Truth in Justice Files

The Random Horror of the Death Penalty

2012-01-08T06:31:00.001-05:00

The following editorial by Lincoln Caplan was published by the New York Times on January 7, 2012.

The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people. An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime.

A number of studies in the last three decades have shown that black defendants are more likely to be sentenced to death if their victim is white rather than black. But defenders of capital punishment often respond to those studies by arguing that the “worst of the worst” are sentenced to death because their crimes are the most egregious.

The Connecticut study, conducted by John Donohue, a Stanford law professor, completely dispels this erroneous reasoning. It analyzed all murder cases in Connecticut over a 34-year period and found that inmates on death row are indistinguishable from equally violent offenders who escape that penalty. It shows that the process in Connecticut — similar to those in other death-penalty states — is utterly arbitrary and discriminatory.

From 1973, when Connecticut passed a death penalty law, to 2007, 4,686 murders were committed in the state. Of those, 205 were death-eligible cases (capital murders that include the killing of a police officer, murder for hire, murder-rape and murder committed during a kidnapping) that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offenses as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.

Why was this small group of defendants singled out for death? Did their crimes make them more deserving of execution than all the others?

To get answers, Professor Donohue designed an “egregiousness” ratings system to compare all 205 cases. It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.

The egregiousness scores for those charged with capital murder and those who were not were virtually identical; the nature of the crime bore almost no relationship to how the case came out. Among the 29 who had a death penalty hearing, there is no clear difference in the level of egregiousness for the 17 who got life without parole and the 12 sentenced to death (three eventually had their sentences vacated for various reasons). Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence.

Rather than punish the worst criminals, the Connecticut system, Professor Donohue found, operates with “arbitrariness and discrimination.” The racial effect is very evident (minority defendants with white victims were far more likely to be sentenced to death than others), as is geographic disparity. In the city of Waterbury, a death-eligible killer was at least seven times as likely to be sentenced to death as in the rest of the state.

In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare — and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.

The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.

In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application — among the thousands of murder cases a year — is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.

More progress needed

2012-01-05T06:15:00.001-05:00

The following editorial was published by the Buffalo News on January 4, 2012.

New York is making progress -- slowly -- on the problem of wrongful convictions, but as national figures show, the need to act remains great.

A year-end report by the Innocence Project, based in New York City, shows that it helped exonerate seven people this year -- people who had been convicted of crimes they did not commit. It's a disturbing-enough number, but it doesn't tell the whole story.

A larger umbrella group to which the Innocence Project belongs -- the Innocence Network -- reports a total of 21 exonerations this year. These are people who, in many cases, had the prime of their lives stolen away. There can be no doubt that others languish in prison, hoping for their own salvation.

None of the 21 came from New York in 2011, but the Innocence Project counts 27 cases in which it has helped to win exonerations in this state. Three of those exonerations occurred last year and another one in 2009. New York remains a full partner in the national shame of wrongful conviction.

Western New Yorkers are familiar with this issue. Anthony Capozzi of Buffalo served 21 years in prison for rapes he did not commit. While he was in prison, the real rapist, Altemio Sanchez -- now unmasked as the Bike Path Killer -- began murdering women in Western New York.

Shortly after Capozzi's exoneration, the case against Lynn Dejac-Peters fell apart. She had served nearly 14 years in prison for a crime she did not commit: murdering her own daughter. The real killer remains unidentified.

New York has begun moving against the factors associated with wrongful conviction, including the No. 1 cause, witness misidentification, and also the strange but true phenomenon of false confession. The Innocence Project reports that in about 25 percent of cases where DNA evidence later exonerated the person who was convicted, innocent defendants "made incriminating statements, delivered outright confessions or pled guilty."

New York State's chief judge, Jonathan Lippman, has convened a permanent task force to look into these issues, and it has already made recommendations regarding witness identification procedures and the worthwhile, but not primary, issue of expanding the state's DNA databank.

Soon it will recommend videotaping interrogations to guard against false confessions, which can occur when police inadvertently feed an innocent suspect details of the crime that the perpetrator would know.

But if New York is moving, it is doing so slowly. Thus far, all the factors that helped create the conditions for wrongful conviction remain in force in courtrooms across the state. Other states with terrible records of wrongful conviction, including Texas and California, have moved more swiftly to deal with these issues.

It is good that the state is taking action, of course, but the Legislature needs to formalize issues such as witness identification procedures and videotaping of interrogations. Some legislators will balk at that, fearing that adversaries will somehow paint them as soft on crime. It will be a bad rap, and lawmakers need to realize that.

Nailing the right person is fundamental to any decent conception of law and order. It guards the reputation of the justice system and ensures that criminals are not left on the streets while innocent people rot in prison.

Lippman's committee, called the New York State Justice Task Force, is composed of members from all aspects of the criminal justice system, including police and prosecutors. Thus, its recommendations should give political cover to those lawmakers who need it. But lawmakers have to act. New York does not need to be putting more innocent people in prison while advocates labor to free those who are already trapped there.

Let Anderson's record be heard by a court

2011-12-27T14:25:00.001-05:00

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

2011-12-14T13:06:00.002-05:00

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

2011-12-07T05:20:00.001-05:00

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

2011-12-02T05:22:00.000-05:00

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

2011-11-26T08:47:00.000-05:00

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

2011-11-26T06:58:00.001-05:00

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

2011-11-05T18:21:00.001-05:00

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

2011-10-29T03:34:00.001-05:00

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

2011-10-28T06:14:00.001-05:00

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

2011-09-28T14:26:00.001-05:00

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

2011-09-26T04:25:00.001-05:00

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

2011-09-18T16:03:00.000-05:00

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

2011-09-16T17:54:00.004-05:00

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

2011-09-03T09:22:00.001-05:00

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

2011-09-01T03:58:00.000-05:00

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

2011-08-31T19:09:00.018-05:00

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

2011-08-20T19:56:00.014-05:00

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

2011-08-15T14:13:00.001-05:00

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.

Legal Fictions and Farces

2011-08-15T11:16:00.020-05:00

by James Scanlan, Esq.

It was with regard to the legal fiction that a wife acts under her husband’s direction that Mr. Bumble famously retorted that if such was the law’s view, “the law is a ass – a idiot.”

A comparable obtuseness exists in the law’s belief that a judge’s instruction to disregard statements improperly put before a jury can neutralize the effect of such statements when the jury would otherwise consider them of consequence. As conscientious jurors struggle to reach a just verdict, especially with conflicting testimony, many will believe that the moral course is to disregard the court’s instruction rather than disregard statements that might assist them in a difficult search for the truth. And even jurors who are committed to following the judge’s instruction commonly remain influenced by statements they think they are disregarding.

Thus, in the Roger Clemens case that is the subject of Truth in Justice items of July 27 and August 4, 2011, D.C. District Court Judge Reggie B. Walton wisely rejected the prosecution’s suggestion that a simple instruction to disregard a video presentation of inadmissible evidence could effectively counter its impact on the jury.

In the case of United States v. Dean that is the subject of more than a dozen Truth in Justice items over the last year focusing on the misconduct of Independent Counsel attorneys including Robert E. O'Neill (currently United States Attorney for the Middle District of Florida) or Bruce C. Swartz (currently Deputy Assistant Attorney General for the Department of Justice’s Criminal Division), there occurred far less insightful appraisals of the effect of a curative instruction. As with other matters in the case, several instances of deception on the part of the prosecutors were also involved.

A. Trial and Post-Trial Proceedings

Robert E. O'Neill is the United States Attorney who was recently appointed to the position notwithstanding indisputable evidence that he lied on his Florida Federal Judicial Nominating Commission application regarding the initiation of a District of Columbia Office of Bar Counsel investigation of his conduct in the Dean case and notwithstanding that the false statement on his application or like false statement elsewhere during the process of securing the position almost certainly violated 18 U.S.C. § 1001. As discussed in the September 26, 2010 Truth in Justice item styled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience,” O’Neill has a penchant for calling people liars in his prosecutions, often provocatively, as in his “a liar is a liar” remarks in United States v. Spellissy. O’Neill may well use the tactic when he personally tries the pending case against former Hillsborough County Commissioner Kevin L. White, a cases involving the same false statements statute under which O’Neill could himself be prosecuted until 2014 or 2015. See the July 18, 2011 Truth in Justice item styled “United States Attorney Robert E. O’Neill and the Impending Prosecution of Kevin L. White.”

When O’Neill prosecuted the Dean case as an Associate Independent Counsel in 1993, a substantial part of his closing argument was devoted to repeatedly asserting that the defendant, Deborah Gore Dean, had lied on the witness stand. O’Neill used some form of the word “lie” over 50 times in the context of statements either that Dean herself lied or that Dean had falsely accused others of lying. The pervasiveness of such statements, which are listed here, is probably unrivaled in reported cases. Among them were such provocative statements as that Dean’s testimony “is rotten to the core,” “is lies piled upon lies,” and “is filtered with lies,” and that “[y]ou can throw it out the window into a garbage pail for what it's worth, for having lied to you.” While the case included a number of false statement and perjury counts, almost none of O’Neill’s “lie” statements, and none of the more provocative ones, related to those charges, which O’Neill hardly discussed at all. Rather, the statements were aimed generally at attacking Dean’s credibility.

The attack on Dean’s credibility was quite important to the prosecution’s case. As discussed in the June 29, 2011 Truth in Justice 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.)” (Trick I), O’Neill even pressured Supervisory Special Agent Alvin R. Cain, Jr. into giving misleading or false testimony in order that O’Neill could falsely lead the jury to believe that Dean lied about calling Cain in April 1989 to complain about the treatment of former Attorney General John N. Mitchell in a HUD Inspector General’s Report authored by Cain. (While appearing to categorically contradict Dean, the testimony had been crafted, though imperfectly, to literally mean only that Dean had not called Cain on the date the report was released internally at HUD, ten days before Dean received a copy of it.) O’Neill’s claims that Cain’s testimony showed that Dean lied on the stand were not necessarily couched in his most provocative language (e.g., “We had to bring [Agent Cain] in just to show that she lied about that” and “Al Cain told you, the Special Agent from HUD, that conversation never ever happened.”), but they were forcefully presented. And, given that Cain’s testimony appeared to directly contradict Dean regarding a key matter and given that Cain was a black government agent and Dean was being tried before an entirely black jury, O’Neill’s usage of Cain’s testimony comprised the most compelling part of O’Neill attack on Dean’s credibility and probably the most compelling part of the entire argument.

Later parts of the Tricks of the Trade series will show other deceptive actions O’Neill took in order to enable him to lead the jury falsely to believe either that Dean lied or that Dean falsely accused others of lying, some of which matters are already treated in the Robert E. O’ Neill profile and related materials. See, for example, the Russell Cartwright Receipt document concerning the way O’Neill confronted Dean with a receipt of a lobbyist that O’Neill knew to be false, and then pressed her to state that the receipt must be false, in order that O’Neill could later lead the jury to believe that Dean falsely accused the lobbyist and others of creating false receipts.

After the case was presented to the jury, D. C. District Court Judge Thomas F. Hogan became concerned about some case law taking issue with a prosecutor’s stating that a defendant lied. The case law in the area may generally be described as reflecting two concerns. First, a prosecutor’s assertions that a defendant lied may be inflammatory. Second, the assertions may be perceived as reflecting the personal opinion of the prosecutor, which it is believed would carry substantial weight with a jury. For example, a prosecutor’s explicit statement that in his or her personal opinion the defendant lied would typically be a compelling basis at least for a new trial.

With regard to the first matter, it warrants note that calling a person a “liar” is rather more inflammatory than stating that the person lied. And, while O’Neill’s argument was certainly inflammatory, he never actually used the word “liar.” With regard to the second matter, while O’Neill’s remarks may well have come across as his personal opinion (as they apparently did to Judge Hogan), he was careful to avoid any explicit statement that the remarks reflected his personal opinion.

In any event, after consulting with counsel about a D.C. Circuit case holding, according to Hogan, that statements that a person lied were improper “personal comment by counsel,” Hogan decided he should provide the jury what he regarded as curative instruction. Tr. 3589-91. He did so in these terms (Tr. 3593-95):

“Okay. All right, Ladies and Gentlemen, first as to the arguments you heard yesterday and the day before, I take it, but particularly as to yesterday and the day before, the closing argument and more particularly as to the prosecutors' closing arguments, there were comments made as to using the word ‘liar’ or ‘lying’ and the like, and it is obviously, the issue is for you as the jury to make a decision keeping in mind the evidence in the case, and it is not the opinion of counsel, that is, whatever their personal belief is, that is appropriate, so that an argument to you that someone is lying is really an expression of personal opinion by the attorney, as opposed to pointing you to the evidence and saying it's for you to make up your mind whether or not someone is telling the truth. I want you to keep that in mind.

“It's the evidence you have to focus on and not the statements of counsel, which I informed you previously are not evidence in the case.

“The Court will be sending back to you shortly the exhibits in the case, and as I said previously, then you review the exhibits along with your recollection jointly of what the evidence is in the case, the testimony of the witnesses, and in following my instructions, you deliberate on that basis. And you're not to be influenced by any personal expressions of whether someone is worthy of belief or not by counsel in the case.”

Thus, while O’Neill had avoided the provocative term “liar,” Hogan himself used the term in purporting to remind the jury what O’Neill had said. More important, in the first paragraph of the instruction, Hogan three times suggested or stated to the jury the statements that the defendant had lied were in fact “the opinion of [the prosecutor],” the “personal belief” of the prosecutor, or the “personal opinion” of the prosecutor, adding in the third paragraph a reference to the prosecutor’s “personal expressions of whether someone is worthy of belief.” Thus, in his effort to cure the problem that the jury might perceive that the statements reflected O’Neill’s personal opinion, Hogan repeatedly stated explicitly that the statements were O’Neill’s personal opinion.

There is an irony here beyond that in Hogan’s doing what O’Neill had been careful not to do. As reflected in Tricks I and the O’Neill profile, much of the time, and possibly the overwhelming majority or all of the time, when O’Neill stated that Dean had lied, his personal opinion was that Dean had not lied. In the case of the two assertions that the Dean lied about her conversation with Agent Cain, for example, not only was it O’Neill’s personal opinion that Dean had not lied, O’Neill knew with absolute certainty that Dean had not lied.

When Dean filed a motion for a new trial based on pervasive prosecutorial abuses, at a February 14, 1994 hearing, Judge Hogan recognized that the abuses were indeed widespread, including that Independent Counsel attorneys had reason to know that at least two government witnesses had lied. And Hogan repeatedly noted his concerns about the “cumulative effect” of identified abuses, observing (at 29) that it was “almost impossible to quantify the[ir] total impact” on the defendant’s ability to defend herself. Typically, when one party has created a situation where it is impossible to sort things out (in this instance, the prosecution), a court is expected to rule against that party, which for a time it appeared Hogan was going to do. Nevertheless, with little more than a page of explanation, Hogan refused to grant a new trial. Tr. 32-33.

But Hogan separately, and summarily, treated the closing argument issue as follows (Tr. 33):

“[The Government] also is accused of improper closing argument, I think the Court took care of that appropriate[ly] with its own sua sponte instructions it gave after consulting with counsel about it that this was, it had to be recognized, a perjury case, and it's very hard to argue a case of perjury unless you are allowed to refer to the defendant's testimony and have the jury consider what it's worth and taking all that into account.”

Given that the statements as issue had almost nothing to do with the perjury charges, as Hogan had to know, the reference to perjury is at least disingenuous. But even if the point were pertinent, the casual deference to the curative instruction reflects an obliviousness to a reality in which the instruction to disregard the prosecutor’s personal opinion was unlikely to have any appreciable effect on the jury while Hogan’s several statements that the prosecutors’ remarks in fact reflected the prosecutor’s personal opinion were likely to have substantial effect on the jury. Moreover, while he may not have been aware of the fact when he gave the instruction, by the time he relied on it, Hogan had ample reason to know that many of O’Neill’s statements that Dean had lied could not have reflected O’Neill’s personal opinion.

Hogan had additional reason to know that eight days later when, at a February 22, 1994 hearing, he was faced with defense request for a discrete inquiry that was likely to show whether Agent Cain committed perjury with complicity of Independent Counsel attorneys when he denied that Dean had called him in April 1989. If that or anything close to it had occurred, it would mean that four days after Hogan for the third time had chastised O’Neill for what Hogan regarded as playing to the racial differences between the defendant and the jury (Tr. 3899-901), O’Neill had done the same thing in the extreme by calling a black agent to lead a black jury falsely to believe that the white defendant had lied. It would also mean that for two months leading up to the hearing, Independent Counsel attorneys, including the respected former court of appeals judge and now Independent Counsel Arlin M. Adams, had been deceiving Hogan in order to cover up their actions concerning agent Cain (indeed that Deputy Independent Counsel Bruce C. Swartz was at that very hearing deceiving Hogan to his face, and doing so in a manner that most judges would regard as insulting to their intelligence, as discussed in Addendum 3 to the Bruce C. Swartz profile).

But even though Hogan on the same day made clear that he believed that Dean had called Agent Cain as she said, he denied the request for discovery. And even though Hogan’s statements at the hearing of February 14, 1994, already had impliedly found that the government had been putting on evidence that it knew, or had compelling reason to believe, was false, on this occasion, observing with regard to the Cain matter (at 21) that that the evidence “doesn't mean of necessity the government is putting on information they knew was false before the jury,” Hogan declined to find out whether in point of fact the government was putting on information its representatives knew was false.

There are occasions when the law, as administered by some, prefers not to know the truth.

See the February 22, 2011 Truth in Justice item styled “Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams” and a May 31, 2009 document styled “The Independent Counsel’s Use of Dean’s Off-the-Stand Remark about David Barrett and the Judge” regarding possible motivations for Hogan’s decision.

B. The Appellate Process

While the fact that Hogan himself told the jury that the statements that Dean lied reflected the prosecutor’s personal opinion escaped attention in the district court, the Independent Counsel recognized that they might present a problem on appeal. Such recognition is best reflected by the Independent Counsel’s brief in the court of appeals, which was signed by Bruce C. Swartz, the subject of many Truth in Justice items concerning, inter alia, his repeated efforts to deceive the courts in responding to allegations of prosecutorial abuse (as discussed in Addendum 7 to the Bruce C. Swartz profile). In addition to quoting Hogan’s disingenuous observation that the case was a perjury case (at 54), the brief twice emphasized the distinction between "personal opinion" and argument, observing after citing two D.C. Circuit cases (at 53): "This Circuit has long recognized the distinction between a prosecutor's expression of his personal opinion as to a witness's veracity and his argument based on the evidence that a witness's testimony is a lie." It then noted (at 53-54): “At no point did the prosecutor violate the injunction against expressing his personal opinion regarding Dean's credibility."

Whether or not the brief correctly characterized the way O'Neill's comments would be perceived by the jury, it accurately identified the absolute prohibition of a prosecutor's expression of personal opinion because of the weight such opinion would be expected to carry with a jury. Yet, when the brief then went on to argue that, in any event, the district court's curative instructions had satisfactorily addressed the matter, the brief would describe those instructions as follows at (58):

“[T]he court specifically instructed the jury that while the words ‘lie’ and ‘lying’ had been used in the closing arguments, the ‘issue is for you as the jury to make a decision depending on the evidence in the case,’ since ‘[i]t's the evidence you have to focus on and not the statements of counsel, which I informed you previously are not evidence in the case.’ Tr. 3593-94.”

Comparison of the above-quoted language with the actual instruction reveals that the brief has drawn material from the first two paragraphs of the instruction, but has eliminated from the quotation of the first paragraph the three instances in which Hogan advised the jury that the statements were in fact the personal opinion of the prosecutor. Specifically, the brief excludes the following material:

“... and it is not the opinion of counsel, that is, whatever their personal belief is, that is appropriate, so that an argument to you that someone is lying is really an expression of personal opinion by the attorney, as opposed to pointing you to the evidence and saying it's for you to make up your mind whether or not someone is telling the truth. I want you to keep that in mind.”

Moreover, the brief presented the matter in a way to avoid any indication that material was elided. The brief instead gave the impression that it was simply paraphrasing the court’s statements.

In its May 26, 1995 decision, after citing a number of the more provocative “lie” statements by O’Neill (¶¶130-36), none of which involved the perjury charges, the court of appeals stated (¶137):

“’Lies’ and ‘lying’ are hard words. But this was closing argument, not a polite social conversation. Dean was charged with perjury. The prosecutor had every right to argue that she had not told the truth.”

Then, while indicating that it was not greatly troubled that the prosecutor would use hard words in the circumstances, the court pointed out that that the important thing was that the prosecutor “refrains from giving his personal opinion.” It concluded by stating (id.):

“In this case, to the extent the prosecutor's remarks spilled over into expressions of personal belief, or may have been so perceived by the jurors – for example, ‘she's the only one we know who definitively did lie’ – the district court cured the problem. The court instructed the jury not to consider the opinion of counsel about who lied because it was up to the jury alone to decide who was telling the truth.”

The statement, while seeming not to recognize the extent to which the district court’s instruction explicitly confirmed any impression that the remarks were the prosecutor’s opinion, seems to recognize at least that the court’s curative instruction did make a reference to personal opinion. Yet, given the recognized impact of the perception that the remarks are a prosecutor’s personal opinion has on a jury, it would seem virtually impossible to correct the problem by telling a jury that, while the statements are the prosecutor’s personal opinion, the jury should simply disregard them. Thus, as with Hogan, the court of appeals’ handling of the matter seems rather casual and thoughtless.

When Dean sought review in the Supreme Court, the Independent Counsel opposition (there authored by Deputy Independent Counsel Dianne J. Smith and retained counsel Charles Rothfeld and Michael E. Lackey, Jr.) again, by omission, reflected the drafters’ concern about the problematic nature of the district court’s instruction. But in this instance, while implying that it was quoting the district court’s “curative instructions” on which the court of appeals had relied, the opposition (at 11-12) ignored those instructions entirely. The opposition instead quoted from the court’s earlier general instructions on credibility. These were given on a different day and about 60 transcript pages away from the problematic instruction on which the court of appeals had actually relied.

Whether the Independent Counsel’s approach in the court of appeals or Supreme Court would be deemed an honest one – and I doubt that either court would so regard it ¬– the manner in which the Independent Counsel diverted the courts from Hogan’s statements that the remarks were the prosecutor’s personal opinion does highlight the problems with an instruction that tells a jury that the prosecutor’s statements that a defendant had lied were in fact the prosecutor’s personal opinion.

The considerations that would typically require a new trial where the prosecutor explicitly states that he is expressing his personal opinion ¬regardless of any curative instruction apply with like force, perhaps with greater force, when the court, albeit mistakenly, tells the jury that the prosecutor was expressing his personal opinion.

See the May 31, 2008 document styled “The Putatively Curative Instructions that Informed the Jury that the Prosecutor’s Provocative Statements that the Defendant Had Lied Reflected the Prosecutor’s Personal Opinion” regarding some additional aspects of this matter.

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

2011-08-04T11:56:00.004-05:00

by James Scanlan, Esq.

This item follows on a July 26, 2011 item styled “Will the Truth (About the Prosecutors) Come out in the Clemens Case.”

On July 29, 2011, the defense moved to preclude a second trial in the Roger Clemens obstruction of congress/false statements/perjury case. The motion persuasively argues that the prosecutors engaged in misconduct when they presented a video in which Congressman Elijah Cummings described evidence that the court had ruled could not be presented to the jury. The motion somewhat less persuasively argues that the prosecutors engaged in this conduct for the purpose of causing the defense to seek (and secure) a mistrial, which purpose the motion acknowledges is a necessary criterion for precluding a retrial.

The motion was noncommittal on the nature of the evidence the court should consider in interpreting the prosecutors’ intentions. It discusses that prosecutor intent is commonly inferred from circumstantial evidence and maintains that the objective factors support the defense’s contentions as to that intent. Motion 20-21. But the motion also indicates that after reviewing “the quantum of evidence introduced in [the government’s] memorandum of opposition,” the defense may seek an evidentiary hearing on the prosecutors’ state of mind when the government improperly presented inadmissible evidence in the first trial. Id. 19.

As suggested above, one plausible interpretation of the prosecutors’ intentions is the following:

(1) The prosecutors deliberately violated the court’s order regarding the inadmissible hearsay, while believing that they would ultimately get away with it and that the improperly presented material would influence the jury even if it should be stricken.

(2) The prosecutors did not intend to cause the defense to seek (and secure) a mistrial.

Assuming these are the facts, some prosecutor would believe they faced a dilemma. Acknowledging misconduct as to the first matter will compromise the prosecutors’ credibility as to the second matter and could subject the prosecutors to sanctions by the court, the bar, or the Department of Justice. Such acknowledgment might also disqualify the prosecutors from personally retrying the case in the event the court permits a retrial. And it will make the government look generally untrustworthy.

But if the prosecutors were to attempt to deceive the court as to the first matter, and were unsuccessful in doing so (as they are likely be), the court could be even less receptive to their arguments as to the second matter. The court might well also fault (and in some manner sanction) the government and/or the prosecutors for the additional misconduct in the effort to deceive the court.

There is no real dilemma, however, because there is no choice involved. Government attorneys must advise the court of their true intentions at to both matters. Moreover, the Department of Justice must itself ensure that the prosecutors are forthcoming as to their true intentions, and being truly forthcoming should entail the prosecutors’ providing sworn declarations concerning their thinking. But any effort to deceive the court on either matter, whether undertaken through false statements or misleading or evasive arguments, is an egregious act of prosecutorial abuse.

There is reason to believe that not every prosecutor recognizes their obligation in this regard, and I am not sure the Department of Justice itself recognizes the obligation. But it is hard to imagine that the Department would ever argue otherwise. In any case, the government’s opposition is due on August 19, 2011. As I suggested in the earlier item, it should be a revealing document regardless of whether it is forthcoming as to the prosecutors’ intentions. In the event that the defense seeks an evidentiary hearing on the prosecutors’ intentions, the matter could prove increasingly interesting.

Innocence Roundup: Struggles to succeed

2011-08-03T12:31:00.003-05:00

From Grits for Breakfast Blog, http://gritsforbreakfast.blogspot.com/2011/08/innocence-roundup.html

(Note from Truth in Justice: I would love it if blogspot could come up with a link that I could use to just link to other blogs on the same system, but until then, I'll do block-copy-paste. And if you don't subscribe to Grits for Breakfast, you really should ...)

