Let Anderson's record be heard by a court

The following editorial by the Editorial Board was published in the December 26, 2011 edition of The Statesman (Austin, TX):

Michael Morton ends 2011 an innocent man. Meanwhile, District Judge Ken Anderson ends the year under a cloud of suspicion about his conduct prosecuting Morton for the murder of his wife almost 25 years ago.

Last week, District Judge Sid Harle formally dismissed the murder charge against Morton. Morton, wrongly imprisoned in 1987 and not released until October, was always actually innocent of beating to death his wife, Christine, in their Williamson County home in 1986. Now the state concurs; Morton is innocent.

With Morton's innocence legally declared, Harle now should convene a special court of inquiry to investigate allegations by Morton's lawyers that Anderson, who was Williamson County's district attorney when he prosecuted Morton, concealed evidence that might have exonerated Morton of the charge that he killed his wife.

Anderson denies the allegations. In our view, let a court of inquiry consider Anderson's denials.

The family of Debra Masters Baker is also calling for a court of inquiry. Baker was beaten to death in her bed in Travis County in 1988, two years after Christine Morton was killed in a similar way.

Morton was released from prison after DNA tests on a bandana found near the Morton home ruled him out as his wife's killer.

Authorities have since charged Mark Norwood with Christine Morton's death, and they suspect Norwood in Baker's murder. DNA evidence connects him to both crimes, police say.

Morton's lawyers, led by Barry Scheck of the Innocence Project in New York, say Anderson did not give Morton's trial lawyers key pieces of evidence that could have prevented his conviction. In addition, they say Anderson committed contempt of court by failing to give trial Judge William Lott all the reports and notes collected by the case's lead investigator, Sgt. Don Wood of the Williamson County Sheriff's Department.

Eleven days after Christine Morton's murder, her mother, Rita Kirkpatrick, talked with Wood on the phone about a chat she had had with Morton's 3-year-old son. According to the police transcript of the call, Kirkpatrick said the boy told her a "monster" had beaten his mother and that his father was not home when it happened.

Excerpts of this interview were found this summer in Anderson's trial file. Morton's lawyers say Anderson never told Morton's trial lawyers about Kirkpatrick's call.

Also unknown to Morton's trial lawyers: reports that a check made out to Christine Morton had been cashed more than a week after her murder; a report that Morton's credit card might have been used in San Antonio two days after her death; and a police report prompted by a Morton neighbor who saw the unidentified driver of a green van walk on several occasions in the wooded area behind the Morton house.

Anderson says he gave Morton's trial lawyers all the information they needed. He says he wasn't legally required to give defense lawyers a copy of the phone transcript because it was not admissible evidence.

Last month, Anderson apologized for "the system's failure" in wrongly convicting Morton. As we said in response to Anderson's apology, wrongful convictions don't exist because of failures of the system. They exist because the investigators, prosecutors and judges who run the system fail. They make honest mistakes, are unaware of contradictory evidence, or, in their zeal for convictions, either blind themselves to alternative possibilities or rationalize misconduct to fit the "truth" as they see it.

By asking the system to assign blame for Michael Morton's wrongful conviction, his lawyers are breaking new ground. Never before has the prosecutor in a wrongful conviction case been subjected to such an inquiry. But it's ground that needs to be broken. Prosecutors whose deliberate actions steal decades from someone's life should be punished.

Perhaps Anderson concealed evidence. Perhaps he did what was required of him to do. Perhaps there was nothing at the time (remember, DNA testing was in its infancy in 1987) that would have kept Morton from being sent to prison.

We need to know, and Anderson's system needs its credibility restored. Judge Harle should convene a court of inquiry, and the sooner the better.

Reasonable doubt exists in Holly Staker slaying

The following editorial was published by the Chicago Tribune on December 14, 2011.

Juan Rivera has spent nearly two decades in prison for the 1992 sexual assault and stabbing murder of 11-year-old Holly Staker in Waukegan. He has been convicted three times by jury, largely because he confessed to the crime.

But three judges on the Illinois Appellate Court reached a stunning decision last week: No "rational trier of fact" could have concluded beyond a reasonable doubt that Rivera is guilty. The court reversed Rivera's conviction.

Lake County State's Attorney Michael Waller now must decide whether to drop the case, ask the appellate court to reconsider, or appeal its decision to the Illinois Supreme Court. A Supreme Court appeal would require the approval of Attorney General Lisa Madigan.

Three jury trials and three convictions can't be discarded lightly. The appellate court, though, was unanimous and emphatic. It said DNA evidence in the case "does not completely exonerate" Rivera, but it "significantly impeaches" the prosecutors' case.

•No DNA evidence tied Rivera to the crime. The evidence showed that semen in Holly Staker's body wasn't from Rivera.

•No physical evidence tied Rivera to the crime. Fingerprints at the scene weren't his. Blood found at the scene wasn't his.

•At the time of the crime, Rivera was on electronic monitoring for a parole violation in another crime. The monitoring device did not indicate that Rivera left his home on the night of the crime. (Though as we wrote at the time, Lake County's electronic monitoring program was notoriously unreliable.)

The appellate court scolded Lake County prosecutors for offering a "highly improbable" explanation of the crime, which distorted "to an absurd degree" the testimony from witnesses.

Then there is Rivera's confession. People ask: If he was innocent, why did he confess?

We've seen many troubling cases where people confess to crimes they didn't commit, oftentimes when they are coerced.

The Tribune reported last year that researchers believe false confessions lead to about 25 percent of wrongful convictions. "Some people confess from fatigue, stress, and being worn down through relentless questioning and sleep deprivation; some people confess out of fear; some people confess with the expectation of future exoneration; some people confess due to coercive or suggestive methods of interrogations," the appellate court wrote.

In this case, the court found, veteran officers used leading questions and likely fed details about the crime to Rivera. The court said detectives psychologically manipulated Rivera, who has an IQ of 79 and reads at a third-grade level. Rivera was banging his head against a wall and pulling his hair out at one point during a police interrogation. He signed confession statements after a long interrogation over several days.

The DNA evidence proves that someone else sexually assaulted Holly Staker. The prosecution's theory about her murder doesn't hold up.

Reviewing courts do not blithely overturn the decisions of juries. These appellate judges have done a careful and thorough analysis and reached an unambiguous decision.

State's Attorney Waller should accept that decision and move to free Rivera. He should not appeal. If he pursues that course, he should move to let Rivera be freed while an appeal is considered. It seems extremely unlikely that Waller will prevail in the Supreme Court.

Lake County does have a case to pursue. Someone did grievous harm to an 11-year-old girl. Someone who has not been identified.

Righting a wrongful conviction in Virginia

The following editorial was published by the Washington Post on December 5, 2011.

FOUR YEARS AGO, 15-year-old Edgar Coker Jr. pleaded guilty to a crime he did not commit after his lawyer warned that he could be prosecuted as an adult and subjected to a lengthy prison term if he fought the charges.

Two months later, after Edgar had been sent to a juvenile facility, the 14-year-old girl who accused him of raping her recanted and said she made up the story after her mother walked in on the young couple. The girl’s mother has acknowledged the lie and is now advocating on his behalf.

But as The Post’s Chris L. Jenkins reported, this horrible episode continues to haunt Edgar Coker and has forced him to live with the vilification that comes with being falsely branded a rapist.

Rectifying this injustice should be swift and unconditional, but Virginia’s laws make that virtually impossible. Mr. Coker’s name still appears on the state’s sex-offender registry. Because of that, he was arrested for attending a high school function, and he and his family have been subjected to threats from neighbors who learned of his presence on the list. Prosecutors say they can do nothing to help the young man, who spent 17 months locked up, because they lost jurisdiction once he was released from state custody. Mr. Coker’s new lawyers hope that Virginia’s Supreme Court will give them a chance to challenge the conviction in a trial court, but it is a long shot. His only plausible argument at this stage involves a claim of ineffective assistance of counsel — an argument that Virginia courts are often reluctant to embrace.

A state law allows convicts to go back into court to make a claim of “actual innocence,” but this second chance is not available in the vast majority of instances to those who pleaded guilty. It is not clear because of wording issues whether those adjudicated as juveniles may avail themselves of this law.

Mr. Coker’s case is scheduled to be heard by the state’s high court in January. His lawyers should seek a full pardon from Gov. Robert F. McDonnell (R), although executive clemency is typically not considered until all court action has been exhausted. The best chance for speedy redress may lie with Virginia’s General Assembly, which reconvenes next month for its annual legislative session. Del. Gregory D. Habeeb, a Roanoke-area Republican, plans to introduce legislation to allow juveniles — even those who entered guilty pleas — to make a claim of actual innocence.

“This is not a partisan issue. This is not a race issue. This is a justice issue,” he says. This change would not guarantee a clean record, but it would rightly give those caught in a paralyzing legal vise a chance to clear their names.

Courtrooms Shackle the Presumption of Innocence

The following opinion by John Christopher Fine was published by The Epoch Times on December 1, 2011.

I have vivid memories driving through Georgia with my parents en route to Florida. We would see men chained together working on the road. They were prisoners shackled in road gangs overseen by pot-bellied guards with shotguns. The practice was uncivilized yet not far in our recent history.

Today, our courts are adopting practices never before allowed, and defendants are being deprived of their dignity and their chance at a fair trial.

There has always been the “Perp Walk.” The parade of a handcuffed defendant by police or federal agents on public streets in order for the press to get pictures. The “perp” or perpetrator is jostled between police detectives or officers and led somewhere for booking. The police enjoy the limelight. Their pictures are televised and in newspapers, great scrapbook mementos. The defendant is shamed, scorned, and punished before even being adjudicated guilty.

When I served in the District Attorney’s office in New York County the diligence used to protect the innocent was as fervent as pursuing the people’s advocacy to insure the culpable received justice.


A New York City Criminal Court judge scolded a Texas lawman that came to take a prisoner being extradited. The defendant was released by the judge into his custody. The Texas lawman took out leg shackles and started to chain his prisoner. “You will not put chains on that man in my courtroom,” the judge said sternly from the bench.

