Prosecutorial Misconduct

USS Cole Lawyers Resign From Guantánamo Death-Penalty Defense, Say Government Spied on Client Communications

The U.S. Supreme Court has denied review of a petition filed by lawyers on behalf of Abd al Rahim al Nashiri—accused of orchestrating al-Qaida’s October 12, 2000 suicide bombing of the USS Cole warship off the coast of Yemen—challenging the legality of his death penalty trial before a Guantánamo Bay military commission. But in what has been described as "a stunning setback" to what would have been the first death-penalty trial held before the special military tribunals established in the wake of the 9/11 attacks, the entire civilian legal team has resigned from the case amid allegations that the government was illicitly listening in on their legal meetings. The Miami Herald reported on October 13, just three days before the Supreme Court decision, that the Chief Defense Counsel for the Military Commissions Defense Organization, Brigadier General John Baker (pictured) had “found good cause” to permit Nashiri's defense team to withdraw from the case as a result of ethical concerns created by alleged government spying on privileged attorney-client meetings. In June 2017, Gen. Baker advised war court defense attorneys that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo, saying that he was “not confident that the prohibition on improper monitoring of attorney-client meetings” at the detention center was being followed. Attorney Rick Kammen, who has defended Nashiri since 2008, alleges in the Supreme Court petition that his team discovered classified information contradicting government assurances that the facilities in which they met with Nashiri were not being improperly surveiled. In the past, the spying has included, among other things, "microphones hidden in smoke detectors." Because the information relating to the violation of the right to counsel is classified, the defense lawyers have been ordered by the judge in the case, Air Force Colonel Vance Spath, not to share the information with the public or their client. Although Brig. Gen. Baker has released Kammen from representing Nashiri, the case cannot proceed until another experienced death-penalty defender is brought onboard. Two other civilian defense attorneys who are Pentagon employees—Rosa Eliades and Mary Spears—also quit the case with permission from Baker but remain on his staff. The only member of Nashiri's defense team who remains on the case is Lieutenant Alaric Piette—a former Navy SEAL who has never tried a murder case. “I am certainly not qualified as learned [death-penalty] counsel,” Lt. Piette told the Miami Herald, which he says Nashiri “is entitled to and should have ... since the government is trying to kill him.” Kammen says the defense team is "angry about being placed in an ethically untenable position, disappointed in not being able to see the case through, and devastated to leave Mr. Nashiri, whom we genuinely like and who deserves a real chance for justice.” The pretrial proceedings at the Guantánamo Bay that were scheduled to begin on October 30th are expected to be delayed for months, until learned death-penalty counsel who has received Top Secret security clearance to review the evidence in the case is appointed.

Former Arkansas Death-Row Prisoner Rickey Dale Newman Exonerated After Nearly 17 Years in Prison

An Arkansas trial judge has dismissed all charges against former death-row prisoner, Rickey Dale Newman (pictured), setting him free on October 11 after having spent nearly 17 years in custody following the February 2001 murder of a transient woman in a "hobo park" on the outskirts of Van Buren, Arkansas. Newman became the 160th person since 1973 to be exonerated after having having been wrongly convicted and sentenced to death. Newman, a former Marine with major depression, chronic posttraumatic stress disorder from childhood abuse, and an IQ in the intellectually disabled range, was seriously mentally ill and homeless at the time he was charged with murdering Marie Cholette. He was convicted and sentenced to death in June 2002 after a one-day trial in which the court permitted him to represent himself. No physical evidence linked Newman to the murder, but at trial a prosecution expert falsely testified that hair found on Newman's clothing came from the victim. Newman also told the jury he had committed the murder and asked them to impose the death penalty. He subsequently sought to waive his appeals and be executed. The Arkansas Supreme Court initially held that Newman had been mentally competent and granted his request to drop his appeals. However, four days before his scheduled execution on July 26, 2005, Newman permitted federal public defenders, including his current counsel, Julie Brain, to seek a stay of execution. DNA evidence on the blanket on which the victim was found excluded Newman, and the federal defenders obtained DNA testing of the hair evidence that disproved the prosecution's trial testimony. They also discovered that prosecutors had withheld from the defense evidence from the murder scene that contradicted what Newman had described in his confession. A federal court hearing disclosed that the state mental health doctor had made significant errors in administering and scoring tests he had relied upon for his testimony that Newman had been competent to stand trial. The Arkansas Supreme Court subsequently ordered new hearings on Newman's competency and on the evidence the prosecution had withheld from the defense. After those hearings, it wrote that "the record overwhelmingly illustrates that Newman’s cognitive deficits and mental illnesses interfered with his ability to effectively and rationally assist counsel" and overturned Newman's conviction. In September, it issued another ruling barring the use of Newman's incompetent confessions in any retrial. On October 2, Brain submitted a letter to the court saying that “Mr. Newman has now been incarcerated for over 16 years for a murder that he did not commit” and that the Arkansas Supreme Court had found that the invalid statements he had given while mentally incompetent were "the only meaningful evidence against him." In response, special prosecutor Ron Fields submitted letter to the court asking that charges be dismissed. Fields wrote that, without the confessions, prosecutors lacked sufficient evidence to obtain a conviction and "it would be a waste of tax payers money to retry [Newman]."

