immediately after Suzanne’s body was found. Police had arrested Alley at 12:10 a.m. on the morning of Suzanne’s murder, and after they released him, police kept him under surveillance, so Alley was easy to find. (Over the next 20 years, the authorities "forgot" to disclose Alley’s arrest, release and surveillance.) He admitted the killing, although the story he gave police was significantly inconsistent with the evidence. Alley pled not guilty by insanity, claiming he had multiple personalities and another personality must have killed Suzanne. With Alley’s confession in hand, it wasn’t hard to get a conviction and death sentence.

Famed FBI profiler John Douglas featured this case in his book Into The Darkness. He wrote that he had become friends with the Collins family and had said if anyone deserved the death sentence it was this man. For many, the reprieves Alley received over the years was frustrating. His execution was scheduled for May 17, 2006, but he won a short reprieve (until June 28th) while his attorneys, including Barry Scheck with the Cardozo Innocence Project, sought DNA testing of the murder weapon, Suzanne’s clothes and other items from the crime scene. On May 30, 2006, Judge W. Otis Higgs of Memphis denied Alley’s DNA testing request. The Tennessee Court of Criminal Appeals is now considering an appeal of Higgs’ denial. The same court rejected a similar appeal by Alley in 2004.

Jennifer Smith, a deputy state attorney general, said Alley's guilt is not in doubt and DNA tests, had they been available then, would not have changed his trial jury's verdict in 1987. But, as Scheck pointed out in oral argument, how do they know until they do the testing? And if Alley’s conviction is iron-clad, why does the state so vigorously oppose DNA testing?

Smith accused Alley’s lawyers of trying to open a new murder investigation. If Alley didn’t kill Suzanne, someone else did, and Suzanne deserves nothing less than a new investigation. Smith also says she’s concerned that allowing DNA testing in Alley’s case would "open up a door" to broader use of Tennessee’s post-conviction DNA testing law. To which we respond, so what? What is more important to the State of Tennessee, convictions or truth?

Larry Peterson, In His Own Words ...

My long struggle for justice
Larry Peterson tells how he overcame prosecutors and prison cruelty to prove his innocence in a murder case.
Reposted from the Philadelphia Inquirer

By Larry Peterson
June 15, 2006

In 1987, as I was trying to place my life in a favorable position to prosper mentally, spiritually and emotionally, my life took a hellish turn.

In 1986, I had begun to attend a treatment center to assist me with my alcohol problems. All appeared to be going well, almost fantastically, for me when in August 1987 the state began investigating the Burlington County rape and murder of Jacqueline Harrison.

I couldn't fathom why investigators had come to interview me and why I was a suspect.

Little did I know the state was building a case against me, maybe because of my arrogance and obnoxiousness and because I didn't care for their rude, insensitive interrogation tactics.

On Sept. 22, 1987, I was at work at Diamond Lumber when the supervisor asked me to join him in his office. Three or four county officers were there, and they began reading me my rights and informing me I was being arrested for Ms. Harrison's rape and murder.

I was taken to the county courthouse, where I was interrogated for hours. I told them the same thing over and over:I didn't commit any crime, and at the time of the murder I was in Wrightstown with a young lady having a good time at a motel.

I was taken to the Burlington County jail and made to wait all day before being processed in. Late that night, about 10:30 or 11, I was placed in a dorm with seven criminals. I was attacked there by inmates and required stitches to my lips.

The next day, I was transferred to the Cumberland County jail in Bridgeton, where I remained in solitary for more than 90 days. In January 1988, I was transferred to the Mercer County Detention Center in Trenton, where I remained until my trial began in January 1989.

From 1987 to 1989, I was treated cruelly in every sense of the word when it came to dental and medical treatment.

On the day I entered Trenton State Prison, facing 50 years, I made up my mind to accomplish two things.

First and foremost, I was going to live for the Lord regardless of whether I got out of what had happened to me.

Second, I would work to prove my innocence.

I worked regularly in the law library, and I studied God's word to know how to live and what life was really about.

I wrote to law clinics, including the Innocence Project, but none would touch my case until I finished all my appeals. The Innocence Project followed my case for years and took it immediately after my appeals.

I must express my deep and sincere appreciation for many, but especially for Vanessa Potkin, a project attorney who spent endless hours, weekends and holidays doing everything she could for me.

For years I was treated as less than human by certain guards and often was abused by the dental department and medical staff. For more than 12 years, until I was moved to a newer section of the prison, the living conditions were horrendous. Roaches and mice ran the units more so than humans.

I was denied DNA testing for years, I believe with all my heart because the authorities in the Prosecutor's Office knew they had framed me, lied about me, and forced others to lie about me.

They knew I was an innocent man, yet they ran me through hell in an attempt to cover up the ugly things they had done.

Then on Aug. 27, I was released from the Burlington County jail, and I felt the beginning of freedom.

That didn't become reality until May 26, when the Prosecutor's Office decided not to retry me - the only right thing it has done in 19 years.