Habeas, 'actual innocence,' probation and misdemeanors
The debate over postconviction relief for "actual innocence" has mostly centered around extremely serious crimes involving rape or murder. That's mostly because DNA evidence didn't exist or wasn't preserved in other types of cases and without it, the odds of exoneration under existing legal standards are extraordinarily long. DNA evidence exists in 10% or less of violent crimes and not at all in most other cases, leaving few avenues for overturning convictions in less serious cases. But that doesn't mean false convictions don't occur in drug and property crimes or misdemeanor offenses, just that those defendants are far less likely to ever seek or receive relief. Most

Jordan Smith at the Austin Chronicle has a story of a man seeking habeas relief based on actual innocence for a misdemeanor assault for which he was convicted and received probation in high school (shooting a teacher with a bb-pistol from a moving car). The local press at the time (Statesman and Chronicle) ran heart-tugging stories featuring teachers calling for his prosecution and ouster from the school. The fellow who actually did the deed has come belatedly forward to accept responsibility. The conviction has prevented Cleo Hill from several jobs he sought, and now he wants the conviction overturned so he can attend nursing school. "This is the first filing to my knowledge [in Texas] of a writ of actual innocence for someone who's never been in jail," said his attorney. "In this case, Cleo wants to go to nursing school, something he can't do with an assault misdemeanor on his record." Wrote Smith:

Hill's experience provides a bitter confirmation that guilty or innocent – and whatever the punishment – a criminal history is a life sentence. While it differs in important ways from prison time, it remains a heavy, lifelong burden. Professor William Kelly, director of the Center for Criminology and Criminal Justice Research at the University of Texas, says policymakers generally consider only concrete terms of punishment like probation or jail time, seldom the legacy of conviction itself. "The reality is that the punishment continues into the future," said Kelly. Once the jail time or probation period has ended, there will always be that question on any job or housing application: Have you ever been convicted of a crime? "If we could dip offenders into punishment and pull them out, it would be okay," said Kelly. "But that's not how it works."

Having a record can paradoxically force someone deeper into criminal activity. "Being labeled early on does nothing to ensure the likelihood of success," said Kelly. "In fact, it perpetuates a cycle of reoffending." Kelly concedes that many felony charges have justifiably significant, continuing consequences, but he believes a lifetime record is disproportional for a misdemeanor. "We have to ask ourselves, is this really the impact that we want to have?"

'Sixteen and life to go'
Continuing with the theme of innocent people not exonerated, John Browning at the Southeast Texas Record has part one of a story titled "Sixteen and life to go," in which he describes a likely innocent man who it now appears may never be exonerated. (See the story for details of the case.) Chad Uptergrove was tried as an adult when he was 16 and just celebrated his 32nd birthday in prison, having now spent half his life behind bars. The Court of Criminal Appeals recently denied him habeas relief. There was no DNA evidence to prove his innocence conclusively and a Brady violation (failing to tell the defense about an exculpatory witness) was deemed harmless error, which pretty much the only type of error the CCA thinks prosecutors ever make.

Struggling to succeed: Exoneration and reentry
Exoneree Calvin Johnson out of Waco spent 15 years behind bars for a rape and murder he didn't commit before he and his co-defendant were cleared by DNA of the offense in 2001. According to the Waco Tribune Herald, though (subscription only), Johnson struggled after his release, ultimately succumbing to a heroin addiction that has now landed him back in prison with an eight year sentence. The new conviction makes him ineligible for the annuity which was made retroactive in 2009. The Trib's Cindy Culp reported:

Washington’s experience is not unique. Experts who work with exonerees said the majority experience problems after their release. Most don’t go back to prison, but a “large minority” do, said Vanessa Potkin, a senior staff attorney for the national Innocence Project.

“It’s understandable for those who have been debilitated by what they’ve been through,” Potkin said. “It’s more shocking, I think, that so many thrive, do so well and contribute to society.”

A total of 272 people in the United States have been cleared by post-conviction DNA testing, according to the project. It does not have data on how many of them have been arrested after their release.

But research done by the New York Times in 2007 showed one-sixth of exonerees returned to prison or suffered from drug or alcohol addiction. Most struggled to keep a job, rebuild relationships and deal with the psychological scars of wrongful imprisonment, the newspaper reported.

The story goes on to feature the Texas Exoneree Project - which is a group of Texas exonerees who've formed a support group out of Dallas to help one another and others newly exonerated.

The group played a key role in the passage of improved compensation measures during the past two legislative sessions, [Innocence Project of Texas policy director Cory] Session said. Plus, members show up every time a newly exonerated Texan is released.

“They travel around the state to help that next person,” Session said. “(Because of that), exonerees are getting a lot more help than ever before.”

Charles Chatman, who spent 27 years in prison after he was mistakenly identified in a rape case, said he can’t overstate how critical the group has been to him. Some of the issues exonerees face can’t be understood by anyone else, he said.

Family relationships often have to be rebuilt from “ground zero,” Chatman said. Navigating new technology can be tough, too. He said he can still remember how frustrated he felt the first time he tried to use an automatic checkout lane at the grocery store.

Finances can be another stumbling block, Chatman said. The compensation money is helpful, but it also creates problems. A number of people in the group have had to deal with demanding relatives or unscrupulous financial advisers, he said.

“Everybody takes advantage of us,” Chatman said. “It really hurts.”

The group doesn’t push specific advice on new exonerees, Chatman said. But it lets them know members are available to help as needed, he said.

Compensating Anthony Graves
Finally, the Texas Tribune has an update on changes to the state compensation law that will allow Anthony Graves and others similarly situated to receive compensation for their false convictions - even if the case wasn't overturned based on a habeas writ finding "actual innocence" - if the judge and prosecutor agree they were falsely convicted. "The measure also makes wrongfully imprisoned people eligible to receive the same health benefits given to employees of the Texas Department of Criminal Justice for a period equal to the time they spent in prison. Their families, however, would not qualify for coverage, and the individuals would still have to pay a monthly contribution."

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

2011-07-26T11:58:00.011-05:00

by James Scanlan, Esq.

Jury selection in the Roger Clemens obstruction of congress/false statements/perjury trial was an involved process lasting four days. Nevertheless, on July 14, 2011, early into the second day of trial, District Judge Reggie B. Walton ordered a mistrial when the prosecution presented evidence that Walton considered contrary to a ruling he had made a week earlier. Walton then ordered briefing on whether Clemens may be retried and scheduled a hearing on the matter for September 2, 2011. Walton’s perceptions of whether the prosecutors acted in bad faith may affect his decision. So, too, should his perceptions about the prosecutors’ candor in explaining the motivations for their conduct.

A. The Events and the Ruling
The events in courts that led to the mistrial are not very complicated. Among the 40-plus witnesses the government intended to call in its case-in-chief were (a) Andy Pettitte, to testify, consistent with an affidavit that he provided Congress in 2008, that in 1999 or 2000 Roger Clemens had told him that Clemens had used human growth hormone and that, soon after the conversation, Pettitte discussed it with his wife, Laura Pettitte, and (b) Laura Pettitte, to testify, consistent with the affidavit she provided Congress in 2008, that in 1999 or 2000 Andy Pettitte told her that he had had a conversation with Clemens in which Clemens said that he had used human growth hormone. Among other things, that in 1999 or 2000 Clemens had told Andy Pettitte that Clemens had used human growth hormone was pertinent to the claim that Clemens committed perjury by falsely stating under oath that he had never used human growth hormone.

The defense moved to preclude the testimony of Laura Pettitte and certain other witness on grounds that the expected testimony was inadmissible hearsay and proposed an order stating that “counsel for the Government shall not mention, refer to, or bring before the jury, directly or indirectly, on voir dire examination, reading of the pleadings, statement of the case, interrogation of the witnesses, argument, objections before the jury, or in any other manner hearsay testimony by Laura Pettitte unless and until the matter has first been called to the Court’s attention out of the presence and hearing of the jury and a favorable ruling received on the admissibility and relevance of the matter.” The final paragraph of the motion similarly sought a ruling that, before presenting the hearsay testimony the defense was challenging, prosecutors must bring the material to the attention of court “out of the presence and the hearing of the jury.” On July 7, 2011, Judge Walton issued a brief order addressing several related matters and stating that the motion to preclude testimony of Laura Pettitte and others was granted in part and denied in part, clarifying (at 2 n.2) that such testimony could be presented only in rebuttal and only if defense counsel’s cross-examination provided a sufficient predicate for it.

Early in the second day of its case-in-chief, the prosecution played a video – accompanied by written transcript on a visual presenter – from a February 13, 2008 Congressional hearing in which, among other things, Congressman Elijah Cummings confronted Clemens with the fact that Laura Pettitte had submitted a sworn affidavit stating that Andy Pettitte had told her of a conversation in which Clemens told Pettitte that Clemens had used human growth hormone. The video and transcript were in the form provided to defense two months before trial and admitted into evidence, without objection from the defense, shortly before the video was played. The government had made no redactions in light of the court’s ruling barring Laura Pettitte’s testimony.

At the time the court interrupted the proceedings, the video tape and transcript showed Cummings in the process of asking the question set out below. According to a video of the Congressional hearings that is available here and a preliminary transcript of that hearing that is available here (at 39-41), the question followed upon questions in which Cummings recounted Andy Pettitte’s statements that Clemens had told Pettitte that Clemens had used human growth hormone and immediately after Cummings elicited from Clemens that Pettitte would have no reason to fabricate the story. In the quotation below the bracketed quotation marks are mine and the highlighting is mine.

“Very well.

“This was so important we went back to Mr. Pettitte a third time, a third time. We asked him to submit an affidavit to the committee. This gave him a chance to express his recollection clearly, without the pressures of a deposition.

“I want to read to you what he wrote. It says, [‘]In 1999 or 2000, I had a conversation with Roger Clemens in which Roger told me that he had taken human growth hormones. This conversation occurred at his gym in Memorial, Texas. He did not tell me where he got the HGH or from whom, but he did tell me that it helped the body recover.[‘]

“It is not just Mr. Pettitte who recollects this conversation. During his deposition, Mr. Pettitte told us that he tells his wife everything. So we asked his wife to give us an affidavit about what she knew. And understand, this is under oath. Let me read to you what his wife said in her affidavit.

“[‘]I, Laura Pettitte, do depose and state, in 1999 or 2000, Andy told me he had had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones.[‘]

“Mr. Clemens, once again I remind you. You are under oath. You have said your conversation with Mr. Pettitte never happened. If that was true, why would Laura Pettitte remember Andy telling her about the conversation?”

According to the transcript of the July 14, 2011 court hearing (at 43), the highlighted material was on the video presenter at the time Judge Walton called a bench conference, and the evidence presented never got beyond that. Observations Walton made before clarification of what had been on the presenter (Tr. 36, 41) suggest that the video had not yet gotten to the point of the displayed transcript material. But the clarification as to what was on the video presenter also revealed that the highlighted material had been visible to the jury throughout the several-minute initial bench conference. Tr. 42-43.

Judge Walton indicated that he regarding the government’s presenting of the quoted material as a clear violation of his order regarding the Laura Pettitte testimony and that it had been the government’s obligation to redact the material from any evidence presented in court regardless of any objection by the defense. Tr. 33, 36-37, 44, 49-50. Walton also made clear that he believed that the prosecutors should have known this, observing “government counsel doesn’t do just what government counsel can get away with doing,” and noting that “a first-year law student knows that you can’t bolster the credibility of one witness with clearly admissible statements.” Tr. 46.

Walton also indicated that he was influenced by the potential prejudicial effect of Cummings’ opining on the credibility of Andy Pettitte as well as Cummings’ eliciting from Clemens affirmations of Pettitte’s honesty. Tr. 36, 46, 48. Expressing a view that Clemens was going to have great difficulty undermining Andy Pettitte’s credibility irrespective of the material improperly presented to the jury (Tr. 48), Walton concluded that the only way to deal with the matter was by declaring a mistrial. Tr. 48-50.

B. The Prosecutors’ Thinking
A Washington Post article on the mistrial discusses accounts of how respected for their integrity are the two Department of Justice attorneys responsible for the action leading to the mistrial and hence why the attorneys must have simply made a mistake. I have no reason to question that the prosecutors, Assistant United States Attorneys Steven J. Durham and Daniel B. Butler, are highly regarded. I doubt, however, that they are any more respected for their integrity within the Department than United States Attorney Robert E. O'Neill and Criminal Division Deputy Assistant Attorney General Bruce C. Swartz. Yet most careful readers of the items I have posted here on O’Neill and Swartz (and materials made available in support of those items) would say that neither should be representing the United States in any capacity, and some would say that they should have each been prosecuted for their conduct in United States v. Dean (with O’Neill prosecuted as well for the false statement he made in seeking the United States Attorney position). See, for example, Truth in Justice items of July 18, 2011 (O’Neill) and March 19, 2011 (Swartz).

Thus, as reflected by the esteem in which O’Neill and Swartz are held at the Department of Justice, the reality is that, whatever putatively informed observers may say about a prosecutor’s honesty, even when said in the utmost good faith, few really know much about the propensity of an individual prosecutor to ignore the rules when there is an advantage in doing so, particularly in a high profile case that the prosecutor has a great interest in winning. So let us at least consider the possibility or likelihood that the two attorneys in the Clemens case, with or without consultation with their superiors and others within the United States Attorney’s office, recognized their obligation to remove the inadmissible evidence from the materials they were to present to the jury – or, let us say, recognized a substantial probability that the court would regard such obligation to be implicit in its order – but decided that they would simply proceed with the unredacted materials, leaving to the defense the burden of objecting.

If so, someone involved in discussions may have observed, though mistakenly, something to the effect that “worst case is that the judge will instruct the jury to disregard the inadmissible evidence on the tapes” ¬– as prosecutor Durham in fact tell would tell the court that he (Durham) thought would be an adequate remedy (Tr. 47) – and that possibly the defense would not even object once the material was presented in order to avoid highlighting it to the jury. And one or more discussants may have thought or said that the government would in any event derive a benefit from presenting the excerpts, given the inability of most jurors to fully comply with an instruction to ignore seemingly important material, especially when the material is highlighted by defense counsel’s seeking to have it stricken.

Possibly the decision was also motivated by the fact that the excerpt regarding the Laura Pettitte affidavit was integral to the presentation of Congressman Cummings’ evident disbelief (and quite forceful evident disbelief, as the video reveals) of Clemens and opining on the credibility of Andy Pettitte. Cummings – a Democrat from Baltimore as the prosecution witness testifying about the excerpt had noted (Tr. 32) ¬¬ ¬– is an African American, age 57 at the time of the congressional hearings, with a commanding persona, at least in the context of his questioning of Clemens. Thus, prosecutors would have had reason to expect that Cummings’ statements would have a substantial effect on any jury, but especially a majority black DC jury, regardless of whether the statements were ultimately stricken.

Indeed, the difficulty of remedying the effect of the excerpt on the jury would be evident enough to any who had viewed the video that, even were there only a small chance that the Judge Walton would regard the excerpt to be covered by the ruling, responsible prosecutors would have sought clarification from Walton prior to presenting the material. A fair inference is that the prosecutors did not ask Walton because they knew what he was likely or certain to say.

Defense counsel suggested that part of the reason for the defense’s failure to object when the government sought to admit the hearing video and transcript earlier in the morning was that, despite repeated requests for the government’s marked exhibits, those exhibits were not provided until the afternoon of July 11, the “11th hour” in counsel’s estimation. Apparently, prosecutor Durham had advised defense counsel that resource restrictions prevented the government from producing the marked exhibits any earlier. Tr. 44-45. So one must also consider the possibility that it was not limited resources that prevented earlier production of the exhibits, but that the late production was specifically intended to reduce the likelihood that the defense would be in a position to object to the use of the unredacted excerpts before they were admitted.

One must consider, too, the possibility that prosecutors carefully evaluated the likelihood of a mistrial, but concluded that, precisely because it had taken so long to empanel the jury, Judge Walton would be reluctant to adopt such a course.
In the course of any such discussions on the desirability of getting Cummings’ discussion of the Laura Pettitte affidavit before the jury, someone might even have said something to the effect that “we can always say …,” as lawyers sometimes do. Not always is there someone present to authoritatively counsel that one cannot say something to the court concerning the reason for an attorney’s actions unless it is true.

C. The Prosecutors Statements So Far
Apart from stating that “[t]here was no intention to run afoul of any court ruling” (Tr. 37), so far prosecutor statements that might be reflective of their motives remain interpretable. Prosecutor Durham several times noted that the video clip had been provided to the defense two months earlier and that it had been admitted without objection from the defense. Tr. 33, 37, 43. At one point he observed in defense of failing to redact the key material: “This is part of the Congressman's question to Mr. Clemens. If this has been raised before, then we could ….” But he was cut off by the Judge Walton’s observing that, while the matter may not have been raised with regard to the particular clip, the matter of whether Laura Pettitte’s testimony could be admitted had been raised. Tr. 33-4. Durham later also stated (Tr. 38): “This was within the context of a question that was being posed [by] Representative Cummings, which 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,” Durham simply stated: “This exhibit is in the context of a question that is asked to Mr. Clemens specifically.” Tr. 44.

Without exploring the nuances of each statement the prosecutors have so far made, I simply note that there seems still seems an unanswered question of whether the prosecutors 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. Variations on that question include (a) assuming the prosecutors believed there was any possibility that the court would regard the material at issue as covered by its ruling, why they did not raise the matter with the court prior to presenting the material; (b) whether they believed that the government would derive a benefit from having presented the material even if it were stricken. One also would want to know whether in fact the marked exhibits were not ready until the afternoon of July 11, or the production had been intentionally delayed either (a) specifically to impede the defense from challenging the excerpt containing the Laura Pettitte material before it was admitted into evidence or (b) generally to impede the defense.

D. The Impending August 19, 2011 Response of the Government
In a September 3, 2010 Truth in Justice item styled “Doubtful Progress on Professional Responsibility at DOJ,” I discussed that Bruce C. Swartz’s actions in United States v. Dean could serve as useful case study of impermissible evasions and deceptions in responding to allegations of prosecutorial abuse. There, and in a further development of the matter in Addendum 7 to the Bruce C. Swartz profile, I discussed the tactic of making arguments about the facts and legal obligations that, if plausible, might suggest that prosecutors had not acted in bad faith, while failing to straightforwardly tell the court what the prosecutors were in fact thinking. And I suggested that a step toward solving problems of prosecutorial abuse generally would be a requirement that prosecutors respond to misconduct allegations in affidavits and that that Department of Justice insist that those affidavits be true. Indeed, the Department cannot allow the prosecutors to present affidavits unless the Department believes they are true (nor, of course, can it otherwise allow prosecutors to attempt to lead courts to believe things that are not true).
At this point, we can simply say that there is some reason to believe that there was an element of bad faith in the prosecutors’ presenting the congressional hearing excerpt with the Laura Pettitte references. And almost always when prosecutors act in bad faith there exists an intention that, should it prove necessary, they will affirmatively deceive the court concerning the motives underlying challenged conduct – preferably by evasiveness rather than by making outright false statements to the court, especially in sworn affidavits. Yet deceiving the court on a matter, whether by evasiveness or otherwise, typically will constitute at least as grave an abuse as the underlying conduct.

Defendant’s memorandum is due on July 29 and the government’s opposition on August 19, with both available on pacer.gov shortly after filing. The latter item will warrant a careful reading with respect to what it states or implies about the prosecutors’ motives and what it otherwise indicates about their candor in their dealings with the court.

Foxes Guarding the Hen House at Wisconsin Innocence Project

2011-07-20T15:15:00.003-05:00

We were not entirely surprised when the Wisconsin Innocence Project’s press release landed on our desks on July 12, 2011. It announced the formation of an advisory board to “steer the work” of the Wisconsin Innocence Project in advocating for wrongly convicted individuals. Members of this advisory board include current and retired prosecutors, ranking police investigators and administrators, and defense attorneys.

This was not a complete surprise because we had heard from inmates represented by the Wisconsin Innocence Project who have experienced sudden reversals of course in their cases. One, for example, needs DNA testing of some key evidence long suppressed by the prosecutor, and had been waiting to learn how much it would cost. Suddenly, the inmate is told that a whole new crop of students will begin reinvestigating the case from scratch – just about the time the prosecutor became a member of the advisory board. It seems plain the direction in which this inmate’s case is being “steered.”

Some of the new advisory board members make a reasonable person wonder what the co-founders of the Wisconsin Innocence Project, Keith Findley and John Pray, were smoking when they chose them. Retired Dane County Assistant District Attorney John Norsetter, for example, successfully prosecuted Ralph Armstrong in 1980 for the murder of Charise Kamps. Fourteen years later, when Norsetter got a call from a Texas woman who reported that Armstrong’s brother, Steve, had confessed to the killing, he did what any prosecutor would do: ">he preserved his win by not reporting the new information. In 2006, in the same case, Norsetter flagrantly and deliberately violated a court order by sending key DNA evidence for testing that resulted in the destruction of the evidence. Wisconsin finally threw in the towel in Armstrong’s case in 2010.

And how did Norsetter’s colleague, retired Dane County Deputy District Attorney Judy Schwaemle, get on the board? In 1992, she convinced a jury that Anthony Hicks, the only black man in a white apartment complex, raped his neighbor. Two pubic hairs from the assailant were offered as scientific proof. Sentencing was delayed while Schwaemle trotted out two jailhouse snitches to claim that Hicks solicited them to kill the victim and his attorney. The judge eventually decided the witnesses would lie on their own mothers if it got them leniency, but he sentenced Hicks to 19 years in prison. Five years later, DNA excluded Hicks as the donor of the pubic hair. Schwaemle reissued the rape charges and kept Hicks in custody until she had to fish or cut bait. She cut bait but said the evidence “does not proclaim him innocent. It merely introduces reasonable doubt.'' Her continuing refusal to apologize or admit error was the subject of editorials in the Madison Capital Times and in the Isthmus newspapers in 2002.

Cases investigated, prosecuted and/or defended by members of this advisory board are bound to be presented to the Wisconsin Innocence Project, and in each instance, a conflict of interest exists. How are the defense attorneys going to advise regarding, say, case selection criteria, on cases involving their own ineffective assistance? Do you think they’ll want to see that inmate’s conviction reversed, knowing that a malpractice lawsuit against them is probable? How about police investigators and administrators? How likely are they to “steer the work” out the door when police misconduct in their agency was key to the conviction? Are prosecutors—including retired prosecutors—going to let their big wins of days gone by be overturned? Or will they close the doors on the innocent in order to keep the win/loss ratio that was the keystone of their professional identity? Such blatant conflicts of interest can never achieve the “full and balanced consideration of the issues” the Wisconsin Innocence Project says it seeks.

In the end, we must ask why? Why is the Wisconsin Innocence Project ignoring conflicts of interest that would put private practitioners in peril of losing their licenses? And why is the Wisconsin Innocence Project so willing to throw innocent inmates under the bus?

United States Attorney Robert E. O’Neill and the Impending Trial of Kevin L. White

2011-07-18T11:27:00.002-05:00

by James Scanlan, Esq.

According to the press coverage of the jury selection in the Roger Clemens perjury case, it was quite an involved matter. In the event that the case is tried again following the mistrial due to the government’s putting inadmissible evidence before the jury, the next jury selection will be complicated further by press coverage concerning the existence of inadmissible evidence that tends to support the government’s version of events.

A case in the Middle District of Florida that I wrote about here in a June 21, 2011 item styled “United States Attorney Robert E. O'Neill as Crusader Against Corrupt Public Officials” may prove to raise similarly difficult jury selection issues – though ones related to the attorney prosecuting the case rather than anything concerning a defendant or public knowledge of the facts of the case. In the June 21, 2011 item, I noted that United States Attorney Robert E. O’Neill’s appearance at a hearing in a case brought against a former Hillsborough County Commissioner, United States v. Kevin L. White, suggested that O’Neill might intend to try the case himself. The case includes a count alleging a violation 18 U.S.C. § 1001, a statute that I have many times here observed O’Neill himself almost certainly violated during the course of his seeking the United States Attorney position by making a false statement concerning the origination of a District of Columbia Bar Counsel investigation of his conduct in United States v. Dean. Apart from the incongruousness of O’Neill’s seeking to prove a violation of a statute that he recently may have violated, I noted that if information about O’Neill’s violation of 18 U.S.C. § 1001 becomes widely known in the Tampa/St. Petersburg area, the court may have problems impaneling a jury and ensuring that such information does not come to the attention of the jury during the trial.

A July 1, 2011 St. Petersburg Times article has since indicated that O’Neill does intend to personally try the case. Given the amount of publicly available material detailing not only the false statement O’Neill made on his Florida Federal Judicial Nominating Commission application for the United States Attorney position, but also the pervasive and often shocking abuses for which he responsible in United States v. Dean, probably I understated potential problems facing the court if Robert E. O’Neill were to attempt to try a criminal case himself, regardless of whether the case contains an 18 U.S.C. § 1001 count. In a September 26, 2010 item styled “The Honorable Robert E. O’Neill Regrets That He is Unable to Answer Questions from the Audience,” in discussing that O’Neill’s appointment as United States Attorney would likely enhance my ability to publicize the nature of his conduct in the Dean case, I noted that O’Neill’s nomination had greatly increased the Google ranking of my treatments of O’Neill’s conduct.

There existed, of course, the possibility that once O’Neill started issuing press releases as the United States Attorney, the rankings of those treatments would fall substantially. But today a Google search for “Robert E. O’Neill” yields that September 26, 2010 item as the second result and my Robert E. O’ Neill profile page as the sixth. A Bing search yields the profile page as the first result, my June 29, 2011 Truth in Justice item styled “Robert E. O’Neill’s Tricks of the Trade – One” as the third, and the June 21, 2011 item discussed in the second paragraph as the seventh, with roughly similar results on Yahoo. In short, anyone who attempts to learn about Robert E. O'Neill the way most people would these days is confronted with my portrayals of Robert E. O'Neill as someone who certainly ought not to hold public office and probably should have spent (or should spend) some time in prison. The September 26, 2010 item, which highlights O’Neill’s prosecutorial tactic of calling people liars even when he knows they have not lied and his “a liar is a liar” comment from United States v. Spellissy, in the context of the undisputable evidence that O’Neill himself lied on his United States Attorney application, certainly suggests a hypocrisy that even the cynical would deem remarkable.

From the government’s perspective, a reader of any of my treatments of O’Neill’s conduct would be an unsuitable juror in a case tried by O’Neill. Apart from the juror’s broad reactions toward O’Neill’s effort to prove a case that may well involve conduct far less nefarious than that O’Neill engaged in under the color or law, the juror would have to regard as ludicrous any effort by O’Neill to impugn the veracity of a witness or to impress upon the jury the importance of 18 U.S.C. § 1001. And, even if the court is able to impanel a juror that is untainted by my accounts of O’Neill’s character and conduct, absent specific instruction that jurors not only should avoid learning anything about the case outside of the courtroom but should avoid learning anything about the counsel outside of the courtroom, there would exist a possibility that, out of simple curiosity, some juror might look up on the internet the United States Attorney who is personally trying the case.