A New York City Criminal Court judge scolded a Texas lawman that came to take a prisoner being extradited. The defendant was released by the judge into his custody. The Texas lawman took out leg shackles and started to chain his prisoner. “You will not put chains on that man in my courtroom,” the judge said sternly from the bench.

What happened outside his courtroom the judge could not ordain but this was a judge that had the dignity, decency, and demeanor to recognize that there are limits to the way defendants can be treated in a court of law.

Would that that judge presided over the many cases that have been brought into court today.

A physician arrested for white-collar crimes was arraigned. He was shown on television between two brutish officers, stripped of his clothing, in prison garb and shackled with a chain around his waist, hands manacled to it.

The physician was small in stature,stature; he had surrendered to police to answer the charges against him. He appeared before the arraignment judge already convicted despite the fact that our system of justice proclaims him innocent until proven guilty.

There was a controversy about cameras in courtrooms. Most judges disdained them. Defense lawyers in criminal proceedings were against them, prosecutors were apparently neutral for a time. The press urged and even sued for the ability to film and photograph in courtrooms. In the abuses perpetrated in most recent times, cameras in courtrooms have proved to be a mistake.

As society hardens it is becoming more difficult to retain the independence of our judicial system. Many judges are caught up in a tide that seems to be sweeping over America. Police agencies have been given more weapons than they need and more power than they should have. That was inevitable after the terrorist attacks of Sept. 11, 2001.

Draconian measures cannot be rolled back once imposed. That has been the fate of many democratic societies, long ago perished.

Our basic premise from the founding of America is that a person in a criminal proceeding is innocent until proven guilty. Police can arrest upon suspicion but a Grand Jury composed of ordinary citizens must hear evidence sufficient to bind a defendant over for trial.

Even before a Grand Jury convenes to hear felony charges a defendant is entitled to be promptly brought before a judge. The judge must be an impartial arbiter standing between the police and prosecutor and the accused. There should be a sorting out at this stage, not the inevitable routine of degrading the defendant and rubber stamping papers with the innocent at law being then returned to jail cells until bail is determined.

Bail today is being used as punishment. The federal system of justice is often at fault in requiring high bail. Most often it is a grand-stand play between federal prosecutors and the court. There is the news conference where officials from federal agencies, ambitious prosecutors, and agency heads display the products of their investigation. Many of these public officials get their start in politics this way. How else do they receive media exposure?

The next step is a degrading process where the innocent is paraded before cameras shackled, stripped of personal clothing and looking, for all to see, ashamed. Can such a person receive a fair trial thereafter? Certainly not in a free society. That person is already branded a criminal and condemned.

am no bleeding heart liberal. I do not assume arbitrarily that defendants are framed and all will be found not guilty. They are innocent until proven guilty and must be accorded the dignity and respect required by our Constitution.

Degrading techniques used in our courtrooms veiled as security measures are being used as a means of condemning the innocent before trial. Where is the U.S. Supreme Court when we need it?

John Christopher Fine served as Senior Asst DA in New York County, Director of the Organized Crime Task Force and Special Counsel to a U.S. Senate investigating committee.

Judge Ken Anderson still can’t tell the truth about the Morton case

The following opinion by Lamar Hankins was published in the San Marcos Mercury on November 21, 2011.

Former Williamson County District Attorney Ken Anderson, now a Williamson County District Judge, who wrongfully secured the conviction of Michael Morton 25 years ago for killing his wife Christine, has apologized in a press conference held a few days ago. Anderson’s apology appears taken right out of the Politics 101 Manual–admit that a mistake was made, but explain the mistake away. The first problem with his apology, however, is that he began it with telling a lie.

Anderson said, “Twenty-five years ago, Michael Morton was convicted of murdering his wife in this very courthouse. The jury’s verdict was based on the evidence as we knew it at the time.” Thanks to the work of the Innocence Project, we now know that the evidence Anderson had available to him at the time of trial, but Morton’s defense attorneys did not have, included a statement made by Morton’s three-year old son to his grandmother that a “monster” with a mustache killed his mother, not Morton. Had defense attorneys been given this information, which Anderson was required by law to reveal, Morton might not have been convicted. Anderson violated his sworn duty to reveal that information.

In addition, Anderson knew that a check to Christine Morton had been cashed nine days after her murder by someone who forged Christine’s signature, but Anderson withheld this evidence from defense attorneys. Anderson violated his sworn duty to reveal that information.

And there was evidence that someone had used Christine Morton’s credit card in San Antonio after she was killed, but Anderson failed to tell defense attorneys, and no law enforcement agency apparently followed up on this information after it was received by the Williamson County Sheriff’s Office (WCSO). Anderson violated his sworn duty to reveal that information.

One final piece of nondisclosed evidence that Anderson knew about or should have known about was a report by a neighbor that around the time of Christine Morton’s murder, he had seen a suspicious person park a green van behind the Mortons’ house on several occasions and walk into the adjacent wooded area. A second neighbor also had information about this suspicious person. Anderson violated his sworn duty to reveal that information.

The Texas Code of Criminal procedure provides that “It shall be the primary duty of all prosecuting attorneys,. . . not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” In 1963, the US Supreme Court held in Brady v. Maryland that “the suppression by the prosecution of evidence favorable to an accused . . . 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.” Furthermore, Article I, Section 19 of the Texas Constitution gives an accused the same rights recognized in the Brady decision.

And the prosecution has a duty to learn of and disclose the exculpatory evidence in the possession of all members of the prosecution team, which includes the police, other law enforcement agencies, such as the WCSO, and other investigators working with or on behalf of the state. In 1985, the US Supreme Court held that evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different.”

All of the withheld evidence would have met that standard. We know this because immediately after the trial the assistant prosecutor in Morton’s case, Mike Davis, told some of the trial jurors after the trial that the state had failed to disclose some “investigatory materials to the defense.” Davis said that if the defense had gotten the materials, it would have been able to raise even more doubt than it did about Morton’s guilt. (See the Motion for New Trial filed on March 17, 1987, by defense attorney William P. Allison.)

While a bandanna with blood and hair fibers on it was found near the Mortons’ house during the investigation, it provided no help to Morton because DNA testing was in its infancy, but Anderson is using the earlier absence of DNA evidence as a smoke-screen to hide his malfeasance, claiming that this new evidence is all that matters in showing Morton’s innocence. Judge Anderson now wants to pretend that he did nothing wrong and should be forgiven for securing a wrongful conviction, but he fought a subpoena to give testimony under oath for weeks, exhausting all appeals before being compelled to answer questions posed by Morton’s post-conviction attorneys, who represent the Innocence Project. Morton was released from prison a few weeks ago after the DNA evidence on the bandanna implicated another man in his wife’s murder.

This past week, the Austin American-Statesman reported: “On Nov. 9, Williamson County sheriff’s officers charged Mark Norwood, a Bastrop dishwasher and former carpet installer, with the murder of Christine Morton. DNA tests conducted last summer found Norwood’s DNA on a bandanna that had been collected from a construction site behind the Morton home the day after the murder. Tests on the cloth were inconclusive in 1986, but the recent DNA tests confirmed that the bandanna also contained Christine Morton’s blood and one of her hairs. Norwood also is a suspect in the 1988 Austin murder of Debra Masters Baker. Like Morton, Baker had been beaten to death in her bed. No charges have been filed in the Baker case, which had remained unsolved.”

Judge Anderson says he believes that 25 years ago he complied with the requirements then in place to disclose evidence that might tend to show the innocence of Morton. After refreshing his memory by reviewing the files that he compiled then, Anderson said, “I believe that the state’s prosecution team complied with all orders from the court and with the law on pretrial discovery and disclosures as it existed in 1987.” Once again, Anderson will not admit the essential wrong-doing that he committed while serving as Williamson County District Attorney.

If Anderson continues to insist that he did nothing wrong 25 years ago, he further diminishes the reputation of another Williamson County district judge, the late Judge Bill Lott, who presided over the Morton trial. Anderson claims that he submitted to Judge Lott files that were not given to the defense for Judge Lott’s review to determine whether they included exculpatory evidence. Judge Lott did not find any exculpatory evidence in the files. If Anderson gave Judge Lott any of the exculpatory evidence discussed above, and Lott ruled it was not exculpatory, he is implicated in this on-going cover-up, as well.

There is nothing new in Anderson’s conduct. For anyone who has spent much time working in what is mistakenly called “the criminal justice system,” misconduct by prosecutors is not only common, but widely known. While prosecutors love to tell jurors that they have a duty to see that justice is done, what they really like to do is convict people of crimes. The less scrupulous ones don’t care about what is termed “exculpatory evidence.” Anderson was one of that kind of prosecutor. He helped build the reputation of the Williamson County District Attorney’s office as a hard-nosed, “hang’em high” fiefdom, destitute of actual justice.

I have known prosecutors who bragged that the milk of human kindness did not flow through their veins. I have seen prosecutors who worked out their own sociopathic tendencies by being as hard, mean, and indifferent to human welfare as the most callous criminal. In fact, prosecuting is one of the professions where sociopathic behavior is regularly rewarded by advancement in the profession and sometimes by election to the position of District Attorney.

Fortunately, not all District Attorneys and prosecutors take out their own personality defects through their work. There are many hard-working, diligent prosecutors who primarily seek justice, not convictions, but Williamson County in recent decades has not produced too many of this kind. Judge Anderson and the current occupant of his former position, John Bradley, have done a disservice to the notion of justice. Bradley fought even the testing of the DNA evidence in Morton’s case until he had exhausted all avenues of interposition.

During this same period, Bradley served as Gov. Rick Perry’s minion as the head of the Texas Forensic Science Commission in an attempt to keep evidence of Cameron Todd Willingham’s wrongful conviction and execution from being officially acknowledged. Bradley now claims to have had a Damascus Road experience and to be a changed man, following only the path of righteousness as a prosecutor. I’ll believe that when Willingham comes back to life.

