Prosecutorial Misconduct

Wrongful Use or Threat of Capital Prosecutions Implicated in Five Exonerations in 2018

At least five people were exonerated in 2018 after having been wrongfully convicted in cases that involved the misuse or threatened use of the death penalty, a DPIC analysis of data accompanying a new report by the National Registry of Exonerations has shown. The National Registry’s annual report on wrongful convictions, Exonerations in 2018, recorded a record 151 new exonerations across the United States in 2018, including 68 exonerations resulting from wrongful homicide convictions. Two of those exonerations freed death-row prisoners Vicente Benavides and Clemente Aguirre.

A record number of the exonerations in 2018 were the product of wrongful convictions obtained by police and/or prosecutorial misconduct (107) or perjury/false accusation (111), with both often occurring in combination. The two also were the leading factors contributing to wrongful homicide convictions, 79.4% of which involved police and/or prosecutorial misconduct (54 cases) and 76.5% of which involved perjury/false accusation (52 cases). Historically, those two factors are the leading causes of wrongful capital convictions. Both were present in more than two-thirds of the homicide exonerations (47 cases, 69.1%) in 2018, including the wrongful capital convictions of Benavides and Aquirre. DNA evidence helped to exonerate 14 of those wrongfully convicted of homicide in 2018, only 20.1% of homicide exonerations. The prosecution presented perjured testimony or false witness accusations in all of the murder cases involving DNA, and police and/or prosecutorial misconduct was also present in more than 60% of those cases. DNA helped to rebut false or misleading forensic evidence presented by the prosecution in five of the homicide exonerations.

At least three other homicide exonerations in 2018 involved the wrongful use or threat of the death penalty. Bobby Joe Maxwell was capitally prosecuted in Los Angeles, California for a series of ten murders and five robberies attributed to the “Skid Row Stabber” in 1978 and 1979. No physical evidence directly linked Maxwell to the murders and witnesses failed to identify him or his voice in police lineups. He won a new trial in 2010 after new evidence exposed the prosecution’s prison informant as a “serial liar.” The prosecution dropped charges against Maxwell after he suffered a heart attack that left him comatose. Matthew Sopron was convicted of a double murder and sentenced to life without parole in 1998 in Chicago, Illinois after an 18-year-old prosecution witness falsely implicated him after having been threatened with the death penalty. William Bigeck subsequently admitted that Sopron “had absolutely nothing to do with the murders” and testified in post-conviction proceedings in 2018 that he would have done anything to avoid the death penalty and that he had changed his initial statement to obtain a plea deal that took the death penalty off the table. Daniel Villegas was convicted of capital murder and sentenced to life in El Paso, Texas in August 1995 for a drive-by double murder. The 16-year-old falsely confessed to the murders after a police detective handcuffed him to a chair, threatened to take him to the desert and “beat his ass,” slapped him, and said he would die in the electric chair if he didn’t confess. “[T]errified out of his mind,” Villegas confessed. The Texas state courts overturned the conviction in 2012, citing ineffective assistance of counsel. Presenting evidence of innocence at his third trial, Villegas was acquitted in October 2018.

Missouri Supreme Court Grants New Sentencing Trial to Man Who Was Sentenced to Death Despite 11 Jurors' Votes for Life

The Missouri Supreme Court has ordered a new sentencing trial for Marvin D. Rice (pictured), a former sheriff’s deputy whose trial judge sentenced him to death despite the votes of 11 of his 12 jurors to sentence him to life. On April 2, 2019, the court vacated the death sentence imposed by St. Charles County Judge Kelly Wayne Parker in 2017 under the state’s controversial “hung jury” sentencing provision. Under that law, the trial judge has authority to independently evaluate the evidence and determine the sentence to be imposed whenever the jury vote for life or death is not unanimous. Rice, a former Dent County deputy sheriff and state correctional officer, was charged with murdering his ex-girlfriend, Annette Durham, during a custody dispute over their son and killing her boyfriend, Steven Strotkamp. The jury convicted Rice of capital murder for killing Durham but was deemed hung when a single juror held out for death. It convicted him of second-degree murder in Strotkamp’s death and agreed to a life sentence for that murder. Parker disregarded the jury’s vote and imposed the death penalty for Durham’s murder.