By letter dated July 14, 2011, I raised these issues with the Honorable James D. Whittemore, the trial judge in the White case, addressing as well the reasons that the court should carefully scrutinize O’Neill’s behavior and representations during the course of the trial. Judge Whittemore, as it happens, is the same judge who recently issued the order in United States v. Del Fuoco containing language suggesting that a false statement on O’Neill’s Florida Federal Judicial Nominating Commission application would itself violate 18 U.S.C. § 1001. See my February 19, 2011 Truth in Justice item styled “Robert E. O’Neill and 18 U.S.C. § 1001.” Judge Whittemore was also the presiding when O’Neill made his “a liar is a liar” remark in United States v. Spellissy. I copied Jay Macklin, General Counsel of the Executive Office for United States Attorneys. Macklin is the Department of Justice official mentioned in the September 26, 2010 Truth in Justice item and elsewhere who communicated the Department’s refusal to investigate whether O’Neill lied on his United States Attorney application while citing the transparently inapplicable policy of refusing to investigate prosecutorial misconduct issues that were or could have been raised in litigation.

Unless Judge Whittemore and the Department of Justice completely ignore the matter, it would seem difficult to believe that Robert E. O'Neill will end up trying the White case. But I had found it difficult to believe that someone would become a United States Attorney after both the Department of Justice and the Senate Judiciary Committee were made aware that he lied on his application for the position. So we’ll see.

In the case of the Department of Justice, it warrants note, acting responsibly on the matter puts it on a slippery slope. For once the Department takes any action in acknowledgement that O’Neill lied on the application, it will become hard for it to justify having allowed him to become United States Attorney in the first place, allowing him to remain in the position, or, for that matter, failing now to prosecute him for violating 18 U.S.C. § 1001.

The day after I posted my letter to Judge Whittemore, an article in the St. Petersburg Times alerted me to the fact that O’Neill has already tried one case as United States Attorney. In a case involving fraud allegations concerning the purchase of a book for a Head Start program, a jury convicted one defendant while acquitting two. I doubt that a juror’s knowledge of my treatments of O’Neill’s conduct, or of the facts underlying those treatments, had any bearing on the outcome of the case. There is a good chance that no one involved in the case, save for O’Neill himself, was aware of either matter. But these things are not going to remain unknown forever, either in the Tampa/St. Petersburg area or elsewhere. And as they become more widely known, whether they in fact ever affect the outcome of a trial or complicate a jury selection, the spectacle of an individual like Robert E. O'Neill trying cases on behalf of the United States will do little to enhance the public’s faith in the criminal justice system.
Trial in the White case was originally set for August 1, 2011. On July 15, 2011, the defense moved to postpone the trial through the end of the year. The motion is pending.

Viewpoints: Hooray for the Casey Anthony Jury

2011-07-12T12:36:00.002-05:00

By Mansfield Frazier in The Crime Report.

Click link below to read.

Viewpoints

The Real Danger from Casey Anthony's Trial: Scary Scientific Precedents

2011-07-05T05:16:00.000-05:00

The Real Danger from Casey Anthony's Trial: Scary Scientific Precedents

Robert E. O'Neill's Tricks of the Trade - One

2011-06-29T11:37:00.006-05:00

Robert E. O'Neill's Tricks of the Trade - One
(The False or Misleading Testimony of Supervisory Special Agent Alvin R. Cain, Jr.)
by James Scanlan, Esq.

Robert E. O'Neill, since October 2010 United States Attorney for the Middle District of Florida, is one of the most important federal law enforcement officials in the country. He is also a gifted trial attorney. But he has shown himself to be a dishonest prosecutor, one, indeed, who could be considered a master of deceit. This is the first of a number of items describing certain deceitful tactics O'Neill employed as an Associate Independent Counsel in the 1993 prosecution of United States v. Deborah Gore Dean. These items should be useful reading for anyone representing someone prosecuted by O'Neill. Further, inasmuch as the United States Department of Justice is on record that the actions of O'Neill in the Dean case did not constitute outrageous government misconduct or even prosecutorial abuse of an exceptional nature and did not call into question O'Neill's fitness to prosecute federal cases, the items may well provide useful insight into the way other federal prosecutors sometimes operate. In any case, readers are likely to find the described conduct surprising if not remarkable, while leaving open the question of how commonplace it might be.

This item involves the way O'Neill and Deputy Independent Counsel Bruce C. Swartz caused a government agent to testify in a manner that would seem to categorically contradict truthful testimony of the defendant, thus enabling O'Neill to rely on the testimony to provocatively assert that the defendant lied on the witness stand. It is discussed at length in Section B.1 of the main Prosecutorial Misconduct page of jpscanlan.com and Section B of the Robert E. O'Neill profile. Most of the other matters that will eventually be treated here are also at least touched upon in that profile.

Most readers of this item are likely to regard Robert E. O'Neill and others involved in the described conduct and the subsequent efforts to cover it up as unfit to hold public office and to believe that at least O'Neill and Swartz should have been prosecuted and spent some time in prison for their actions. Persons disposed to regard the described conduct as clever or ingenious should keep in mind the involvement of Swartz in each aspect of the matter. Swartz, for the last decade the Deputy Assistant Attorney General in the Department of Justice Criminal Division in charge of international matters, is regarded to be quite brilliant and one can observe elements of an unprincipled ingenuity in Swartz's later efforts to cover up the matter in post-trial proceedings. Very likely the same ingenuity has been manifested in varied actions of Swartz in representing the Department of Justice to foreign nations. See Truth in Justice items of February 6, 2011 ("Bruce Swartz - Our Man Abroad") and March 10, 2011 ("Criminal Division Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material"). But O'Neill is no doubt ingenious enough in his own right.

A. Background

Count One of the Superseding Indictment in the Dean case alleged that the defendant Deborah Gore Dean caused the Department of Housing and Urban Development (HUD) to take certain actions concerning moderate rehabilitation subsidies in order to benefit clients of former Attorney General John N. Mitchell, a person Dean regarded as a stepfather. Mitchell had died in October 1988, about six months before the abuses of HUD's moderate rehabilitation program became public as a result of the April 1989 release of a report by the HUD Inspector General. A crucial issue in the case was whether Dean was aware that Mitchell earned HUD consulting fees while she was employed as Executive Assistant to HUD Secretary Samuel R. Pierce, Jr. between June 1984 and September 1987. No evidence suggested that while Dean was at HUD she was aware that Mitchell earned HUD consulting fees, and two immunized witness provided testimony suggesting that Dean was unaware of such fact.

Dean testified that she first became aware that Mitchell earned any HUD consulting fee from the HUD Inspector General's Report "on the day the report came out" in April 1989. The report, which was authored by HUD Supervisory Special Agent Alvin R. Cain, Jr., was dated April 17, 1989, and released to the public on April 27, 1989. Page 1d of an introduction to the report stated that Mitchell had earned a $75,000 consulting fee for assistance, commencing in January 1984, in securing funding for a 292-unit Dade County, Florida moderate rehabilitation project called Arama.

On October 12, 1993, during the fourth day of her direct examination, Dean testified that she called Agent Cain to secure a copy of the report on the day it was released, providing details of her then having Marti Mitchell deliver a check to Cain to pay for the report and pick up a copy. Dean then testified that on opening the report she saw the statement in the introduction that Mitchell had earned the consulting fee relating to the Arama project. After stating that she called Cain again when she found the entry concerning Mitchell, Dean provided the following testimony regarding her conversation with Cain:

"I told him that I considered him to be a friend and I couldn't believe that he wouldn't have told me about this before now and that I knew it wasn't true, that John would never have done that, and that he better be prepared, because I was really mad, and I wanted to see the check, and if there had been a check written to John Mitchell, Al better have a copy of it, and I was coming down there, and if I found out that he was, in any way had misinterpreted or had misrepresented John's actions, I was going to have a press conference and I was going to scream and yell and carry on.

"And Al said, Al told me that he -"

A hearsay object prevented Dean from testifying as what Cain told her about the check. Such testimony would have been that Cain told her that he was sure there was a check but he had not seen it himself because it was then maintained in the Regional Inspector General's Office in Atlanta. She would also have stated that Cain's inability to produce a check prompted her to contact Mitchell's partner, who then advised her that Mitchell's involvements in HUD matters went beyond the Arama project.

Regardless of what Dean might have testified about what Agent Cain had told her about the check, however, Dean's testimony about calling Cain did little to prove that prior to issuance of the Inspector General's report she was unaware that Mitchell earned HUD consulting fees. For she could have called Cain merely to divert suspicion. But the testimony did offer Independent Counsel attorneys an opportunity both to undermine Dean's credibility and to obliquely (though not exactly logically) demonstrate that Dean knew about Mitchell's HUD consulting before the release of the report. They would do so not by disputing Dean's account of some particular of the call, but my making it appear that Dean never made the call at all.

This course subjected Independent Counsel attorneys to considerable risk. Presumably they were willing to assume that risk because they believed that their case was in jeopardy and that the apparent contradiction of the white defendant by a black federal agent would carry particular weight before an all-black jury.

B. Three Pieces of False or Misleading Testimony

Dean remained on the stand for all or part of five more trial days, including three days of cross-examination by O'Neill. But O'Neill asked Dean no questions about the call to Cain. Meanwhile, however, O'Neill and Swartz were seen to take Agent Cain into a room on some number of occasions to pressure or persuade Cain, a person who had to that date regarded himself as highly principled, to provide testimony he was very reluctant to give. The end result was a three-part pattern of deception, involving testimony that most observers would maintain was false and perjurious, but that all observers would regard as calculatedly intended to lead the jury to believe things the prosecutors knew to be false. This occurred on October 18, 1993, when, approximately an hour after the conclusion of Dean's eight days of testimony, O'Neill called Agent Cain as the Independent Counsel's second rebuttal witness.

1. Deception 1 - the date the report was "published"

The first false or misleading testimony O'Neill elicited from Agent Cain concerned the date the report was published. After eliciting the testimony as to Cain's background and the fact that he had been involved with the HUD Inspector General's Report, O'Neill conducted the following questioning of Cain:

"Q. And did there come a point in time, as you recall, that it was published?
"A. Yes.
"Q And do you recall when approximately that was?"
"A. The Section Eight Mod Rehab investigative report was published April 17, 1989."

Given that to publish something commonly means making something available to the public, left to his own conscience, Agent Cain would probably have said the report was published April 27, 1989, or provided information regarding both the internal release of the document and its later public release. But Swartz and O'Neill had apparently persuaded Cain, or pressured him into accepting, that a permissible interpretation of the word "published" could cover the internal release of the document at HUD - or at least do so sufficiently to preclude a perjury charge.

2. Deception 2 - "at or about that time"

After Cain provided April 17, 1989 as the publication date for the IG report, O'Neill then conducted the following questioning:

"Q. At or about the time that was published, do you recall having a conversation with the defendant Deborah Gore Dean?
A. A telephone conversation."

Asked to describe the nature of the conversation, Cain explained that Dean had sought a copy of the report from him and that he had provided a copy to her. He provided details of providing the report to Dean that closely comported with those Dean had provided, making it clear to the jury that Cain had a clear recollection of the events.

Once again, left to his own conscience, Cain would likely have clarified that that Dean had not called him when the report was released internally at HUD, but did call him ten days later when the report was released to the public. But apparently Swartz and O'Neill had persuaded Cain that the phrase "at or about that time" could be read to encompass both April 17, 1989, and April 27, 1989.

3. Deception 3 - "at or about that date"

After Cain provided the description of providing Dean a copy of the report, O'Neill concluded his direct examination of Cain with the following three short questions.

"Q. At or about that date, do you recall any conversation with the defendant Deborah Gore Dean in which she was quite upset with you about the contents of the report?
"A. No, I do not
"Q. Do you recall her mentioning John Mitchell to you and the fact that he made money as a consultant being information in the report?
"A. No, I do not.
"Q. Do you recall her telling you that she was going to hold a press conference to denounce what was in the report?
"A. Absolutely not."

Given that the obvious antecedent of "that date" was the day just described by Cain when he provided a copy of the report to Dean, left to his own conscience, Cain would presumably have acknowledged that Dean called him after he provided her a copy of the report. But apparently Swartz and O'Neill had persuaded Cain both (a) that "that date" referred to April 17, 1989, the only date Cain had mentioned in his testimony and (b) that, whereas "at or about that time" was broad enough to encompass both April 17, 1989, and April 27, 1989, "at or about that date" was not. Hence, Cain was persuaded that he could provide a negative response that, though intended to lead the jury to believe that Dean had not called him after she received a copy of the report, would literally mean only that Dean had not called him at or about April 17, 1989.

One will note that, in the manner of a skilled trial attorney, O'Neill casts his questions to Cain in a manner to make Dean's testimony that Cain would seem to contradict very vivid to the jury. But O'Neill does not make Dean's testimony as vivid as he might. For he avoids any reference to the most salient aspects of the Dean's testimony - the several references to the check and the insistence that Cain have a copy of it. Presumably O'Neill avoided such references in order not to highlight to the jury, the court, or Dean's counsel the implausibility not only of Dean's fabricating a story about calling Cain, but her being willing also to fabricate a story about what Cain told about the check. Very likely, as with other aspects the crafting of Cain's testimony, the perverse brilliance of Bruce C. Swartz was involved in the decision to say nothing about the check in the questions posed to Cain.

In any case, nothing regarding the semantic issues was revealed during cross-examination and thus considerable relief and elation were observed among Independent Counsel attorneys in their offices later that day.

C. O'Neill's Use of Cain's Testimony in Closing Argument

Agent Cain's firm denial of any recollection of the call from Dean played a quite important role in prosecutor Robert E. O'Neill's closing argument with implications for Dean's credibility going far beyond the John Mitchell count. Asserting that Dean's defense rested entirely on her credibility, O'Neill repeatedly and provocatively stated that Dean had lied on the stand - using some form of the word "lie" over 50 times. Three quarters of the way through the first day of the closing, O'Neill started to press the attack on Dean's credibility with particular acerbity, stridently stating:

"Based on her lies, you should throw out her entire testimony. Her six days' worth of testimony is worth nothing. You can throw it out the window into a garbage pail for what it's worth, for having lied to you."

Moments later, O'Neill derisively turned to Dean's denial that she knew Mitchell had earned HUD consulting fees until she read about it in the HUD Inspector General's Report:

"Shocked that John Mitchell made any money. Remember she went into great length about that. That she was absolutely shocked. And the day the I.G. Report came out she called Special Agent Alvin Cain, who was at HUD at the time, and said I'm shocked. I can't believe it. I thought you were my friend. You should have told me John Mitchell was making money. You'd better be able to defend what you said and if you can't I'm going to hold a press conference and I'm going to do something, I'm going to rant and rave. That's exactly what she told you.

"So we had to call in Special Agent Alvin Cain for two minutes' of testimony. And you heard Mr. Cain. It didn't happen. It didn't happen like that. And he remembered Marty Mitchell picking up the report, bringing the money, but it didn't happen. They asked him a bunch of questions about the Wilshire Hotel, and you could see Mr. Cain had no idea what they were talking about. We had to bring him in just to show that she lied about that."

In rebuttal the following day, in pressing the attack on Dean's credibility with a virulence at least equal to that of the day before, O'Neill again turned to Cain, asserting:

"Shocked that Mitchell made any money. Al Cain told you, the Special Agent from HUD, that conversation never ever happened."

As in O'Neill's questioning of Cain, in recounting Dean's testimony to the jury on both days of his closing argument, O'Neill made no mention of Dean's testimony about the check. Nor did he say anything about the fact that Dean had actually started to say what Cain had told her when she asked about the check. Possibly out of concern about any mention of the word "check," O'Neill even referred to Marti Mitchell's "bringing the money" rather than bringing a check, as had been stated by both Dean and Cain.

Also notably, in line with the literal truth rationale underlying Cain's testimony, O'Neill's initial remarks contain a reference to the "day the report came." But in rebuttal, O'Neill abandoned any deference to the literal truth rationale, instead characterizing Cain's testimony as showing that "that conversation never ever happened." A few days later, in a post-trial memorandum on sufficiency of the evidence, in seeking to derive from Cain's seeming contradiction of Dean evidence that Dean was in fact aware of Mitchell's HUD consulting prior to release of the report, Independent Counsel attorneys similarly characterized Cain's testimony to the effect that the conversation never occurred.

After Dean was convicted on all counts, in a post-trial motion alleging pervasive prosecutorial abuse, Dean maintained that Cain committed perjury and prosecutor knew or should have known that he did. In support of her motion, Dean stated that Cain had told her the check was in the Regional Inspector General's Office, asserting that information on the whereabouts of the check in April 1989 (which she could have only learned from the called to Cain) would tend to corroborate her story.

Robert O'Neill had returned to the position of Assistant United States Attorney in the Middle District of Florida by the time Dean filed her motion. Thus, the task of responding to the motion was left to Deputy Independent Counsel Swartz, who rather than advise the court of the literal truth rationale underlying Agent Cain's testimony, would seek to lead the court and the probation officer to believe that the testimonies were irreconcilable and that Cain had told the truth while Dean had lied. In addition to the Bruce C. Swartz profile, this matter is addressed in the above-mentioned Truth in Justice items of February 6 and March 10, 2011, as well as a June 4, 2011 Truth in Justice item styled Willful Ignorance at the Department of Justice, and its Consequences." O'Neill, however, would later become involved in covering up the matter when it was raised in a District of Columbia Office of Bar Counsel Investigation. That investigation is the subject of the false statement on O'Neill's United States Attorney application, as most recently discussed in the June 23, 2011 Truth in Justice item styled "United States Attorney Robert E. O'Neill as Crusader Against Corrupt Public Officials."

United States Attorney Robert O’Neill as Crusader against Corrupt Public Officials

2011-06-21T17:12:00.006-05:00

by James Scanlan, Esq.

Robert E. O’Neill has been the United States Attorney for the Middle District of Florida since October 2010. He is the subject of a number of Truth in Justice items related to his conduct as lead trial counsel in United States v. Dean, an Independent Counsel case O’Neill tried in 1993; a false statement he made concerning a District of Columbia Bar Counsel investigation of his conduct in the case in an application he filed for the United States Attorney position with the Florida Federal Judicial Nominating Commission; and the likelihood that the false statement on the application or like false statement at some other point in the appointment/confirmation process violated 18 U.S.C. § 1001.

In an apparent effort to minimize the Bar Counsel investigation, O’Neill stated that it had been initiated by the convicted defendant. In fact, the investigation was self-initiated by Bar Counsel after reading a court of appeals opinion “deplor[ing]” certain conduct of O’Neill and his colleagues. While it is merely highly probable that O’Neill violated 18 U.S.C. § 1001, that he made a false statement on the Nominating Commission application is not open to question. See my February 19, 2011 Truth in Justice item styled “Robert E. O’Neill and 18 U.S.C. § 1001.”
Last week, O’Neill was the subject of a June 17, 2011 St. Petersburg Times article styled “U.S. Attorney a Veteran at Fighting Corruption.” The article was prompted by O’Neill’s personal appearance in court on June 15 regarding the indictment on bribery and related charges of a former Hillsborough County commissioner named Kevin White. The article, which portrays O’Neill quite favorably, illustrates several things about the curious law enforcement situation in the Middle District of Florida.

O’Neill’s Unavailability for an Interview. In my September 26, 2010 Truth in Justice item styled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience,” I suggested that O’Neill would be wise to avoiding situations where someone might ask him if he had lied on his United States Attorney application. The item was focused on speaking engagements. But the same point applies to interviews by journalists and other researchers.

The recent article stated that O’Neill declined to be interviewed and that a spokesman for O’Neill had stated that O’Neill’s schedule was too full. Given that the St. Petersburg Times has so far not printed a word about the false statement in O’Neill’s Nominating Commission application, there was little reason to expect that the interviewer would have inquired about the matter. But in allowing an interview O’Neill still would have taken a chance. And certainly he would face grave danger in an interview by a less favorably disposed entity than the St. Petersburg Times has so far been.

The Fitzgibbons Remarks. The article quoted Tampa defense lawyer John Fitzgibbons as stating that “’[O’Neill] is I think personally offended when public officials are being bribed or breaking the law.’” The article also states that Fitzgibbons said that since O’Neill was appointed the defense bar has noted an increase in white collar prosecutions. Fitzgibbons, as it happens, is the Chairman of the Florida Federal Judicial Nominating Commission that recommended O’Neill as one of three finalists for the United States Attorney position. Though Fitzgibbons was provided ample information indicating that O’Neill was unfit to serve as United States Attorney, including that he made a false statement in the application submitted to Fitzgibbons’ Commission, Fitzgibbons chose not to raise such matters in O’Neill’s interview before the Commission or otherwise allow them to interfere with O’Neill’s appointment. See Addendum 7 to the Robert E. O’Neill profile. Nor, apparently, has Fitzgibbons allowed such matters to affect his public remarks about O’Neill’s character. In any case, Fitzgibbons, at least by his role in deciding whom to recommend and whom not to recommend for the United States Attorney position, had a large role in causing O’Neill to be the United States Attorney. That should be borne in mind as one appraises Fitzgibbons’ remarks about O’Neill’s conduct in the position.

The 18 U.S.C. § 1001 Claim in the Kevin White Indictment. The Kevin White indictment includes a claim that White violated 18 U.S.C. § 1001. O’Neill’s appearance in court suggests that he may try the Kevin White case himself. Assuming that O’Neill’s false statement and the likelihood that he violated 18 U.S.C. § 1001 become widely known in the Tampa/St. Petersburg area, the court may have problems both in impaneling a jury and seeing that such information does not come to the jury’s attention during the trial. And one has to wonder what precisely O’Neill will tell the jury or court about the seriousness of a violation of that statute. This particular issue, however, is but one manifestation of the prodigious incongruousness of having a United States Attorney known to have lied while seeking the position.

The St. Petersburg Times Discussion of the Dean Case. In my October 3, 2010 Truth in Justice item styled “Whom Can We Trust?,” I raised the issue of, given what we know about the O’Neill confirmation notwithstanding (among other things) the undisputable false statement on his Florida Federal Judicial Nominating Commission application, what faith we can we place in other assurances of the Department of Justice or the Senate Judiciary Committee as to the integrity of an appointee to a law enforcement or judiciary position. By way of introduction I noted the commonplace situation where we observe the press getting the facts wrong about a subject we know something about and then have to wonder about press accounts of things we know little or nothing about.

The recent St. Petersburg Times article, after mentioning that O’Neill had been lead counsel in the Dean trial, stated: “O'Neill drew criticism when he accused [Dean] of lying on the witness stand — ‘You can take her testimony and throw it in the garbage where it belongs,’ he said.” It is true that O’Neill drew severe criticism for his conduct in the prosecution, both from the district court and the court of appeals. But the court’s criticisms went to matters utterly different from the accusations that Dean lied on the stand.

It is the subject of the courts’ criticisms, and the other matters I have raised in the O’Neill profile – all going to O’Neill’s basic integrity rather than to the stridency of his advocacy – that warrant the attention of a newspaper that purports to be providing insight into law enforcement in central Florida. But in the event the paper were ever to address such issues, given the evident failure to get the simplest of facts right, one will have to wonder about its interpretations of more complex issues.

Deliberations: Jurors get it right 95% of the time?

2011-06-16T04:28:00.001-05:00

http://tinyurl.com/3myey8d

by Matt McCusker

As a litigation consultant, it has been my pleasure to work with judges across the country to help spread the word about the benefits of well-designed voir dire that truly unearths bias. However, I have also run into friendly debates with judges who are not thrilled with my line of work. These individuals typically feel that the use of professionals to search for bias in potential jurors is more often utilized to manipulate the system, than to protect it.

The evidence that I most often hear in support of this perspective is that (with or without litigation consultants)…

“Juries get it right 95% of the time.”

This has become a very common turn of phrase and is often cited as proof of our legal system’s solid design. However, I would like to ask a few questions that put this gem of wisdom on the hot seat.

1) Who decides the definition of right?

I sincerely believe that every case with a verdict has at least one side which believes the jury did not get it right. By my math, that puts us somewhere around 50%. If we add in all of the verdicts that anger both sides and multi-party lawsuits, I believe our number of discontent rises even further. In fact, I would suggest that a significant majority of parties (and their attorneys) think the jury got it wrong.

2) Where is this 95% statistic coming from?

So, if it is not statistically likely that this 95% number comes from the parties or their attorneys, where does it come from? My best guess is that this phrase originated with the group that most often uses it: our judges. No doubt, as neutral observers of the entire process, no one else would have the required knowledge to offer such an opinion.

3) What does it mean when the most powerful person in the courtroom thinks juries get it right 95% of the time?

Here is where I get a little nervous. The vast majority of my experiences with judges have been great. However, it is disconcerting that so many judges’ opinions about the case are in line with the juries they oversee. It leaves me with three possibilities (or a combination thereof):

a) In 95% of cases, there is a clear winner and loser that most people would agree on. In fact, this decision is so clear, that juries and judges are consistently on the same page about verdict and damages.

b) Judges tend to forget about the cases where they disagreed with the jury, so the 95% number is based on hindsight bias. Who wants to remember the cases one oversees where the wrong parties (in your opinion) are celebrating?

c) Those who believe “juries get it right 95% of the time” are subconsciously helping the jury agreement with their own opinion. Saying this may get me in a little hot water with some of the judiciary. However, I believe it is something that should be talked about.

The American Society of Trial Consultants’ (ASTChttp://www.astcweb.org/public/index.cfm) has Professional Standards which prevent members from publishing win/loss records. There are several reasons for this, but one of the most powerful is the inability to define “wins” and “losses.” Is a plaintiff verdict for $1 million in a case that was supposed to be worth $10 million a win or a loss, and for whom? I suggest the definition of “right” falls into a similar category.

Willful Ignorance at the Department of Justice, and Its Consequences

2011-06-04T18:02:00.005-05:00

by James Scanlan, Esq.

In a September 4, 2010 Truth in Justice item styled “Doubtful Progress on Professional Responsibility at DOJ,” I questioned the judgment of the Department of Justice reflected in its recent creation of a professional responsibility award, noting that what was essentially an award for being honest could eventually be the subject of derision within the Department. A month later the Department presented the first Claudia J. Flynn Award for Professional Responsibility to retiring Criminal Division Deputy Assistant Attorney General John C. Keeney. In this instance, the award – which was described as recognizing “a Department attorney who has made significant contributions in the area of professional responsibility by successfully handling a sensitive and challenging professional responsibility issue in an exemplary fashion and/or leading efforts to ensure that Department attorneys carry out their duties in accordance with the rules of professional conduct” – appears to have been presented for providing guidance on professional responsibility issues rather than demonstrating professional responsibility. The presentation to Keeney thus doe not implicate the concern I raised about an award for honesty. But the award and its presentation to Keeney raised a number of other issues.