The average citizen does not know the level of corruption that can exist in a system such as the Williamson County District Attorney’s office. When a prosecutor is working in a courtroom with a prosecutor-friendly judge, there is nothing that can be done in the prosecution of a defendant that is too extreme. Many defense attorneys are too timid to vigorously defend their clients in such a hostile environment. I have known attorneys who have gone from being prosecutors to defense attorneys and vice versa, and those who have gone from being prosecutors or defense attorneys to being District Attorneys or judges. Most of them do so with integrity and faithfulness to the highest ideals of the profession.

Unfortunately, Ken Anderson and John Bradley do not represent this latter group. They have been comfortable with ignoring the requirements of the law, judicial decisions, and the ethical code they are sworn to uphold, which provides that “The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”

Whatever Ken Anderson says now, the record shows that he failed in his legal and ethical duties in the Morton case. It was a personal moral failure, a professional failure, and a failure to do justice to Michael Morton, Christine Morton, the Mortons’ young son, the entire Morton family, the actual murderer of Christine Morton and Debra Baker, the citizens of Williamson County and the State of Texas, and to the system of justice that Americans believe makes us special among nations. Maybe our system is not so special after all.

USDOJ's "Public Integrity" Unit

On October 27, 2008, Alaska Senator Ted Stevens, a pillar of the Senate for 40 years, was convicted of a seven-felony string of corruption charges -- found guilty of accepting a bonanza of home renovations and fancy trimmings from an oil executive and then lying about it. The conviction came just in time to cost him re-election. After all, who has more credibility, a convicted felon or an elite team of prosecutors brought together to ensure that elected officials maintain the highest level of integrity? As it turns out, it's the felon who is more credible. The hot-shot "Public Integrity" prosecutors hid evidence of Sen. Stevens' innocence in order to get a conviction. They acted no more honorably than cheating prosecutors all over the country, the kind that distraught citizens turn to the "Public Integrity" Unit to rein in.

Sentor Stevens was exonerated more than a year before he died in a plane crash on August 9, 2010. Six weeks later, Nicholas Marsh, one of the "Public Integrity" prosecutors, committed suicide. The official investigation of the USDOJ prosecutors continued at a snail's pace, and appears to be wrapping up with evidence of criminal misconduct that will go unpunished. Below are some highlights of the investigation, food for thought that leads inexorably to the question, If they can do this to a ranking U.S. Senator, what do they do to regular citizens?

December 23, 2008. A special agent with the FBI is accusing government prosecutors in the Ted Stevens case of intentionally withholding exculpatory evidence from Stevens' lawyers and scheming to conceal a witness from the defense team. Did the government cheat to convict the Senator?

February 14, 2009. An angry federal judge held Justice Department lawyers in contempt yesterday for failing to deliver documents to former senator Ted Stevens's legal team, as he had ordered. "That was a court order," U.S. District Judge Emmet G. Sullivan bellowed. "That wasn't a request. I didn't ask for them out of the kindness of your hearts. . . . Isn't the Department of Justice taking court orders seriously these days?" Judges rarely hold prosecutors in contempt. They're following in Mike Nifong's footsteps.

November 21, 2011. The lawyer investigating allegations of misconduct in the investigation and prosecution of the late Alaska Senator Ted Stevens is not recommending that any of the government's lawyers face criminal charges. Still, the special prosecutor's report, filed in the chambers of U.S. District Judge Emmet Sullivan, revealed "systemic concealment" of favorable information that would have corroborated the former Republicans senator’s defense that he did not knowingly file false Senate financial disclosure forms. They're getting off a lot lighter than their victim did.

Buying and selling judges

The following editorial was published by the Washington Post on November 5, 2011.

FOR THOSE who believe that judges should be bought, sold and marketed like any other product, the 2009-10 election cycle brought welcome developments. Special-interest groups from both the left and right inundated judicial campaigns across the country with record levels of cash. These groups — dominated by lawyers, lobbyists, businesses and political parties — independently spent a combined $11.5 million, or nearly one-third of the $38 million spent on these campaigns.

The money is question is a pittance compared to the sums spent by groups and candidates for political office, but its impact is profound. Campaigns become demonstrably nastier as the level of outside group involvement increases. Outside groups, for example, were responsible for funding three out of every four attack ads aired during the 2009-10 judicial election campaign season.

These are but a few of the disturbing findings in a recent report by Justice at Stake Campaign, the Brennan Center for Justice and the National Institute on Money in State Politics — a trio of public-interest groups that follow judicial elections closely. The revelations once more affirm the need to discard the election of judges.

Total spending in judicial campaigns dipped during 2009-10, typical for for off-year elections. But the incursion and influence of special interests grew. Just 10 outside groups accounted for nearly 40 percent of the spending nationwide. Lawyers and lobbyists provided the most direct contributions to candidates, funneling $8.5 million to judicial campaigns. They were followed by business groups and political parties, with $6.2 million and $3.5 million, respectively.

Unopposed retention elections — in which voters give a thumbs up or thumbs down to sitting judges — no longer insulate jurists from the most pernicious political elements. National spending on these elections between 2000 and 2009 amounted to just over $2 million, but they attracted nearly $5 million just during the 2009-10 cycle. National interest groups poured hundreds of thousands of dollars into the successful campaign to unseat three Iowa Supreme Court justices who joined a decision recognizing same-sex marriage. The message was clear: Render decisions that rile the public and risk the loss of your seat.

This is precisely the problem with judicial elections. Judges should not have to worry about pleasing political constituencies — whether they are business groups, unions or those who support a particular definition of marriage. Judges in many circumstances are meant to be a check against these forces and the unconstitutional excesses of the elected bodies. The notion of impartial justice for all is obliterated when judges are forced to think like politicians and to curry favor with monied interests just to keep their jobs.

Texas Must Test DNA Before Carrying Out Skinner Execution

The following opinion by Kirk Bloodsworth was published by the Huffington Post on October 26, 2011.

Test the DNA. That is the simple request of Hank Skinner to Texas officials before they carry out his execution, which is scheduled for November 9. I do not know if Mr. Skinner is innocent or guilty -- but I do know firsthand the critical importance of DNA testing. Nearly twenty years ago, I became the first person in the United States exonerated from death row when post-conviction DNA testing proved my innocence.

In 1985, I was convicted and sentenced to death in Maryland for a crime I did not commit. I spent eight years in prison, two of those on death row, before I obtained the testing that led to my exoneration.

DNA testing not only proved my innocence. Ten years after I was released from prison, DNA helped identify the true person who committed the tragic murder of a young girl for which I had faced execution. That person confessed and is serving life in prison.

The only reason my name was cleared, and the right man brought to justice, is because prosecutors agreed to test the evidence. I am living proof that when scientific evidence is available, there is simply no excuse to refuse testing.

Texas officials have senselessly fought against DNA testing in Mr. Skinner's case for over a decade. Mr. Skinner came within one hour of execution last year before the U.S. Supreme Court intervened. He now faces execution again despite the State's continuing to vehemently block testing of key pieces of never-tested DNA evidence.

Such testing could resolve the doubts that persist in Mr. Skinner's case. For example, a man's windbreaker was found next to the body of Mr. Skinner's girlfriend Twila Busby, who was tragically murdered along with her two sons. Untested DNA evidence on the windbreaker includes blood spatter, human hairs, and perspiration stains. Investigation after Mr. Skinner was sent to Death Row revealed that another suspect had stalked Ms. Busby at a party on the night of the murder and left the party shortly after she did.

It would be indefensible for Texas to execute Mr. Skinner without taking the simple step of testing the DNA evidence. Over a dozen former prosecutors, judges and law enforcement and current and former Texas elected officials have called on state officials, including the Gray County District Attorney, the Texas Attorney General and Governor Rick Perry, to conduct the DNA testing. The State ought to heed these calls and do everything possible to be sure they have convicted the right person, particularly when it comes to death penalty cases.

Since my exoneration, I have worked to ensure that no defendants are denied the critical testing that saved my life. That is why I helped champion a federal law in 2004 to provide funds for post-conviction DNA testing.

Just this year, Texas lawmakers similarly recognized the vital importance of DNA testing. In May, the Texas Legislature passed a law expanding access to post-conviction DNA testing. The new law is designed for cases like Mr. Skinner's, where available DNA evidence has never been tested. Testing reliable scientific evidence can provide certainty and help maintain confidence in the criminal justice system.

The State has absolutely nothing to lose by putting off Mr. Skinner's upcoming execution to allow these tests to be conducted. Whether DNA proves Mr. Skinner's guilt or innocence, Texas officials should not be afraid of seeking the truth.

DNA allowed the mistakes in my case to be caught in time. Texas must test the evidence in Mr. Skinner's case before it is too late.

Kirk Bloodsworth was exonerated by DNA testing in 1993 after spending eight years in Maryland prison, two on death row, for a crime he did not commit. Mr. Bloodsworth was the first exoneree in a capital conviction in the United States.

Nationwide Tour Seeking Policy Reforms to Prevent Prosecutorial Misconduct

Press Release

Veritas Initiative, Innocence Project, Innocence Project New Orleans and Voices of Innocence Will Embark on Nationwide Tour Seeking Policy Reforms to Prevent Prosecutorial Misconduct

Death Row Exoneree John Thompson, Who Was Stripped of His $14 Million Civil Award for Prosecutorial Misconduct by the U.S. Supreme Court, Will Headline Events

Contact: Audrey Redmond, 408-554-4790, cell 408-396-1360, alredmond@scu.edu
Paul Cates, 212-364-5346, cell 917-566-1294, pcates@innocenceproject.org


(Washington, D.C. – October 27, 2011) Today the Northern California Innocence Project’s Veritas Initiative, the Innocence Project, the Innocence Project New Orleans, and Voices of Innocence announced plans to conduct a nationwide tour, “Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson,” to explore policy reforms to prevent prosecutorial misconduct. John Thompson, who lost his appeal before the U.S. Supreme Court in 2011 and was stripped of his $14 million civil award for the intentional misconduct that caused his wrongful murder conviction and near execution, will headline forums across the country with policy makers and prosecutors to spark a national dialogue on possible solutions.

