Prosecutorial Misconduct

Report Finds High Levels of Misconduct in Four Top Death Sentencing Counties

Four counties that rank among the most aggressive users of capital punishment in the United States have prolonged patterns of prosecutorial misconduct, according to a new report by the Harvard-based Fair Punishment Project. The report, "The Recidivists: Four Prosecutors Who Repeatedly Violate the Constitution," examined state appellate court decisions in California, Louisiana, Missouri, and Tennessee from 2010-2015, and found that prosecutors in Orange County, CAOrleans Parish, LASt. Louis City, MO; and Shelby County, TN—all of which currently face allegations of significant misconduct—ranked among the most prolific perpetrators of misconduct in their respective states. Orange and Shelby counties ranked 7th and 13th among the 2% of counties responsible for a majority of death-row prisoners in the U.S. as of January 2013, each having more individuals on their death rows than 99.5% of all counties in the country. In the midst of a scandal on an illegal, multi-decade practice of placing informants next to targeted prisoners to attempt to extract confessions from them, Orange County imposed more death sentences from 2010-2015 than all but five other U.S. counties. St. Louis City ranked 10th in executions from 1976-2012, and Orleans Parish has long been known for its prosecutors' failures to disclose exculpatory evidence to capital defendants, including three cases that have been the subjects of decisions by the U.S. Supreme Court. The statewide misconduct rankings produced by the Fair Punishment Project show that these counties are outliers not only in their heavy use of the death penalty, but also in their patterns of prosecutorial misconduct. Among the types of misconduct found by appellate courts were withholding exculpatory evidence, improper arguments at trial, and hiding deals and favorable treatment offered to informants in exchange for their testimony. In one case from St. Louis, prosecutors: suppressed evidence in the death-penalty trial of Reginald Clemons that would have supported Clemons' claim that he confessed only after having been beaten by police; never disclosed the existence of a rape kit that could have identified the perpetrator; and presented testimony in a co-defendant's trial that another person had committed acts attributed to Clemons at his trial. Longtime prosecutor Nels Moss, Jr. also advised police officers to omit certain observations that were initially included in their reports. Clemons was convicted and sentenced to death, but was awarded a new trial—scheduled for 2018—because of this misconduct.

Sheriff Admits Improper "Activity" in Orange County, California Snitch Scandal

Orange County, California Sheriff Sandra Hutchens appeared before Superior Court Judge Thomas M. Goethals (pictured) on July 5 to explain her department's 4-1/2-year failure to comply with court orders directing the department to produce documents related to a multi-decade practice in the county of misusing prison informants to illegally obtain incriminating statements from accused defendants. In May 2015, Judge Goethals barred the entire Orange County District Attorney's office from participating in the sentencing of Scott Dekraai—who has pleaded guilty to eight killings in a Seal Beach salon in 2011—for withholding evidence about the informant program and lying about its existence. Hutchens—who was appointed sheriff in 2008 following the conviction of the prior sheriff on corruption charges—denied that her office had systemically housed informants with targeted defendants, calling the description of the office's practice “a matter of semantics." “There is no program, per se,” she said. “There is activity.” Deflecting responsibility for the illegal questioning of defendants by informants and the destruction of logs describing the informant program, Hutchens said “There may have been a few deputies who took their duties to different levels than were authorized.” She explained her department's failure to turn over documents whose production had been ordered by the court by saying of her subordinates, “They possibly did not look hard enough.” Hutchens testimony came a week after Sheriff's Deputy Jonathan Larson testified that officers in the Sheriff's Department's Special Handling Unit had been tasked with developing snitches and intentionally placing them near pretrial prisoners to obtain confessions. Larson said he had "assumed" the practice was allowable because it was "approved by our sergeants and lieutenants." Larson also testified that he was certain he had made entries in the Special Handling Unit's log during a four-month period in 2011 that is now missing from the record. Lieutenant Mike McHenry had previously testified that perhaps all of the deputies in the unit simply forgot to make entries during that period. Orange County was one of the 6 most prolific producers of death sentences in the U.S. from 2010 to 2015, a period included in Judge Goethals' investigation into misconduct by the Sheriff's Office and the District Attorney's Office. The sentencing of Dekraai, which brought the informant scandal to light, is now being handled by the California Attorney General's Office, which intends to continue pursuing the death penalty. Bethany Webb, whose sister, Laura Webb-Elody, was allegedly killed by Dekraai, wrote an op-ed for The Los Angeles Times opposing the death penalty in the case. "Over and over again, the authorities have tried to bring families closure through the death penalty, but have succeeded only in keeping old wounds open," she wrote. "Through these painful years, it’s become clear that personal and political ambition have so corrupted the death penalty process that it does not serve us, nor does it serve the interests of justice."