No state in the United States authorizes a judge to override a jury's recommendation of a life sentence and all three states that previously permitted the practice ended it in the past three years. Missouri law, however, considers a non-unanimous vote a nullity rather than a recommendation, entrusting the sentencing decision to the judge. Rice challenged the constitutionality of the statute under the U.S. Supreme Court’s January 2016 ruling in Hurst v. Florida that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Rice also argued that the prosecutor’s repeated comments about his decision not to testify at trial violated the Fifth Amendment, which bars the use of a defendant’s silence against him. The Missouri court granted a new sentencing trial on the Fifth Amendment issue, avoiding having to decide the constitutionality of the state statute.

No jury has sentenced anyone to death in Missouri since 2013. However, since that time, Missouri judges have sentenced two defendants to death under the hung jury provision. In addition to Dent, a trial judge sentenced Craig Wood to death in 2018 after his jury split 10-2 in favor of a death sentence. As in Dent’s case, Wood’s lawyers have argued that allowing a judge to impose a death sentence when a jury does not reach a unanimous sentencing decision is unconstitutional. In 2016, the Florida Supreme Court and the Delaware Supreme Court struck down provisions in their death-penalty laws permitting judges to impose death sentences based upon non-unanimous jury recommendations for death. Alabama still permits that practice if ten or more jurors have voted for death.

Utah Supreme Court Grants Death-Row Prisoner Hearing on “Damning Revelations” of Police Misconduct

Citing “damning revelations” that police and prosecutors have used bribes and threats to secure testimony in a three-decades-old capital case, the Utah Supreme Court has ordered a Utah County court to conduct a hearing to determine whether death-row prisoner Douglas Stewart Carter should receive a new trial. Carter has spent 33 years on Utah’s death row. Although police found fingerprints and blood at the crime scene, no physical evidence tied Carter to the crime.  

Carter, who is African American, was convicted of the murder of a white woman, Eva Olesen, based upon the testimony of two witnesses, Epifanio and Lucia Tovar, who told the jury that he had bragged to them about killing Oleson during a home invasion, that he also said he had intended to rape her, and that he had laughed about her death. Prosecutors also presented a statement Carter had made to police confessing to the murder, but Carter has long claimed that statement had been coerced. Shortly after the trial, the court said, the Tovars “vanished.” After Carter overturned his death sentence on appeal, prosecutors told the court in 1992 that they could not locate the Tovars to testify at Carter’s resentencing. At the resentencing, the trial court permitted the prosecution to read the jury the Tovars’ testimony from Carter’s first trial, and he was again sentenced to death. Through what the appeals court described as “a coincidence,” Carter’s defense team was able to find the Tovars in 2011. When his lawyers spoke with them, the Tovars—who were in the country illegally— confessed that Provo police had threatened them with deportation, the removal of their son, and prison if they did not implicate Carter, pressured them to make false statements, and then gave them gifts and paid for their rent and groceries once they agreed to cooperate. In a sworn statement, the Tovars also said that police had explicitly instructed them to lie under oath about the payments.

Despite this evidence, the trial court had denied Carter’s petition for a new trial without a hearing. The appeals court reversed. In its decision, the court wrote that, in the absence of physical evidence implicating Carter, the Tovars’ testimony was “crucial” to the prosecution’s case. Writing for the court, Justice Deno Himonas said: “Carter has a colorable claim that the Tovars’ testimony evolved over time to become more damaging to Carter in an attempt to please the people who had provided them with rent money and threatened them with deportation and separation if they did not cooperate.” The court said that the Tovars’ sworn statements created “a genuine dispute of material fact as to whether the outcome of the trial would have been different but for the absence of the evidence,” and ordered the trial court to grant Carter a hearing at which he may attempt to prove his claim.

Justices Express Concern About “Disturbing History” of Race Bias in Mississippi Death Penalty Case

The U.S. Supreme Court seems poised to grant a new trial to Curtis Flowers (pictured), an African-American death-row prisoner tried six times for the same murders by a white Mississippi prosecutor who struck nearly every black juror from service in each of the trials. During oral argument in Flowers v. Mississippi on March 20, 2019, eight justices expressed concern that Flowers had been denied a fair trial as a result of race discrimination in jury selection in his case. Justice Samuel Alito called the case “very troubling” and Justice Brett Kavanaugh raised concerns about prosecutor Doug Evans’ pattern of discrimination.