“As someone who came within days of being put to death because of the intentional misconduct of prosecutors at the New Orleans District Attorney’s Office, I’m all too familiar with what can go wrong when the enormous power of prosecutors goes unchecked,” said Thompson, Founder and Director of Resurrection After Exoneration and Voices of Innocence; “My case was not an isolated incident. Of the six men who received the death penalty at the hands of one of my prosecutors, five had their convictions reversed because of prosecutorial misconduct. I know that most prosecutors are as bothered by this behavior as I am, and I call on them to help us find a way to make prosecutors’ offices more accountable.”

The tour, which will include stops in Arizona, California, Louisiana, New York, Pennsylvania and Texas, will bring together participants from all aspects of the criminal justice system including legal ethics professors, members of bar disciplinary committees, prosecutors and judges. At the end of the tour, the groups will prepare a report with recommendations for reform.

“We recognize that this is a complex problem. It is not easy to develop internal systems in prosecutors’ offices that effectively distinguish between error and misconduct nor independent institutions outside of their offices that can adequately investigate and remedy misconduct when it occurs. A serious, thoughtful, constructive discussion of this issue, conducted without posturing or finger pointing, is an appropriate response to John Thompson’s case, which makes it clear that civil suits against prosecutors are virtually impossible,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.

Kathleen Ridolfi, professor at Santa Clara University School of Law and Executive Director of the Northern California Innocence Project and the Veritas Initiative, added, “Allowing this type of misconduct to persist undercuts public trust and undermines prosecutors who do their jobs properly. Prosecutors – who are no doubt just as concerned about misconduct as we are – are in an excellent position to help identify and correct improper prosecutorial actions. Their input will be invaluable as we move forward with collaborative discussions focused on solving this problem.”

At each stop on the tour, the groups will release new state specific research illustrating the scope of the problem. This research will mirror research that was released last year in California by the Veritas Initiative in Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009, which documented 707 instances where an appellate court found misconduct during the 13 year period, but found that only 7 prosecutors were disciplined.

“There’s no question that prosecutors have tremendous responsibility to protect our safety, but everyone suffers when prosecutors put their zeal for winning above finding the truth.  We’ve seen too many situations where the innocent are unjustly punished because of prosecutorial misconduct.  The current mechanisms of accountability are not working. These forums are an important step towards reform that is long overdue,” said Angela Davis, professor of law at American University's Washington College of Law and author of Arbitrary Justice: The Power of the American Prosecutor.
Questions that panelists will discuss at the forums will include:
What are the systems we rely upon to ensure prosecutorial accountability?
What does research-based evidence tell us about how well those systems are working?
What improvements should be made to these systems to ensure quality and accountability?

A video of today’s press conference and additional information about “Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson” is available at http://www.prosecutorialoversight.org.

##

Wisconsin AG Van Hollen’s dereliction of his duty

The following editorial was published by the Madison Capital Times on September 28, 2011.

It is no secret that Wisconsin Attorney General J.B. Van Hollen regularly chooses to serve his political masters rather than the public interest.

In 2008, after attending a Republican National Convention session with White House political czar Karl Rove, Van Hollen returned with a grand plan to erect barriers to voting in Wisconsin. The courts rejected this last-ditch effort to avert defeat for the GOP that year.

But Van Hollen was back the next year, refusing for political reasons to defend the state’s domestic partnership registry.

Then he steered state resources into a fight against health care reform that was ginned up by the American Legislative Exchange Council and other right-wing groups.

This spring Van Hollen decided not to prosecute former Calumet County District Attorney Ken Kratz, a fellow Republican, on criminal charges of sexual assault and abuse of the public trust after Kratz reportedly sent 30 text messages trying to strike up an affair with a domestic abuse victim while he prosecuted her ex-boyfriend on a strangulation charge. Kratz was forced to resign, but he was not held to account by Van Hollen, whose campaign Kratz backed in 2006.

Around the same time, Van Hollen decided — despite the opinion of the legal counsel for the Legislative Reference Bureau, the advice of county and city prosecutors from around the state, and the assessments of leading law professors — that the state constitution and statutes did not need to be respected in the debate over whether Gov. Scott Walker’s anti-union power grab (Act 10) could be unilaterally declared to be in force. The Legislative Reference Bureau made moves to prepare for publication of the legislation, but Secretary of State Doug La Follette used his authority to put the law’s publication on hold after a judge issued a temporary restraining order barring publication until questions could be reviewed about whether the legislation had been legally enacted. Van Hollen ignored the constitution, the statutes and the judge’s order and simply issued a press release declaring: “Act 10 is now law.”

Try as Wisconsinites might, they will have a hard time finding examples of Van Hollen placing duty above party and ideology.

Even when issues of corruption arise.

That has become clear with the revelation that the attorney general refused to assist the burgeoning investigation into wrongdoing by Walker aides. According to a Milwaukee Journal Sentinel report published last week, Van Hollen “was asked months ago to assist in a growing secret investigation of former and current aides to Gov. Scott Walker, but Van Hollen’s office declined, sources familiar with the request said Tuesday.”

Why are taxpayers paying Van Hollen if he will not support law enforcement in Wisconsin?

That’s the question Scot Ross, director of One Wisconsin Now, is asking. And it’s a good one.

“J.B. Van Hollen owes the people of Wisconsin answers immediately as to why he would not investigate these potential crimes,” said Ross. “Van Hollen’s refusal to investigate Scott Walker’s ‘cronygate’ raises serious questions about his integrity and fitness to continue to serve as our state’s attorney general.”

Any serious lawman would recognize the significance of recent developments.

The official and personal computers of aides to Walker when he served as Milwaukee County executive (a position he held until this year) have been seized as part of a John Doe investigation, which reportedly is focusing on whether Walker aides ran his campaign out of a public office. It appears that the probe, which is being conducted by the Milwaukee County District Attorney’s Office, involves several aides who are now part of the governor’s administration.

Top officials in the Walker administration have abruptly stepped down or been moved out of key positions as the probe has expanded. The governor’s press secretary has been granted immunity.

This is a serious and expanding scandal.

So why has Van Hollen refused to help?

Not because he does not assist John Doe probes in Milwaukee County. He has done so in the past.

And not because the Department of Justice was unneeded. It now appears that the FBI was called in at least in part to provide the sort of technical assistance that Van Hollen refused to deliver.

“It’s now clear Van Hollen only investigates cases that further his partisan agenda,” said Ross. “But when his political allies like Walker are in trouble, he sits on his hands.”

That’s a harsh assessment.

We once held out hope that Van Hollen would maintain Wisconsin’s tradition of independent and ethical law enforcement by attorneys general who place principle above party. But his record of extreme partisanship suggests that the criticisms are credible.

They also raise a core question: If it is not politics, then what is the explanation for why Wisconsin’s top law enforcement officer is refusing to help prosecutors enforce the law?

How we can save the next Troy Davis: Claims of innocence must be heard in death row cases

The following opinion by Katie Chamblee and Katie Mesner-Hage was published by the New York Daily News on September 24, 2011.

On Wednesday night, Georgia executed Troy Davis, despite much doubt about his guilt. Though many find it difficult to understand how our legal system could have failed to vindicate his claims of innocence, Davis did not simply slip through the cracks. Instead, his case is symptomatic of a profound flaw in our system: Our laws intentionally foreclose nearly all means of reversing a death sentence on claims of innocence, even when the testimony that led to the original conviction is recanted.

That's largely because our laws value finality over accuracy, even when a life is at stake. Retrying cases is hard, the Supreme Court has said, and overturning convictions is disruptive. The court has made the threshold for demonstrating actual innocence, in its own words, "extraordinarily high."

In fact, the court is not even in agreement that claims of innocence should be heard at all, so long as the trial that produced the wrongful conviction was technically fair. As Justice Antonin Scalia wrote in his 2009 dissent when the Supreme Court held that a federal court should hear Davis' claims of innocence, the high court "has never held that the Constitution forbids the execution of a convicted defendant" who is later able to convince a court that he is actually innocent.

Even if a defendant succeeds in getting into court, proving innocence requires far more than what is required for a "not guilty" verdict at trial. The Savannah judge who eventually heard the new evidence in Davis' case said that Davis would have to show "by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." So while a prosecutor must prove the defendant's guilt beyond a reasonable doubt to all 12 jurors to get a conviction at trial, to overturn his death sentence, Davis would have to show that no juror would have convicted him. In other words, evidence insufficient for a conviction can uphold a death sentence.

Davis' case has received an incredible amount of national attention, and the growing recognition that innocent people are often convicted in the first place is encouraging. Texas, for one, has recently implemented legislation that provides greater access to post-conviction DNA testing.

This is a step in the right direction, but it does nothing for defendants convicted on the basis of coerced confessions or mistaken (if not outright false) testimony. There must be a way for defendants such as these with legitimate claims of innocence to have their claims heard.

But even if a better vehicle for hearing innocence claims can be devised, the death penalty would remain a deeply flawed punishment. In a landmark 1983 study, legal scholar David Baldus found that the best predictor of whether a defendant will receive the death penalty is not the severity of the crime, but the victim's race. Baldus discovered that defendants accused of killing white victims, as Davis was, were about four times more likely to get the death penalty than defendants accused of killing black victims.

The Supreme Court has long tried in vain to correct the arbitrariness and racism of capital punishment by, as Justice Harry Blackmun put it, "tinker[ing] with the machinery of death." But the only way to put an end to the death penalty's brutal flaws is to end the death penalty itself.

Ending the death penalty for good will go far to restore the integrity of our justice system and to ensure that it serves to protect, and not victimize, the most vulnerable among us.

Chamblee and Mesner-Hage are students at Yale Law School and members of its Capital Assistance Project.

Georgia has to get it right

The following is an editorial published by the Buffalo News on September 17, 2011.

