Prosecutorial Misconduct

Jurors in Henry McCollum Case Reflect on How They Sentenced an Innocent Man to Death

Four years after intellectually disabled brothers Henry McCollum and Leon Brown were exonerated of the 1983 rape and murder of an 11-year-old girl in North Carolina, jurors in McCollum's case met with members of his defense team and reflected on how they sentenced an innocent man to death. In a September 6 op-ed in the Raleigh News & Observer, Kristin Collins—Associate Director of Public Information for North Carolina’s Center for Death Penalty Litigation and a former News & Observer reporter—writes that the jurors’ responses varied from relief, to shame, to fear of God’s wrath, to tears at he pain of even thinking about the case. “All [the jurors] were denied the information they needed to reach a fair verdict,” Collins observed. “I’ve been trying to figure out, where did we go wrong?,” one juror told Collins. “I feel like we got duped by the system,” he said. McCollum and Brown—age 19 and 15, respectively, at the time Sabrina Buie was raped and murdered—were convicted and condemned for her death in 1984. The main evidence against them were coerced confessions obtained during prolonged interrogations. Brown spent eight years on death row before the Supreme Court declared the death penalty unconstitutional for children under age 16, and his sentence was reduced to life imprisonment. But McCollum remained on North Carolina’s death row for more than 30 years, having lost of all his court appeals, until DNA evidence uncovered by the North Carolina Innocence Inquiry Commission disclosed that neither he nor Brown had raped and killed the young girl. At the time of his release in 2014, McCollum was North Carolina’s longest-serving death-row prisoner. The op-ed sheds light on how the gruesome facts of the case produced an unjust verdict and death sentence. Jurors recalled the graphic crime-scene photos and McCollum’s confession, which it turns out had been written by the police. “Even McCollum’s defense attorneys admitted his guilt, believing the jury would spare him if he accepted responsibility,” Collins writes. One juror believed that if McCollum was on trial, he’d probably done it: “his biggest regret,” Collins wrote, “is that he trusted prosecutors to tell the truth.” And what the jury did not know was of overwhelming importance. “No one told the jury that another, almost identical crime was committed just a month after the girl’s murder — and that the culprit was not McCollum, but a man who lived by the field where her body was found,” Collins writes. “The jury didn’t know fingerprints were found at the scene, and that none of them were McCollum’s. They didn’t know the case against McCollum started with a rumor from a teenage girl, who later admitted she made it up.” Collins reports that the jurors “remembered McCollum at the defense table, silent and unresponsive, like a confused and broken child.” One seemed especially remorseful. “I should have followed my conscience,” she said. “I hope he can forgive me.”

Filming Underway for Movie Adaptation of ‘Just Mercy’

Filming for the movie adaptation of Bryan Stevenson's best-selling book, Just Mercy, began August 27, 2018 in Montgomery, Alabama. The film will feature Michael B. Jordan (Creed, Black Panther) as Stevenson and Oscar-winner Jamie Foxx (Ray, Django Unchained) as wrongfully convicted death-row prisoner Walter McMillian. Stevenson, the founder of the Equal Justice Initiative, represented McMillian — a Black man framed for the 1986 murder of an 18-year-old White woman in Monroeville, Alabama — in McMillian's appeal of his conviction and death sentence. Like the book upon which it is based, the movie will tell the story of that representation and McMillian's exoneration from death row. McMillian was convicted in a trial that lasted only a day and a half. The prosecution presented three witnesses who falsely implicated McMillian in the murder. The jury — composed of eleven Whites and one African American — ignored the testimony of six African-American alibi witnesses who had been with McMillian at a church fish fry at the time of the murder. Although the jury convicted McMillian, the jurors recommended that he be sentenced to life. However, the trial judge overrode the jury’s sentencing verdict and instead sentenced McMillian to death. The Alabama Court of Criminal Appeals affirmed the conviction and death sentence on appeal, but Stevenson's investigation revealed that prosecution witnesses had lied and that prosecutors had illegally hidden evidence that proved McMillian's innocence. After Stevenson filed a motion for a new trial, the appeals court on February 23, 1993, reversed McMillian’s conviction and ordered a new trial. One week later, on March 2, 1993, prosecutors dismissed the charges against McMillian and he was released. After spending six years on death row, McMillian was exonerated. The film is expected to open in early 2020.