The September 4 item had also criticized the Department of Justice policy of refusing to investigate allegations of misconduct that were or could have been addressed in litigation, which the Department asserted as its reason for failing to consider whether the conduct of Bruce C. Swartz as Deputy Independent Counsel in United States v. Deborah Gore Dean indicated that he was unfit to serve in his current position as Deputy Assistant Attorney General in the Criminal Division. The policy treats prosecutorial abuse as something solely to be revealed by defendants in the courts and ignores the Department’s own obligation to expose such abuse regardless of whether a defendant is able effectively to do so. Reliance on the policy to refuse to examine Swartz’s conduct in the Dean case highlights one of the policy’s serious shortcomings since the issues I raised about Swartz principally involve his deceiving the courts in covering up prosecutorial abuses. The policy thus rewards efforts to deceive courts as long as they are successful. In any case, whatever the supposed interests underlying the policy, it certainly makes no sense to rely on it to refuse to determine whether persons are fit to hold high positions in the Department. See the Truth in Justice items of February 6, 2011 (“Bruce Swartz – Our Man Abroad”) and March 10, 2011 (“Criminal Division Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material”) regarding Swartz’s responsibilities in representing the Department of Justice before foreign nations.

The Department also relied on the policy as a basis for refusing to investigate whether Robert E. O'Neill, then nominee for United States Attorney for the Middle District of Florida, had lied on his application for the position. In an evident attempt to minimize a District of Columbia Bar Counsel investigation of his conduct in the Dean case O’Neill stated that the investigation was initiated by the convicted defendant; in fact it was initiated by Bar Counsel itself after reading a court of appeals opinion “deplor[ing]” O’Neill’s conduct. The Department purported to rely on the policy even though the false statement quite obviously was not something that was or could have been addressed in litigation. The purported reliance on a patently inapplicable policy to avoid examining dishonest or criminal conduct of its high officials is among the clearest evidence that the Department cannot be trusted either to ensure the integrity of its officials or to deal straightforwardly with the public. See the Truth in Justice items of October 3, 2011 (“Whom Can We Trust?”) regarding the confirming of O’Neill as United States Attorney notwithstanding the false statement on his application and February 19, 2011 (“Robert E. O’Neill and 18 U.S.C. § 1001”) regarding the likelihood that the false statement on the application or a like false statement during the nomination/confirmation process violated federal law.

The September 4, 2010 item mentioned at the outset had focused on a particularly egregious prosecutorial abuse by Swartz and O’Neill in the Dean case. As discussed more fully in Section B.1 of the main Prosecutorial Misconduct page on jpscanlan.com, Swartz and lead trial counsel O’Neill pressured Supervisory Special Agent Alvin R. Cain, Jr. into giving misleading testimony that would seem to directly contradict defendant Deborah Gore Dean’s testimony about a call she made to Agent Cain in April 1989. O’Neill then relied heavily on Agent Cain’s testimony to provocatively assert in closing argument that Dean lied on the witness stand. Agent Cain had evidently been persuaded that his seeming categorical denial of any recollection of the call from Dean would be literally true because it technically applied to a different date from that given by Dean.

In a post-trial motion alleging pervasive prosecutorial abuse, Dean maintained that Agent Cain committed perjury and that prosecutors knew or should have known that he did. At that point, the only appropriate course for Swartz, who defended against the allegation, would have been to advise the court of the literal truth rationale underlying Agent Cain’s testimony. Had Swartz done so, however, there was good chance that the court (which almost overturned the verdict for other identified abuses) would have dismissed the indictment and recommended that Swartz and O’Neill be sanctioned or prosecuted for suborning perjury.

So Swartz instead sought to cover up what he and O’Neill had done by leading the court to believe that the testimonies were irreconcilable and that Agent Cain had told the truth while Dean had lied. As part of an aggressive strategy in this regard, Independent Counsel attorneys even tried to have Dean’s sentence increased by six months for lying about the call. In deceiving the court in an effort to prevent discovery into the matter Swartz and those assisting him likely engaged in a conspiracy to obstruct of justice. See Addendum 3 of the Bruce C. Swartz profile regarding some of Swartz’s more hypocritical behavior in deceiving the court on the matter.

As it happens, one of the persons aiding Swartz in covering up this matter was Claudia J. Flynn, the name source of the Department of Justice’s professional responsibility award. Flynn had been an AUSA in the United States Attorney’s office in the New Jersey since 1984 and served as the Deputy Chief of the office’s Criminal Division before joining the Office of Independent Counsel in 1992. At a February 22, 1994 hearing where Swartz resisted discovery concerning Agent Cain’s testimony, Flynn appeared for the purpose of arguing sentencing issues, including that involving the probation officer’s recommendation that Dean’s sentence be increased for lying about the call to Agent Cain.

It would turn out that Flynn did not have the opportunity to address the matter. The court refused even to hear argument, indicating that it believed that Dean had probably told the truth. But inasmuch as the effort to show that Dean lied about the call to Agent Cain was an integral part of the scheme to keep the court from finding out the truth about Agent Cain’s testimony, if the scheme constituted a conspiracy to obstruct justice, Flynn was party to it. Whether or not a crime was committed, however, Swartz and Flynn had engaged in prosecutorial abuse of sufficient gravity that they ought not to have thereafter held positions in the Department of Justice.

Later in 1994 Flynn returned to the New Jersey United States Attorney’s office to become Chief of the office’s Criminal Division. Then in February 1997 (possibly with the support of her former supervisor Swartz who had since become a Special Assistant in Main Justice’s Criminal Division) Flynn was appointed Chief of Staff to Criminal Division Acting Assistant Attorney General John C. Keeney.

On learning that Flynn was Keeney’s Chief of Staff, I wrote to Flynn, by letters of June 10, 1997, July 6, 1997, and August 18, 1997, concerning implications of her role in covering up Independent Counsel conduct regarding Agent Cain and seeking information on her tenure with the Office of Independent Counsel and Department of Justice. Receiving no reply from Flynn, by letter of October 6, 1997, I wrote to Keeney, detailing the events concerning Agent Cain and Flynn’s involvement with the matter, and advising Keeney of his obligations, not only to see that Flynn was removed from her current position, but to bring to the attention of appropriate authorities evidence that Flynn was involved in a conspiracy to obstruct justice. By letter to Keeney of December 5, 1997, I also sought information on Flynn’s tenure with the Criminal Division.

Keeney did not respond to either of these letters. And, though I continued to mention Flynn in correspondence to other Department officials concerning Independent Counsel conduct in the Dean case, the Department never mentioned Flynn in its correspondence back to me.

I assume that the Department failed to seriously consider whether Flynn’s involvement in the Agent Cain matter indicated either that she ought not to hold a high position in the Department of Justice or warranted her prosecution. Possibly such failure rested in the policy of refusing to consider matters that were or could have been addressed in litigation. And possibly Keeney and others in the Department simply ignored the allegations.

In any case, my raising these issues appeared to have no effect on Flynn’s career at the Department and in no manner to influence consideration of her suitability for particular assignments. For in 2000 then Deputy Attorney General Eric H. Holder, Jr. appointed Flynn as the first permanent director of the Professional Responsibility Advisory Office. Flynn held that position until retiring shortly before passing away in 2006.

After being forced to have the conviction of the late Senator Ted Stevens overturned because of prosecutorial abuses in the Criminal Division’s Public Integrity Section, and recognizing that the Department must give greater attention to ensuring the integrity of its prosecutions, in October 2009, the Department created the Claudia J. Flynn Award for Professional Responsibility ostensibly as part of the effort to further that goal. I raised with the Department the appropriateness of the Flynn award in the same November 2, 2009 letter to Attorney General Holder by which I most recently sought the removal of Swartz (by reference to a then password protected page that addressed the matter in detail). The Department’s response of December 28, 2009, made no reference to the matter. But, according to the Department’s lights, the rationale proffered for refusing to investigate the issues I raised regarding Swartz would apply as well to the issues I raised about the Flynn award. The shortcomings of such policy that are so evident in the refusal to consider the issues as they bear on Swartz’s suitability to serve in his current position are equally evident in the refusal to consider the issues as they bear on the appropriateness of naming a professional responsibility award after Flynn. For, though her role was limited, Flynn was not merely involved in serious prosecutorial misconduct, but was involved in such conduct in a case that epitomizes a prosecutorial philosophy in which the truth is irrelevant. See generally the Prosecutorial Misconduct and Misconduct Profiles pages of jpscanlan.com.

Failing to consider these issues, however, the Department went on to present the award in October 2010. And it chose to name as the first recipient Deputy Assistant Attorney General Keeney, one of the principal Department officials who could have prevented the situation where the Department has a professional responsibility award named after an attorney who is known to have been a party to prosecutorial abuse, as well as the situation where individuals known to have been deeply enmeshed in pervasive abuses now hold one of the most important positions in the Criminal Division and one of the most important United States Attorney posts. See my letters to Keeney of November 30, 1995, and March 11, 1996, regarding Swartz and O’Neill.

The Stevens affair highlighted serious prosecutorial ethics problems in the Department. There is reason to believe that such problems are longstanding. Notably, most of the offending attorneys in the Dean case were experienced federal prosecutors, as Bruce C. Swartz would himself point out in maintaining that Independent Counsel attorneys had done nothing improper whatever. Long-time federal prosecutor Jo Ann Harris, lead trial counsel at the time an indictment was drafted containing various statements or inferences contradicted by materials in Independent Counsel files and the decision was made to ignore the district court’s instructions regarding the production of exculpatory material, had gone on to be the Assistant Attorney General for the Criminal Division by the time Swartz and Flynn appeared at the February 22, 1994 hearing. Later that year Harris would be appointed to Attorney General Janet Reno’s Advisory Board on Professional Responsibility, part of a Reno initiative to address prosecutorial abuse that, so far as one can tell, accomplished nothing of note. See the Jo Ann Harris profile and the March 2, 2011 Truth in Justice item styled “The Curtailed Tenure of Criminal Division Assistant Attorney General Jo Ann Harris.”

Further, it was Associate Deputy Attorney General David Margolis who, during the week of December 12, 1994, first suggested to me that Agent Cain’s testimony may have been elicited on the basis that even though Dean’s testimony that Agent Cain seemed to contradict was true, Agent Cain’s testimony was also literally true. That Agent Cain’s testimony was elicited on such basis necessarily meant both that Independent Counsel attorneys had calculatedly undertaken to deceive the jury in order to lead the jury falsely to believe that the defendant committed perjury and that Swartz and those assisting him had deceived the court in covering up the truth about the nature of Cain’s testimony. But Margolis raised the point apparently as a basis for believing that Independent Counsel conduct was not as egregious as I maintained. Margolis has for quite some time been regarded as the conscience of the Department of Justice and, along with Keeney, has greatly influenced the Department’s policies on a variety of prosecutorial ethics issues. But it is a flawed ethos that fails to consider it a grave abuse for government attorneys, by whatever means, to lead courts and juries to believe things those attorneys know to be false.

An award for professional responsibility, whether for demonstrating it or for providing guidance on it, is probably not a good idea in any event. So it is hard to say that presenting it to someone other than Keeney would have done more toward addressing the Department’s prosecutorial ethics problems. But presenting the award to Keeney does seem more of a tribute to a regime that created the problems than a step toward solving them. The same may be said of presenting the award to Margolis, which, left to its own thinking, the Department is certain to do within the
next few years.

I am not sure what to say of the Department’s one day presenting the award to Swartz. But given the Department’s policy of willful ignorance as to matters that supposedly were or could have been raised in litigation, that would hardly come as a surprise.

Uncertainty demands clemency for death-row inmate

2011-06-04T15:58:00.000-05:00

The following commentary by Marilyn Johanek was published in the Toledo Blade on June 2, 2011.

Shawn Hawkins has friends in high places. Not only does the Ohio death row inmate have all the usual opponents of capital punishment working to spare his life, set to
end in 13 days, but even conservative, pro-death penalty Republicans are on board.

Last weekend, an unusual appeal on Hawkins' behalf appeared in some Toledo Diocese parish bulletins. It encouraged the faithful to contact Gov. John Kasich and press for leniency.

In February, the Catholic Bishops of Ohio, including Bishop Leonard Blair of Toledo, called on lawmakers to abolish executions. Now the Catholic Church appears determined to bring its influence to bear on a particular clemency cause.

So who is Shawn Hawkins, and why should we care whether he dies by lethal injection on June 14th? Court records show he was a small-time criminal and convicted drug dealer before a jury found him guilty of killing two Cincinnati men in 1989 in an apparent drug deal gone bad.

He admits he helped arrange the deal, but he has steadfastly denied that he committed the double-murder. If it weren't for the powerful backing his case has received from prominent death-penalty proponents, I'd plead indifference.

I have little interest in or sympathy for the doomed on death row who proclaim their innocence or find religion as their date with the grim reaper nears. The brutal murder of my cousin years ago hardened me to prison compassion.

Yet when state Sen. Bill Seitz (R., Cincinnati) and former Ohio Secretary of State Ken Blackwell, both well-known conservatives who support the death penalty, said they believed Hawkins should receive mercy, I was intrigued. Former Ohio Attorney General Jim Petro, now Mr. Kasich's chancellor of higher education, agreed with his Republican colleagues and joined them to write to the governor and Ohio Parole Board asking that Hawkins be spared.

Then, in a most uncommon development, the parole board voted unanimously to recommend clemency. That's happened only a handful of times since Ohio resumed executions in 1999, putting 44 convicted killers to death since then.

Only six condemned inmates have had their execution sentences commuted to life in prison without parole. Three argued successfully that addiction or disease warranted mercy, and three, like Hawkins, contended their innocence did.

The parole board said it wasn't convinced that Hawkins, who at 42 has spent half his life in prison, was innocent. But the clemency report said uncertainty about the appropriateness of the death sentence in his case sealed the recommendation.

Defense attorneys maintain that doubt surrounds every element of the Hawkins saga, and the parole board was persuaded. The litany of problems in the case includes flawed evidence -- a partial fingerprint of Hawkins found at the scene of the murders allegedly was handled improperly -- changing stories from the sole eyewitness to the crime, and the possible involvement of other people who were never fully investigated by police.

The parole board also was bothered by what it considered Hawkins' ineffective original counsel and a prosecution that never established the defendant possessed the murder weapon. More troubling were claims by the inmate's lawyers that new forensic analysis disputed the prosecution's contention that one of the victims was killed in a car by Hawkins. Three witnesses came forward to provide alibis for him for the time of the murders.

Hawkins is no Boy Scout. But was he the perpetrator of cold-blooded, execution-style slayings, or merely an accomplice to the crime? If the latter, does his crime merit execution?

His lawyers insist the case is less about guilt or innocence than about whether the state is prepared to kill people when the evidence against them is unclear. In an April 18 letter to Governor Kasich, Mr. Blackwell wrote that Hawkins does not deserve to die.

"The quality of evidence against him and the manner in which the trial was conducted are not such that he should suffer such a fate," Mr. Blackwell wrote.

"Beyond a reasonable doubt" is the standard of proof we insist on in criminal trials, because a defendant's liberty or life may hang in the balance. It doesn't mean absolute certainty but, as one legal definition puts it, "proof of such a convincing character that you would be willing to rely and act upon it without hesitation."

In Hawkins' case, reasonable doubt caused the parole board to conclude that execution could be an irreversible wrong. Mr. Kasich cannot take that risk.

Marilou Johanek is a Blade commentary writer.

Contact her at: mjohanek@theblade.com

Clarify, improve fire investigations

2011-05-22T04:57:00.000-05:00

The following editorial was published by the Wisconsin State Journal on May 20, 2011.

It was for good reason that a State Journal special report published over four days this week was called "Burning Questions: Arson or Accident?"

The series — the result of a months-long investigation by reporter Dee J. Hall — triggered plenty of questions as it explored in detail the case of Joseph "Joey" Awe, convicted of arson in 2007 after his bar, J.J.'s Pub in Harrisville, about 65 miles north of Madison, was destroyed by fire in September 2006.

Beyond that case in Marquette County, the series examined the process of arson investigation in Wisconsin and the nation. The stories by Hall exposed the difficulty of determining the truth in fire investigations.

Among the most significant questions raised: Why do insurance companies — which can avoid thousands or even millions of dollars in losses if a policy holder is convicted of arson — often play a lead role in investigating fires?

Certainly, expertise is needed in fire investigations. And insurance companies are happy to hire such experts to work on their behalf, often supplementing or even supplanting other third-party investigators. Such a system seems fraught with peril, and easily invokes questions about vested interest on the part of the insurers.

Awe, who is appealing his conviction in U.S. District Court in Madison, is now serving a 12-year sentence, including three years in prison. His attorney argued at trial that the fire started due to electrical problems in the 130-year-old building. Prosecutors said they found evidence the fire was intentionally set. Part of the prosecution's case relied on methods that have been discredited by other fire investigators.

Another key to the prosecution's case invoked a form of logic known as "negative corpus," meaning, essentially, that once an investigator rules out all accidental causes, the only choice left is to rule the case arson. That logic should never be used for determining the cause of a fire, according to the National Fire Protection Association.

Other parts of the Awe investigation also qualify as "burning questions," including the certainty about where the fire started.

The Awe case has brought needed scrutiny to the often misunderstood practice of arson investigation.

Attorney General J.B. Van Hollen should follow the lead of other states — Texas, for example, recently adopted new recommendations on arson investigations — to clarify and improve accepted practices in fire investigations in Wisconsin.

DAs' push to curb appeals to innocence inquiry commission is wrong

2011-05-20T04:10:00.003-05:00

The following editorial was published by the Winston-Salem (NC) Journal on May 19, 2011.

North Carolina district attorneys are pressing a wrong idea, that of not allowing inmates who have pleaded guilty to take their cases to the North Carolina Innocence Inquiry Commission. The state legislature should not vote this measure into law.

Prosecutors, just like the rest of us, would like to think that those who plead guilty do so because they are in fact guilty. But the reality is that defendants sometimes plead guilty to crimes they didn't commit out of fear of losing at trial and getting a longer prison sentence than they'd get with a guilty plea offered by prosecutors. Defense attorneys sometimes advise their clients to do so. They may think that's the best they can do for their clients. And to put it bluntly, a relatively few defense attorneys, usually ones handling court-appointed cases, make such deals for their clients because they are incompetent or lazy.

Nationally, almost 25 percent of defendants later exonerated by DNA evidence initially pleaded guilty or offered police incriminating statements or a confession, according to the Innocence Project in New York, the Journal's Michael Hewlett reported recently. One of those defendants was Keith Brown, who pleaded guilty to second-degree rape and sex offense in Wilson and spent four years in prison before DNA tests freed him in 1997 and implicated a Florida inmate.

Those who plead guilty, of course, can always appeal their cases to our state's high courts, and they'll always have that right.* They should also retain the right to take their cases to the innocence inquiry commission, which was created a few years ago to address wrongful convictions. The commission chooses to hear only a few cases each year, ones in which defendants and their lawyers compile strong evidence of innocence. After a case, the commission decides whether a convict should be exonerated or the conviction should stand.

Many of us don't like to acknowledge that we might have made mistakes, and prosecutors are no different. But they, like everyone else, err. Most of the time, the mistakes are honest ones, and are often made by police detectives. In some chilling cases, police and prosecutors have knowingly withheld or skewed evidence.

Whatever the reason, such mistakes must be corrected. This is not just about innocent people going to prison. It's also about guilty ones remaining free, threatening us all.

In the interest of ensuring justice in that regard, those who plead guilty must retain their right to take their cases to the innocence inquiry commission.

*North Carolina is an exception in allowing people who plead guilty or no contest to file appeals. Most states BAR appeals by those who plead guilty or no contest.

Making justice just

2011-05-15T18:32:00.001-05:00

The following editorial was published by the Houston Chronicle on May 14, 2011.

In every wrongful conviction, something went wrong. We need to know what.

In airplane flights and in criminal convictions, close isn't good enough. At the end of a thousand-mile jet flight, hitting the ground only a mile from the runway counts as a disaster. And we treat it like one: The NTSB investigates to find the cause, and uses that information to prevent similar crashes in the future.

Unfortunately, we're not so vigilant about wrongful convictions — even though DNA evidence shows that too often, Texas has imprisoned men who only resembled the actual perpetrators, or who were unfortunately close to the wrong place at the wrong time. Texas, with more than 40 such exonerations, counts more of these overturned convictions than any other state. And as more evidence is tested, the number continues to rise.

Each of those wrongful convictions was a disaster. The wrongly convicted lost all semblance of freedom and normal life, while the real perpetrator remained at large, free to commit other rapes, robberies or murders. Taxpayers footed the bill for both the unfair prison sentence and any later restitution. And with each miscarriage of justice, our collective faith in the judicial system eroded.

Right now, though, Texas doesn't systematically investigate those disasters or make sure that the underlying mistakes never occur in the future. We don't systematically address systemic problems - for instance, with the procedures that police use to do lineups or test evidence.

A pair of similar bills in the Texas Legislature - SB 1835 by Rodney Ellis, D-Houston; and HB 115 by Ruth McClendon, D-San Antonio - would change that. Those bills would establish a state innocence commission to probe wrongful convictions the same way that the NTSB probes crashes.

The commission would be named after Timothy Cole, a Texas Tech student who, after being wrongly convicted of rape, died in prison. In Cole's case, the problem lay in faulty eyewitness testimony - once the gold standard of proof, but now understood to be far less reliable than once believed. Because victims have an uncanny ability to pick up on investigators' subtle, unspoken cues, it's important that such cues be minimized - no fair if one photo is color, but all the others black-and-white - and that lineups be double-blind, administered by officers who don't know which person investigators actually suspect.

Changes to lineup and questioning procedures, and similar troubleshooting improvements, are often simple and cheap - especially when compared to the cost of a single wrongful conviction. Yes, we believe that wrongful convictions are relatively rare in Texas - but so are airplane crashes. Our justice system deserves similar vigilance.

A single mistake is horrifying. But never uncovering the mistake, and continuing to repeat it, is far worse.

Justice demands revisiting any wrongful convictions

2011-05-15T10:49:00.002-05:00

The following editorial was published by the Asheville (NC) Citizen-Times on May 13, 2011.

The case of Kenny Kagonyera and Robert Wilcoxson, sentenced in the September 2000 murder of Walter Rodney Bowman, is detailed in a story from Citizen-Times reporters Clarke Morrison and Jon Ostendorff in today's paper.

It's well worth reading.

And worth reacting to.

The two men are at the center of N.C. Innocence Inquiry Commission investigation. The commission ruled in April that there is enough evidence that they might have been wrongly convicted for the panel to grant a hearing before a three-judge panel in Buncombe County.

The commission was established in 2006 after exposes of a number of cases where evidence that potentially would have cleared suspects was apparently withheld.

To date, it has received requests for reviews of more than 800 cases. Only four have made it to the final review process. Only one person, Greg Taylor, who served 17 years for a murder he didn't commit, has been exonerated.

Under commission guidelines, those professing their innocence must bear the burden of proof.

In the case of Kagonyera and Wilcoxson, there are indications that proof might be abundant. A review of video depositions, interviews and documents indicates misstep after misstep and that DNA evidence that might have cleared the men never made it to defense attorneys.

And as recently reported, a critical segment of a security video that could have had the potential to clear the men was taped over with an episode of the soap opera “The Guiding Light.”

There's also the little matter of another man confessing to the crime.

In 2003, Robert Earle “Tricky” Rutherfordwas serving time in prison when he contacted Special Agent Barnabas Whiteis. During two days of telephone interviews, Rutherford told Whiteis he, Bradford F. Summey and Lacy “J.J.” Pickens were those involved in the murder. He said the trio wanted to rob Bowman's son of more than $100,000 in cash and marijuana. Summey is currently serving time in state prison. Pickens was killed by an Asheville police officer while trying to elude arrest in 2006.

The gutting of habeas for state defendants

2011-05-14T06:18:00.001-05:00

The following editorial by John Blume, Sheri Johnson and Keir Weyble was published in the May 16, 2011 edition of The National Law Journal.

Fifteen years ago last month, President Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA), which made substantial changes to federal habeas corpus law. Despite his assurance that "[f]ederal courts will interpret these provisions to preserve independent review of federal legal claims," we have witnessed the evisceration of habeas in the intervening years, making justice substantially more difficult to obtain for those wrongfully convicted in state courts. Unfortunately, we are now hearing calls for more radical restrictions of habeas in a wrong-headed bid to address budget concerns.

Habeas corpus, expressly guaranteed by our Constitution, serves the criminal justice system as a final check to ensure justice has truly been served. Literally translated as "that you have the body," a habeas corpus challenge enables an individual held in the government's custody to challenge the legality of the detention.

The AEDPA's provisions have stymied federal courts by placing overly restrictive limits on a person's ability to have the merits of his or her case heard. Petitioners are barred by time limits that run too quickly, are overly complex and can be difficult to calculate, even for seasoned attorneys. Even more damning, the law prohibits federal courts from remedying miscarriages of justice; they are powerless to correct many of the state courts' misinterpretations of U.S. constitutional or federal law.

The net result is that the AEDPA has effectively closed federal courtrooms to prisoners with legitimate claims. This closing is all the more troubling given the failure of states to provide adequate counsel and meaningful post-conviction review in their own systems. Many states do not appoint counsel for post-conviction review, no matter how serious the prisoner's allegations or how incapable he or she is of presenting these complex and technical claims. Other states provide wholly inadequate compensation to counsel, resulting in the appointment of lawyers with little experience or incentive to commit the time necessary to fully develop their client's case. These and other hurdles make clear that the wrongfully convicted can often only find justice through federal habeas.

Despite the wrongfully convicted who are languishing in prison because of the AEDPA's failures, there are those who would use the current budget debate to call for further restrictions on habeas petitions. Under these proposals, habeas would be available only in capital cases and those cases in which new evidence of innocence has been found. These are misguided and costly proposals. Habeas is absolutely essential to correcting wrongful convictions, and with no alternatives, habeas filers who today would make constitutional claims would instead have to make innocence claims, which could result in far more lengthy, fact-intensive litigation.

As we reflect on the anniversary of the AEDPA and consider the injustices it has wrought, there are reforms that state and federal lawmakers could adopt to effectively reduce the need for habeas review and increase the likelihood that meritorious habeas petitions receive a full and fair hearing. First and foremost, providing effective, adequately resourced counsel for indigent defendants in the trial and appellate phases is the best chance the criminal justice system has of getting it right the first time. Passionate attorneys with the resources to investigate their clients' cases will be able to address potential problems that arise during trial. Since many habeas claims are related to ineffective assistance of counsel, this is a critical reform. Prisoners should also be appointed competent counsel for post-conviction review. Evidence shows that when petitioners are given counsel to guide them through the labyrinth of post-conviction review — as they are in capital cases — win rates go up.

Although adequate counsel will significantly reduce the need for federal review, errors will still occur in state proceedings. Congress should allow federal courts to perform robust, substantive review of habeas petitions, with the authority to correct state court holdings that erroneously apply U.S. constitutional and federal law. Beyond these proposals, there are numerous other reforms Congress can adopt to improve habeas.

Post-conviction review in the federal courts may cost some money, but certainly for the wrongfully convicted — indeed for all Americans wary of an overreaching government — the constitutional right to challenge one's detention is priceless. Congress must reform the AEDPA to restore this right to the hallowed position our founding fathers intended.