Officials should reopen murder case or risk executing an innocent man

We don’t know if Troy Davis killed a police officer in Savannah, Ga. He was convicted of the crime, though, and has served two decades on Georgia’s death row. He is scheduled to be executed next week.

There’s just one problem, and it’s a huge one. Davis was convicted on the basis of eyewitness identification, which is notoriously unreliable. According to the Innocence Project, which challenges questionable convictions, seven of the nine eyewitnesses who testified at Davis’ trial have since recanted and new evidence points to another person as the real perpetrator. Yet Georgia is apparently ready to plunge ahead with the execution.

Western New Yorkers are familiar with wrongful conviction. Two defendants in high-profile cases were exonerated after having spent years in prison for crimes they did not commit. Anthony Capozzi served 21 years in prison for his wrongful conviction as the Delaware Park rapist, and Lynn DeJac spent nearly 14 years behind bars after being wrongfully convicted of murdering her daughter.

In fact, the Innocence Project counts 273 men and women it has helped to exonerate. These people have been cleared of responsibility not based on some legal technicality, but because they were actually innocent. Wrongful convictions occur for many reasons, but generally they can be traced to flawed investigative and courtroom procedures. Leading them are the problems associated with eyewitness identification.

The victims of the Delaware Park rapist identified Capozzi as their attacker. They didn’t do it on purpose; they thought he was the one. It was a mistake for which Capozzi paid dearly. So did the future victims of the real rapist, Altemio Sanchez, a sociopath who soon morphed into a serial killer.

But what if Capozzi had been executed?What if DeJac had been executed?How do you take that back? The state of Texas has already been shown to have put an innocent man to death. Texas doesn’t seem to care much one way or the other, and it’s not alone. Why would Georgia want to add to that list?

The Innocence Project has a reputation for thorough investigation, and it has raised significant questions about Davis’ conviction. It’s true that the case has dragged on for more than 20 years and that Davis has had previous opportunities to contest his conviction. But this is about life and death and a state’s reputation for its commitment to justice.

As we said, we don’t know if Davis killed police officer Mark MacPhail, who was only 27 when he was shot twice as he tried to help a homeless man under attack over some beer. This isn’t about protecting a cop killer, though we do oppose the death penalty. It’s about acknowledging the facts of wrongful conviction and ensuring that the right guy is being strapped to the gurney before taking steps that cannot be reversed. In this case, there appears to be enough doubt for the state of Georgia to step back.

Teaching Criminal Justice and Law in High Schools

by Marie Owens

A criminal justice and law curriculum for high school students may sound like an overly specialized course of study for young people who may not have had a chance to consider all of their career options before they even start college, but such a curriculum can actually introduce teenagers to a liberal arts education. The Urban Assembly School for Criminal Justice in Brooklyn, New York operates on this premise. The summary on the school's web site states that students learn that evidence-based thinking found from a criminal justice degree is necessary in all fields: whether writing a persuasive essay, proving a scientific hypothesis or understanding historical events.

Several school districts throughout the United States now have high schools in which the major focus of the curriculum is on criminal justice and law. There are also several such charter schools. These schools can be found in Texas, Florida, New York, New Jersey and Virginia. Students at these schools are introduced to many fields of study, including forensic science, statistics, psychology, sociology, public administration and law. Students at high schools devoted to criminal justice and law studies are also encouraged to develop critical thinking skills. These skills can help a young person in any career, even if he or she later decides not to pursue a career in law or criminal justice. Some of the schools also have a prominent character education component.

High schools that have a criminal justice and law curriculum often place an emphasis on exposing the students to hands-on or real world applications of the coursework. Field trips are organized so that the students can have conversations with medical examiners, judges and police officers. They also visit correctional institutions to help make some of the concepts they learn less abstract.

Some colleges and universities offer summer programs or seminars for high school students in criminal justice and law. They often focus on real world applications of the topics that they cover. The John Jay College of Criminal Justice provides a program in forensic science that demonstrates how biology and chemistry are used outside of academic settings. Seton Hall University offers a one-week summer program that introduces high school students to criminal justice. High schools are also affiliated with colleges through advanced placement courses in fields related to criminal justice and law.

Some of the schools that offer criminal justice programs are more vocational in nature than collegiate. They help students prepare for careers in such fields as security or the informational technology associated with crime and security. These programs may offer industry certification upon completion. Many programs are run in conjunction with nearby technical or vocational colleges.

Allowing students to study within a specific field of criminology while they are still in high school gives educational institutions an opportunity to provide a well-rounded education to students by allowing them to pursue their interests while they are still interested. Many charter schools and magnet schools across the country are founded on this principle. Programs are available for students to study the arts, media, technology and ecology.

If students who attend high schools devoted to the study of criminal justice and law do not go on to a career in these fields, society benefits because these students will be less likely to be criminal offenders. In their report to the United States Congress, prepared for the National Institute of Justice, Preventing Crime: What Works, What Doesn't, What's Promising, Lawrence W. Sherman and various other authors stated that law teachings in schools is one of the things that work, along with peer-group counseling, gang resistance education, and anti-bullying campaigns.

High school programs associated in the field of law equips young people with knowledge and skills that they can use in many fields. As The Urban Assembly School for Law and Justice in Brooklyn, New York, puts it, "law is a captivating lens for learning, and that the skills necessary for the legal profession are universal." Students who enroll in a high school devoted to criminal justice or law may think that they are embarking on a specialized field of study, but will most likely gain a holistic education along the way.

Rick Perry set to carry out one or two more questionable executions as candidate

The following article was originally published at Salon.com on 9/3/11.

By Alex Pareene

Rick Perry has executed 235 people so far as governor of Texas, so it's no surprise that he's set to kill at least one more person as a presidential candidate. Unlike the case of Cameron Todd Willingham, whose execution was carried out despite widespread doubts as to his guilt, Duane Edward Buck committed the murders he's been convicted of. But Mother Jones reports that Buck's sentence was obtained through questionable means.

Here's the problem:

Prosecutors firmly established Buck's guilt, but to secure a capital punishment conviction in Texas they needed to prove "future dangerousness"—that is, provide compelling evidence that Buck posed a serious threat to society if he were ever to walk free. They did so in part with the testimony of a psychologist, Dr. Walter Quijano, who testified that Buck's race (he's African-American) made him more likely to commit crimes in the future. (Quijano answered in the affirmative to the question of whether "the race factor, [being] black, increases the future dangerousness for various complicated reasons.")

So Buck is being executed because he's black. This is a bit problematic, constitutionally.

MoJo writes that this psychologist gave race-based testimony in six other death penalty cases, leading John Cornyn -- then the Texas attorney general -- to ask for each case to be retried. And all the cases were retried, with this one exception. And this exception is due to be executed in two weeks.

As we have seen, killing lots and lots of people is one of the things about Rick Perry that Republican voters love, so I can't imagine he'll grant clemency or even delay the sentence.

Oh there's also another probably innocent person that Texas is set to kill soon. Larry Swearingen was convicted of killing Melissa Trotter based solely on circumstantial evidence. He was jailed weeks before Trotter's body was found. According to multiple pathologists and doctors who've reexamined the evidence, Trotter was killed while Swearingen was in jail. (One court of appeals judge rejected the science-based testimony of medical examiners because it doesn't explain what the victim was doing for those weeks she was missing. That's not where I thought the burden of proof was supposed to lay, but what do I know.) This execution has been stayed, for now.

Alex Pareene writes about politics for Salon. Email him at apareene@salon.com

HIGHLIGHTS - Joe Sommers Wisconsin Supreme Court - HIGHLIGHTS

Will the Truth (About the Prosecutors) Come out in the Clemens Case? – Part III

by James Scanlan, Esq.

This article follows on correspondingly titled items of July 26, 2011 (Clemens I) and August 4, 2011 (Clemens II) concerning the mistrial in the Roger Clemens obstruction of congress/false statements/perjury case. Those items principally concerned whether the government would fulfill its obligation to be candid with the court as to the intentions of the prosecutors when they took the actions that led to the mistrial. The case is also discussed in an August 15, 2011 item styled “Legal Fictions and Farces” with regard to the doubtful efficacy of instructions to disregard material that jurors would be inclined to consider important.

A. Background
The key events are not complicated. At a hearing on July 5, 2011, D.C. District Court Judge Reggie B. Walton, addressing a defense motion in limine, ruled that the government could not call Laura Pettitte in its case in chief to testify, consistent with an affidavit she provided Congress in 2008, that in 1999 or 2000 Andy Pettitte told her that he had a conversation with Roger Clemens in which Clemens said that he had used human growth hormone. Judge Walton left open that the government might call Laura Pettitte in rebuttal if the defense’s cross-examination of Andy Pettitte provided a sufficient predicate for it.

Early in the second day of trial, the government, without objection, introduced into evidence a video and accompanying five pages of transcript from a February 13, 2008 hearing in which Congressman Elijah Cummings, during the course of questioning Clemens, read to him the Laura Pettitte affidavit recounting the 1999 or 2000 conversation in which Andy Pettitte told her that Clemens had told Pettitte that Clemens had used human growth hormone. The government had failed to redact this material from the video/transcript in light of the court’s ruling barring the Laura Pettitte testimony. When the government played the video (with accompanying transcript), the court interrupted the proceedings. Finding that the failure to redact the materials discussing the Laura Pettitte affidavit was a clear violation of his earlier ruling and that the improperly presented material could affect the verdict, Judge Walton ordered a mistrial. Walton then ordered briefing on whether Clemens could be retried and scheduled a hearing on the matter for September 2, 2011.

Clemens I discussed the likelihood that, though knowing (or at least believing it possible) that Judge Walton would have expected the government to redact the discussion of the Laura Pettitte affidavit from the video clip, the prosecutors intentionally failed to do so, leaving it to the defense to object. I suggested that in taking such course the prosecutors would have expected that a defense objection would simply cause Judge Walton to instruct the jury to disregard the material, but believed that they would still derive a benefit from having put the material in front of the jury and possibly that the impact of the material would be heighted because of the defense objection.