Florida Justices Halt Execution as Handwritten Notes Contradict Police Testimony

The Florida Supreme Court has halted the execution of Jose Antonio Jimenez (pictured), scheduled for August 14, 2018. The unanimous one-page order issued by the court on August 10 did not explain the reasons the justices granted the stay. However, Jimenez’s motion for a stay referenced 80 pages of police records that, Jimenez’s lawyer said, had not previously been provided to the defense. Those records—which were part of 1,000 pages of documents turned over to the defense two weeks before the scheduled execution—included hand-written notes by the investigating detectives that appear to contradict pre-trial testimony police had given in the case. The motion, filed by Jimenez's lawyer, Marty McClain, said the “previously unseen notes" contained "surprising and downright shocking information” that the lead detective (identified as a Detective Ojeda) and a second police investigator (identified as Detective Diecidue) gave “false and/or misleading” testimony “in order to facilitate Mr. Jimenez’s conviction” when they were deposed by Jimenez’s trial counsel. McClain told The News Service of Florida, “[t]he new documents show dishonest cops,” which has added significance in this case because Jimenez has maintained his innocence “and the conviction is premised on Ojeda telling the truth.” Jimenez also sought a stay pending the United States Supreme Court’s disposition of a Missouri death-penalty case, Bucklew v. Precythe, that could clarify the standard for determining when a state’s lethal-injection protocol is unconstitutional. Jimenez has argued that Florida’s use of the drug etomidate as a sedative during three-drug executions creates an unconstitutional risk of a torturous death. During Florida’s last execution, Eric Branch screamed when the execution drugs were administered. McClain said that expert testimony in another case had indicated that a quarter of executions using etomidate could result in prisoners screaming in pain. “Is it OK to have your condemned people scream 25 percent of the time?,” McClain said. “And what about the torture to those who are next, who know that 25 percent of the time people are in pain and screaming? Are they going to be the one?” The Florida Supreme Court has set a schedule for briefs to be filed in the case, with briefing concluding on August 28. The court will then decide whether it will hear oral argument in the case.

Louisiana Prisoner Alleges Prosecutor Got Death Verdict By Coercing Witness, Presenting Fabricated Testimony

Michael Wearry, a Louisiana prisoner whose conviction and death sentence were overturned by the U.S Supreme Court in 2016 because prosecutors withheld exculpatory evidence, has filed suit against Livingston Parish District Attorney Scott Perriloux (pictured) and former Sheriff's Deputy Marlon Kearney Foster based upon new evidence that they deliberately fabricated testimony against him. Wearry's complaint charges that the Louisiana officials "knowingly and deliberately fabricated" testimony from a troubled adolescent, Jeffery Ashton and coerced Ashton "to falsely implicate Wearry in the homicide of Eric Walber." The lawsuit says Wearry first learned that Perriloux and Foster had fabricated Ashton's testimony during the course of preparing for Wearry's re-trial, when his defense team located and interviewed Ashton and "Ashton told Wearry’s lawyers about the falsification of his witness accounts." Wearry was convicted and sentenced to death in 2002, although no physical evidence linked him to the murder. His alibi witnesses testified that he was at wedding reception 40 miles away in Baton Rouge at the time of the murder. The U.S. Supreme Court has described the case against Wearry as "a house of cards." The prosecution case relied heavily on the testimony of Sam Scott, a jailhouse informant, whose story changed so dramatically over the course of four different statements that, according to the Supreme Court, by the time of trial "his story bore little resemblance to his original account." Police records that prosecutors withheld from the defense at trial revealed that Scott had may have had a personal vendetta against Wearry, having told another prisoner he wanted to "make sure [Wearry] gets the needle cause he jacked over me." Prosecutors also failed to disclose that they had offered another witness a reduced sentence for an unrelated conviction in exchange for his testimony against Wearry, and then lied to the jury that the witness had "no deal on the table." Wearry's lawsuit concerns allegations of misconduct involving the testimony of Jeffrey Ashton, who was ten years old at the time of the murder and fourteen when he testified at Wearry's trial that he had seen Wearry throw the victim's cologne bottle into a ditch and get into the victim's car. He now says he was attending a festival on the night of the murder and had never seen Wearry before the trial. "Ashton was subject to juvenile court proceedings at the time, and was vulnerable to intimidation by authorities such as Perrilloux and Foster," the lawsuit says. In an affidavit, Ashton says he was "forced" to provide false testimony. "I went along with it because I was just ten years old. I was scared," he said. Jim Craig, Wearry's attorney, called the alleged misconduct "very disturbing," and said, "[t]he abuse of power by District Attorney Perrilloux and Mr. Foster is an outrage that should disturb anyone who believes in justice." He added that he believes the case may have implications for other cases handled by Perriloux, saying, "I think the integrity of this and other cases in that district is at stake and we expect this to be a very hard fought case. We are confident that what we have filed is correct and truthful." District Attorney Perrilloux called the allegations that he coerced testimony from Ashton "ridiculous."

