Wednesday, November 18, 2009

David Protess: Reaction to State's Filing

The following was sent out over a Northwestern University listserve. David Protess is responding the the Cook County DA's subpoena for grades and similar records of his journalism students who investigated Anthony McKinney's innocence claims.

Reaction to the state's filing
David Protess
November 16, 2009

On October 10, the State’s Attorney’s Office (SAO) filed a 54-page document alleging my students paid witnesses in their investigation of the Anthony McKinney case. Breathless accounts by journalists rapidly appeared in print, broadcast and on-line publications across the country. Unfortunately, reporters focused almost entirely on the prosecutors’ allegations in the first part of the document and ignored the actual interviews with the witnesses, which were recounted as exhibits at the end of the court filing.

Here’s what we know from those exhibits — the SAO’s own investigative reports:

1. Two alleged witnesses — and no others — claimed my students and our private detective paid them money. One is convicted killer and armed robber Tony Drake, who, after murdering a disabled man in 1985, has been re-incarcerated twice for aggravated domestic battery. The other is a Wisconsin drug dealer, Michael Lane.

2. Tony Drake was interviewed, in prison, by two prosecutors and a state's attorney's investigator, and questioned about the videotaped interview with my students in which he confessed to being present for the murder of Donald Lundahl. It is not surprising that, under the circumstances, Drake recanted.

3. Even though he stated on the videotape that he had not received any compensation for talking with my students, Drake told the trio from the SAO that he'd been paid $100. Yet, the state's evidence of the alleged payment was a $60 cab fare given to the driver, for which we have a receipt. When prosecutors asked Drake about being paid for the interview, here's how he responded, according to their own report: ". . . the students told him they could not give him money for an interview." (emphasis added.)

4. Anthony McKinney's lawyers have filed seven affidavits from our sources indicating that Drake confessed the Lundahl murder to them. There is no reference to this corroborative evidence in the SAO report.

5. The second witness, Michael Lane, told a state's attorney's investigator that my students had paid him "a couple hundred dollars." The investigator was openly dubious of this claim. According to his report, he said that "it seemed unlikely the students gave him a couple hundred dollars."

6. Lane described the investigator who accompanied the students as "a male black with a ponytail maybe in his late forties." Sergio Serritella, the only investigator I have worked with since 2000, is a male white with short wavy hair and (at the time) was in his mid-twenties. Since the SAO investigator knows Serritella, he must have wondered who Lane was talking about.

7. The SAO investigator gave Lane $10 "as a travel expense," according to his report. The reason: "[Lane] was driving a Denali and it was costly to operate."

8. The SAO interview with Lane took place on June 22, 2009 — one month after the state issued a subpoena for grades because prosecutors purportedly had hard evidence that questioned Medill students’ "motivation." But the sole pre-subpoena evidence regarding motivation was their interview with Tony Drake.

9. The only other source to raise the issue of money was Robert McGruder, who was named by Tony Drake as an alternative suspect in the crime. In response to questioning by a SAO investigator, McGruder did not claim that Medill students paid him at any point for their two interviews. However, McGruder did report that the lead detectives in the McKinney case paid him “30.00 to 40.00 dollars.” When asked to explain, McGruder said it was their way of apologizing “for hitting him in the police station.”

In sum, except for Tony Drake’s claims, no witness offered any evidence that my student-journalists paid for interviews, while two witnesses said they were paid by law enforcement. And, in the case of Tony Drake, SAO investigators acknowledged Drake was specifically told by the students that “they could not give him money for an interview.”

Why would law enforcement officers believe a convicted killer's account over my student-journalists — unless their motivation was to discredit the students and to direct attention away from the powerful evidence of Anthony McKinney's innocence?

Moreover, in view of the filing, it seems the state has undermined its own legal position on the subpoena by acknowledging they have live witnesses who are available to impeach the evidence we tendered to them. So why do they need our notes and grades? Let their witnesses take the stand, and let the truth be known.

David Protess
Northwestern University

Thursday, November 12, 2009

Editorial: Prosecutor misconduct has a high public cost

The following op-ed was published by the San Jose, CA Mercury-News on November 11, 2009.

Prosecutor misconduct has a high public cost

By Kathleen 'Cookie' Ridolfi and Maurice Possley

Special to the Mercury News
Posted: 11/11/2009 08:00:00 PM PST

For the fourth time in as many years, Santa Clara County residents must cough up hundreds of thousands of their tax dollars due to allegations of prosecutorial misconduct.

Last month, the county authorized paying $750,000 to settle a lawsuit brought by Donna Auguste, whose Colorado home was illegally searched by police six years ago. As the citizens of Santa Clara County feel the sting of the $750,000 settlement, they should realize that this is not an isolated instance. It raises the cost to taxpayers due to prosecutorial misconduct accusations since 2005 to more than $5 million.

Earlier this year, the county forked over $1 million to settle a lawsuit alleging, in part, prosecutorial misconduct brought by Jeffrey Rodriguez, who was wrongfully convicted and released after five years in prison.

Two years ago, the county settled a similar suit brought by Rick Walker, who served 12 years in prison for a murder he did not commit. Santa Clara County paid $1.3 million in taxpayer dollars on top of $1.45 million paid by the county's insurance carrier. The state of California paid an additional $409,500 to compensate him for the 12 years he lost.