Flowers has been tried six times for a quadruple murder in Winona, Mississippi in 1996. His first three convictions were overturned by the Mississippi Supreme Court as a result of prosecutorial misconduct. Two of those reversals included findings that Evans had violated Batson v. Kentucky, the landmark 1986 Supreme Court decision barring the use of discretionary strikes to remove jurors on the basis of race. Flowers’ fourth and fifth trials — the only trials in which more than one black juror was empaneled — ended in hung juries. At issue before the Court was Flowers’ sixth trial, in which a jury of 11 white jurors and one black juror convicted him and sentenced him to death.

The justices focused many of their questions on the records showing that Evans had a pattern of racial discrimination in selecting the juries for Flowers’ trials. Over the course of the five trials for which jury selection transcripts are available, Evans struck 41 of 42 eligible black jurors he had the opportunity to accept. Justice Kavanaugh said, “When you look at the 41 out or 42, how do you look at that and not come away thinking that was going on here was … a stereotype that you’re just going to favor someone because they’re the same race as the defendant?” Justice Alito said that Evans’ history left “reasons to be suspicious,” and said the case had an “unusual and really disturbing history.” Justice Sonia Sotomayor questioned Evans’ motives in personally prosecuting Flowers six times. Jason Davis, the lawyer arguing on behalf of the state of Mississippi, acknowledged that the history was “troubling,” but argued that Evans’ jury strikes in the sixth trial were not racially motivated. Kavanaugh challenged Davis, saying, “Part of Batson was about confidence of the community and the fairness of the criminal justice system. That was against a backdrop of a lot of decades of all-white juries convicting black defendants …. Can you say you have confidence in how this all transpired in this case?”

Sheri Lynn Johnson, arguing on behalf of Flowers, said Evans entered Flowers’ trial “with an unconstitutional end in mind – to seat as few African-American jurors as he could.” “The history is relevant,” she said, calling it “a history of a desire for an all-white jury, a history of willingness to violate the Constitution, and a history of willingness to make false statements to a trial court.” She urged the justices to consider the pattern of discrimination, not just Evans’ actions in the most recent trial. If the Court overturns Flowers’ conviction, the case will return to the state to decide whether to try Flowers for a seventh time.

Texas Plans to Execute Prisoner Whose Death Sentence Was Influenced by False and Unreliable Testimony

Texas is scheduled to execute Billie Wayne Coble (pictured) on February 28, 2019, despite court findings that two expert witnesses who testified for the prosecution gave “problematic” and “fabricated” testimony at his trial. Coble was sentenced to death in 1990 and resentenced in 2008 after his original sentence was overturned as a result of constitutionally deficient jury instructions. At his resentencing, the issue of future dangerousness presented a serious problem for prosecutors. Under Texas law, a capital jury is required to find that a defendant presents a continuing threat to society before it may sentence him or her to death. But in Coble’s 18 years in prison between first being sentenced to death and his resentencing trial, he “did not have a single disciplinary report,” suggesting he would not pose a future danger if sentenced to life. To persuade the jury of Coble’s future dangerousness, prosecutors retained the services of Dr. Richard Coons, a psychiatrist who testified in numerous capital cases as to the purported future dangerousness of capital defendants. Coons later admitted that his dangerousness predictions were not based on research, but that he made determinations “'his way’ with his own methodology and has never gone back to see whether his prior predictions of future dangerousness have, in fact, been accurate.” Researchers and psychiatric experts have repeatedly found that “future dangerousness” predictions are fundamentally flawed, lack scientific validity, and contribute to arbitrary death sentences.

The prosecution also presented the jury with testimony from prison investigator A.P. Merillat, as an expert on prison conditions. Merillat provided false testimony about the prevalence of prison violence and loopholes in prison rules that he claimed would allow life sentenced prisoners to commit acts of violence. Like Coons, Merillat’s testimony was later revealed to be unreliable and, as a federal appellate court wrote, “the State does not dispute that parts of Merillat’s testimony were fabricated.” The court called both Coons and Merillat “problematic witnesses,” adding “that Coons’ testimony was unreliable and should have been excluded.” The court nonetheless allowed Coble’s death sentence to stand, saying that the false and misleading expert testimony constituted harmless error.