John Blume, Sheri Johnson and Keir Weyble are professors at Cornell Law School.

At Least Investigate Other Suspect In Lapointe Case

2011-05-02T11:35:00.001-05:00

The following editorial was published by the Hartford (Connecticut) Courant on April 19, 2011.

Lapointe Case With DNA findings, state should revisit an earlier suspect

If the term "reasonable doubt" means anything, Richard Lapointe should get a new trial. The meek, uncoordinated, mentally handicapped Manchester man was convicted of a violent crime he may not even have been able to commit, based on confessions of highly dubious merit.

But his efforts to have his case retried suffered another setback Friday when Superior Court Judge John J. Nazzaro rejected arguments that prosecutors had withheld important evidence, that Lapointe's trial and appellate lawyers were incompetent and that new evidence proved Mr. Lapointe was innocent.

It can't end here. The Lapointe case has seriously shaken confidence in the state's criminal justice system. Officials should take a step to restore that trust, and that is to run tests on the other major suspect in the case.

Coerced Confession?

Mr. Lapointe was convicted in 1992 of the brutal rape and murder of his wife's grandmother, 88-year-old Bernice Martin, in 1987. He wasn't arrested until 1989; police were first interested in another suspect, a grisly career criminal named Frederick Rodney Merrill. But Merrill was eventually dropped as a suspect, at least in part because his blood type didn't match a blood and a semen stain at the scene.

Mr. Lapointe, a dishwasher with no history of violent behavior, had been asking Manchester police officers about the case, and eventually drew their suspicion. On the Fourth of July in 1989, the police asked Mr. Lapointe to come down to headquarters and kept him there for more than nine hours. He didn't have a lawyer and the session was not electronically recorded. Over the course of the evening Mr. Lapointe gave three confessions that were either nonsensical or didn't jibe in major detail — how Mrs. Martin was dressed, how she was sexually assaulted, how she was strangled — with how experts later said the crime was actually committed.

Yet jury members said after the 1992 trial that it was the confessions that convinced them of Mr. Lapointe's guilt. Since 1992, much has been learned about false or induced confessions; they happen with alarming frequency. Mr. Lapointe, alone and tired, said he told police what they wanted to hear so he could go to the bathroom and go home.

Tantalizing Evidence

Whoever killed Mrs. Martin was physically strong. He violently assaulted, tied up, raped and stabbed a woman who was short and weighed at least 160 pounds. Mr. Lapointe can barely tie his shoes, and has trouble lifting heavy objects. He has to keep checking and adjusting a shunt tube that extends from his skull through his neck and into his stomach that drains fluid from his cranial cavity, a result of his mental condition, called Dandy-Walker syndrome. But if he didn't commit the crime, who did?

There is tantalizing evidence that Manchester police had the right man the first time.

A Manchester woman testified she saw a man much taller than Mr. Lapointe — about Mr. Merrill's size and build — running madly from the housing complex where Mr. Martin lived at about the time of the crime. Mr. Merrill was seen in the neighborhood that weekend, and three days later committed an eerily similar crime, a violent sexual assault on a woman in her home in South Windsor, just a few miles away.

In the most recent appeal, lawyers for Mr. Lapointe presented DNA evidence that a pubic hair found in Mrs. Martin's bedroom belonged neither to Mrs. Martin nor Mr. Lapointe, and that a pair of gloves found at the scene could not be tied by DNA to Mr. Lapointe. Although Judge Nazzaro didn't find this evidence strong enough to grant Mr. Lapointe a new trial, for a number of reasons, he did allow that the pubic hair "may have come from the perpetrator."

Well, let's at least find out if the hair and other items found in the apartment are a DNA match with Mr. Merrill. Such action would not be unprecedented. In recent years state's attorneys have voluntarily reanalyzed evidence in at least three cases in which convictions were reversed. The questions surrounding Mr. Lapointe's case argue for a similar review.

Jeff Gerritt: Prosecutors must fess up

2011-05-01T12:40:00.001-05:00

The following opinion by Jeff Gerritt was published by the Detroit Free Press on April 28, 2011.

The fate of Karl Vinson, wrongfully convicted of rape in 1986, now rests with the Michigan Court of Appeals, which needs to grant him a new trial. But it’s troubling that Vinson had to go there to get justice. Scientific evidence shows Vinson, 56, a former Detroiter who has spent 25 years in prison, is almost certainly innocent of the 1986 rape of which he was convicted. At least there's enough evidence to warrant a new trial. But Wayne County Circuit Judge Vera Massey Jones failed to grant him one last month and the prosecutor’s office also opposed it.

Vinson’s case shows the sometimes unreasoning resistance of law enforcement, and even judges, to acknowledge mistakes and right wrongs. When they don’t, an enormous injustice weighs on the wrongfully convicted. And something else happens, too: the person who did the crime remains free. "The reaction by authorities is to preserve a conviction at all costs,’’ David Moran, co-director of the Innocence Clinic at the University of Michigan, told me. “Besides the injustice to Vinson, there’s a rapist who might still be out there and no one seems to give a damn.”

Vinson was convicted of raping a 9-year-old Detroit girl, due largely to a blown forensic test; recent tests all but exonerate him. Still, in court documents opposing a new trial, an assistant Wayne County prosecutor said science does not trump the testimony of individuals. It’s a dangerously wack idea. If it were taken literally, none of the nearly 270 innocent people freed by DNA evidence would have been exonerated. Mistaken eyewitness testimony accounts for nearly 80% of those wrongful convictions. Witnesses make honest mistakes -- and occasionally lie.

In Vinson’s case, an intruder crawled though a bedroom window and raped the girl in her bed. Bed sheet tests then revealed semen and Type O blood antigens, but Vinson has AB blood. Because tests mistakenly indicated Vinson is a nonsecretor — one of a small group of people whose blood antigens don’t show up in saliva, semen and other bodily fluids — police said they couldn’t rule Vinson out as a suspect.

In 2009, Vinson got new tests showing he is a secretor: If he were guilty, his AB blood antigens would have showed up in the semen stain. Still, Jones refused last month to grant a new trial, proposing the ridiculous idea that the fresh semen stain on the girl’s sheets — probably only a few hours old — might have come from sex involving the girl’s parents, even though the prosecutor said at trial that it had come from the rapist. Does anyone believe that the mother called the police and then had sex on the same bed her daughter had just been raped on?

The Wayne County prosecutor’s office appears to almost reflexively oppose requests for new trials, even when scientific evidence shows it’s warranted. It's not tough on crime to keep innocent people locked up and enable the guilty to remain free. It just undermines the integrity of an already shaky justice system.

Editorial: House turned a blind eye with innocence commission vote

2011-04-28T04:10:00.000-05:00

The following editorial was published by the Dallas Morning News on April 26, 2011.

Texas House members took a bold stand last week with preliminary passage of a bill to dissect and improve the justice system.
Then they changed their minds.

The end result was rejection of a new Timothy Cole Innocence Commission to analyze wrongful convictions and identify ways that Texas could avoid repeating shameful outcomes in the court system.
With more than 40 DNA-proven exonerations of convicted men — more than any other state — Texas should be looking for ways to guard against more hideous miscarriages of justice. Defeat of HB 115 sends the offensive message that the status quo is somehow good enough. Well, it isn’t.

The bill called for a nine-person commission that would review every case of a convicted person who was exonerated in the courts. The panel would pinpoint the causes of wrongful conviction, then “consider and develop solutions and methods” to reduce the chance for error through new laws, procedures, programs and training.

On the initial vote Thursday, the House gave the bill decisive preliminary passage, 82-54. But legislative whiplash came the next day, and the bill went down just as decisively on the final vote, 51-91.

Rep. Tryon Lewis, R-Odessa, made a final plea to keep review of criminal cases “within the judiciary.” Outside review, he warned, would invite “all of these politics” that have swirled around the Texas Forensic Science Commission’s examination of the Cameron Todd Willingham arson-murder case.

We can’t imagine a more distorted and myopic view. If it hadn’t been for the forensics panel, it might not be clear to the justice community that arson investigators had a crude understanding of fire science when Willingham was convicted in 1992.

Has the forensic panel’s work been without controversy? No. Has it been free of politics? No, not since the governor’s meddling in the process. But the most important question: Has the forensic inquiry been valuable? Without question. The panel recently issued 17 recommendations for how arson professionals and the courts can be more alert to the standards in that discipline.

Don’t expect the courts to get into that territory. They have not and will not do thoughtful post-mortems in any number of wrongful convictions, including the notorious case of Anthony Graves, who was railroaded and sent to death row. Texas courts utterly failed to read the warning signs of a prosecution that would be laughable if it weren’t so corrupt and cruel.

Outside watchdogs are exactly what Texas courts need.

Ask the family of Timothy Cole, whose name would have been on the new commission. He was wrongly convicted of rape in 1985 and then exonerated by DNA testing in 2008, nine years after he died in prison.

We hope lawmakers have a chance to get this right if proponents of the Cole legislation manage to graft it onto another bill as an amendment. Texas lawmakers must take off the blinders.

Celebrating the life of Marie Deans

2011-04-24T08:39:00.001-05:00

The following commentary by Todd C. Peppers was published in the Richmond Times-Dispatch on April 24, 2011.

On Friday, April 15, one of the nation's leading advocates for the abolition of the death penalty passed away quietly in a Charlottesville hospice. Her name was Marie McFadden Deans, and for decades she fought to bring fairness, justice and decency to what Supreme Court Justice Harry Blackmun once decried as "the machinery of death," namely, our country's bewildering and stubborn commitment to the barbaric practice of killing its citizens to show that killing is wrong. Marie was a tireless worker who never sought the limelight, but in her death we should pause and consider her contributions to fight against the death penalty regime.

Marie's devotion to abolishing the death penalty was sparked by the brutal murder of her beloved mother-in-law by an escaped convict. In the face of such a horrific loss, Marie responded by founding Murder Victims' Families for Reconciliation, an organization that sought to give a voice to families who believed that the death penalty was not the answer to the terrible loss of their loved ones. At the same time, Marie threw herself into work with Amnesty International and toured prisons across the country — documenting abuses and providing needed data to litigate the cruel and unusual conditions imposed on the forgotten inhabitants of death row.

In 1983, Marie founded the Virginia Coalition on Jails and Prisons — an organization dedicated to fighting for basic legal rights for the men on death row. At the time of its founding, Virginia's death row was — in Marie's words — a "horrific" place filled with drugs, sexual and physical violence, and despair. Marie became an advocate and friend to the men on the row, always motivated by the belief that there was a spark of the divine in even the most hardened inmate. Marie also became a thorn in the side of the Virginia Department of Corrections, which remained unyielding to the basic reforms that Marie demanded until she successfully obtained the legal backing from then-federal district court Judge Robert R. Merhige Jr.

The friendship and support that Marie unselfishly extended to the men extended to the death house, and Marie was present at the execution of 34 men in Virginia and South Carolina — an experience that left her emotionally scarred for the rest of her life. The death row inmates themselves were very protective of their champion, and tried, in their limited circumstances, to express their gratitude to the woman who fought to save them. They painted pictures for Marie (until the Department of Corrections took away their painting supplies), carved statues out of soap, and fashioned jewelry boxes out of match sticks. And when death row inmate Willie Leroy Jones sat down to his final meal, he demanded that Marie, exhausted and surviving on a diet of caffeine and cigarettes, eat part of his potato so that she would keep up her strength. Marie later described the sharing of the food as "taking communion" in the death house.

Marie's efforts not only focused on the men already on death row, but those men on trial for capital murder. Marie was incensed by a legal system which shackled indigent defendants with poorly trained defense attorneys and inadequate resources to hire expert witnesses. Marie became a mitigation expert, collecting relevant information on the backgrounds of capital defendants and weaving that information into a compelling narrative that would be presented to a jury weighing whether to sentence the defendants to life or death. Marie quickly established herself as a leading mitigation expert, and, largely due to her efforts, only two of the 200 men that Marie helped defend were ultimately sentenced to death.

Marie also became involved in the appellate process, as she spent countless hours finding inmates attorneys, filing mitigation evidence in support of habeas petitions, and petitioning governors for clemency for her clients. Marie's greatest triumph was the exoneration of Earl Washington Jr., a mentally retarded man whose false confession was the product of police coercion and manipulation and who came within days of being executed before a fellow death-row inmate, Joe Giarratano, brought Washington's story to her attention. Ironically, it would be the same Joe Giarratano that Marie would spend the rest of her life unsuccessfully fighting to free. Convinced of his factual innocence, Marie's campaign for clemency convinced one Virginia governor —L. Douglas Wilder — to grant Giarratano a conditional pardon and a new trial — a trial that the Virginia attorney general's office refused to hold. As her health steadily declined Marie continued to fight for Giarratano's release, and she was bitterly disappointed when outgoing Virginia Gov. Tim Kaine declined to consider Giarratano's clemency appeal.

Marie resisted efforts by others to publicly celebrate her work, and she despised the label that some bestowed upon her as "the angel of death row." When asked how she wanted to be remembered, Marie settled upon "a courageous fool" — a woman who overcame her anxiety and fears to walk daily amongst the damned and fought battles that many deemed unwinnable. Her courage, her convictions, and her voice will be desperately missed as our society continues to reconsider its embrace of state-sanctioned death.

Todd C. Peppers is the Henry H. and Trudye H. Fowler Professor of Public Affairs at Roanoke College and a lecturer at Washington and Lee University School of Law. He is the co-author of "Anatomy of an Execution: The Life and Death of Douglas Christopher Thomas" (Northeastern University Press, 2009). Contact him at peppers@roanoke.edu.

A System for Courts to Redress Wrongs

2011-04-24T08:19:00.002-05:00

The following letters to the editor were published on April 23, 2011 by the New York Times. They are in response to a proposal by Joseph L. Hoffmann and Nancy J. King to limit state prisoners' access to habeas corpus relief to death penalty cases or those in which a prisoner can prove innocence.

To the Editor:

Eliminating habeas corpus for most state prisoners, as Joseph L. Hoffmann and Nancy J. King urge in “Justice, Too Much and Too Expensive”, will destroy thousands of lives. Do the math of mass incarceration: If “only” .4 percent of habeas petitions are granted, with 1.4 million prisoners in state custody, that would yield a wrongful conviction number of 5,600 persons. The low success rate for habeas petitioners is due to legislative changes made in 1996 in a misguided effort to restrict habeas corpus. For a state prisoner to prevail in federal court now, the claimant must show that the state court reviewing the claim was not only wrong, but also violated “clearly established” federal law as determined by the Supreme Court. This is a virtually impossible standard to meet and argues for expanding, not limiting, federal review.

Condemning so many to unconstitutional imprisonment is an incalculable human loss. Those who argue that this price must be paid are not the ones who pay it.

RONALD L. KUBY
New York, April 17, 2011

The writer is a criminal defense lawyer.

To the Editor:

Joseph L. Hoffmann and Nancy J. King want to reform habeas corpus, and they do well explaining how that writ has been abused. But they propose allowing habeas corpus only for capital cases and when a prisoner can produce persuasive new evidence of innocence, an idea antithetical to our system of criminal jurisprudence.

To get habeas relief, it should be sufficient to show a denial of constitutional rights (like the right to competent counsel), or that the government abused the right to a fair trial (such as by withholding evidence).

The state systems of appeal are riddled with inconsistencies and injustice. Habeas corpus is often the only way to secure a remedy. Otherwise, constitutionally abused and innocent people languish in prisons for decades. Reform of habeas may be needed, but that reform should be more judicious than the professors suggest.

LAMAR W. HANKINS
San Marcos, Tex., April 17, 2011

The writer is a lawyer.

To the Editor:

Profs. Joseph L. Hoffmann and Nancy J. King may be premature in their call for a formal limitation on the scope of federal habeas corpus review of state convictions. My recent experience in North Carolina suggests that what appears on paper to have been an extensive review by state judges may not always withstand closer scrutiny.

In a noncapital case in which we believe the defendant is innocent, a state judge held a four-day evidentiary hearing, heard the brief oral argument of the parties and immediately ruled that the defendant had failed to prevail on any issue. He did not explain in any way why he reached that conclusion.

Instead, he asked the state to draft a “proposed” opinion, which he then issued nearly verbatim, including typos. There was no right to review of his decision, so the defendant filed a nearly 100-page petition for review, with more than 400 pages of exhibits. The state filed an opposition that was more than 100 pages.

The court of appeal denied the petition after five business days. Most lawyers would find that incredible. How likely is it that judges actually read the parties’ briefs and the underlying exhibits?

I doubt that most people would think the product of such a process should be insulated from federal habeas review.

JAMES E. COLEMAN Jr.
Durham, N.C., April 17, 2011

The writer is a professor of law at Duke University School of Law and co-director of the Duke Wrongful Convictions Clinic.

To the Editor:

The supposition of Profs. Joseph L. Hoffmann and Nancy J. King is that the criminal justice system is generally efficient and fair. My 13 years as a trial judge convince me it is neither.

Your newspaper has repeatedly reported the release of an innocent person from prison after serving years, often on death row, because of a wrongful conviction. These cases almost always involve capital crimes because the intrepid and overburdened lawyers working on these appeals concentrate their resources on behalf of those most imperiled.

This does not mean, however, that convictions for lesser offenses are free from error. And it is not just the actually innocent who need review of their convictions.

Slovenly and unconstitutional practices can convict the “right” person, but this should give no comfort to the rest of us. A system of unfair trials and scant review will necessarily assure that more of the guilty are convicted, but at the same time more of the actually innocent will be joining them behind bars.

STEPHEN J. FORTUNATO Jr.
Warren, R.I., April 18, 2011

The writer is a retired associate justice of the Rhode Island Superior Court.

To the Editor:

Profs. Joseph L. Hoffmann and Nancy J. King have more faith in state court judges than I have, especially in states in which judges are elected.

As Justice Sandra Day O’Connor said in her concurring opinion in Republican Party of Minnesota v. White (2002): “But if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their re-election prospects.”

Further limiting the possibility of meaningful habeas review in federal court will only worsen the effect of judicial elections, because judges often feel they must appear to be tough on crime to be re-elected.

BOB DAVIDOW
Ann Arbor, Mich., April 17, 2011

The writer is a retired professor of law at George Mason University.

The Arts Factory presents… "The Row" By Clifford Holt

2011-04-23T08:37:00.001-05:00

Please Note: The playwright was a former death row inmate whose case was overturned and he wrote it while in prison. It is an outstanding script.

"Let's get this straight, you're not dying...you are being killed."

Dates: May 14th (7:30), 15th (4:00), 20th (7:30) and 21st (7:30); 2011.
Price: $12.00 (Reservation Only)
Post show Panel Discussion on Sunday May 15th.
Location: Shaffer United Methodist Church-12002 Miles Avenue, Cleveland, Ohio
(216) 641-7629 *Please leave message regarding any questions and reservations*
MATURE AUDIENCES ONLY

Brief Synopsis
This stage production "The Row" written by playwright Clifford Holt opens up the closed world of women on death row. This production deals with the reality of women's rights and religious understanding. The play looks at how the eight women relate to their circumstances and each other. Red is scheduled to be put to death in 24 hours. The women spend their last time with her discussing everything from men, to religion, as well as entertaining each other with stories and jokes.

The Prosecution Rests, but I Can’t

2011-04-12T13:23:00.001-05:00

The following opinion by John Thompson was published by the New York Times on April 10, 2011.

I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won against them and the district attorney who oversaw my case, ruling that they were not liable for the failure to turn over that evidence — which included proof that blood at the robbery scene wasn’t mine.

Because of that, prosecutors are free to do the same thing to someone else today.

I was arrested in January 1985 in New Orleans. I remember the police coming to my grandmother’s house — we all knew it was the cops because of how hard they banged on the door before kicking it in. My grandmother and my mom were there, along with my little brother and sister, my two sons — John Jr., 4, and Dedric, 6 — my girlfriend and me. The officers had guns drawn and were yelling. I guess they thought they were coming for a murderer. All the children were scared and crying. I was 22.

They took me to the homicide division, and played a cassette tape on which a man I knew named Kevin Freeman accused me of shooting a man. He had also been arrested as a suspect in the murder. A few weeks earlier he had sold me a ring and a gun; it turned out that the ring belonged to the victim and the gun was the murder weapon.

My picture was on the news, and a man called in to report that I looked like someone who had recently tried to rob his children. Suddenly I was accused of that crime, too. I was tried for the robbery first. My lawyers never knew there was blood evidence at the scene, and I was convicted based on the victims’ identification.

After that, my lawyers thought it was best if I didn’t testify at the murder trial. So I never defended myself, or got to explain that I got the ring and the gun from Kevin Freeman. And now that I officially had a history of violent crime because of the robbery conviction, the prosecutors used it to get the death penalty.

I remember the judge telling the courtroom the number of volts of electricity they would put into my body. If the first attempt didn’t kill me, he said, they’d put more volts in.

On Sept. 1, 1987, I arrived on death row in the Louisiana State Penitentiary — the infamous Angola prison. I was put in a dead man’s cell. His things were still there; he had been executed only a few days before. That past summer they had executed eight men at Angola. I received my first execution date right before I arrived. I would end up knowing 12 men who were executed there.

Over the years, I was given six execution dates, but all of them were delayed until finally my appeals were exhausted. The seventh — and last — date was set for May 20, 1999. My lawyers had been with me for 11 years by then; they flew in from Philadelphia to give me the news. They didn’t want me to hear it from the prison officials. They said it would take a miracle to avoid this execution. I told them it was fine — I was innocent, but it was time to give up.

But then I remembered something about May 20. I had just finished reading a letter from my younger son about how he wanted to go on his senior class trip. I’d been thinking about how I could find a way to pay for it by selling my typewriter and radio. “Oh, no, hold on,” I said, “that’s the day before John Jr. is graduating from high school.” I begged them to get it delayed; I knew it would hurt him.

To make things worse, the next day, when John Jr. was at school, his teacher read the whole class an article from the newspaper about my execution. She didn’t know I was John Jr.’s dad; she was just trying to teach them a lesson about making bad choices. So he learned that his father was going to be killed from his teacher, reading the newspaper aloud. I panicked. I needed to talk to him, reassure him.

Amazingly, I got a miracle. The same day that my lawyers visited, an investigator they had hired to look through the evidence one last time found, on some forgotten microfiche, a report sent to the prosecutors on the blood type of the perpetrator of the armed robbery. It didn’t match mine; the report, hidden for 15 years, had never been turned over to my lawyers. The investigator later found the names of witnesses and police reports from the murder case that hadn’t been turned over either.

As a result, the armed robbery conviction was thrown out in 1999, and I was taken off death row. Then, in 2002, my murder conviction was thrown out. At a retrial the following year, the jury took only 35 minutes to acquit me.

The prosecutors involved in my two cases, from the office of the Orleans Parish district attorney, Harry Connick Sr., helped to cover up 10 separate pieces of evidence. And most of them are still able to practice law today.

Why weren’t they punished for what they did? When the hidden evidence first surfaced, Mr. Connick announced that his office would hold a grand jury investigation. But once it became clear how many people had been involved, he called it off.

In 2005, I sued the prosecutors and the district attorney’s office for what they did to me. The jurors heard testimony from the special prosecutor who had been assigned by Mr. Connick’s office to the canceled investigation, who told them, “We should have indicted these guys, but they didn’t and it was wrong.” The jury awarded me $14 million in damages — $1 million for every year on death row — which would have been paid by the district attorney’s office. That jury verdict is what the Supreme Court has just overturned.

I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.

Worst of all, I wasn’t the only person they played dirty with. Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct. Because we were sentenced to death, the courts had to appoint us lawyers to fight our appeals. I was lucky, and got lawyers who went to extraordinary lengths. But there are more than 4,000 people serving life without parole in Louisiana, almost none of whom have lawyers after their convictions are final. Someone needs to look at those cases to see how many others might be innocent.

If a private investigator hired by a generous law firm hadn’t found the blood evidence, I’d be dead today. No doubt about it.

A crime was definitely committed in this case, but not by me.

John Thompson is the director of Resurrection After Exoneration, a support group for exonerated inmates.

Prosecutors belong on side of justice

2011-04-06T11:57:00.000-05:00

The following opinion by Tom Lyons was published in the Sarasota (Florida) Herald-Tribune on April 4, 2011.

Prosecutors can be way too much like other trial lawyers in one way that they are not supposed to be.

It's one thing for defense lawyers to argue adamantly that a client is innocent, despite much evidence of guilt. That's their job.

But prosecutors? They are supposed to be on the side of justice. To insist that a defendant is guilty even after new and strong evidence suggests otherwise, is flat out wrong.

Their job, in such an instance, is to drop the charges. Or, if things are past that point, to help reverse a wrongful conviction. It is absolutely not our State Attorney's job to try to keep an apparently innocent person locked up just because that person had once appeared to be guilty.

But prosecutors can become way too focused on winning, it seems.

Defense attorney Derek Byrd called me last week to express outrage about a decision by State Attorney Earl Moreland's office to appeal a judge's ruling that overturned the rape conviction of Derrick Williams based on new DNA evidence.

"I've never been as disappointed" in the State Attorney's Office, said Byrd, a respected defense attorney known for a good working relationship with that office. "There's no basis for an appeal."

He's right. It was not an iffy ruling based on a debatable technicality. Strong evidence, revealed through efforts of lawyers with Florida's Innocence Project, proved that DNA on a shirt worn by the man who raped a Palmetto woman absolutely did not come from Williams, who has spent 18 years in prison on that charge.

A DNA expert testified just days ago that it was highly unlikely that Williams could have worn that shirt and not left his DNA on it. The rapist, it now seems, probably was another black man who looked enough like Williams that the white victim picked Williams' photo out of a book and said she thought he was the man. Even though Williams lacked the scar she said she saw on the rapist's belly, she stood by her identification and a jury convicted Williams.

Research shows that inter-racial misidentification by victims or witnesses is amazingly frequent, even more so than when both are the same race, which is also common. And there was never much else to go on in this case.

Last week a judge overturned Williams' conviction after ruling the DNA evidence would likely have made for a different verdict had the jury had it. And rightly so, given that the DNA facts make his guilt seem not just doubtful, but quite unlikely.

But Moreland and his team failed to admit that. Instead, they prepared to compound what looks like an 18-year injustice with an appeal that, no matter how baseless, would likely have kept the man in prison for months longer.

Moreland, according to Innocence Project director Seth Miller, was set to become the first prosecutor to appeal such a clear-cut, DNA based ruling.

Byrd, who had donated his time to help the Innocence Project present the DNA evidence, and dozens of other defense lawyers who were not involved in the case at all, planned to show up in court today to protest that appeal. But I'm happy to report it was not necessary because whatever made prosecutors lose their good sense — and all sense of fairness — the embarrassing publicity seems to have led them to rethink it.

On Friday afternoon, Moreland returned my call and told me the appeal decision had been too hastily made.