Las Vegas Prosecutor Who Obtained Wrongful Capital Conviction Engaged in Pattern of Misconduct

A Las Vegas, Nevada, judge—who, as a prosecutor, committed misconduct in several death-penalty trials—now faces judicial misconduct charges arising out of another murder case in which a defendant he prosecuted has been granted a hearing to prove her innocence. The Nevada Commission on Judicial Discipline has charged Bill Kephart (pictured) with several violations of the judicial code of conduct for giving a media interview about his controversial 2002 prosecution of Kirstin Lobato that the Commission alleges "could affect the outcome or impair the fairness of Miss Lobato's case." Kephart denies the charges. Kephart previously withheld exculpatory evidence from defendant Fred Steese in a 1994 capital trial and went on to commit misconduct in at least five other cases before being elected to serve as a judge on the Eighth Judicial District Court of Nevada in 2014.  A pair of articles co-published by ProPublica and Vanity Fair details the story of Steese's wrongful prosecution and what it calls Kephart's "long history of prosecutorial misconduct." In 1994, Kephart led the high-profile prosecution of Steese for the murder of a highly celebrated circus performer, Gerald Soules. After a five-hour interrogation by Las Vegas police and more than 35 hours without sleep, Steese signed a confession to Soules' murder, despite having been in Idaho when the murder occurred. Steese presented 14 alibi witnesses, but Kephart argued to the jury—with no supporting evidence—that Steese's brother had posed as him in Idaho while Steese committed the murder in Nevada. Kephart also presented misleading identification testimony and baselessly accused the defense of doctoring evidence. After Steese was convicted, prosecutors dropped the death penalty and Steese was sentenced to life. Steese's lawyer subsequently learned that prosecutors had unconstitutionally withheld phone records showing Steese was in fact in Idaho at the time of the murder. Nearly 20 years later, a judge handed down an Order Regarding Actual Innocence in Steese's case, and Steese was released in 2013. By then, Kephart had been cited for misconduct in five other cases, including a 1997 capital murder trial in which he made "deliberate" and "improper comments" and a 2008 death penalty trial in which the misconduct was characterized as "significant."  Despite the reprimands, he was elected as a justice of the peace in 2010 and became a District Court judge in 2014.

Two Philadelphia Detectives, Three Wrongful Capital Prosecutions

On May 13, 2017, James "Jimmy" Dennis (pictured, center, with some of his defense team) was released from prison after more than 25 years on Pennsylvania's death row. His release marked the culmination of three unrelated wrongful capital prosecutions in Philadelphia in the early-1990s, with the common thread a pattern of misconduct by the same two Philadelphia homicide detectives. Dennis, Anthony Wright, and Percy St. George were all capitally charged for murder in cases investigated by Detectives Manuel Santiago and Frank Jastrzembski. Dennis was convicted and sentenced to death, Wright was convicted and sentenced to life without parole when his death penalty jury could not agree on a sentence, and capital charges against St. George were dismissed before he went to trial. Misconduct in Wright and Dennis' trials led courts to overturn their convictions decades later. The detectives' misconduct came to light in the St. George case when one supposed eyewitness told St. George's attorneys that he had identified St. George only because "[Santiago] told me that I could get locked up, so I was scared, because I had never been locked up before." As other questionable conduct was discovered, Detectives Santiago and Jastrzembski invoked their Fifth Amendment right against self-incrimination and the charges against St. George were dropped. Wright was initially convicted of rape and murder based upon an unrecorded fabricated confession that Santiago purported to have taken and clothing matching those Wright supposedly had admitted to have worn during the crime. Jastrembski claimed to have found those clothes hidden under Wright’s bed. DNA testing later established that the clothes had actually been worn by the victim, not Wright, suggesting that police had fabricated the confession and planted the clothing to incriminate Wright. Jastrembski and Santiago were also implicated in misconduct in Dennis' case, suppressing evidence that Dennis was not the killer. The two detectives had been asked to follow up on a statement a county prisoner named William Frazier had given to police saying that a friend of his had confessed to committing the murder with two other men. The detectives spoke to one of the three potential suspects, who fit the description offered by another eyewitness, but contradicted the prosecution's case against Dennis. That information was withheld from Dennis' defense. Jastrembski also claimed to have seized clothes from Dennis' house that fit the description of the clothes eyewitnesses said the killer had worn, but told the state post-conviction court that the clothes had since been thrown in the trash by cleaners. Even after courts overturned Wright's and Dennis' convictions, the Philadelphia District Attorney's Office continued to pursue charges against them. Even after Wright was acquitted in August 2016, a prosecution spokesperson continued to assert that "the evidence was sufficient to prove Anthony Wright participated in the murder of Louise Talley." In December 2016, facing a capital retrial, Dennis made the difficult decision to plead no contest to lesser charges. He was resentenced to time served, but his release was delayed as he awaited parole on unrelated charges. The Innocence Project and a Philadelphia civil rights law firm have filed a lawsuit against the city and 11 police officers, including Detectives Santiago and Jastrzembski, alleging a pervasive pattern of unconstitutional misconduct, including in the cases of Wright, Dennis, and St. George.