STUDY: Local Mississippi Prosecutors Struck Black Jurors at More than Four Times the Rate of Whites

A new study shows that the Mississippi District Attorney's office that has prosecuted Curtis Flowers for capital murder six times—striking almost all black jurors in each trial—has disproportionately excluded African Americans from jury service for more than a quarter century. Reviewing the exercise of discretionary jury strikes in 225 trials between 1992 and 2017, American Public Media Reports discovered that during the tenure of Mississippi's Fifth Circuit Court District Attorney Doug Evans (pictured) prosecutors have exercised peremptory strikes to exclude African Americans from jury service at nearly 4½ times the rate at which they struck white jurors. APM Reports collected and analyzed data on more than 6,700 jurors called for jury service in the the Fifth District. Its study—which was reviewed before its release by a statistics expert and two law professors who had conducted prior jury-strike studies—found that Fifth District prosecutors struck 50 percent of all eligible black jurors compared to only 11 percent of eligible whites. Looking at potentially race-neutral factors raised during juror questioning, APM Reports found that prosecutors were still far more likley to strike black jurors than similarly situated white jurors (click here to enlarge graph). Controlling for these factors, the study found that the odds prosecutors would strike a black juror were six times greater than the odds that they would strike a white juror. APM Reports prepared the study in connection with its acclaimed podcast series In the Dark, which this season focuses on the Flowers case. Evans' office has been scrutinized for alleged race-related abuses of powers during the course of Flowers' six trials for the murder of four furniture store employees. Flowers has consistently professed his innocence. In his first three trials, Flowers was convicted and sentenced to death by all-white or nearly all-white juries. In each of these cases, the state Supreme Court overturned the convictions and ordered new trials. Just before the second trial, Flowers' parents' house burned down. Shortly afterwards, his mother was told of a threat made by a white resident that, "If they let that n----- go, another house is going to burn." Jurors deadlocked in Flowers' fourth and fifth trials, split along racial lines. All the white jurors voted for death in both of those trials. Only one black juror served on the sixth jury, and Flowers was sentenced to death in that trial. Although it is unconstitutional to exclude jurors from service based on race, the practice is ubiquitous in many jurisdictions that heavily use the death penalty. Over the course of 332 criminal trials in CaddoParish, Louisiana in the decade from 2003-2012, prosecutors struck black jurors at more than triple the rate of other jurors, approximately the same disproportionate rate at which black jurors were struck in 35 cases resulting in death sentences in South Carolina in the fifteen years between 1997-2012. In 173 capital cases tried over a twenty-year period in North Carolina, and in more than 300 capital trials over more than two decades in Philadelphia, Pennsylvania, prosecutors struck black jurors twice as frequently as other jurors. Most recently, in Georgia, Johnny Gates, who was sentenced to death in Columbus, Georgia in 1977, has challenged his conviction with evidence that his prosecutors struck every black juror they could in the seven capital trials they prosecuted between 1976 and 1979, empaneling all-white juries in six of those cases. 