I also discussed that a decision to engage in some form of misconduct commonly involves a decision that the prosecutors, should it prove necessary, would in some manner deceive the court as to their intentions at the time they took the challenged action. I argued (as I had done here in a September 3, 2010 item styled “Doubtful Progress on Professional Responsibility at DOJ,” and Addendum 7 to the Bruce C. Swartz profile) that prosecutors should be required to provide sworn statements as to their thinking when they took challenged actions.

In a section of that item that attempted to divine the prosecutors’ defense for the failure to redact the Laura Pettitte material, I discussed what seemed the most pertinent of prosecutor Steven J. Durham’s statements to the court. But I concluded that those statements left unanswered the question of whether the prosecutors had recognized that there was even a significant possibility that the court would have expected the government to redact material discussing the Laura Pettitte affidavit but proceeded as they did because they thought they could plausibly state that they failed to appreciate that aspect of the ruling.

Clemens II addressed the implications of the fact that the Clemens motion to preclude a retrial, filed July 29, 2011, had made a persuasive case that the prosecutors intentionally violated Judge Walton’s order by failing to redact the Laura Pettitte material from the video but a rather less persuasive case that the prosecutors had done so to cause the defense to seek a mistrial, which the defense conceded was a necessary criterion for barring a retrial. Thus, I discussed whether the prosecutors would acknowledge that they intentionally violated the order while maintaining that they did not intend to cause a mistrial or would engage in further misconduct by maintaining that they did not intentionally violate the court’s order at all. And I stressed that it was not only the prosecutor’s obligation to be truthful with the court, but the Department of Justice’s obligation to ensure that they are. I could have added that, while it might be permissible for the Department to give the prosecutors’ the benefit of the doubt in determining whether discipline is warranted, the Department cannot give the prosecutors the benefit of the doubt such as to allow them to deny having intentionally engaged in misconduct if the weight of the evidence considered by the Department indicates otherwise. Clemens II also discussed that the defense had left open the possibility that it would seek an evidentiary hearing on the prosecutor’s intentions depending on what evidence the government provided in support of its opposition.

I suggested that the defense opposition should be a revealing document regardless of whether it is forthcoming as to the prosecutors’ intentions and that the matter could prove increasingly interesting in the event the defense does seek an evidentiary hearing on the prosecutors’ intentions.

B. The Government’s Opposition to the Motion to Preclude a Retrial
The government’s opposition, timely filed on August 19, 2011, has proven to be an interesting document in a variety of respects. To begin with, in addition to the two trial attorneys directly responsible for violating the court’s order, the opposition is authored by a member of the Appellate Division of the United States Attorney’s Office. Thus, as might be expected in a case of such high profile, the decision as to the approach in the opposition would appear to involve higher levels within the office and, if the opposition is intended to mislead the court in any way, those higher levels are likely involved at least by failing to ensure that the prosecutors are entirely candid with the court.

As those familiar with the ways prosecutors typically respond to allegations of misconduct might have expected, the opposition provided no sworn declarations and it argued (in this section) against the court’s holding an evidentiary hearing. But it maintained (at 14) that the prosecutors’ statements in court during the hearing of July 14, 2011 are the virtual equivalents of sworn statements. Whether or not intended merely to cause the court to accord the statements greater deference, the point would apply as well to claims made in the opposition itself and the court should consider those claims in such light. But the claims are not so easy to believe.

The opposition specifically acknowledges that the government was obligated to redact the Laura Pettitte material regardless of whether there was any objection by the defense. That acknowledgement, which renders irrelevant (save in the respect that I address several paragraphs below) the discussion in Sections B though D of Clemens I regarding whether the prosecutors recognized that the court would expect them to redact the material, limits the scope of a possible defense for the failure to make appropriate redactions.

That defense turns out to be that the failure to redact the material was a “mistake” or “inadvertent,” variations on which terms are used over thirty times in the opposition (including quotations of authorities). In pressing this claim, the opposition repeatedly stresses prosecutor Durham’s several statements in the July 14, 2011 hearing (Tr. 37, 39, 44) that the government did not intend to do anything wrong, especially the statement that (Tr. 37) “[t]here was no intention to run afoul of any Court ruling,” which is used as the heading for the section addressing this issue. And, in what seems an effort to enhance the credibility of these statements, the opposition repeatedly refers to them as “contemporaneous declarations” or “contemporaneous comments.”

While the contemporaneousness of certain types of statements may be an appropriate basis for an exception to the hearsay rule, however, there seems little reason to regard blanket denials of any wrongful intent as more credible because they were made immediately after some conduct is called into question. Such denials are too automatic even from people who might on reflection acknowledge wrongdoing for the timing to enhance their credibility. And here, of course, assuming that the prosecutors made a considered decision to leave the video unredacted, they had ample time to decide what they would say if the failure to redact the material was challenged. Whether conclusory statements like the one just quoted – as well as the statements that “[t]here is no bad faith on the part of the government” (quoted in whole or in part in the opposition at 9, 14, 21 n.17, 24) or that the government was “not evading any responsibility”(quoted in whole or in part in the opposition at 9,14, 17) – should be accorded any weight at all, they certainly do not warrant the controlling weight sought in the opposition. And that holds regardless when the statements are made.

But the fact that certain statements were made and others not made at the hearing is nevertheless of considerable significance as one attempt to appraise the government’s candor in its opposition to the Clemens motion. For, it seems to me, the specific explanation the opposition offers for the failure to redact discussion of the Laura Pettitte affidavit not only is brand new and difficult to believe in its own right, but is contrary the prosecutor’s statements at the hearing.

In presenting what it purports to be a “fuller explanation of the precise circumstances surrounding the failure to redact” the subject material, the opposition (at 15-16) describes a time line in which the government’s exhibits involving congressional testimony had been prepared and authenticated by the witness through whom they would be introduced prior to the July 5, 2011 hearing where the court orally granted the defense motion in limine barring the testimony of Laura Pettitte and in which jury selection began the day after the hearing. The opposition then states (at 16):

“As this time line reveals, all of counsels' work on the government's exhibits had been completed by the time of the July 5 in limine ruling: the proposed exhibits had been designated; the exhibits had been authenticated by the government's witness; and an exhibit list had been filed with this Court. By the time of the July 5th in limine ruling, these exhibits were not at the forefront of either prosecutor's mind, rather, among other things, jury selection, opening statements, and jury instructions were. [Footnote at this point reads: “During this time period, the government was responding to questions about the instructions, drafting jury instructions, and identifying objections to specific defense instructions.”] Moreover, when this Court issued its July 5th in limine ruling, government counsel focused on the most obvious component of that ruling — the government could not call Laura Pettitte as a witness in its case in chief unless and until this Court approved it. Unfortunately, neither government counsel additionally focused on whether the substance of Laura Pettitte's testimony might be embedded in a question of one of defendant's congressional interlocutors. To be sure, this reference violated this Court's first in limine ruling and would have been removed had government counsel adequately focused on it.”

Thus, the opposition appears to maintain that the two prosecutors trying the case (and, impliedly, everyone assisting or supervising them in this high profile case) had forgotten that the Laura Pettitte testimony was discussed in this five-page hearing excerpt.

No one who has had a trial can question that it is easy to be overwhelmed by the myriad matters warranting attention immediately before the trial commences. But the Laura Pettitte affidavit had been specifically cited in, and attached to, the government’s opposition to the defense motion to bar Laura Pettitte’s testimony, and it had certainly been at the forefront of the prosecution team’s mind when, at the July 5 hearing, the government argued that the testimony was important to its case. Indeed, during the hearing prosecutor Durham twice noted (Tr. 26-28) that in the Congressional hearing Clemens repeatedly stated that that Andy Pettitte had misremembered their conversation concerning human growth hormone. One of those statements was specifically in response to Congressman Cummings’ confronting Clemens with the Laura Pettitte affidavit and another was only a few lines later. See pages 41-42 of the Preliminary Hearing Transcript (which is differently paginated from that presented in court). In fact, the prosecutors presumably first learned of the Laura Pettitte affidavit by reviewing Cummings’ questioning of Clemens.

Further, this particular hearing excerpt (pages 86-90) was the first part of the critical hearing to be presented to the jury. It had included material specifically quoted in the indictment (at 11) concerning Clemens’ recognition of the implications of being under oath and quoted again (at 13) for what were alleged to be instances of false or misleading statements intended to obstruct the Congressional investigation (including the statements that Andy Pettitte misremembered the 1999 or 2000 conversation). Apart from these five pages, only six pages of the hearing were otherwise referenced in the entire indictment. Similarly, only seven hearing transcript pages apart from 86-90 were listed on the government’s exhibit list. And as pointed out in Section B of Clemens I, the material in this excerpt, including Congressman Cummings’ discussion of the Laura Pettitte affidavit, is quite compelling, which is both why the prosecutors had strong reason to want to put it before the juror and why Judge Walton felt the trial could not continue after it had been.

So it is difficult to understand how the prosecutors could have presented the subject video clip without having very clear in their minds, if not every word in it, at least that Congressman Cummings was going to be making a very big deal out of the Laura Pettitte affidavit. But even if the claim of inadvertence were more plausible that in seems, a serious difficulty with the claim rests in the failure to say anything to that effect when the matter was raised in court.

On the contrary, prosecutor Durham said that there had been no objection from the defense or that the reference to the Laura Pettitte affidavit was part of Congressman Cummings’ question (Tr. 33-34, 37-38, 43), noting in one instance (Tr. 38) that, as such, it “obviously is not evidence at all.” To Judge Walton’s specific question of “[w]hy wasn't this altered in order to ensure that this information that I had ruled could not come in would not be played to this jury and shown to them,” prosecutor Durham simply stated (Tr. 44): “This exhibit is in the context of a question that is asked to Mr. Clemens specifically.” All of these statements seem to suggest a position that the prosecution did not have to redact that material unless the defense objected and perhaps did not have to redact them even if there were an objection.