In 2005, the county paid nearly $1 million to Glen Nickerson, who spent nearly 19 years behind bars before his murder conviction was overturned following evidence of police and prosecutorial misconduct.

Remarkably, not a single prosecutor faced discipline in these prosecutions, with the exception of Santa Clara County prosecutor Ben Field. Field, who orchestrated the illegal search in the Auguste case and whose multiple prosecutorial misdeeds have been exposed by the Mercury News, has been ordered to surrender his law license for four years.

But the cost of prosecutorial misconduct goes far beyond the dollars removed from taxpayer wallets.

Donna Auguste, for example, spent $900,000 to free her nephew. There is the cost of the hundreds of hours racked up by attorneys in the office of Santa Clara County Counsel who defended the lawsuit. This is time that could have been spent on other matters of importance to the citizenry.

And what price do you put on the more than 40 years that Walker, Nickerson, Rodriguez and Damon Auguste spent behind bars before they were exonerated? The cost of housing them alone is more than $1 million. The personal cost to these men cannot be quantified. Those years are gone.

Perhaps most significant is the immeasurable cost and risk to society of having the real perpetrators still out there.

Prosecutors rarely suffer personal consequences for engaging in misconduct. They have absolute immunity for their official conduct as advocates, and when acting as investigators, they can be held liable for their misconduct only if it violates the law.

A recent study by the California Commission on the Fair Administration of Justice examined California appellate court rulings and found that during the ten year period ending in 2007, prosecutors committed misconduct in 444 cases, yet only two were disciplined. Thirty of them committed misconduct more than once. Two of them did it three times. Virtually all of these prosecutors walked away unscathed.

In these difficult economic times, taxpayers might well wonder if they can continue to spend this kind of money to support a criminal justice system that allows prosecutors to avoid personal responsibility, innocent defendants to be locked up, and true criminals to go free. But this is not a decision that should be based solely on dollars, no matter what the economy is doing.

Too much is at stake.

KATHLEEN RIDOLFI is executive director of the Northern California Innocence Project at Santa Clara University School of Law. MAURICE POSSLEY, a Pulitzer Prize winning former investigative reporter for the Chicago Tribune, is an investigator and researcher with the project. They wrote this article for the Mercury News.

Tuesday, November 03, 2009

Editorial: The right not to be framed

The following editorial was published by the Washington Post on November 2, 2009.

The right not to be framed
Can prosecutors be sued?

Monday, November 2, 2009

"THERE IS NO Freestanding Constitutional 'Right Not To Be Framed.' " So states a brief filed by Iowa prosecutors hoping to persuade the Supreme Court to dismiss a lawsuit against them for allegedly fabricating evidence that led to the 25-year incarceration of two innocent men. It's a breathtaking proposition that the justices should roundly reject when they hear the case Wednesday.

According to court documents, the prosecutors took a leading role in 1977 in investigating the murder of a recently retired white police officer at an Iowa automobile dealership where he was working security. The prosecutors allegedly coaxed a witness to offer a version of events that implicated two African American men, Curtis W. McGhee Jr. and Terry J. Harrington; the witness gave several different statements over time and had trouble keeping his facts straight. Prosecutors also allegedly coerced other witnesses to lie and withheld evidence that pointed to a different culprit.

These contradictions and prosecutors' apparent hand in the alleged fabrications came to light years after the men were sentenced to life without parole when a prison barber made a public records request of police files in the case and came across exculpatory information that had been kept from defense lawyers. The witness ultimately recanted his story. Mr. Harrington's conviction was overturned by the Iowa Supreme Court, which concluded that the star witness was a "liar and perjurer," and Mr. Harrington was freed. Mr. McGhee petitioned for a new trial but ultimately entered a conditional guilty plea that allowed him to go free with time served.

Mr. McGhee and Mr. Harrington, who say that they were targeted because of their race, later sued the two prosecutors and the Iowa county that employed them, using a Reconstruction-era law that gives individuals the right to seek damages from government officials who knowingly deprive them of their constitutional rights. The prosecutors argue that they should be immune from such lawsuits and point to a line of Supreme Court cases that shield prosecutors from legal consequences when they carry out their duties. They argue that state and bar disciplinary structures are best able to deal with accusations of prosecutorial misconduct and that prosecutors will be chilled in doing their jobs if they worry about being sued for innocent missteps.

Prosecutors need to be able carry out their duties without fear that they'll become the targets of personal lawsuits if defendants are found not guilty or charges are dropped. But such lawsuits face high hurdles. The Supreme Court has recently -- and correctly -- made it even more difficult for plaintiffs to make officials personally liable unless there's convincing evidence that they were directly involved in knowingly violating a clearly established constitutional right. Mr. McGhee and Mr. Harrington have shouldered that burden and should be allowed to proceed with their case.

The vast majority of prosecutors perform honorably and understand that they are duty-bound not just to secure convictions but to seek justice. Those who don't often suffer no consequences at the hands of state or bar organizations, as a brief in support of Mr. McGhee and Mr. Harrington convincingly argues. For these few renegades, perhaps the prospect of being held liable will help to keep them in line or, at least, hold them accountable.