STUDY: Pervasive Rubberstamping by State Courts Undermines Legitimacy of Harris County, Texas Death Sentences

State-court factfinding by judges in Harris County, Texas death-penalty cases is "a sham" that "rubberstamps" the views of county prosecutors, according to a study of the county's capital post-conviction proceedings published in the May 2018 issue of the Houston Law Review. In The Problem of Rubber Stamping in State Capital Habeas Proceedings: A Harris County Case Study, researchers from the University of Texas School of Law Capital Punishment Center examined factfinding orders in 191 Harris County capital post-conviction proceedings in which factual issues were contested, and found that in 96% of the cases, Harris County judges adopted the county prosecutors' proposed findings of fact verbatim. In the vast majority of cases, judges signed the state’s proposed document without even changing the heading. Looking at the 21,275 individual factual findings that county prosecutors had proposed, the researchers discovered that 96% of the judicial findings were word-for-word what prosecutors had written. The study's authors—Capital Punishment Center Director and Judge Robert M. Parker Chair in Law Jordan M. Steiker, Center Co-Director and Clinical Professor James W. Marcus, and Clinical Fellow Thea J. Posel—identified two related state post-conviction practices that they say "undermine the accuracy and fairness of the death penalty" in the nation's most prolific county for executions: "the reluctance of state trial courts to conduct evidentiary hearings to resolve contested factual issues, and the wholesale adoption of proposed state fact-finding instead of independent state court decision-making." State post-conviction applications typically present affidavits from witnesses and experts containing evidence that could have been, but was not, presented at trial. This evidence may "relate[ ] to the accuracy of the conviction, including forensic, alibi, or eyewitness testimony; or the affidavits might highlight important [penalty-phase] mitigating evidence regarding the inmate’s psychiatric or psychological impairments, abused background, or redeeming qualities." The systemic rubberstamping rejects this evidence, often without any evidentiary hearing into contested factual issues. The "inadequate development of facts" caused by this "one-sided consideration of contested factual issues," the researchers say, "prevents Harris County post-conviction courts from enforcing federal constitutional norms." The sham state-court proceedings also lead to unreliable federal habeas corpus review of Harris County death sentences, the researchers said, "[b]ecause even rubberstamped findings receive deference in federal court." When federal habeas relief is denied and an execution occurs, "prosecutors and newspapers recount the many layers of review undertaken" in the case, notwithstanding the underlying reality that "those layers of review afforded no meaningful consideration of the inmate’s constitutional claims." The reality of rubberstamped state-court factfinding and illusory federal appellate review, they say, "undermines the legitimacy of Harris County executions."

Former Louisiana Death-Row Prisoner Released on Plea Agreement, Amid Evidence of Innocence, Misconduct