In this regard, the discussion in Section C of Clements I of the prosecutors’ statements regarding their motives is worth reading for the following reason. Whether or not one considers that discussion at all insightful, it reflects no inkling that the government’s position was that the presentation of the unredacted material had failed to recall that Laura Pettitte’s affidavit was discussed in the clip. Rather, the discussion reflects a failed effort to infer from prosecutor statements whether they recognized an obligation to redact the material regardless of any objection from the defense. And, as noted, most of prosecutor Dunham’s statements at the hearing in fact suggest that they did not.

The Opposition, however, maintains (at 14) that the government understood that it had the responsibility to redact the references to the Laura Pettitte affidavit and made such understanding clear at the July 14 hearing. The opposition supports such claim by the fact that, having been told of such responsibility by the court, prosecutor Durham stated that “[w]e’re not evading any responsibility, Your Honor.” Few would read that broad denial as an acknowledgement that the prosecutors’ had previously recognized the responsibility. If it can be read to mean anything specific, it would seem better read as an indication that, consistent with the other statements the prosecutor made in defense of the failure to redact the material, the government did not previously recognize an obligation to redact references to the affidavit in questions by Congressman Cummings. Thus, it would appear, we observe a post-July 14, 2011 theory as the circumstances that supposedly underlay the prosecutors’ innocent intentions on July 14.

Both in its opening and concluding paragraphs, the section of the opposition that attempts to refute suggestion of an intentional violation of the court’s order notably conflates the issues of whether the prosecutors acted improperly in presenting the unredacted clip with that of whether they intended to goad the defense into seeking a mistrial. That the prosecutor several times denied any wrongdoing, whether such denials were candid or not, does support the argument that there was no intention to cause a mistrial. Indeed, after they had put Congressman Cummings’ forceful reliance on the Laura Pettitte affidavit before the jury, the prosecution would unlikely want to have to retry the case in circumstances where they would be prevented from doing that again. But the denials do little to refute the defense claim that the failure to redact the material was deliberate misconduct.

In the succeeding section (at 19-23), the opposition argues that additional evidence of the lack of an intention to goad defendant into seeking a mistrial exists in the fact that prosecutor Durham had suggested that a curative instruction would solve the problem. Arguing that the prosecutors had no reason to believe that the court would find the suggestion wholly unacceptable, the opposition cites (at 20) D.C. Circuit law to the effect that “a court should ‘normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently put before it.” The opposition also points out that even after the court indicated that it was granting a mistrial, the government requested permission to brief the matter (in which it presumably would have cited authority to such effect).

The point adds weight to the case that the government did not want to cause a mistrial. But the existence of the D.C. Circuit law on which the government relied – though it be unsound law for the reasons addressed in the August 15, 2011 Truth in Justice item mentioned above – is but additional evidence that the prosecutors believed they would suffer no serious harm, while possibly deriving a substantial benefit, from leaving the video and transcript unredacted.

In Clemens I, I suggested that Judge Walton ought to consider the candor with which the prosecutors explained the motivations for their action in determining whether the government will be permitted to retry Roger Clemens. Assuming Walton should conclude not only that the prosecutors intentionally presented the Cummings’ discussion of the Laura Pettitte affidavit notwithstanding that (as now acknowledged) they recognized an obligation to redact it, but compounded their misconduct by seeking to mislead the court as to their intentions, it would be unfortunate if Walton found that prevailing law prevented him from barring a second trial.

But for the government to attempt to deceive the court in order to conceal the nature of prosecutors conduct is a serious matter and the court ought to resolve whether such attempt occurred regardless of whether the resolution will affect whether the case can be retried.

Addendum
On August 29, 2011, the defense filed a reply to the government’s opposition. As in the initial motion, in the reply the defense points out that the prosecutors made no effort to interrupt the video as it approached the inadmissible material, a point that goes to the deliberateness of the violation of the order, though not, it would seem, to whether the prosecutors intended to cause a mistrial. With regard to the latter matter, among other things, the reply provides (at 10) some detail as to why the prosecutors would have been unsatisfied with the jury. It would require an understanding of the jury selection process that only involved counsel have to evaluate the strength of that point. But that it took over four days to impanel a jury suggests that jury selection was deemed an important matter by both sides.

The reply notes that the government has presented no evidence and criticizes the opposition’s discussion of the lack of a need for an evidentiary hearing. While not specifically requesting an evidentiary hearing on the prosecutors’ motives, the reply suggests that unless the court can rule for the defense on the record so far developed, it should hold such a hearing.

Arlin M. Adams and the Benjamin Franklin Medal for Distinguished Public Service

by James Scanlan, Esq.

In addition to being mentioned in any number of the twenty-plus Truth in Justice items I have posted over the fourteen months (links to which are available here), Judge Arlin M. Adams is the particular subject of a February 22, 2011 item styled “Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams,” and a March 16, 2011 item styled “The Arlin M. Adams Interview.” Adams is the former federal appeals court judge who from 1990 to 1995 served as Independent Counsel investigating abuses of programs administered by the Department of Housing and Urban Development (HUD). Adams was also several times a leading Supreme Court candidate and would likely have been appointed to the Court in 1971 but for his having angered Attorney General John N. Mitchell. The referenced items note that Adams is one of the most revered former jurists in the county and the esteem with which he is generally regarded has since been further reflected by the American Philosophical Society’s honoring him with the Benjamin Franklin Medal for Distinguished Public Service.

But most readers of the two Truth in Justice items and the materials they make available would conclude that at the same time that Judge Adams was refusing to recuse himself from matters involving former Attorney General Mitchell in United States v. Dean, attorneys under his supervision were fabricating a claim that Mitchell and the defendant Deborah Gore Dean had conspired to defraud the United States. They would also conclude that Adams himself was personally involved in many of the prosecutorial abuses in the case, including both (a) the presenting of the false or misleading testimony of Supervisory Special Agent Alvin R. Cain, Jr. in order to enable Robert E. O'Neill to falsely lead the jury to believe that Dean lied about a conversation with Agent Cain (discussed, among many other places, in the June 29, 2011 Truth in Justice item styled “Robert E. O’Neill’s Tricks of the Trade – One”) and (b) the decision to attempt to deceive the courts in covering up the actions of Independent Counsel attorneys concerning Agent Cain and other matters.

Reader opinions may vary as to the extent to which the abuses in the case occurred because Mitchell caused Richard Nixon to break a promise to appoint Adams to the High Court and perhaps as to whether the types of abuses that occurred in the Dean case are commonplace when prosecutors are not closely supervised by a person of principle. But few will dispute that the abuses were pervasive or that Adams bears substantial responsibility for them. And some readers of the March 8, 2011 Truth in Justice item styled “The Remarkable Careers of Sometimes Prosecutor David M. Barrett” will suspect that the reasons Adams allowed David M. Barrett, a person Adams had ample evidence to indict for involvement in abuses of the programs investigated by Adams, to himself become an Independent Counsel investigating HUD Secretary Henry Cisneros involved Adams’ concerns about the way any actions taken against Barrett might influence the trial judge handling the Dean case. But while some matters may allow for differing interpretations, as time wears on, the publicly available picture of Adams’ character, as reflected in his service as an Independent Counsel, is likely to become more, not less, disturbing than the publicly available picture I have so far created. And thoughtful observers naturally will wonder how often the traits exhibited by Adams when exercising a public trust might have otherwise influenced his conduct over the sixty-plus years since he began the practice of law.

The closing paragraph of the February 22, 2011 Truth in Justice item suggested that in the event that my interpretation of Adams’s conduct becomes widely known, entities that have been named in honor of Judge Adams at the University of Pennsylvania, Drexel University, and Susquehanna University may find the Adams name to detract from their stature. The situation can even be deemed tragic in the case of Susquehanna University’s Arlin M. Adams Center for Law and Society, an institution whose admirable missions include the promotion of a criminal justice system that would preclude the type of conduct perpetrated by Adams and his subordinates in United States v. Dean or severely punish such conduct when it occurs.

It should be recognized, however, that each of referenced instances of naming something in honor of Judge Adams occurred when there was little or no readily available information calling his character into question. The same does not hold for the American Philosophical Society’s April 29, 2011 presentation of the Benjamin Franklin Medal for Distinguished Public Service. The medal, named for the Society’s founder, is quite prestigious and recipients of it and the predecessor Benjamin Franklin Medal have included many appropriately venerated individuals of national and international prominence, as well as, in 1906, the Republic of France.

In the case of the award to Judge Adams, the selection committee included the Society’s highest officers and three members from the organization’s Class 5 (Arts, Professions, and Leaders in Public and Private Affairs). Unfortunately, however, it seems that no one involved in the selection process saw fit to thoroughly research Judge Adams on the internet, a process that would have yielded the above-referenced February and March 2011 Truth in Justice items, the Arlin M. Adams profile, and varied other items suggesting that Judge Adams ought not to be honored with a prestigious award without a careful investigation into whether publicly available materials so critical of his conduct as Independent Counsel have a factual basis.

Such, at any rate, was the implication of responses to my recently bringing some of these materials to the attention of certain members of the selection committee. Sensibly, the Society now will examine these materials carefully, at least to know whether it made a serious mistake – and because, after all, it is a philosophical society devoted to the pursuit of knowledge. Also sensibly – and regardless of its conclusions about Judge Adams – the Society will recognize the wisdom of hereafter taking at least the easy steps to determine whether there exist reasons to believe that a proposed recipient of one of its awards might not be exactly as he or she seems.