Former Prosecutor on Trial on Charges that His Misconduct Led to Wrongful Execution of Cameron Willingham

John Jackson, the former Navarro County, Texas prosecutor and judge, is on trial for ethics violations in the 1992 capital trial of Cameron Todd Willingham (pictured), which many believe led to the execution of an innocent man. Willingham was convicted of arson and murder and sentenced to death in connection with the house fire that killed his three young daughters. Texas executed him in 2004. Willingham's conviction and execution rested on two key pieces of testimony: arson testimony—since discredited as junk science—claiming that burn patterns in the house established that an accelerant had been used in starting the fire, and a statement by prison informant Johnny Webb claiming that Willingham had confessed to him while the two men were both in the county jail awaiting trial. In July 2014, The Innocence Project filed a complaint against Jackson with the Texas State Bar stating that the prosecutor had “violated core principles of the legal profession, and did so with terrible consequences ... the execution of an innocent man.” The Project argued that Jackson should face sanctions for falsifying official records, withholding evidence from the defense, suborning perjury and obstructing justice. Based on those allegations, the Texas State Bar brought ethics charges against Jackson, who faces a rare public trial for that misconduct. In that trial, attorneys for the Texas State Bar allege that Jackson coerced Webb to testify, offered Webb a reduced sentence on an aggravated robbery charge, did not disclose the deal to Willingham's defense, and knowingly elicited false testimony from Webb claiming that he had not been offered any benefit for his testimony. Correspondence between Jackson and Webb shows that Jackson petitioned state officials on Webb's behalf and eventually used a legal process intended for correcting clerical errors to reduce Webb's robbery sentence. Webb has described in interviews and depositions how Jackson convinced him to falsely testify against Willingham. Webb recounted one conversation with Jackson in which “He said, well, let’s go over [what] I think needs to happen. He says I’ve got this guy Willingham who did this. We know he did it. We know he’s guilty. We just can’t prove it." Of Webb's robbery charge, Jackson allegedly told Webb, "even if you’re convicted now, I can get it off of you later." The Intercept reports that, since 2013, roughly 10 prosecutors have been sanctioned in cases brought by the Texas State Bar, and only three prosecutors have opted, as Jackson has, to have their cases heard in public by a jury, rather than in private by a panel of lawyers. [UPDATE: On May 11, 2017, a Navarro County jury voted 11-1 that Jackson had not committed misconduct in the Willingham case.]

Rodricus Crawford Becomes 158th Death-Row Exoneree

Caddo Parish, Louisiana prosecutors formally dropped charges against Rodricus Crawford (pictured) on April 17, exonerating him in a controversial death penalty case that had attracted national attention amid evidence of race discrimination, prosecutorial excess, and actual innocence. He is the 158th person exonerated from death row in the United States since 1973. Crawford was convicted in 2012 and sentenced to death on charges he had murdered his one-year-old son. Crawford's appellate counsel, Cecilia Kappel, argued that the testimony underlying his conviction—the opinion of a local doctor who claimed the infant had been suffocated—was contradicted by autopsy results that showed pervasive bronchopneumonia in the baby's lungs and sepsis in his blood. After the trial, Kappel presented additional evidence from experts in the fields of pediatric pathology, pediatric neuropathology, and pediatric infectious disease that the child had died of natural causes. In a statement announcing that it was dropping the charges against Crawford, the Caddo Parish District Attorney's Office said, "New evidence presented after the trial raised questions about the degree of pneumonia together with bacteria in the child's blood indicative of sepsis are possibilities that require consideration. ...The death of a child is a tragedy under any circumstance for the victim, the family and the community as a whole, but this office is charged with the task to consider all of the evidence in a case and to bring a charge when the evidence can support it. For these reasons, the State has elected not to retry Rodricus Crawford." In November 2016, the Louisiana Supreme Court had ordered a new trial for Crawford because prosecutor Dale Cox had improperly removed jurors on the basis of race. Caddo has a documented pattern of racially biased jury selection, with a 2015 study finding that prosecutors struck black jurors at more than triple the rate of other jurors. Data from 22 felony trials prosecuted by Cox showed he had struck black jurors at a rate 2.7 times higher than other jurors. Cox attracted national criticism for questionable comments and practices and his perceived overzealous pursuit of the death penalty. He personally prosecuted 1/3 of all the cases in which Louisiana juries returned death sentences between 2010-2015, and wrote an internal memo on the Crawford case in 2014 stating that Crawford "deserves as much physical suffering as it is humanly possible to endure before he dies." In 2015, he told The Shreveport Times that he believed the state needs to "kill more people." Caddo Parish is among the 2% of U.S. counties responsible for a majority of death-row inmates, and had a death sentencing rate per homicide eight times higher than the rest of the state of Louisiana from 2006 to 2015. Ben Cohen, an attorney for Crawford, said, "This case has always been about injustice and the disproportionate use of the death penalty in Caddo Parish. In deciding not to retry Rodricus Crawford, the Caddo Parish District Attorney’s office is righting this injustice, restoring integrity to their office."