More than twenty years after being convicted and sentenced to death for a murder he has long said he did not commit, Corey Williams (pictured, center, with his defense team) walked free from prison in Louisiana on May 22, 2018. The deal was bittersweet for Williams, for despite the evidence of innocence, he had to agree to plead guilty to lesser charges of manslaughter and obstruction of justice to obtain his freedom. In a statement released to the media, Amir Ali (pictured, left), Williams' lead counsel in his U.S. Supreme Court proceedings, said: “Imagine your child leaving to hang out with friends, and then losing him or her for twenty years. No one can give Corey back the time that he wrongfully spent behind bars, away from his family and friends. Today, we ensure this tragedy ends here—Corey can finally go home." Williams, who is intellectually disabled, was just sixteen years old when he was arrested for the murder of a pizza deliveryman in Caddo Parish, Louisiana. Police interrogated him overnight, eventually leading him to confess, despite knowing that he was intellectually disabled and therefore more susceptible to confessing falsely. Williams' attorneys said, "His confession was brief, devoid of corroborating details. Having just assumed responsibility for a homicide, Corey told the officers, 'I'm tired. I'm ready to go home and lay down.'" Witnesses reported seeing several older men rob the victim. Fingerprints from one of those men were found on the murder weapon, and the victim's blood was found on the clothing of another man. A third possible suspect, Chris Moore, nicknamed “Rapist,” was the only witness who testified against Williams. Prosecutors withheld recordings of witness interviews that supported Williams' innocence claims. Those recordings showed that police suspected Moore and the two other men were trying to frame Williams. Williams was sentenced to death, but his death sentence was vacated six years later after the U.S. Supreme Court declared the use of the death penalty against people with intellectual disability to be unconstitutional. Hugo Holland, who along with Dale Cox, is responsible for 75% of death sentences imposed in Louisiana from 2010-2015, prosecuted Williams' case. He was later investigated for withholding evidence in a separate case, and had to resign his post due to other misconduct. At the time the plea deal was made, Williams had an appeal pending before the U.S. Supreme Court, seeking review of his case based upon the prosecution's improper withholding of exculpatory evidence. Forty-four former state and federal prosecutors and Department of Justice officials—including former U.S. Attorney General Michael Mukasey—filed a brief in support of Williams' claim, urging the U.S. Supreme Court to grant him a new trial. The plea deal ends the litigation of that case. Ali said, “The District Attorney’s decision not to defend the tragic decisions of his predecessors is commendable. Corey’s release is vindication that he was wrongfully targeted years ago by prosecutors who had no regard for truth or justice.”

NEW PODCAST—Culture of Conviction: Brian Stolarz on How Houston Prosecutors Convicted His Innocent Client

In 2005, Alfred Dewayne Brown (pictured left) was wrongly convicted and sentenced to death for the murder of a Houston, Texas police officer based on false testimony Harris County prosecutors obtained through coercion and threats. After spending a decade on death row for a crime he did not commit, Brown was finally released with the help of his attorney Brian Stolarz (pictured right), who is the guest on DPIC's latest podcast and author of Grace and Justice on Death Row, a book about Brown's case. Stolarz, who represented Brown in post-conviction proceedings, tells the story of his "decade-plus long journey to help out this one man." In the discussion, Stolarz describes how he and his team realized upon investigation that every witness had been "pressured and frightened" by the prosecutor—who used tactics such as threatening to charge witnesses with crimes—in order to secure Brown's conviction. Stolarz calls this Harris County's "culture of conviction." Brown's girlfriend, Erica Dockery, who had initially testified before the grand jury that Brown was at her apartment at the time of the crime, became a critical witness against Brown. As Stolarz explains, Dockery's choice to "abandon the truth," commit perjury, and testify against Brown came only after the prosecutor brought a baseless perjury charge against her for her truthful grand jury testimony and jailed her with a bond so high she couldn't pay it. In what Stolarz describes as "luck," the retired case detective found a box from the case while "spring cleaning his garage," and the box contained phone records that supported Dockery's initial testimony and consequently Brown's alibi. This evidence, along with other witness recantations, helped win Brown's release in June 2015. Although Brown has been free for almost three years, Stolarz explains that his fight for justice is still ongoing, as he seeks compensation for his unjust conviction. Before Brown can be compensated under Texas state law, the District Attorney must sign a formal declaration finding him innocent and prosecutors had opposed such a declaration. The podcast was recorded in April 2018, several weeks after recent revelations that Dan Rizzo, the assistant district attorney who prosecuted Brown, had received an email informing him that the phone records proved Dockery was telling the truth about Brown's alibi before he charged her with perjury and prosecuted Brown for murder based on false testimony. Since the time of podcast recording, the current Harris County District Attorney, Kim Ogg, has appointed a special prosecutor to investigate Brown's innocence. Ogg said the recent discovery of the email showing Rizzo knew years before trial that Brown's alibi checked out "brought clarity to a very hotly contested allegation as to whether or not [suppressing that evidence from the defense] was intentionally done, whether it was done to obtain a guilty verdict at any cost." Ogg said she believed the email "tended to show Brown's innocence, and not just his lack of guilt." 

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