There is an irony here involving a matter that both reflects on the selection committee’s judgment and suggests an explanation for the failure to adequately investigate Judge Adams’ worthiness of the Franklin Medal. The narrative accompanying the award to Judge Adams explains that he has been a member of the Society since 1979 and has held numerous offices in the organization, including President, which position he held from 1993 to 1999 (apparently assuming the position the same year that he was overseeing the Dean trial). While it would require some discussion within the Society as to the precise purpose of the public service medal to fully resolve the matter, there is a serious question whether the Society should ever give the medal to a former officer of the Society. And that would hold whether or not service to the Society played importantly into identifying the recipient. As with Judge Adams’ involvement in a prosecution of the stepdaughter of the person who kept Adams off the Supreme Court, leave aside what effectively was a posthumous prosecution of former Attorney General Mitchell himself, there are situations where appearances are important. In any case, there is reason to believe that it was precisely because, as a result of his long association with the Society, and hence that Judge Adams’ background and character were believed to be well known to the Society, that the selection committee forewent the due diligence that one hopes would typically be exercised by an organization when it honors an individual with so prestigious an award as the Benjamin Franklin Medal.

But what’s done is done. And, like many things the prosecutors would never have done in the Dean case had they believed those things might be discovered, some things cannot be undone. Time will tell whether the award to Judge Adams materially detracts from the prestige of the Benjamin Franklin Medal or of the American Philosophical Society. But it would be surprising if the award ultimately did either any good.

Addendum:

The American Philosophical Society’s situation regarding whether to learn the truth about Judge Adams’ conduct in the prosecution of United States v. Dean case raises some issues akin to those facing the Department of Justice with regard to its learning the truth about the conduct of others in the case, including Bruce C. Swartz (for the last decade the Deputy Assistant Attorney General in the Criminal Division in charge of international issues) and Robert E. O'Neill (recently appointed United States Attorney for the Middle District of Florida). So far the Department of Justice has refused to learn that truth, or, in any event, to act in a manner consistent with its knowing the truth. See, e.g., Truth in Justice items of February 6, 2011 (“Bruce Swartz - Our Man Abroad”), March 10, 2011 (“Criminal Division Deputy Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material”), June 4, 2011 (Willful Ignorance at the Department of Justice, and its Consequences), and August 15, 2011 (“The Ever Rising Star of Criminal Division Deputy Assistant Attorney General Bruce C. Swartz,”). If nothing else, these items suggest that it is always better to learn the truth, even an unpleasant truth, sooner rather than later. That holds regardless of whether one is bound by the duties that are supposed to guide the Department of Justice or by the aspirations that guide a philosophical society.

The Ever Rising Star of Criminal Division Deputy Assistant Attorney General Bruce Schwartz

by James Scanlan, Esq.

On July 27, 2011, Bruce C. Swartz, the Department of Justice’s Criminal Division Deputy Assistant Attorney General responsible for international affairs, testified before the Senate Judiciary Committee in support the Consular Notification Compliance Act of 2011. The act provides for review of federal and state cases where a foreign national was sentenced to death without having been provided the treaty-guaranteed opportunity to contact a representative from his nation’s consulate. Supporters maintain that the act is important to ensuring that United States citizens arrested abroad are afforded an opportunity to contact the American consulate. Swartz also maintained to the Committee that the act is important to ensuring foreign cooperation in transnational criminal justice and anti-terrorism matters. Keynotes to Swartz’s written and oral testimony were reciprocity and trust.

Swartz has been featured in a number of my Truth in Justice items over the last year. See, e.g., items of September 4, 2010 (“Doubtful Progress on Professional Responsibility at DOJ”), February 6, 2011 (“Bruce Swartz - Our Man Abroad”) , March 10, 2011 (“Criminal Division Deputy Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material”), and June 4, 2011 (“Willful Ignorance at the Department of Justice, and its Consequences”). These items discuss, inter alia, the Department of Justice’s implied assurance to foreign nations before whom Swartz represents the Department that Swartz is a person of integrity – an assurance that the Department would have great difficulty justifying.

Swartz has also been discussed in a number of very recent Truth in Justice items. The June 29, 2010 item styled “Robert E. O’Neill’s Tricks of the Trade – One (The False or Misleading Testimony of Supervisory Special Agent Alvin R. Cain, Jr.),” which is the first of a series on deceitful tactics employed by Robert E. O’Neill in the prosecution of United States v. Dean, discusses the need to recognize that Swartz’s perverse brilliance likely had an important role in the particular subject of the item. That point will apply as well to matters addressed in forthcoming parts of that series. The July 26, 2011 item on the mistrial in the Roger Clemens case (“Will the Truth (About the Prosecutors) Come out in the Clemens Case?”) discusses, in the context of anticipating the prosecutors’ impending opposition to the defense motion to preclude a second trial, that Swartz’s post-trial conduct in the Dean case provides a useful case study of impermissible deceptions and evasions of government lawyers in responding to allegations of prosecutorial abuse.

The items mentioned above, which address Swartz’s involvement in pervasive prosecutorial abuses in the Dean case and his efforts to deceive the courts in covering up that conduct, suggest that Swartz is a manifestly unsuitable person to represent the Department of Justice concerning matters were trust is at issue. Nevertheless, even as representatives of foreign nations read these items or the Bruce C. Swartz profile and come away with disturbing pictures of Swartz’s character, Swartz continues to be the key Department of Justice official addressing international issues and interacting with foreign nations.

For example, in addition to the recent Senate Judiciary Committee testimony, in mid-May 2011 Swartz accompanied Assistant Secretary of State for International Narcotics and Law Enforcement Affairs William R. Brownfield, and Criminal Division Assistant Attorney General Lanny Breuer on trips to Portugal, Ghana, and Liberia to address transnational crime issues. On June 2, 2011, Swartz represented the Department of Justice in a meeting with the Home Secretary of Bangladesh to discuss matters related to the Mutual Legal Assistance Act, the Anti Money Laundering Act, and the Anti Human Trafficking Act. On June 6-7, 2011, Swartz represented the Department at a meeting of the Anti-Corruption Sub-Group of the Civil Society Working Group (CSWG) of the U.S.-Russia Bilateral Presidential Commission. Swartz, who is one of the U.S. Co-Chairs of the Anti-Corruption Sub-Group, appeared on a panel reporting on American and Russian experiences and ideas for future cooperation.

But when I discuss the prodigious incongruity of the Department of Justice’s putting Swartz forward to represent it in dealing with foreign nations, even no doubt with respect to assuring foreign nations that their citizens will receive a fair trial in the United States, it should be recognized that very few people in the Department know that Swartz can be fairly seen as epitomizing prosecutorial abuse. I doubt, for example, that Assistant Attorney General Breuer, Swartz’s immediate superior, knows anything of substance about Swartz’s conduct in United States v. Dean, much less the extent to which such conduct has been publicized. Similarly, Jeffrey M. Olson, a Department of Justice official accompanying Swartz to the meeting with the Bangladeshi Home Secretary, probably has no reason to suspect that Swartz is anything other than a person of the great integrity that one assumes the Department of Justice demands of a person representing it to foreign nations.

The Russian Co-Chair of the Anti-Corruption Sub-Group of CSWG, Arkady Tonkoglas, Director, Department of International Cooperation, Ministry of Justice, probably knows more about matters calling Swartz’s integrity into question than Swartz’s Co-Chair from the United States Department of State, Elizabeth Verville, Deputy Assistant Secretary for Crime, Bureau of International Narcotics and Labor (though persons from the Department of State do review the Swartz profile from time to time). I suspect that at any meeting that includes Swartz and other representatives of the Department of Justice or other United States agencies as well as representatives of one or more foreign nations, the representatives of the foreign nations are more likely to be familiar with issues concerning Swartz’s integrity than the representatives from the United States. For the representative of the United States assume that they know all that it is necessary to know about Swartz, while representatives of foreign nations may prepare for a meeting with Swartz by researching him on the internet. And it is not possible to conduct such research without being taken immediately to one of the referenced Truth in Justice items or the Swartz profile.

The lack of knowledge of Swartz’s conduct in the Dean case does not exonerate the Department. The Truth in Justice items referenced in the second paragraph discuss that the Department recently refused to determine whether Swartz’s conduct in the case indicates that he is unfit to represent the United States citing a policy that the Department will not investigate matters that were or could have been raised in litigation. It should be evident that, even if there might exist circumstances where the policy is a reasonable one, it provides an absurd basis for refusing to consider matters that bear on the fitness of a person to hold a high position in the Department. Thus, whether or not the Department relied on the policy in good faith, one can have little faith that the Department will take even the most minimal measures to ensure that persons who represent it at home or abroad are persons of integrity. See the October 3, 2010 Truth in Justice item styled “Whom Can We Trust?” regarding the Department’s purported reliance on the policy to refuse to consider whether Robert E. O'Neill lied in the course of seeking the position of United States Attorney for the Middle District of Florida.

The Department official most responsible for the situation, of course, is Swartz himself. Given the widespread availability of my accounts of his conduct in the Dean case, Swartz has a clear obligation to advise his superiors of the existence of such accounts, advising them as well, while subject to 18 U.S.C. § 1001, of whether the accounts are correct and of whether there also occurred serious abuses that I have overlooked. I doubt, however, that Swartz has fulfilled that obligation. More likely, as in the Dean case itself (see especially Section E of the Swartz profile and other places discussing Swartz’s covering up of what most would regard as the suborning of the perjury of Supervisory Special Agent Alvin R. Cain, Jr.), Swartz is subordinating the interests of the Department of Justice and the United States to his personal interests. But it is with regard to the failure to fulfill this obligation that conduct for which Swartz can be condemned is not something that happened a long time ago, but something that occurs on a continuing basis and that may compromise important national interests.

In any case, Swartz’s star continues to rise at the Department. The March 10, 2011 Truth in Justice item discussed whether Swartz’s actions were responsible for the refusal of Switzerland to extradite Roman Polanski (which, more important, also gave Switzerland reason to distrust the United States), and whether Swartz’s superiors may have demanded an explanation. But whatever the facts of that matter, neither it nor the increasingly widespread publication of accounts of Swartz’s conduct in the Dean case has done him apparent harm at the Department. According to this Washington Post item, on April 28, 2011, Swartz was one five officials from the Department of Justice or FBI receiving a Presidential Rank Award, the nation’s highest honor for federal civil servants. The award was accompanied by a bonus of 35% of salary.