"We were premature," he admitted, and he added that he was reconsidering because he could see no basis for filing it.

Sanity prevailed Monday when Moreland announced that not only would no appeal be filed, but that he also would drop all charges.

The decision shouldn't have been so hard.

Tom Lyons can be contacted at tom.lyons@heraldtribune.com or (941) 361-49

A Victim of Injustice: The Story of Leslie Vass and His Wrongful Conviction

2011-04-02T18:54:00.004-05:00

The UDC-David A. Clarke School of Law, Innocence Project Student Association (IPSA) Hosts a Reception to Honor a Maryland Exoneree, Leslie Vass

When: Monday, April 18, 2011
Where: UDC-David A. Clarke, School of Law, Windows Lounge, Bldg 38, 2nd Floor
4200 Connecticut Ave., N.W., Washington, DC 20008
Time: 6PM - 9PM
Cost: Free Admission, Donations Appreciated
Wine & Hors d’oeuvres will be served

A Compelling story of how eyewitness misidentification led to Leslie Vass’ Wrongful Conviction

Keynote Speaker, Leslie Vass, Maryland Exoneree
Special Guests: D.C. Councilmember At-Large, Phil Mendelson, Judiciary Committee Chairman Dean Shelley Broderick, UDC-DCSL, Professor Andrew Ferguson, UDC-DCSL, IPSA Faculty Advisor

Please rsvp by Thursday, April 14, 2011, at: preventing.injustice@gmail.com

Limited Seating!!

Georgia and the U.S. Supreme Court: Tinkering With the Machinery of Death

2011-04-01T17:48:00.000-05:00

The following opinion was distributed by King Features.

Mar 29, 2011

By Amy Goodman

On March 28, the Supreme Court refused to hear the death penalty case of Troy Anthony Davis. It was his last appeal. Davis has been on Georgia’s death row for close to 20 years after being convicted of shooting to death off-duty police officer Mark MacPhail in Savannah. Since his conviction, seven of the nine non-police witnesses have recanted their testimony, alleging police coercion and intimidation in obtaining the testimony. Despite the doubt surrounding his case, Troy Anthony Davis could be put to death within weeks.

Davis is now at the mercy of the Georgia State Board of Pardons and Parole, which could commute his sentence to life without parole. It will be a tough fight, despite widespread national and international support for clemency from figures such as Pope Benedict XVI, Archbishop Desmond Tutu and former President Jimmy Carter.

Davis’ sister, Martina Correia, has tirelessly campaigned for justice for her brother. In response to the Supreme Court decision, she told me: “We were really shocked and appalled yesterday when we received the news ... no one wants to look at the actual innocence, and no one wants to look at the witness recantation as a real strong and viable part of this case, even though new witnesses have come forward. There needs to be a global mobilization about Troy’s case, and the fact that in the United States it’s not unconstitutional to execute an innocent person needs to be addressed once and for all by the U.S. Supreme Court.”

Correia brings up a significant but little-known fact about death penalty law in the U.S., namely, that current court precedent allows the execution of innocent people. Remarkably, the Supreme Court, in a 1993 opinion, suggested that “actual innocence” is not a sufficient cause to be let free. The court only cares if the legal rules are followed, while acknowledging that innocent people could still be convicted and put to death. In such cases, a prisoner could appeal for executive clemency. It seems the court has not yet learned what many states have, that the death penalty system is broken beyond repair.

Illinois recently became the 16th state in the U.S. to outlaw the death penalty. Gov. Pat Quinn, after signing the bill into law, said, “I have concluded that our system of imposing the death penalty is inherently flawed ... it is impossible to devise a system that is consistent, that is free of discrimination on the basis of race, geography or economic circumstance, and that always gets it right.” He follows an earlier Illinois governor, Republican George Ryan, who commuted the death sentences of 120 death row prisoners in that state.

Both Illinois governors bring to mind former Supreme Court Justice Harry A. Blackmun, who wrote, in a dissenting opinion in 1994 after the court denied yet another death row inmate’s last appeal, “From this day forward, I no longer shall tinker with the machinery of death.”

Tinkering with the machinery of death is just what some states seem to be doing. Thiopental is one of the three drugs used in the lethal “cocktail” administered in most executions in this country. Hospira, the last U.S.-based company to make sodium thiopental, quit making the controlled drug, creating a national shortage. States began scrambling to keep their death chambers well-stocked. When California borrowed a similar drug from Arizona, California Undersecretary of Corrections and Rehabilitation Scott Kernan wrote in an email, “You guys in AZ are life savers ...”

Georgia, it turns out, seems to have illegally imported its supply from a dubious, London-based company called Dream Pharma Ltd., run by a husband and wife out of a rented space in the back of a driving school. Georgia is not currently licensed by the Drug Enforcement Administration to import controlled substances, so the DEA recently confiscated the state’s thiopental supply. Pending an investigation, Georgia will not have this key ingredient and will not be able to execute Davis or any other death row inmate.

On the same day that the Supreme Court denied Davis’ appeal, Amnesty International issued its annual report on the death penalty. The United States remains among the world’s leading executioners, along with China, Iran, Saudi Arabia, Yemen and North Korea.

In addition to leading the fight for her brother, Martina Correia has been fighting for her own life. The day of the court decision was the 10th anniversary of her ongoing battle against breast cancer. Her face adorns the mobile mammography van that helps save the lives of poor women in Savannah. The National Breast Cancer Coalition named her and former House Speaker Nancy Pelosi “Women Who Get It Right.” Correia, with customary humility, feels she won’t have earned the title until her brother’s life is saved as well.

Denis Moynihan contributed research to this column.

Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on more than 900 stations in North America. She is the author of “Breaking the Sound Barrier,” recently released in paperback and now a New York Times best-seller.

Prosecutors Get a Mulligan, Wrongfully Convicted Man Gets Squat

2011-03-31T11:48:00.002-05:00

The following opinion was published in The Atlantic on March 30, 2011.

By Andrew Cohen

United States Supreme Court Justice Clarence Thomas wrote his first majority opinion of the Term Tuesday and, naturally enough, it was a 5-4 decision against the interests of a criminal defendant whose constitutional rights had been dramatically violated by prosecutors. To mark the occasion, Justice Ruth Bader Ginsburg read her dissent aloud in court (also a first for the Term) and Justice Antonin Scalia, Justice Ginsburg's well-chronicled BFF, took a few shots at her in an otherwise needless concurrence joined by Justice Samuel Alito.

All of this, mind you, occurred before the justices heard oral argument in Walmart v. Dukes, the massive class-action case which garnered sweeping attention at the courthouse Tuesday morning. No wonder the justices seemed so grumpy when the plaintiffs' lawyers started making their discrimination case (or maybe it was just the traffic ticket Justice Scalia's got coming in for work Tuesday morning). And no wonder the Court's striking ruling in Connick v. Thompson was left largely underreported.

Still, it's not every day that the Court so brazenly overrules a jury verdict in the name of protecting state prosecutors (and the political entities which employ them) from the consequences of sustained official misconduct. And it's been quite some time since the Court's conservative majority reached out in such a fashion to snatch form from the jaws of substance. In these circumstances, it's no surprise that Justice Ginsburg blew her stack or that Justices Thomas, Scalia and Alito reacted so defensively to her objections.

Here's the story. Convicted of murder, and on Louisiana's death row for 14 years, John Thompson was just one month away from being executed when defense investigators discovered exculpatory evidence that prosecutors had failed to share with Thompson's lawyers in the two cases (one for armed robbery, one for murder) which led him to death row. The evidence hidden by the state were blood samples -- not from Thompson's blood -- found at the scene of the robbery.

Confronted with the new evidence, an appeals court quickly reversed both of Thompson's convictions. Undaunted, prosecutors tried Thompson again for murder. This time, Thompson was acquitted. He then sued the district attorneys. Thompson alleged that prosecutors had intentionally caused him to be wrongfully imprisoned for a total of 18 years. He argued that the DA's office unconstitutionally handled exculpatory evidence -- or at least that lead prosecutors inadequately trained their office staff to handle such evidence.

Prosecutors conceded before Thompson's civil trial that they had violated the Brady rule, the constitutional standard designed to ensure that government officials don't hide exculpatory evidence in criminal cases. But they argued that it was an isolated incident and thus could not generate a viable damage award. The jury disagreed. It awarded Thompson $14 million -- one million for each year the man had wrongly spent on death row, you could say. The district attorney, Harry F. Connick (yes, the famous singer's father) appealed.

Justice Thomas and the Court's four other conservative justices bent over backward Tuesday to help him out. They overturned the jury's verdict, and the trial judge's ruling, and declared that one Brady violation alone was not enough proof to establish a viable claim against the government. It wasn't the District Attorney's fault for failing to teach prosecutors about the contours of the Brady rule, Justice Thomas justified, because individual attorneys have their own ethical obligations and should have known better themselves. He wrote:

The District Court should have granted Connick judgment as a matter of law on the failure-to-train claim because Thompson did not prove a pattern of similar violations that would "establish that the 'policy of inaction' [was] the functional equivalent of a decision by the city itself to violate the Constitution." (citations omitted)

You got that? Thompson failed because he did not sufficiently show that his prosecutors had similarly ruined the lives of other criminal defendants. And just because prosecutors admitted that they had "violated the Constitution" under Brady didn't mean they had "violated the Constitution" for purposes of a civil lawsuit. Under this warped rationale, the law's obligations to Thompson essentially ended when the appeals courts reversed his convictions. The 18 years of wrongful imprisonment? Not our problem, Justice Thomas wrote:

The role of a prosecutor is to see that justice is done. "It is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." By their own admission, the prosecutors who tried Thompson's armed robbery case failed to carry out that responsibility. But the only issue before us is whether Connick, as the policymaker for the district attorney's office, was deliberately indifferent to the need to train the attorneys under his authority.

In dissent, Justice Ginsburg tore into this reasoning. She wrote:

The Court holds that the Orleans Parish District Attorney's Office... cannot be held liable... for the grave injustice Thompson suffered. That is so, the Court tells us, because Thompson has shown only an aberrant Brady violation, not a routine practice of giving short shrift to Brady's requirements. The evidence presented to the jury that awarded compensation to Thompson, however, points distinctly away from the Court's assessment. As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.

From the top down, the evidence showed, members of the District Attorney's Office, including the District Attorney himself, misperceived Brady's compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors' conduct relating to Thompson's trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney's Office.

What happened here, the Court's opinion obscures, was no momentary oversight, no single incident of a lone officer's misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady's disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney's Office bears responsibility under §1983." (citations omitted)

Prosecutors clearly cheated, Justice Ginsburg reasoned, and Thompson paid a terrible price for such cheating. As the jury had duly concluded, Louisiana should have been required to compensate him for his trouble. The Court's three other liberal members -- Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan agreed. But Justice Scalia was unwilling to let his pal Ginsburg's dissent go unanswered (beyond that which Justice Thomas had already answered it, in depth, in footnote 5 of the majority opinion). Justice Scalia wrote:

The dissent's lengthy excavation of the trial record is a puzzling exertion. The question presented for our review is whether a municipality is liable for a single Brady violation by one of its prosecutors, even though no pattern or practice of prior violations put the municipality on notice of a need for specific training that would have prevented it. The dissent defers consideration of this question until page 23 of its opinion.

It first devotes considerable space to allegations that Connick's prosecutors misunderstood Brady when asked about it at trial, and to supposed gaps in the Brady guidance provided by Connick's office to prosecutors, including deficiencies (unrelated to the specific Brady violation at issue in this case) in a policy manual published by Connick's office three years after Thompson's trial. None of that is relevant. Thompson's failure-to-train theory at trial was not based on a pervasive culture of indifference to Brady, but rather on the inevitability of mistakes over enough iterations of criminal trials. (citations omitted)

This, indeed, was a bitterly-fought case. And it's ultimately a decision from the Court's majority that reveals outright hostility to the rights of the wrongfully convicted to adequately redress their conceded grievances. You would think such redress would be the least the law could do for men like Thompson.

Courts should consider DNA evidence whenever it is available

2011-03-21T03:52:00.002-05:00

The following opinion by Spero Lappas was published by the Harrisburg, PA Patriot News on March 16, 2011.

On Oct. 19, 1991, police officers discovered the body of an elderly Philadelphia woman named Louise Talley. She had been brutally beaten, raped and stabbed to death in her own home. It was a terrible crime and the police immediately mounted a massive investigation that included the collection of physical and forensic evidence and the interviews of dozens of witnesses.

Quickly, their attention focused on 20-year-old Anthony Wright. He was reported to have been spending time at a nearby crack house, other residents placed him at the scene of Mrs. Talley’s murder, and there was physical evidence that connected him to the crime. The next day, detectives took Wright to the police station where, they later testified, he gave them a long and detailed written confession in which he told them how he killed Mrs. Talley and why.

Wright’s statement was nine pages long, typewritten and signed. When he came to trial, he tried to convince a judge that his confession should not be used against him. He lost. He testified that the police had forced him to confess, but no one believed him. He swore that he was innocent of the murder, but he was convicted anyway. The appeals courts upheld his conviction and when he later claimed that he deserved a new trial because his lawyers had been ineffective the judges disagreed. In 1993, he was sentenced to life. Case closed.

But in 2005, Wright filed a request under the state’s new Post Conviction DNA Testing Act. This law gives convicts the right to ask that crime scene evidence be tested for DNA if they can persuade a judge that a favorable test result will prove them innocent. There was crime scene DNA at Talley’s house and Wright’s new lawyers said it would free him from a wrongful conviction.
How can that be, asked the courts. He admitted he did it, he voluntarily confessed, what more do we need to know? Wright would not get the DNA test he asked for. The murder of Louise Talley shines a light on one of the most difficult questions in criminal law: How should we reconcile the traditional tools of the courtroom — eyewitnesses, confessions and the like — with the power of new technologies that promise to tell the truth with absolute certainty?

For centuries, criminals have been sent to prison and to their deaths based upon the words they speak. It has been conventional wisdom that confessions are trustworthy and conclusive proof of guilt: Who would confess to murder if he didn’t really do it?

Lately, however, psychological scientists have proved that false confessions account for about 25 percent of wrongful convictions. Saul Kassin, the eminent researcher at the John Jay School of Criminal Justice, has written that suspects often falsely confess to end stressful interrogations, to protect the actual perpetrator or out of a pathological need for notoriety. No matter what the cause, it is now undisputed that sometimes when a suspect says “I did it,” we shouldn’t believe him.

On Feb. 19, the Pennsylvania Supreme Court accepted this scientific truth and sent Anthony Wright’s case back to court. We need not be reminded, the justices ruled, of the countless situations where persons confess to crimes of which they are innocent, out of desire to cover up for the guilty person or because of a psychological urge.

The Innocence Project reports that at least 10 Pennsylvanians have been freed from prison after DNA testing proved their innocence. Some of them such as Wright had confessed. There are simple and available tools that can minimize the risk of a false confession leading to a false conviction. Police interrogations can be recorded or videotaped, and jurors and judges can be better educated on the research. The Supreme Court has taken a key step toward assuring that the search for the truth will trump legal technicalities that can sometimes get in its way.
Maybe Anthony Wright killed Louise Talley, and maybe he didn’t. Maybe DNA will free him, and maybe it will confirm his guilt. Either way, it’s a good idea to find out.

Spero Lappas practices criminal defense and constitutional law in Dauphin County, PA.

Is convicted murderer innocent?

2011-03-21T03:46:00.001-05:00

by Mike Nichols

The following opinion was originally published by the Wausau Daily Herald on March 4, 2011.

If Terry Vollbrecht really did murder Angela Hackl in the woods just outside Sauk City almost 24 years ago -- something prosecutors wrongly opposing a new trial continue to insist he did -- it's surely one of the most incredible coincidences in the history of Wisconsin crime annals.

Hackl was only 18 when she was killed. Last seen leaving Hondo's Bar with Vollbrecht early on the morning of June 12, 1987, her body, partly naked and shot in the back, was later found hanging at the base of a tree with a chain looped around the neck and brush piled all around.

"If you put a match to that," a prosecutor at Vollbrecht's trial said, "you would have a human sacrifice."

It was a uniquely grotesque killing in an area that can go years without a single homicide -- but not the last of its kind. Just six weeks later, Linda Nachreiner was killed in another rural, wooded spot about 30 miles away. The woman in her late 20s had been shot from behind and, although her body was found on the ground, her killer later said that he had chained her to a tree by her neck.

That killer, by the way, was not Terry Vollbrecht.

It was Kim Brown -- a deeply disturbed Oxford resident who liked to read pornographic books with titles like "History of Torture"and "Chained & Raped Wife." He also, according to two men who served time with him, said he talked about chaining women up and lighting them on fire. Two others who knew him in prison allege he also admitted killing Hackl, and one of those has said Brown intended to set her on fire but didn't because his lighter wouldn't work.

Steven Bauer, a former prosecutor who is now a judge, spent a year pondering things after the Hackl case was investigated by the Wisconsin Innocence Project. Because many of the details were not known when Vollbrecht was first tried, Bauer ordered a new trial recently.

Vollbrecht, as a result, was released from his cell the other day on a $425,000 bond put up by a sympathetic Prairie du Sac businessman, Curt Mueller. Prosecutors from the Wisconsin Attorney General's office, who want to lock him back up without further ado, are appealing Bauer's ruling and arguing that another trial is not necessary.

It is.

Vollbrecht is not a clearly innocent man. He has admitted having sex with Hackl that June night out by the Wisconsin River far from where her body was eventually found, and says it was consensual. His story is that after that she dropped him off back near his own car in Sauk City around 3:30 a.m., he tried to walk home because he'd lost his car keys. He was seen in the general vicinity of where Hackl's body was found -- although there is no evidence putting either him or Brown at the murder scene. If Brown did do it, moreover, he would have to have somehow come upon her and killed her without being seen in a pretty narrow window of time. Brown, who is incarcerated at Redgranite Correctional Institution and eligible for parole in 2031, denies having anything to do with it.

Still, the man's proclivities -- and the similarities between two murders just six weeks apart -- should nag at any conscience.

Bauer thinks a new trial would be a toss-up, but also points out that newly discovered evidence about Brown undermines confidence in the original verdict.

In the end, only a fresh set of jurors can determine what to believe in -- an awful and incredible coincidence or a guy who has already served over 20 years of a life sentence. Vollbrecht, who will turn 50 this summer, deserves another chance to argue that he shouldn't be sent back for twenty or thirty or forty more.

Mike Nichols is a syndicated columnist, author and senior fellow at the Wisconsin Policy Research Institute. Views expressed in this column are his own. E-mail Nichols at MRNichols@wi.rr.com.

The Arlin M. Adams Interview

2011-03-16T19:37:00.032-05:00

By James Scanlan, Esq.

My Truth in Justice editorials of February 22, 2011 (“Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams”) and March 10, 2010 (“Criminal Division Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material”) present an unflattering picture of Judge Arlin M. Adams as Independent Counsel investigating abuses of HUD housing programs. Such picture shows Adams fabricating charges against Deborah Gore Dean at least partly to get even with the late former Attorney General John N. Mitchell (a person Dean regarded as a stepfather) because in 1971 Mitchell caused President Richard M. Nixon to break a promise to appoint Adams to the Supreme Court. In doing so, Adams also fabricated (posthumous) charges against Mitchell. In refusing to recuse himself from matters involving Mitchell, Adams stated in a June 23, 1992 letter to Dean’s counsel: “To the extent that the ongoing investigation involves Ms. Dean’s family and John Mitchell, it does so solely because Ms. Dean chose to involve John Mitchell in the conduct of her official duties at HUD.” Assuming the validity of my interpretation of the conduct of Adams and his subordinates in the prosecution of U.S. v. Dean, the statement reflects a hypocrisy of epic dimension.

In the February 22 item, I observed that Adams is one of the most revered former jurists in the country. One may get some understanding of why that is so by reading a July 1, 1999 interview of Adams conducted by Sarah Barringer Gordon, a former law clerk to Adams who is today the Arlin M. Adams Professor of Constitutional Law at the University of Pennsylvania Law School. The just over 9300-word interview, part of a Penn Law oral history project, traces Adams life from his growing up in the depression, through his naval service in World War II and his time at Penn Law School before and after the war, followed by a career in Pennsylvania government, national politics, and the law, including distinguished service on the U.S. Court of Appeals for the Third Circuit from 1969 to 1987. It is an interesting historical document and worth reading for reasons unrelated to my criticisms of Adams.

But a few of Adams’ observations in the interview warrant discussion for their bearing on my interpretation of his character and conduct.

A. Paragraphs 58, 60, 74, 82 – the Promise of the Supreme Court Appointment

In paragraphs 58 and 60 (as numbered in this version of the interview) Adams discusses his becoming associated with Richard Nixon and the events leading to Adams’ appointment to the Third Circuit. The discussion is interesting solely from an historical perspective. But it also suggests the circumstances that might have led to Nixon’s promising Adams an appointment to the Supreme Court, probably in conjunction with the offering of Adams a position on the Third Circuit. In paragraph 74 Adams then discusses his initial hiring of law clerks after the 1969 appointment to the Third Circuit, noting that he was able get good candidates because even then “there was some feeling … that I was going to be on the short list for the Supreme Court.”

Adams mentions Attorney General John N. Mitchell only briefly (in paragraph 60), and not by name. In the course of describing a visit by Mitchell to press Adams to decide about the Third Circuit appointment, Adams quotes Mitchell as stating that “[the President] has something in mind for you.” The reference suggests that it may have been Mitchell who communicated Nixon’s promise to appoint Adams to the Supreme Court after a brief tenure on the Third Circuit. Whether or not that was the case, however, the discussion in the three referenced paragraphs provides ample reason why Adams might resent that Mitchell caused Nixon to fail to follow through with the high court appointment.

In paragraph 82, Adams notes that “[t]here had been two or three times when I had been seriously considered for the Supreme Court.” In what seems to be an explanation that he retired from the Third Circuit because he realized he was not going to be on the Supreme Court, Adams makes no mention of Mitchell’s role in causing him not be appointed to the Court in 1971 (as Adams had done in 1990 USA Today article upon his appointment as Independent Counsel). In context, there is no particular reason for him to address the matter. But the discussion adds to the impression that the Third Circuit had been viewed by Adams as but a temporary assignment on the road to the Supreme Court.

B. Paragraph 96 – Independent Counsels and Fiscal Abuses

In paragraphs 94 and 96 Adams discusses his own tenure as Independent Counsel and the independent counsel law generally. In the latter paragraph, Adams observes that an independent counsel’s tenure should be limited to perhaps a year, unless the independent counsel secures an extension from the court. Adams mentions nothing about the possibility for abuse of the exceptional powers granted an independent counsel, or the tendency for independent counsels in fact to abuse those powers such as Judge Thomas F. Hogan noted in a February 14, 1994 hearing (at 27) in finding that in U.S. v. Dean Adams’ attorneys had shown “at least a zealousness that is not worthy of prosecutors in the federal government or Justice Department standards ….” But in observing that the process was too “open-ended,” Adams adds: “The expenditures of money was too open-ended. There were no restraints built into the system.”

In making this observation, Adams may have been thinking of the investigation by Independent Counsel David M. Barrett that started out as a simple inquiry into whether Henry Cisneros lied about payments to his mistress during a background check for an appointment as Secretary of HUD, but that, at the time of the Adams interview, was beginning its fifth year. While Adams could not then have foreseen that Barrett’s investigation would eventually run over ten years and spend close to $23 million, there was reason for Adams to be acutely aware of the Barrett investigation. See my March 8, 2011 Truth in Justice editorial styled “The Remarkable Careers of Sometimes Prosecutor David M. Barrett” (especially its Addendum 1) regarding reasons why, whatever caused Adams to fail to include Barrett in the case Adams brought against Thomas T. Demery, Adams should have informed the appointing panel of Barrett’s unsuitability to serve as an independent counsel.

But Adams may also have had in mind some fiscal issues in his own investigation, which cost $27.6 million, the second highest independent counsel expenditure at the time of the interview. Considering the matter in 1999, Adams would probably have deemed it unnecessary that his office devoted investigative resources to identifying persons Deborah Gore Dean was believed to have slept with in order to display the results of such investigation for the amusement of the office. See Section B.9 of the Prosecutorial Misconduct page (PMP) and the Paula A. Sweeney profile. Adams may also have been thinking of the fiscal abuses brought to his attention by the document manager discussed in Section B.9 in a meeting on November 8, 1993. As discussed in the document manager’s November 17, 1993 complaint to the Office of Special Counsel, these included, inter alia: (a) that Jo Ann Harris (the subject of the March 3, 2011 Truth in Justice item styled “The Curtailed Tenure of Criminal Division Assistant Attorney General Jo Ann Harris”) steered a lucrative handwriting analysis contract in the Dean case to a friend rather than employ the FBI at no cost to the office; (b) that Bruce C. Swartz unnecessarily retained his former law firm as an outside consultant; and (c) that FBI agents and members of the Independent Counsel staff used government-leased vehicles for personal reasons including commuting to work. See also the document manager’s FBI letter, which discusses the leasing of cars from a private company at higher expense than from the General Services Administration precisely to facilitate personal use of the vehicles, as well as the falsifying of a document regarding an accident while a vehicle was so used.

As discussed in the November 17, 1993 complaint, on November 16, 1993, Adams advised the document manager that Adams was satisfied that the matters could be explained away. But Adams also advised the document manager that, supposedly due to the need to make staffing cuts, he was terminating the document manager. Notwithstanding the manner in which Adams dealt with the matter in November 1993, the evident fiscal abuses brought to his attention by the document manager or that otherwise came to his attention may still have been on Adams’ mind. With respect to other fiscal abuses, see the document manager materials suggested as further readings below.

C. Paragraph 94 – the Appointment of Adams’ Successor and the Resolution of U.S. v. Dean

More pertinent to issues addressed in the February 22, 2011 Truth in Justice item is paragraph 94, where Adams discusses his selection of Larry D. Thompson, who had been working with Adams since 1990, to take over as Independent Counsel in 1995. When one has engaged in conduct in a still pending case that includes the covering up of something that many would regard as the suborning of perjury (as discussed in Section B.1 of PMP and below) and has otherwise allowed his subordinates to repeatedly deceive the courts in responding to allegations of misconduct (as discussed in the Bruce C. Swartz profile and several Truth in Justice items), it is important to be succeeded by a hand-picked person, and ideally one who has already been involved in actions undertaken by the office. The last thing one wants in the circumstances is to turn the office over to some person not previously privy to questionable or unconscionable conduct within the office, who, for all one knows, may turn out to be a person of principle.