If Coble’s execution proceeds, he will be the third person executed in the U.S. in 2019, and the second in Texas. The 70-year-old Coble would also be the oldest person executed in Texas since the reinstatement of the death penalty. He will be the eleventh person aged seventy or older to be executed in the U.S. during that period (all since 2004), and the seventh this decade.

Citing Evidence of Innocence, Race Discrimination, Georgia Court Grants New Trial to Former Death-Row Prisoner

A Georgia judge has granted a new trial to Johnny Lee Gates (pictured recently, right, and at the time of trial, left) based on new evidence that excludes him as the source of DNA on implements used by the killer during the 1976 rape and murder for which Gates was sentenced to death. DNA testing disclosed that Gates’s DNA was not found on a necktie and the bathrobe belt the prosecution said were used by the killer to bind Kathrina Wright, the 19-year-old wife of a soldier stationed at Fort Benning during the murder. In a January 10, 2019, decision overturning Gates’s conviction, Senior Muscogee County Superior Court Judge John Allen credited the analysis of defense DNA expert Mark Perlin that Gates’s DNA was not present on the evidence. Judge Allen noted that Perline had trained the two Georgia Bureau of Investigation scientists the prosecution relied upon in the most recent court proceedings in the case and that the testimony of the GBI witnesses supported Perlin's conclusions. Judge Allen wrote that “[t]he exclusion of Gates’ profile to the DNA on the two items is material and may be considered exculpatory” and entitled Gates to a new trial.

Gates, who is African American, was convicted and sentenced to death by an all-white jury in a racially charged case. His death sentence was overturned in 2003 based upon evidence that he is intellectually disabled, and he was resentenced to life. Heightening the racial tensions of a black man accused of raping and murdering a young white woman, prosecutors deliberately excluded African American jurors from the case. Lawyers from the Georgia Innocence Project and Southern Center for Human Rights filed a motion in March 2018 arguing that Columbus, Georgia prosecutors engaged in a pattern and practice of systematically striking black prospective jurors because of their race in Gates’s case and six other capital cases with black defendants, discriminatorily empanelling all- or nearly-all-white juries in those cases. The prosecutors’ jury selection notes in those seven capital trials showed that the state attorneys in his case had carefully tracked the race of jurors, struck every black juror they could, and repeatedly wrote derogatory comments about blacks and black prospective jurors. A Georgia Tech mathematics professor provided expert testimony that the probability that black jurors were removed for race-neutral reasons was infinitesimally small – 0.000000000000000000000000000004 percent. In an opinion that excoriated local prosecutors for “undeniable ... systematic race discrimination during jury selection,” Judge Allen found that the prosecutors “identified the black prospective jurors by race in their jury selection notes, singled them out … and struck them to try Gates before an all-white jury.” However, the court said the race discrimination against Gates was not grounds to grant him a new trial because he had not shown that the lawyers who previously represented him did not have access to the evidence of systematic discrimination.

Supreme Court to Review Mississippi Death-Penalty Case in Which Prosecutor Systematically Excluded Black Jurors

The U.S. Supreme Court has agreed to review whether a prosecutor with a long history of racially discriminatory jury-selection practices unconstitutionally struck black jurors in the trial of Mississippi death-row prisoner Curtis Giovanni Flowers (pictured). On November 2, 2018, the Court granted certiorari in the Flowers’s case on the question of “[w]hether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky,” the landmark 1986 Supreme Court decision barring the use of discretionary strikes to remove jurors on the basis of race. 

Flowers has been tried six times for a notorious 1996 quadruple murder in Winona, Mississippi. He was prosecuted each time by Doug Evans, the District Attorney in Mississippi's Fifth Circuit Court District since 1992. Flowers was convicted by all-white or nearly all-white juries based on questionable circumstantial evidence and the testimony of a jailhouse informant (who has since recanted) that Flowers had confessed to the murders. Court pleadings and the American Public Media (APM) podcast series, In the Dark, have cast doubt upon much of the evidence in the case, and a prominent pathologist who examined the autopsy reports and crime scene photograph has disputed the prosecution’s theory that the murder was committed by a single perpetrator.