Upcoming Supreme Court Cases Could Clarify Standard Requiring Disclosure of Exculpatory Evidence

Prosecutorial misconduct, including withholding evidence favorable to the defense, is the most common cause of wrongful convictions in death penalty cases, but prosecutors frequently fail to disclose this evidence, narrowly interpreting the U.S. Supreme Court's 1963 decision in Brady v. Maryland calling for its disclosure. On March 29, the Court will hear two consolidated cases—Turner v. United States and Overton v. United States—that raise questions under Brady as to when courts should grant defendants a new trial when prosecutors fail to disclose exculpatory evidence to the defense. While the Court may narrowly address Brady's application to these two cases, attorney and legal commentator Bidish Sarma argues that Turner-Overton presents an opportunity for the Court to "clarify principles and curtail the confusion that permeates lower courts’ opinions." Prosecutors currently argue that they may consider the materiality of evidence that favors the defense when they decide whether to disclose that evidence. Others say all evidence favorable to the defense must be disclosed, irrespective of materiality. Withholding favorable evidence from the defense appears to work—a study by the VERITAS Initiative of Santa Clara University School of Law and the National Association of Criminal Defense Lawyers found that courts upheld convictions in 86 percent of the cases in which they found that prosecutors had suppressed exculpatory evidence. An amicus brief by the Texas Public Policy Foundation, FreedomWorks, Cause of Action Institute, and American Legislative Exchange Council urges the Court to make it clear that prosecutors must turn over all evidence favorable to the defense, saying, "[r]equiring production of all favorable evidence solves the problem that prosecutors face in administering the current materiality standard." A recent study by the National Registry of Exonerations found that more than half of all murder exonerations involved Brady violations. According to that study, official misconduct was more common in cases involving black defendants (76%) than white defendants (63%). That disparity grew in capital cases, where 87% of death-row exonerations of black defendants involved official misconduct, compared to 67% of death-row exonerations of white defendants. A DPIC analysis of recent death-row exonerations found that police or prosecutorial misconduct was a major factor in 16 of the last 18 exonerations. DPIC's review of the National Registry's 2016 exoneration data also found that every one of the 13 murder exonerations in which prosecutors had sought or threatened to impose the death penalty involved either official misconduct or perjured testimony/false accusation, and eleven (84.6%) of them involved both. 

Reports Find Record Number of Exonerations in 2016, Blacks More Likely to be Wrongfully Convicted

Companion reports released on March 7 by the National Registry of Exonerations found record numbers of exonerations and wrongful convictions involving official misconduct in 2016, and striking evidence of racial bias both in the wrongful convictions themselves and in the time it took the judicial process to exonerate the wrongfully incarcerated. The Registry's report, Exonerations in 2016, found a record 166 exonerations in 2016, with 54 defendants exonerated of homicide. A DPIC review of the Registry's data revealed that the death penalty played a role in nearly a quarter of the homicide exonerations. In at least six of the wrongful homicide convictions, prosecutors had sought the death penalty at trial; in another, an innocent defendant had pled guilty to avoid the death penalty; and at least six additional exonerations were the product of witnesses having falsely implicated innocent defendants after police had threatened the witness or a loved one with the death penalty unless the witness cooperated with the investigation. The Registry's companion report, Race and Wrongful Convictions in the United States, analyzes exonerations for murder, sexual assault, and drug crimes since 1989. The report found that black people are seven times more likely to be wrongfully convicted of murder than white people and that African Americans imprisoned for murder are more likely to be innocent if they were convicted of killing white victims. Police officers were more likely to have committed misconduct in the cases in which black defendants were exonerated of murder than in exonerations of white murder defendants. In addition, justice was delayed in exonerations of black murder defendants, who, on average, waited three years longer than whites before being released from prison. An analysis of the DPIC death-row exoneration database corroborates the National Registry's conclusions: 16 of the last 18 death-row exonerations had police or prosecutorial misconduct as their primary cause. 18 of the exonerees in the last 25 misconduct-related death-row exonerations are black. While 68.8% of wrongly convicted non-black death-row exonerees were exonerated in 10 years or less, it took the judicial system 11 years or more to exonerate 57.3% of the wrongly convicted black death-row exonerees. 84.6% of all cases in which exoneration took 26 years or more involved black defendants.

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