I received word while at work that the state was about to end my nightmare. My tears were uncontrollable.

Now a new day is arising, full of happiness, joy, freedom, and the pursuit of a new, prosperous and fulfilling life.

All honor, praise and glory to the Holy One of Israel.

Now, when does the pursuit of the real perpetrators take place so there can be finality for the victim's family?

Larry Peterson, 55, made bail last year after serving 18 years. Charges against him were dropped last month after DNA tests failed to place him at the crime scene. He works as a carpenter and writes from Pemberton Township.

The End of Innocence - Repost from NYT

The End of Innocence
New York Times By DAVID R. DOW, OpEd Contributor
June 16, 2006

EARLIER this week, the Supreme Court decided, in a 5-to-3 opinion, that a Tennessee prison inmate named Paul G. House was entitled to prove he did not commit the crime for which he was sent to death row. On the same day, I received a letter from Centurion Ministries, which argued for more than a decade that a Virginia man named Roger K. Coleman had not committed the crime for which he was executed in 1992. The letter admitted that Centurion had been wrong.

These cases have something in common: they pivot on the question of innocence. For too many years now, though, death penalty opponents have seized on the nightmare of executing an innocent man as a tactic to erode support for capital punishment in America.

Innocence is a distraction. Most people on death row are like Roger Coleman, not Paul House, which is to say that most people on death row did what the state said they did. But that does not mean they should be executed.

Focusing on innocence forces abolitionists into silence when a cause célèbre turns out to be guilty. When the DNA testing ordered by Gov. Mark Warner of Virginia proved that Mr. Coleman was a murderer, and a good liar besides, abolitionists wrung their hands about how to respond. They seemed sorry that he had been guilty after all.

I, too, am a death penalty opponent, but I was happy to learn that Mr. Coleman was a murderer. I was happy that the prosecutors would not have to live with the guilt of knowing that they sent an innocent man to death row.

The day before the DNA results were reported in the Coleman case last January, the Supreme Court heard oral arguments in the Paul House case. In Mr. House's case, the DNA testing has already been done, and it tends to suggest that he is indeed innocent. During oral arguments, however, Justice Antonin Scalia (who was one of the three dissenters when the court decided the case this week) argued that disputes over factual findings in a case can't be endlessly rehashed.

He is certainly right about that. As Justice Scalia has said elsewhere, of course we are going to execute innocent people if we have the death penalty. The criminal justice system is made up of human beings, and fallible beings make mistakes.

But perhaps that is a price society is willing to pay. If the death penalty is worth having, it might still be worth having, despite the occasional loss of innocent life. Paul House might be innocent, but how long will we keep death row inmates alive, waiting to find out?

In Mr. Coleman's case, the Virginia Supreme Court did not address the arguments that he had raised in his appeal, because his lawyer had filed the papers one day late. When the case got to the United States Supreme Court, the court, in an opinion by Justice Sandra Day O'Connor, began its analysis by saying, "This is a case about federalism."

The case did have something to do with the relationship between the Supreme Court and Virginia's highest court. But is that what the case was really about? Mr. Coleman was saying that his trial lawyer had been incompetent, and that the Virginia courts were refusing to address the question of whether his trial lawyer had been incompetent because his appellate lawyer had filed the appeal a day late.

Federalism might be a plot line in this story, but it hardly seems to be the major issue. When the Supreme Court brushed aside Mr. Coleman's appeal 15 years ago, the justices said that a death row inmate cannot complain when his lawyer misses a filing deadline, because the lawyer is the agent of the client, and clients are responsible for the failings of their agents.

As a result of this syllogism, my client Johnny Joe Martinez was executed in 2002, because his court-appointed appellate lawyer neglected to file a proper appeal — a mistake he freely admitted to, attributing it to inexperience. When the Martinez case reached the federal courts, those courts, invoking the Coleman decision, said too bad for Mr. Martinez; the mistake of his lawyer was attributable to him. I could go on with other examples.

Of the 50 or so death row inmates I have represented, I have serious doubts about the guilt of three or four — that is, 6 to 8 percent, about what scholars estimate to be the percentage of innocent people on death row.

In 98 percent of the cases, however, in 49 out of 50, there were appalling violations of legal principles: prosecutors struck jurors based on their race; the police hid or manufactured evidence; prosecutors reached secret deals with jailhouse snitches; lab analysts misrepresented forensic results. Most of the cases do not involve bogus claims of innocence, like the one that swirled for 15 years around Roger Coleman, but the government corruption that the federal courts overlook so that the states can go about their business of executing.

The House case will make it hard for abolitionists to shift their focus from the question of innocence, but that is what they ought to do. They ought to focus on the far more pervasive problem: that the machinery of death in America is lawless, and in carrying out death sentences, we violate our legal principles nearly all of the time.

David R. Dow, a law professor at the University of Houston, is the author of "Executed on a Technicality: Lethal Injustice on America's Death Row."