In the Dark conducted a study of jury selection in the Fifth Circuit Court District during the 26-year period from 1992 to 2017 in which Evans was District Attorney, analyzing prosecutorial strikes or acceptances of more than 6,700 jurors in 225 trials. APM found that throughout Evans's tenure, prosecutors struck prospective black jurors at nearly 4½ times the rate of white prospective jurors. In Flowers’s case, Evans struck nearly all of the African-American jurors in each trial. In his first three trials, the Mississippi Supreme Court overturned Flowers’s convictions because of prosecutorial misconduct, with courts finding that Evans had violated Batson in two of those trials. The fourth and fifth trials ended in mistrials. In the sixth trial, in June 2010, Evans accepted the first qualified African-American potential juror and then struck the five remaining African Americans in the jury pool. Flowers challenged the prosecution’s jury strikes on appeal, but the Mississippi Supreme Court, over the dissents of three justices, rejected his claim. In June 2016, the United States Supreme Court vacated the state court’s ruling and returned the case to the Mississippi Supreme Court to reconsider the issue in light of the Court’s decision one month earlier in Foster v. Chatman, finding that prosecutors in a Georgia capital case had unconstitutionally stricken jurors because they were black. However, over the dissents of three justices, the Mississippi Supreme Court again affirmed, writing that the prior adjudications that Evans had already twice violated Batson “do not undermine Evans’ race neutral reasons” for striking black jurors in the sixth trial and that “the historical evidence of past discrimination ... does not alter our analysis.” The U.S. Supreme Court has not yet set a date for oral argument in the case.

Texas Courts Rule for Two Death-Row Prisoners on Intellectual Disability, Junk-Science Claims

Two Texas prisoners took steps away from death row as state courts ruled in their favor on issues involving false or faulty scientific evidence and argument. On October 5, 2018, the Texas Court of Criminal Appeals (CCA) granted a stay of execution to Juan Segundo (pictured, left), directing a Tarrant County trial court to reconsider a claim of intellectual disability that the courts had previously rejected based on an unconstitutional, unscientific standard for measuring his functioning. Four days later, an El Paso trial judge found that prosecutors had “presented false and misleading evidence and argument” concerning the cause of death of a 19-month-old whom Rigoberto Robert Avila (pictured, right) had been convicted of killing, and recommended that the CCA grant Avila a new trial.

Texas had been set to execute Segundo on October 10. Segundo’s lawyers had long argued that he is intellectually disabled and therefore exempt from execution under the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia. However, the Texas courts had dismissed that claim, relying on a series of nonclinical factors—some based on the fictional character Lennie Smalls from Of Mice and Men—to say that Segundo was not intellectually disabled under Texas law. In 2017, in the case of Moore v. Texas, the U.S. Supreme Court ruled that intellectual disability determinations must be “informed by the medical community’s diagnostic framework.” The Court struck down Texas’s approach, calling it an “outlier” that created “an unacceptable risk that persons with intellectual disability will be executed.” In Segundo’s case, the CCA wrote, “[i]n light of the Moore decision and the facts presented in applicant’s application, we have determined that applicant’s execution should be stayed pending further order of this Court.”

The CCA stayed Avila’s January 2014 execution based on a new law giving prisoners access to the courts to litigate new evidence that their convictions had been based on false or misleading forensic evidence. His was one of the first cases sent back to a lower court for reconsideration under the 2013 junk-science law. In his 2001 trial, prosecutors argued that Avila had killed his girlfriend’s infant son. “There’s no other way the kid could have died,” they told the jury. New evidence showed, however, that the infant could have died from injuries caused by his four-year-old brother. Judge Annabell Perez wrote that this new evidence “probably would have led jurors to harbor reasonable doubt about [Avila’s] guilt” if it had been available at trial. In a prepared statement, Avila’s lawyers wrote: “The new scientific evidence creates a compelling case for Mr. Avila’s innocence, and a judge has now found that the verdict against him rests on false and misleading testimony. After spending 17 years on death rowand facing four serious execution datesfor a crime he did not commit, Mr. Avila is anxious to present the reliable scientific evidence to a jury.”

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