In a December 1996, Dean moved to overturn the one remaining part of the John Mitchell count – that involving the Arama project, which, as discussed in the March 10, 2011 item, is the matter where Adams’ attorneys most obviously fabricated a charge involving Mitchell. The evidence available to Independent Counsel attorneys before the charge was brought made it clear enough that the funding occurred as a result of Mitchell’s interaction with Lance H. Wilson, Dean’s predecessor as Executive Assistant to the Secretary of HUD. And, in support of her motion, Dean submitted an affidavit from Wilson confirming such fact. Inasmuch as Dean’s innocence of the charge was known to Adams’ attorneys before it was brought, there is little reason to think that Adams would regard the matter differently as a result of the Wilson affidavit. In any case, whether Thompson consulted with Adams or not, Thompson opposed the motion, and did so successfully on the grounds that Wilson’s testimony was not newly-discovered evidence.

Further, In February 1997 Dean moved to dismiss the entire indictment or a new trial on grounds that (a) additional evidence of misconduct had been discovered since the court ruled on her 1993 misconduct motion (including some matters addressed in the March 10, 2011 Truth in Justice item just mentioned); (b) Independent Counsel attorneys had deceived the courts in responding to her 1993 misconduct motion; and (c) there was diminished evidence of guilt because the court of appeals had overturned the verdicts on all or parts of a number of substantive counts. Given that trial Judge Thomas F. Hogan had seemed very close to overturning the verdict based solely on prosecutorial abuses identified in 1993, the motion was by no means frivolous. Thompson opposed this motion too. And, in seeking to strike it rather than respond to it, Thompson represented to the court that there had been no Independent Counsel efforts to deceive the court in responding to the 1993 motion. For reasons reflected in the Bruce C. Swartz profile and throughout Section B of PMP, the representation was patently false. But, from Adams’ perspective, Larry D. Thompson proved to be an excellent choice.

In paragraph 94 Adams also states, apparently in reference to the way that it took longer than expected for Thompson to wrap up the investigation: “Unfortunately it took a long time, and one of the reasons is that there were a few other cases that were on appeal and the Appellate Court was taking a great deal of time with them.” The statement suggests that the investigation was over at the time of Adams July 1999 interview. This was true in the sense that the Adams/Thompson final report had been issued and the office was closed or closing. But the matter was by no means over as to Adams’ most important case. Still pending in the district court were Dean’s February 1997 motion to overturn the entire verdict and a request to reconsider the denial of her motion to overturn the conviction as to the remainder of the John Mitchell count. Further, as a result of the court of appeals ruling, unless Dean could overturn the entire verdict, she still had to be resentenced.

Adams had taken a particular interest in Dean’s sentence. Section B.1 of PMP and several Truth in Justice items discuss that Bruce C. Swartz and Robert E. O'Neill attorneys pressured Supervisory Special Agent Alvin R. Cain, Jr. into giving misleading testimony that would appear to categorically contradict Dean’s testimony about calling Cain in April 1989 when a HUD IG report was issued showing that John Mitchell had earned a HUD consultant fee. The idea was that, even though Dean had called Cain just as she said, Cain’s seeming denial of any recollection of the call would be literally true because it technically applied to the date the report was issued internally at HUD rather than the day it was released to the public. O’Neill then placed great weight on Cain’s testimony in provocatively attacking Dean’s credibility in closing argument. In post-trial proceedings, as part of an aggressive strategy to cover up Independent Counsel actions regarding Cain, Adams himself requested the probation office to recommend that the court increase Dean’s sentence by six months for lying about the call to Cain. In doing so, by letter of January 18, 1994, notwithstanding that the rationale that had underlain Cain’s testimony was that Dean merely had not called Cain on or about the date the report was published internally at HUD, Adams specifically represented to the probation officer (at 8) that “Agent Cain testified on rebuttal that to his recollection this conversation never occurred.” Whether or not I am correct that Adams’ effort to deceive the probation officer was part of a conspiracy to obstruct justice (undertaken with Independent Counsel attorneys Bruce. C. Swartz, Robert J. Meyer, and Claudia J. Flynn), it was a heinous act.

Adams succeeded in persuading the probation officer to recommend an increase in Dean’s sentencing level for lying about the call. But Judge Thomas F. Hogan evidently believed Dean had testified truthfully. So he declined to follow the probation officer’s recommendation.

(As discussed in the February 22, 2011 Truth in Justice item, however, Hogan refused to order the discovery that was likely to reveal the truth about the Cain testimony, and such refusal may have involved Hogan’s deference to a person of Judge Adams’ stature. An irony of such deference is that the more egregious the conduct, the less an inclined a deferential court will be to bring it to light.)

But Adams remained interested enough in the sentencing to argue the matter himself at the sentencing hearing of February 25, 1994 (at 11-12). As part of an argument that Dean should be sentenced at the higher end of the Sentencing Guidelines range, Adams stressed that the criminal justice system should not be perceived as favoring affluent defendants who could hire good lawyers, contrasting Dean with “a young minority representative who goes into a liquor store and steals a couple of bottles of liquor.” Given that Independent Counsel attorneys had employed so many tactics to overwhelm Dean’s single attorney and to take advantage of the racial and background differences between the jury and the defendant (as best summarized in Part V of the DC Bar Counsel materials) – leave aside that Adams’ attorneys would never have taken the chance of using Agent Cain in the manner they did but for the belief that an apparently categorical contradiction of the defendant by a black agent would have great impact on an all black jury – Adams’ making of this argument suggests a smallness of character of striking contrast to the impression created by the July 1999 interview.

In any event, observing that race had nothing to do with the matter, Judge Hogan instead chose the low end of the range, imposing a 21-month prison sentence, and allowing bond pending appeal. Then, on the basis of a ruling on a sentencing guidelines issue and the fact that it had overturned the verdict on all or part of a number of the counts on which Dean was convicted, the court of appeals had ordered that Dean be resentenced.

While Dean’s 1997 motions were still pending, in approximately July 1999, the case was transferred to the Department of Justice. It also refused to respond to Dean’s pending motions. Justice still had not done so in November 2001, when it reached an agreement whereby Dean agreed to withdraw all pending motions and make no further direct or collateral attacks on her conviction. In return, Justice recommended that Dean be sentenced to a term of probation that included six months of home detention, agreeing also to take no position as to the terms of the home detention. Dean was then sentenced to three years of probation including six months of home detention under terms that allowed her to go to work during the period of home detention.
Only then had what Robert E. O’Neill would describe as Independent Counsel Arlin M. Adams’ “showcase trial” come to a close.

Further Reading

For further reading, I recommend the document manager’s November 17, 1993 complaint to the Office of Special Counsel and FBI letter already mentioned, as well as his November 15, 1996 letter to the Office of Professional Responsibility, his May 15, 1997 Clarification to the Merit Systems Protection Board, and his Miscellany document. The document manager, incidentally, is the person who in a December 1997 telephone call told me that all he knew about Agent Cain’s role in the Dean case is that Cain was someone who thought of himself as highly principled; that he had to be taken into a room by Robert E. O’Neill and Bruce C. Swartz on some number of occasions to be persuaded to provide testimony that he was very reluctant to give; and that there was considerable celebration in the offices of the Independent Counsel when the manner in which Cain had been coached was not revealed on the witness stand. That was the missing piece of the puzzle I had been trying to solve since December 1994, when Associate Deputy Attorney General David Margolis first suggested to me that, even though Dean had testified truthfully about her conversation with Cain, Cain’s testimony that seemed to contradict Dean might have been elicited on the basis that it was also literally true. See the concluding paragraphs of Addendum 3 to the Swartz profile regarding the feigned indignation of Independent Counsel attorneys at accusations against “a career government employee.”

The document manager’s accounts provide an interesting piece of history and not only as the tragic story of what can befall a straightforward person, who is proud to be part of the government and just wants to do a good job, when he happens into the wrong environment. Particularly if read in conjunction with the materials on my Prosecutorial Misconduct and Misconduct Profiles pages, those accounts also illustrate, not how extraordinary power can sometimes be exercised corruptly, but how it can sometimes run amok. All under the guidance of an eminent jurist whom his brethren would assure: “No one has better carried out the role of independent counsel than you.”

Criminal Division Deputy Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material

2011-03-10T18:55:00.019-05:00

by James Scanlan, Esq.

“I must say that, everything in the record belies any suggestion that the government had an interest in hiding information here. The government exceeded, in almost every area, its statutory obligation in terms of turning over materials.”

These words were spoken on November 15, 1994, by then Deputy Independent Counsel Bruce C. Swartz in defending prosecutor conduct in U.S. v. Dean before the United States Court of Appeals for the District of Columbia Circuit. Swartz currently is the Deputy Assistant Attorney General who deals with representatives of foreign nations on international criminal justice and counter-terrorism issues. He is discussed in my February 6, 2011 Truth in Justice editorial styled “Bruce Swartz – Our Man Abroad” with respect to the fact that, by putting Swartz forward to represent the Department of Justice before foreign nations, the Department has impliedly assured those nations that Swartz is a person of integrity.

Swartz’s interaction with foreign nations presumably includes dealing with extradition issues and, when necessary, assuring those nations that an extradited person will receive a fair trial in the United States. Swartz was in fact visibly involved with the United States’ decision to extradite Roman Polanski from Switzerland. The Los Angeles Times reported that Swartz held a meeting with Polanski’s attorneys where they presented arguments that because of prosecutorial and judicial misconduct in the Polanski prosecution, the United States should not seek Polanski’s extradition. The United States nevertheless went forward to request that Switzerland extradite Polanski. Switzerland, however, refused. According to the New York Times, the refusal in part rested on the United States' failure “to provide the records of a January [2010] hearing in Los Angeles County Superior Court that would have shown the judge in charge of the Polanski case in 1977 agreed that ‘the 42 days of detention spent by Roman Polanski in the psychiatric unit of a Californian prison represented the whole term of imprisonment he was condemned to.’”

Swartz is also the subject of the Bruce C. Swartz profile on jpscanlan.com. That item discusses the various ways Swartz endeavored to deceive the courts in covering up his own conduct and the conduct of those under his supervision in the Dean case. It also discusses my efforts to cause Swartz to be removed from his position in the Department of Justice because his conduct in the Dean case indicates he is unfit to represent the United States. And it discusses the Department’s refusal to examine such conduct, not on the basis that my allegations lack merit, but on the basis that, in its view, the matters in the Dean case suggesting or establishing that Swartz is untrustworthy were or could have been addressed in litigation.

In his statement in the court of appeals quoted above, Swartz was using the word “hiding” in a loose sense. There was no allegation that Independent Counsel attorneys actually hid anything. The allegation was rather that, notwithstanding an explicit instruction from the district court, Independent Counsel attorneys failed to segregate exculpatory material, instead leaving such material to be discovered or not discovered among hundreds of thousands of pages of discovery. The documents in question were two January 1984 telephone messages slips found in 1990 or 1991 in the files of former Attorney General John N. Mitchell, who had died in 1988. The message slips obviously pertained to Mitchell’s effort, commencing in January 1984, to secure HUD funding for a Dade County project called Arama. The Independent Counsel alleged that the defendant Deborah Gore Dean caused HUD to fund this project in order to benefit Mitchell, someone Dean regarded as a stepfather. But the message slips strongly suggested that the funding occurred because Mitchell contacted a person named Lance H. Wilson. Wilson, who was Dean’s predecessor as Executive Assistant to HUD Secretary Samuel R. Pierce, Jr., was a friend of Mitchell and was known to have helped Mitchell on other matters. And Wilson had evidently told Mitchell that he (Wilson) was talking to Assistant Secretary for Housing Maurice Barksdale about the matter and would keep Mitchell advised. The funding, which HUD records show to have been in the pipeline for several months, was authorized by Barksdale In July 1984, shortly after Wilson left HUD and was replaced as Executive Assistant by Dean.

After several times cryptically suggesting reasons why Independent Counsel attorneys did not regard the message slips as exculpatory and in fact regarded them as incriminating, in oral argument in the court of appeals, Swartz stated: “The government’s position is, far from being exculpatory, these notes showed that Barksdale was being contacted by the executive assistant.” Since the executive assistant was one other than the defendant, the point seemed lost on the court of appeals. In any case, that the court of appeals went on to “deplore” the failure to segregate the message slips as exculpatory material indicates that it did not believe Swartz’s representation. See Addendum 7 to the Swartz profile.

That statement by the court of appeals is one of the things that led the Office of Bar Counsel for the District of Columbia Bar to investigate Swartz, trial counsel Robert E. O’Neill, and other Independent Counsel attorneys for their conduct in the Dean case. This is the investigation that O’Neill, now U.S. Attorney for the Middle District of Florida, lied about on his application for that position, as discussed, for example, in my September 26, 2010 Truth in Justice editorial styled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience.” In that proceeding, as discussed in Addendum 7 to the Swartz profile, Swartz and O’Neill allowed an attorney to make the following representation on their behalf:

“[Respondents] wish to advise Bar Counsel that if they had noticed truly exculpatory documents within the production made in discovery, they would have specifically called the attention of defense counsel to those documents, rather than leaving the defense to discover then on its own.”

If not already evident, the falseness of that representation, even solely as to the message slips, is made clear beyond any doubt in Sections B.3 and B.3a of the Prosecutorial Misconduct page (PMP) on jpscanlan.com. Those sections also make clear that, whatever may be said about any other matter in U.S. v. Dean, Independent Counsel attorneys – including Jo Ann Harris who would soon be the Assistant Attorney General for the Criminal Division, as discussed in the March 3, 2011 Truth in Justice item styled “The Curtailed Tenure of Criminal Division Assistant Attorney General Jo Ann Harris” – calculatedly undertook to frame the defendant as to the Arama funding (posthumously framing former Attorney General John Mitchell in the process). Possibly this was done at least partly because John Mitchell caused Richard Nixon to break his promise to appoint Arlin M. Adams to the Supreme Court. See the February 22, 2011 Truth in Justice item styled “Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams.” Possibly it was done because this and other meritless charges involving Mitchell were deemed important to establishing other charges that Independent Counsel attorneys may or may not have believed in. See Addendum 2 to the Swartz profile regarding Swartz’s false representation to the court of appeals as to whether the prosecution made a point of the fact that Mitchell was a former Attorney General. But, whatever may have been the reason, few rational people would say it was not done.

The principal point of this item, however, involves the actual hiding of exculpatory material, which, as noted, was not an issue when Swartz used the word “hiding” in the court of appeals. It is probably too late to determine whether the Mitchell message slips were in some manner hidden when Independent Counsel attorneys provided discovery to the defense. Section B.3a of PMP discusses that Independent Counsel attorneys, not yet aware whether the items were found by the defendant, took some pains to obscure that the two items were missing from the materials from Mitchell’s files produced in a vastly overinclusive preliminary exhibit production. But, in any event, these items were discovered by the defense in time to use them in the trial and in post-trial motions. Other exculpatory documents now known to exist were not discovered even in time for the post-trial motions and one of them was obviously hidden.

Two documents concerned a project called Park Towers, a matter also involving John Mitchell, but one as to which, notwithstanding a substantial volume of false evidence, the court of appeals would find insufficient evidence to sustain a conviction. Section B of the Swartz profile discusses Swartz’s post-trial effort to excuse the Independent Counsel’s attempt to lead the jury to believe that a conspiratorial reference to “the contact at HUD” in a Park Towers document was a reference to Dean even though immunized witness Richard Shelby had told Independent Counsel attorneys that the reference was to a Deputy Assistant Secretary named Silvio DeBartolomeis. At a February 14, 1994 hearing (at 9-10), Swartz defended that conduct on the basis that other evidence – in particular, the supposed facts (a) that there were no documents reflecting Shelby’s contacts with DeBartolomeis and (b) that Dean was responsible for a post-allocation waiver on the project – provided the Independent Counsel a basis to believe, and hence to lead the jury to believe, that the reference to “the contact at HUD” was in fact a reference to Dean. But there existed at least two documents that both reflected Shelby’s contacts with DeBartolomeis and showed that it was DeBartolomeis who was responsible for the post-allocation waiver.

While these documents contradicted a number of things Independent Counsel attorneys intended to prove at trial, they were not made part of a Brady disclosure. I do not know whether they were in some manner hidden or not. But I do know that they were not found by the defense in time to use them at trial or in post-trial proceedings. Thus, Swartz was able, with impunity, to lead the court falsely to believe that supposed facts (a) and (b) above were the actual reasons Independent Counsel attorneys believed it permissible to lead the jury to believe that Dean was “the contact at HUD.”

There can be no doubt, however, that Independent Counsel attorneys attempted to hide at least one important exculpatory document, The document pertained to an individual named Andrew Sankin, for whose benefit Count Two of Dean’s indictment alleged that Dean cause HUD to take a number of inappropriate actions. District Court Judge Thomas F. Hogan’s most severe criticism of trial counsel Robert E. O’Neill concerned Sankin. Hogan excoriated O’Neill for failing to alert the court and the defense of Sankin’s off-the stand statement that some receipts O’Neill introduced into evidence as if they reflected meals or gifts Sankin bought for Dean in fact did not apply to her. As explained in Section A of the O’Neill profile, O’Neill saw no reason to bring the remark to the attention of the court or defense because O’Neill knew from the outset that certain of the receipts did not apply to Dean. Swartz’s efforts to deceive the court in defense of O’Neill’s actions are described in Section C of the Swartz profile.

Sankin was a childhood friend of Silvio DeBartolomeis, already mentioned, who was a Deputy Assistant Secretary or acting Assistant Secretary during the period when Dean was alleged to have caused HUD to take actions to benefit Sankin. Issues existed as to whether Dean or DeBartolomeis was responsible for certain of these actions.

One document that Sankin produced relating to these issues was a 1988 Harvard Business School application in which he responded to a question concerning the manner in which he dealt with an ethical dilemma. Noting that a childhood friend (DeBartolomeis) was a HUD official who had authority over an allocation Sankin was seeking, Sankin stated that, because of the relationship, it was “a fait accompli that my client’s request would be approved.” Sankin then noted that there could be an appearance of impropriety if his friend signed the documents authorizing the allocation and described an effort to secure Dean's support in order to avoid that appearance.

One might debate the implications of the discussion of the effort to secure Dean’s support. But the document was clearly enough Brady material both as to the particular allocation and as to all other matters where there existed an issue of whether Dean or DeBartolomeis was responsible for HUD actions benefitting Sankin. The document obviously had received specific attention from Independent Counsel attorneys, for transmission markings on it showed that it was faxed to the Independent Counsel on May 29, 1992, five days before Sankin testified before the grand jury. While presumably such faxing occurred as a result of discussion of Sankin with Independent Counsel attorneys shortly before the document was faxed, no record of any discussion with Sankin was provided for the period between May 14 and June 6, 1992, and no materials that were produced on Sankin mentioned the application. If there did exist a report of an in-person or telephonic interview in which the item was discussed, as there should have been, it was never provided to the defense. It is known that at least one interview containing exculpatory information was never produced, that one involving Maurice Barksdale, who is mentioned above. See Section B.3b of PMP. As reflected in that section, rare are the opportunities for a defendant to learn that exculpatory material was never produced at all. Of course, rare, too, are the opportunities to learn that a document was hidden.

In any case, Sankin’s Harvard Business School application was sufficiently troubling to Independent Counsel attorneys that, leave aside that they failed to make a Brady disclosure, they did not include it at all among the materials on Sankin initially provided the defense. Then, in December 1992, the Independent Counsel turned over approximately 3700 unindexed pages of material identified as the Independent Counsel’s preliminary exhibit production. Included in these materials was a 562-page group of documents related to administration of the Stanley Arms, an apartment building Sankin managed for Dean’s family. It was a group of documents to which no one had reason to give other than cursory attention. Inserted thusly within that group of documents as the 510th and 511th pages was Sankin’s Harvard Business School application.

This item was not discovered in time to use in the trial or in post trial proceedings in 1993 and 1994. Dean did raise the matter in a 1997 renewed motion to overturn the verdict (Sec. IV.C.2) following exhaustion of the appeals process. The government never responded to this motion. As discussed in the introduction to PMP, in 2001, when the case was being handled by the Department of Justice, an agreement was reached whereby, in exchange for Dean’s withdrawing pending motions, the government would seek no confinement. But had the Independent Counsel or Department of Justice been forced to respond on the matter, it would have had to explain both why the application was not provided as Brady material and why it was hidden. A tall order.

I know nothing about the Polanski case save what I read in the referenced Times article. But I assume that whether or not the United States was able to persuade the Swiss government that no ill motive underlay the failure to produce the hearing transcript, Swartz was able to so persuade his superiors at the Department of Justice, perhaps on the basis that he would never intentionally hide relevant information. But there is also the possibility that, as with regard to varied actions of Swartz in U.S. v. Dean, his superiors have never required an explanation.

Illinois Repeals Death Penalty

2011-03-09T20:14:00.003-05:00

*Breaking News*

Here is a message we are happy to share from Murder Victims Families for Reconciliation.

Reconciliation means accepting that you cannot undo the murder but you can decide how you want to live afterwards.
March 9, 2011

Dear Friends,

Illinois Governor Pat Quinn *just* signed the bill to repeal the death penalty and reallocate funds from its Capital Litigation Trust Fund to provide law enforcement training and services to families of homicide victims. This makes Illinois the 4th state in the country to repeal the death penalty since 2005, following New York, New Jersey, and New Mexico.

“Illinois joins a growing list states and other Americans who recognize that the death penalty simply does not work,” said Beth Wood, Executive Director of MVFR. “Illinois has been under a moratorium for ten years, has had two study commissions, and passed dozens of reforms to try and make the death penalty work. But the system continued to make mistakes while costing millions of dollars and dragging victims’ families through an endless ordeal.”

ACT NOW!

Take a moment to thank the Governor.

Please call Governor Quinn and thank him for his thoughtful attention and courageous decision in favor of repeal! He made history in Illinois today, and we need to let him know we're proud!

Springfield Office: 217-782-0244

Chicago Office: 312-814-2121

Scour your newspapers, blogs, and other websites for any mention of the Illinois repeal over the next few days. When you see some, send a letter to the editor or comment on the blog or web post in support of the repeal. Post the stories to Facebook or Twitter with a big hooray. Make sure to identify yourself as a member or supporter of MVFR in any comments, so that your legislators start to get the hint – you want repeal too [If you're in Illinois -- be sure to thank your legislators for this common sense move to improve the system]!

For every state that repeals the death penalty, we get one step closer here too. Momentum is contagious. This is a moment of celebration for us all!

Warmly,

Beth Wood, Executive Director

The Remarkable Careers of Sometimes Prosecutor David M. Barrett

2011-03-08T18:40:00.016-05:00

by James Scanlan, Esq.

Those who examine the materials underlying my Truth in Justice editorials of June 26, July 11, August 17, September 4, September 26, and October 3, 2010, and February 6, February 19, February 22, and March 3, 2011, including the Prosecutorial Misconduct page and the profiles on Robert E. O’Neill, Bruce C. Swartz, Arlin M. Adams, Jo Ann Harris, Paula A. Sweeney, and Robert J. Meyer, will find some remarkable things about the way attorneys under Independent Counsel Arlin M. Adams operated in U.S. v. Dean. Some related events are remarkable as well.

The 1990 appointment of Adams to investigate abuses of HUD housing programs arose out of congressional hearings that began in May 1989. They in turn arose out of an investigation by the HUD Inspector General (IG) of apparent improper influence in the allocation of funds in HUD’s moderate rehabilitation (mod rehab) program. The HUD IG investigation, headed by Supervisory Special Agent Alvin R. Cain, Jr. (who is mentioned or alluded to in many of the referenced Truth in Justice editorials and Addendum 1 hereto) had focused on Thomas T. Demery, Assistant Secretary for Housing from October 1986 until January 1989, and Demery’s seeming favoritism toward persons in the housing industry supporting a charity Demery helped found. After failing to have Demery removed from the mod rehab funding process in 1988, the HUD IG issued an extensive report in April 1989, naming Demery in its title.

The principal congressional hearings, which ran until May 1990, were chaired by the late Congressman Tom Lantos. They are discussed on the Lantos Hearings page of jpscanlan.com, especially in an approximately 25,000-word document that I shall refer to here simply as the Inquiry Document. It discusses the way that Demery, aided by the public relations firm of Hill & Knowlton and his own ardent denials of any impropriety, including denials that he even knew the identity of developers and consultants benefiting from his funding decisions, was generally quite successful in steering the congressional investigation and most of the press interest away from himself. Demery might have been entirely successful but for HUD’s October 1989 release of documents from Demery’s word-processing diskettes, which, among other things, included a November 1, 1987 list of pending mod rehab requests matched with the developers or consultants promoting the requests. That item alone seemed to establish that several of Demery’s sworn statements were false. Limiting the count to matters that are pretty clear, materials eventually available, including confessions by Demery, would seem to indicate that Demery lied to the Lantos subcommittee or the House Banking Committee about 30 times. See Appendix D to my August 30, 1997 letter to Independent Counsel Larry D. Thompson.

There are many remarkable things recorded in the Inquiry Document, especially concerning a congressional committee’s ability and desire to find the truth about something it purports to be investigating. The influence of Hill & Knowlton on the proceedings, discussed in Sections A.3 and B.3 of Part II, should be appraised in conjunction with information first disclosed by John R. McArthur concerning the role, in October 1990, of Hill & Knowlton (then retained by the Kuwaiti government) in presenting before Lantos’s unofficial Congressional Human Rights Caucus apparently false testimony aimed at causing the United States to go to war with Iraq (as discussed, with links provided, in item 1 on the Lantos Hearings page).

But the Inquiry Document was written sometime in 1991, well before an event that may be as remarkable as anything in the hearings themselves. Demery’s November 1, 1987 list had matched a Moore, Oklahoma mod rehab request with David M. Barrett. Barrett was a Washington lawyer and prominent Republican fundraiser who was also a housing developer involved in HUD-related programs. He also had a close relationship with Demery, as reflected, for example, in Demery’s July 29, 1987 letter observing, among other things: “ As always, I expect much fruit to come from the meetings you arrange.” Barrett had caught the attention of the HUD IG investigators early in their investigation, and, in a November 4, 1988 memorandum where the IG sought to have Demery removed from the mod rehab funding process, the IG (at 2) specifically cited Demery’s modifying of a Midland, Texas allocation to make it match the number of units in a Barrett project.

Through most of the Lantos hearings, however, Barrett managed to escape notice. And when a December 11, 1989 New York Times article raised issues about Barrett’s benefitting from his friendship with Demery, Demery responded, much in the categorical manner shown before the Lantos subcommittee: “I had [sic] never had any discussion with Mr. Barrett about Mod Rehab – period.”

But at a hearing on May 23, 1990, Lantos was possessed, perhaps reluctantly, of a Barrett Chronology that recorded Demery’s connections with Barrett reflected in Demery’s phone logs and word-processing diskettes, including the November 1, 1987 list matching Barrett’s name with the Moore, Oklahoma mod rehab request. So Lantos asked at least a few questions about Demery’s contacts with Barrett. In the hearing Demery acknowledged he had discussed the request with Barrett. But Demery also stated, though falsely, that the request matched with Barrett was not funded. Barrett then received some limited attention in the subcommittee’s final report, though rather less attention than seemed warranted based solely on information in the Barrett Chronology, the IG’s November 4, 1988 memorandum, and the May 23, 1990 hearing. See Sections II.B.1.c and III.B of the Inquiry Document

Publicly available information such as that recorded in the materials just mentioned would have provided Independent Counsel Arlin M. Adams a basis for a conspiracy charge involving Demery and Barrett that would have been considerably stronger than many conspiracy charges Adams did pursue. Such charge could well have involved a friend of Barrett named John Mamoulides, a district attorney in Jefferson Parrish, Louisiana who was also involved in housing matters, and who, along with Barrett, would arrange various things for Demery in the New Orleans area. For example, on November 23, 1987, the same day that Demery was causing the funding of the Moore, Oklahoma mod rehab request (while apparently leading HUD Secretary Samuel R. Pierce, Jr. to believe that it was funded because of interest of an Oklahoma Senator) Demery’s phone logs indicated that Barrett was advising Demery that Barrett and Mamoulides would take care of Demery’s accommodations in an upcoming trip to New Orleans. Any charge would likely be much stronger once the publicly available information was augmented with the types of information readily available to an Independent Counsel. The last overt act of such a conspiracy, so far as I know and assuming that neither Demery nor Barrett ever told Independent Counsel investigators anything false or misleading about their interactions and Demery’s funding decisions, would have occurred at the May 23, 1990 hearing when Demery falsely denied that the request he had matched with Barrett on the November 1, 1987 list was funded.

But Adams had plenty of other things to charge Demery with, which Adams in fact did, first in a 9-count indictment in June 1992, then in a 19-count superseding indictment in December 1992 (including causing, on November 23, 1987, the funding of another mod rehab request on the November 1, 1987 list for someone who had provided him free accommodations). The referenced Inquiry Document suggests that Barrett was among a large number of persons whose connections with Demery might have formed a basis for prosecution. Indeed, but for a preoccupation with finding that it had been unfair for the HUD IG to single out Demery in the title of the mod rehab report, the Lantos subcommittee might well have found that few decisions Demery made in the many programs he administered were made for reasons other than to benefit a friend or compensate someone for past or future favors.

In any event, the failure of Adams’ attorneys to take an interest in Demery’s connections with Barrett caused the Barrett story to remain dormant until May 24, 1995. On that day – which, coincidentally, may have been the day after the limitations period expired on a conspiracy involving Demery and Barrett – the D.C. Circuit’s Division for the Purpose of Appointing Independent Counsels (usually referred to as the “Special Division”) appointed Barrett to the position of Independent Counsel to investigate whether HUD Secretary Henry Cisneros lied about payments to a mistress during his background investigation. The next day, a Washington Post account of the appointment was largely devoted to recording opinions on what an excellent Independent Counsel Barrett would make, with only passing reference to Barrett’s mention in the matters investigated by Lantos. On the same day, the New York Times gave Barrett’s involvement in those matters much greater attention, quoting Lantos’s observation that the appointment was “mindboggling.”

Independent Counsel Arlin M. Adams, who had met with the Special Division on May 15, 1995 to discuss his own resignation, apparently raised no objection to the Barrett appointment either before or after it took place. Four year later, Adams would tell the Washington Post that he could not recall being asked about it. See Addendum 1 hereto.

The Barrett tenure as Independent Counsel would be a matter of some controversy, at least for its protraction. In January 1997, when Barrett had expended but $902,000, a Legal Times article would bear the title “What’s Taking David Barrett So Long?” In January 2006, when Barrett was forced, against his will, to shut down the investigation, it had expended $22,750,000 – some of that, according to an Acknowledgment included in Barrett’s report (at sixth page), paid to John Mamoulides (who retired from his district attorney position in 1996). While for a time some observers supported Barrett’s claims that a cover-up had thwarted his investigation, the prevailing view was probably closer to that of former Justice Department official Robert S. Litt (now General Counsel of the Office of the Director of National Intelligence), who in a May 21, 2005 letter described the investigation as “one of the most embarrassingly incompetent and wasteful episodes in the history of American law enforcement.” For reasons expressed in many editorials here, I do not automatically regard a Justice Department official’s appraisal of prosecutor conduct as insightful, or even as bearing a relationship to reality. I do, however, believe that the 1997 Legal Times piece was aptly titled.

Yet, if Barrett’s tenure as an Independent Counsel was remarkable, it is not clear that it was more remarkable than the appointment itself. The Inquiry Document presents an unflattering picture of Tom Lantos’s conduct of the HUD hearings. But it is hard to disagree with him as to the remarkable nature of the Barrett appointment. In that regard, it may rival the recent appointment of Robert E. O’Neill as United States Attorney, notwithstanding, among other things, that he lied on his application for the position.

Barrett is again on the Washington scene as part of a lobbying firm called Barrett Capitol Strategies. The firm touts its extensive Capitol Hill and agency contacts – the assets that made Barrett a major beneficiary of HUD programs and that may as well have caused him to receive only limited attention in the Lantos hearings and none from Independent Counsel Arlin M. Adams, and, for that matter, that may have led to his appointment as Independent Counsel. Barrett’s Barrett Capitol Strategies biography only briefly mentions his role as Independent Counsel, adding:

Upon completion of his investigation Barrett was awarded the highest award bestowed on a civilian by the FBI, the Thomas Jefferson Award. The inscription reads, “To David Barrett with respect and gratitude for your service to the nation, perseverance, and dedication to your duty from your colleagues at the Federal Bureau of Investigation,” signed Louis Freeh, Director.

In light of the encomium from FBI Director Freeh, one might wonder whether Barrett’s investigation was as improvidently protracted as many believe. I do not doubt that Barrett received the award, just as I did not doubt it when the award appeared in Barrett’s biography while he was Independent Counsel. But as reflected by the earlier biography, Barrett received the award prior to the 2006 conclusion of his investigation. Presumably, he received it, for whatever reason, no later than June 2001, the last month in which Louis Freeh served as Director of the FBI.

Would but that we could all so easily recast problematic episodes of our pasts. Compare Robert E. O’Neill’s representation that a District of Columbia Bar Counsel investigation of his conduct in U.S. v. Dean was initiated by the convicted defendant rather than by Bar Counsel itself, as discussed, for example, in the September 26, 2010 Truth in Justice item styled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience.”

Addendum 1 – David M. Barrett and Judge Thomas F. Hogan
Through no fault of his own, David M. Barrett – or, rather, the mention of his name – may have had an important role in the outcome of U.S. v. Dean, which was tried before Judge Thomas F. Hogan, a close friend of Barrett. The document styled “The Independent Counsel’s Use of Dean’s Off-the-Stand Remark about David Barrett and the Judge” discusses the way that, shortly before calling Supervisory Special Agent Alvin R. Cain, Jr. to provide immensely improbable testimony in seeming contradiction of the defendant’s testimony, Independent Counsel attorneys sought to undermine the defendant’s credibility in Hogan’s eyes by bringing to his attention the defendant’s innocuous off-the-stand remark about Barrett and Hogan. (Compare that document’s interpretation of factors influencing Hogan with the interpretation in my February 23, 2011 Truth in Justice item styled “Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams.”) The document styled “The Responsibility of Independent Counsel Arlin M. Adams for the Appointment of Independent Counsel David M. Barrett” addresses the likelihood that the manner in which Independent Counsel attorneys had used the statement about Barrett and Hogan influenced the decision of Independent Counsel Arlin M. Adams not to bring to the attention of the Special Division the varied matters calling into question the suitability of Barrett to serve as Independent Counsel.

Addendum 2 – Thomas T. Demery’s Sworn Denials That He Ever Lied to Congress
Thomas T. Demery also had an important role in U.S. v. Dean. In 1992, the Independent Counsel indicted Demery for perjury for lying to Congress. In the course of reaching a plea agreement that did not include a perjury charge, Demery acknowledged that the statements underlying his perjury charges in the indictment were false and also acknowledged things that would have formed bases for similar charges. Pursuant to an agreement whereby he might avoid prison if he provided completely truthful testimony as a cooperating witness, Demery testified for the government in the Dean case. In doing so, just as he had repeatedly and unequivocally lied to Congress, Demery repeatedly and unequivocally denied that he had ever lied to Congress. Section B.6 of the Prosecutorial Misconduct page and the materials it references address the varied remarkable – nay, astonishing – things Bruce C. Swartz and other Independent Counsel attorneys, as well as retained counsel, said to make the courts in the Dean case believe that trial counsel Robert E. O'Neill did not recognize that Demery’s denials of ever having lied to Congress were false, as well as the Independent Counsel’s implied representation to the court in Demery’s own case that Demery had provided completely truthful testimony in fulfillment of his plea agreement. That section and Section E.3 of the O’Neill profile also address the improbability that Demery would have falsely denied having lied to Congress unless instructed to do so by O’Neill.

The presumption of innocence

2011-03-06T07:22:00.001-05:00

The following opinion by Stephen Boyd was published by the Winston-Salem Journal on March 6, 2011.

On Dec. 21, 2003, Willard Brown ended a tragic episode in our community's history by admitting to the police that he raped and murdered Deborah Sykes in August 1984. He apologized to Sykes' family and to Darryl Hunt, admitting that Hunt had nothing to do with it.

Since Hunt's exoneration in February 2004, the Journal has published more than a few letters and had reader responses posted to its website that express an unfortunate sentiment: If Hunt didn't do this, he did other things in the past or would do things in the future for which he probably deserved to go to prison, keeping our streets safer.

I might well have agreed — before I started paying close attention. Having moved to Winston-Salem two weeks after Hunt's first trial in 1985, I did not pay much attention to the coverage of the saga and, if asked, might have repeated what the police and district attorney's office said repeatedly to the press: There were several people involved in the murder, and Hunt was probably one of them.

After reading Phoebe Zerwick's series in November 2003 and talking with Larry Little and the Revs. Carlton Eversley and John Mendez, I began to pay more attention. What I have learned subsequent to 2003 has changed my perspective radically.

In 1985, Hunt was offered a $12,000 reward and told he would not be charged in the crime, if he simply said his friend, Sammy Mitchell, did it. He said, "No, not if I have to lie on Sammy to get it." After his conviction was overturned and before the second trial, the prosecution offered him a plea bargain: Admit to second-degree murder and he could go home that day with the five years he had already served. Hunt said, "No." When asked why, he gave two reasons: He wouldn't bear false witness, and Sykes' family deserved to know who killed her. Had Hunt agreed to either of those offers, justice would never have been served. Justice requires that the right person be convicted and incarcerated, not simply someone against whom a case can be made.

In 1994, Mark Rabil and Hunt's defense team, over the objections of the prosecution, petitioned that DNA analysis of the rape kit be conducted. That analysis revealed that the three suspects implicated in the state's theory of the crime — Hunt, Mitchell and Johnny Gray — could not have been the rapist. Knowing then that the rapist was not in custody, neither the Winston-Salem Police Department nor the district attorney's office reopened the investigation to identify Sykes' brutal murderer.

Rabil, however, kept filing appeals and, finally, in spring 2003, filed a motion to test the DNA evidence in a North Carolina database of violent, convicted felons. That testing led to the identification of Willard Brown as the murderer.

Fortunately, or providentially — as I believe — the case was solved, but not without a very high price and not without the courage, persistence and integrity of both Hunt and Rabil and, along with them, a number of other community advocates for justice, who would not give up on the truth.

So, a decision to pay more careful attention and to develop relationships with some of those involved in these events taught me several lessons. In order to preserve a cardinal principle of our criminal-justice system — the presumption of innocence — we, in the community and in the jury box, must listen and make informed judgments, not simply hold opinions based on those of others. We must carefully distinguish any particular person, along with his or her past — real or perceived — from the crime with which they are charged and wait for evidence, and then weigh its credibility without prejudice.

As for the opinion that our streets would be safer without Hunt among us, I couldn't disagree more. Since his release, Hunt has created the Darryl Hunt Project for Freedom and Justice that educates the public about needed reforms in areas such as more effective eyewitness identification procedures, reviews innocence claims of inmates and helps ex-offenders break the cycle of recidivism. He also serves on the board of directors of the North Carolina Center on Actual Innocence; as chair, Client Policy Group, National Legal Aid Defenders Association (Washington, D.C.); and on the board of the North Carolina Prison Legal Services.

I am very glad that Hunt is back in our community and am honored to work with him and others in these community efforts, including pursuing truth and justice in the Silk Plant Forest Case. If the enrichment that comes from paying closer attention and developing new relationships appeals to you, visit the website http://darrylhuntproject.org/ and join us.

Stephen Boyd is on the advisory board of the Darryl Hunt Project for Freedom and Justice and is the Easley professor of religion at Wake Forest University. He is the author of the forthcoming book Making Justice Our Business: The Wrongful Conviction of Darryl Hunt and the Work of Faith.

In Gould And Taylor Case, Does Connecticut Supreme Court Know The Law?

2011-03-04T05:09:00.001-05:00

The following opinion was published in the New Haven Advocate on March 2, 2011.

Doubt it

by David R. Cameron

After the recent oral arguments before the Connecticut Supreme Court, the fate of George Gould and Ronald Taylor may depend on what the justices decide constitutes “clear and convincing evidence” of actual innocence. But judging by their questions and comments, it’s not clear they know what that means.

Gould and Taylor were convicted in 1995 of murdering a New Haven bodega owner in the early hours of July 4, 1993 and sentenced to 80 years in prison. They were convicted because of the testimony of Doreen Stiles, a former drug-addicted prostitute. Stiles said that as she approached the store she heard voices demand that a safe be opened, screams in Spanish, and a gunshot. Moments later, she saw two men leave. She identified Gould and Taylor as the men.

There was no other evidence linking them to the murder. In his closing statement, the trial prosecutor told the jury, “This case rises and falls on the testimony of Doreen Stiles. If you believe her, you’ll convict. If you think she’s lying, you’ll acquit.”

Many years later, Stiles recanted. At a 2009 habeas hearing before Judge Stanley T. Fuger, she testified she had not been near the store, had not seen the men, and had made up the whole story during a six-hour interrogation in which she was threatened with arrest and offered assistance in buying heroin.

Stiles was hospitalized at the time of the trial and her testimony was videotaped, so Fuger was able to see it and compare it with her testimony at the habeas hearing. He concluded she lied in her trial testimony and threw out the convictions.

The state challenged his decision, claiming he applied the wrong standard of proof to their claim of actual innocence, that Stiles’ recantation alone was not sufficient to establish their innocence and they were obliged to prove they were actually innocent.

In Miller v. Commissioner of Correction (1997), the Court established a two-fold standard of proof that a habeas petitioner must meet in order to prevail on a claim of actual innocence. First, the petitioner must persuade the habeas court by “clear and convincing evidence” that the petitioner is actually innocent. Second, the petitioner must establish that, after considering all of that evidence, no reasonable fact finder would find the petitioner guilty.

The question before the Court reduced to this: If, as the trial prosecutor told the jury, the only evidence supporting the conviction of Gould and Taylor was Stiles’ testimony and if that testimony was, as Stiles later testified and Fuger concluded, fabricated in its entirety, does that constitute “clear and convincing evidence” of their actual innocence?

Supervisory Assistant State’s Attorney Michael O’Hare said no, her recantation alone did not constitute proof of their actual innocence. Several justices appeared to agree with his position that Gould and Taylor needed to affirmatively prove their innocence.

But O’Hare and the justices neglected an essential part of the Miller ruling. After establishing the “clear and convincing” standard, that ruling went on to say, “The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt.” As the Court put it in an earlier ruling, quoted in Miller, it is “a standard higher than a probability but lower than beyond reasonable doubt.”

Several individuals have been exonerated here for crimes they did not commit and for which they spent many years in prison. The reasons for their wrongful convictions varied. But all of the wrongful convictions shared one attribute in common: all were affirmed by the Connecticut Supreme Court.

By the standard set forth in Miller, Stiles’ credible recantation of her trial testimony, which constituted the only evidence supporting their conviction, represents “clear and convincing evidence” that George Gould and Ronald Taylor are actually innocent. Hopefully, before deciding the case, the justices will read Miller again and realize that “clear and convincing” means just that – clear and convincing.

David R. Cameron is a professor of political science at Yale University.

The Curtailed Tenure of Criminal Division Assistant Attorney General Jo Ann Harris

2011-03-02T19:05:00.002-05:00

by James Scanlan, Esq.

Referrals to the profile I maintain on Middle District of Florida U.S. Attorney Robert E. O’Neill suggest that the most read of my Truth in Justice editorials concerning O’Neill is the September 26, 2010 item styled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience.” It discusses that, given that he undeniably lied in his U.S. Attorney application, O’Neill might wish to avoid situations where he could be asked about the matter. But Addendum 1 to that item reminds the reader that, though lying on the application should have disqualified O’Neil from the U.S. Attorney position, it was a relatively minor matter compared with O’Neill’s conduct in U.S. v. Dean, including the use of the misleading testimony of Supervisory Special Agent Alvin R. Cain, Jr. to lead the jury falsely to believe that the defendant lied on the stand.

In fact, as reflected in the O’Neill profile and my Prosecutorial Misconduct page (PMP), O’Neill was involved in a pattern of deceit of a scope that may be unrivaled among cases where such patterns have come to light. And, as discussed in a February 22, 2011 Truth in Justice item about Arlin M. Adams (“Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams”), the pattern of deceit began with the grand jury even before an indictment was issued containing many statements or inferences that Independent Counsel attorneys knew or believed to be false.

It thus warrants note that O’Neill was not in charge of the case when the indictment was issued and when decisions were initially made (a) to fail to make Brady disclosures of any documents contradicting or calling into question things Independent Counsel attorneys intended to prove at trial and (b) to fail to disclose any exculpatory information in witness statements that would be provided to the defense as Giglio or Jencks material when a witness testified. These positions were taken notwithstanding firm instructions from Judge Gerhard A. Gesell to turn over all exculpatory material “right away, as soon as you know it.” The former position, evident in Independent Counsel conduct, was never fully explored in the case, though it would partly underlie the court of appeals’ “deplor[ing]” of Independent Counsel conduct. The latter position, more or less hidden until the case reached the court of appeals, would there be characterized by Judge Laurence Silberman as “ridiculous.”

At the time the grand jury was being misled by Independent Counsel attorneys, and that decisions were made not to disclose information contradicting the indictment in a timely manner (or at all), the lead counsel in the case was Jo Ann Harris, on whom I maintain a profile similar to those maintained on O’Neill, Adams, and Bruce C. Swartz. Harris returned to private practice in New York sometime in 1992. O’Neill then became lead counsel and tried the case over a six-week period in September-October 1993.

Harris was in Washington during a good part of the trial, however. O’Neil in fact sought to call her, like Agent Cain, as a rebuttal witness. Whether or not Harris was much in consultation with Independent Counsel attorneys during the trial, she did join them for a celebration following the verdict. Probably she learned then, if she did not already know, of the manner in which Agent Cain’s testimony had been used at the trial.

Harris was in Washington during the Dean trial because in early September 1993 she was nominated to be Assistant Attorney General for the Criminal Division of the U.S. Department of Justice. She was then confirmed on November 21, 1993. Because of Harris’s position as Assistant Attorney General, her story may be as interesting as those of O’Neill, Adams, and Swartz. That holds whether or not her position affected the outcome (so far) of those stories.

On December 1, 1994, when I submitted to the Department of Justice the main body of materials on prosecutorial abuses in U.S. v. Dean (as described in Section A of PMP), I noted, for routing purposes, that Assistant Attorney General Harris had been involved in the matters addressed in the materials. Harris was not discussed when I met with Associate Deputy Attorney General David Margolis on the week of December 12, 1994. It was in that meeting that Margolis suggested to me the possibility that Agent Cain’s testimony was elicited on the basis that, even though the defendant’s testimony that Agent Cain seemed to contradict was true, Agent Cain’s testimony was also literally true. See Section B.1 of PMP. Even though I would eventually recognize that this interpretation was correct, it is not easy to derive it from the materials I had provided the department. Cain’s testimony was constructed specifically to prevent anyone from reaching that conclusion, and, moreover, as most people read the English language, the testimony was not literally true. Thus, Margolis may have been informed of the literal truth rationale by someone familiar with the matter, perhaps even by Harris, who, as Acting Deputy Attorney General, had been Margolis’s immediate superior earlier in the year. Of course, that Margolis thought that the literal truth of the testimony somehow made Independent Counsel conduct less egregious than I maintained is hardly a testament to the ethical sense of someone who has been regarded as the Department’s conscience for the last several decades. See Section B.8 of PMP and my May 25, 1995 letter to Margolis (at 12).

While the Department was considering the materials I provided it, by letter dated February 9, 1995 to White House Counsel Abner J. Mikva (enclosing the materials I had earlier provided the Department of Justice) I sought to have Harris removed from her position as Assistant Attorney General on the grounds that her conduct in the Dean case indicated she was unfit to represent the United States. By letter of March 8, 1995 (with copy to the Deputy Attorney General) Judge Mikva advised me that, given my having earlier brought the information to the attention of the Department of Justice, he had “every confidence that the Department of Justice will consider the matter carefully and take appropriate action.”

Sometime later that month, Harris informed Attorney General Janet Reno that, for personal reasons, she was resigning at the end of the summer. In a letter dated May 18, 1995, referencing the March 1995 conversation, Harris then formally advised Reno of her resignation “effective around the end of summer.” Harris stated that upon assuming her position she had made a firm commitment to her husband to serve only two years. But the letter does not suggest that Harris had at any time previously (or previous to March 1995) informed Reno or anyone involved in the appointment process of such commitment. According to the former document manager discussed in Section B.9 of PMP (with regard to, inter alia, his complaints that while in charge of the Dean case Harris had improperly steered a lucrative contract to a friend), the Assistant Attorney General position had been Harris’s dream job and people he still knew from the Independent Counsel’s office were surprised by the resignation. Thus, as discussed more fully in the Harris profile, it is possible that raising the matter with the White House led to Harris’s resignation. But that should have happened solely as a result of my having brought Harris’s conduct to the attention of the Justice Department in December 1994.

Before leaving the Department in September 1995, Harris would, in June 1995, hire Bruce C. Swartz as a special assistant and then, shortly before her departure, recommend him for a $3500 special achievement award. One can only speculate as to whether the award was motivated solely by Swartz’s several months of service for the Department of Justice or Swartz’s many actions as Deputy Independent Counsel in furthering a scheme of deceit originally undertaken by Harris in 1992. For that, $3500 seems a pittance. But it was probably the best Harris could do given that Swartz had officially been an employee of the Department for less than 90 days when Harris recommended the award.

In any case, Swartz stayed with the Department after Harris left. Though apparently Swartz himself left the Department for a period commencing in January 1998, the problems of having a person of Swartz’s doubtful character serve for most of the last decade as the principal representative of the Department in dealing with foreign nations (as discussed in my February 6, 2011 Truth in Justice item styled “Bruce Swartz – Our Man Abroad”) would seem in significant part the fault of Harris. To be sure, it is also the fault of the Department for rehiring Swartz and for its many refusals to examine Swartz’s conduct in U.S. v. Dean as it bears on his fitness to represent the United States.

In responding to Judge Silberman’s concerned questioning in the court of appeals about the decision not to disclose as Brady material exculpatory information in witness statements that would later be provided at trial, Swartz sought deference in the matter by pointing out that the person who made the decision was, at the time of the argument, the Assistant Attorney General for the Criminal Division. Readers may be pleased to know that Swartz’s point had nothing like the desired effect on Judge Silberman. I have found no indication that during her tenure as Assistant Attorney General Harris attempted to cause all, or any, federal prosecutors to adopt the disclosure position Harris took in the Dean case. The peculiar utility of the approach, it should be recognized, is limited to situations where (a) an indictment contains false statements or inferences and (b) the government is possessed of witness statements specifically contradicting those statements or inferences. That is not every case. But the conduct of Harris and other experienced federal prosecutors in U.S. v. Dean indicates that is some cases.

After leaving her position, Harris did some work for the Department of Justice as a contractor. An Inspector General’s finding that a 1996 sole source contract issued by a former subordinate to pay Harris $27,000 for 42 days work was improper in a number of respect is discussed in the Harris profile. For some time, Harris has been a Scholar in Residence at Pace University Law School. She frequently writes letters commenting on the suitability of candidates for appointment to Department of Justice and federal court positions. She was quoted in the Washington Post in 2007 observing that one of her former special assistants, a candidate for a federal appellate judgeship, was “as straight an arrow as I have encountered.” Possibly one day she will have occasion to provide an opinion on the integrity her former special assistant Bruce C. Swartz.

See my December 23, 1997 letter to Justice Department Inspector General Michael R. Bromwich regarding whether the Department’s handling of my requests for an investigation of the Office of Independent Counsel and for the removal of Swartz and others from positions in the Department was influenced by concern that a good faith investigation would have found that Harris, Swartz, and others in the Department had violated federal laws prosecuting the Dean case. But, as we have recently learned from such things as the Department’s refusal even to consider whether O’Neill’s false statement on his U.S. Attorney application should disqualify him from the position (as discussed, for example, in the October 3, 2010 Truth in Justice item styled “Whom Can We Trust?”), the Department does not need compelling or even logical reasons to decline to examine the conduct of its officials.

With a man's life at stake, DNA test is appropriate

2011-02-28T18:41:00.001-05:00

The following editorial was published on February 28, 2011 by the Cleveland Plain Dealer.

By The Plain Dealer Editorial Board

Why would Portage County Prosecutor Victor Vigluicci fight a motion for the DNA testing of a cigarette butt that could help exonerate a man on death row?

Vigluicci says the Ohio Innocence Project motion is a waste of time because an appellate court and the state Supreme Court already denied prior motions from convicted murderer Tyrone Noling.
But the prior motions didn't address the need to DNA test the cigarette butt -- which blood tests after the crime determined had not been smoked by Noling or his co-defendent.

The question now is, who was the smoker?

Attention to that detail seems fully merited in this long-running case, in which the courts repeatedly have declined to consider new evidence that might exonerate Noling in the killing of an elderly Portage County couple.

Noling is no angel. He's a robber with a rap sheet. But the chief witnesses against him have recanted, and another man has stepped forward to claim that his late foster brother admitted to the crime. That kind of uncertainty requires Ohio to slow down and make sure of its case.

Carrie Wood, an attorney with the Innocence Project, argues that the new motion is driven by new evidence that raises doubt about Noling's guilt in the 1990 murders of Bearnhardt and Cora Hartig.

Wood wants to test the cigarette for DNA to see whether it matches that of convicted murderer Daniel Wilson, whose DNA is stored in a criminal database. Wilson was executed in 2009 for burning a woman alive.

Police initially considered Wilson a suspect in the Hartigs' deaths.

Noling has maintained his innocence for more than two decades. Any evidence that casts doubt on his guilt must be considered. Justice demands it.