Texas Set to Execute Robert Pruett for Prison Murder Despite Corruption and Lack of Physical Evidence

Though no physical evidence links him to the crime, Texas is set to execute Robert Pruett (pictured) on October 12 for the 1999 stabbing death of a state correctional officer who was at the center of a prison corruption investigation. Results of a DNA test of the murder weapon in 2015 found DNA that matched neither Pruett nor the victim, Officer Daniel Nagle. According to Pruett’s pending clemency petition, Officer Nagle was working to identify corrupt correctional officers who had been helping prison gangs launder drug money, and his name was discovered on a secret note from an inmate saying that a prison gang wanted him dead. The unidentified DNA, Pruett’s lawyers suggest, may belong “to the person [who] killed Nagle” and that Pruett was framed for the murder. Earlier on the day he was killed, Officer Nagle had given Pruett a disciplinary write-up for eating a sandwich in an unauthorized area. A bloody shank and a torn-up copy of the disciplinary report were found next to the officer’s body. The prosecution's case turned on dubious testimony from prison informants and the testimony of a forensic analyst that linked the tape wrapped around the handle of the shank used to kill Nagle to the prison craft shop in which Pruett’s cellmate worked. The forensic testimony has since been debunked and, according to the clemency petition, a state investigator’s notes disclosed that a key prison witness—Harold Mitchell—had been promised a transfer to a prison close to his family’s home in Virginia if he testified against Pruett and threatened with being charged with Nagle’s murder if he did not. This is the sixth time Pruett has faced an execution warrant. In April 2015, he received a stay of execution to permit DNA testing and the Texas Court of Criminal Appeals granted a stay in August 2016 so the state courts could have more time to review Pruett's new claims relating to the DNA evidence. However, in April 2017, the Texas appeals court ruled that the DNA test results would not have changed the outcome of his trial. The U.S Supreme Court declined to review Pruett’s case on October 2, permitting the execution to proceed. Texas Gov. Greg Abbott, who has presided over 25 executions since taking office in January 2015, has yet to commute any death sentence.

John Thompson, Death-Row Exoneree and Social Justice Activist, Has Died

Death-row exoneree John Thompson (pictured), described by Innocence Project New Orleans director Emily Maw, as "an amazing force in the world" and a "national legend," died October 3 at a New Orleans-area hospital after suffering a heart attack. Exonerated in 2003, he had survived a corrupt Orleans Parish prosecution, seven death warrants, and an imminent execution by the state of Louisiana for a murder he did not commit. Following his release, Thompson became a national advocate for criminal justice reform and founded Resurrection After Exoneration, a re-entry and support program for released prisoners. Thompson's odyssey towards exoneration began when he was wrongly charged with, and wrongly convicted of, two crimes that took place a few months apart in 1984—a carjacking and the unrelated murder of New Orleans hotel executive Ray Liuzza, Jr. He was wrongly sentenced to death for Liuzza's murder. Just 30 days from an execution date, an investigator in his case discovered a report about exculpatory blood evidence on the carjacking victim's clothes that the state had never revealed. The blood did not belong to Thompson and both the carjacking and murder cases against him soon unraveled.  A former prosecutor revealed that one of the prosecutors who tried Thompson, Gerry Deegan, had confessed on his death bed in 1994 that he intentionally hid the blood evidence. Thompson won a new trial and was acquitted and released in 2003. He had spent 18 years in prison (14 years on death row), and lost his grandmother and father during that time. Thompson was prosecuted by the Orleans Parish Assistant District Attorney's office during the administration of District Attorney Harry Connick, Sr. His lead prosecutor, James Williams—who had a replica electric chair on his desk and framed photographs of the men he had sent to death row on his office wall—told a reporter in 2007, “There was no thrill for me unless there was a chance for the death penalty.” 11 of the 36 men sentenced to death during Connick’s tenure had their convictions overturned as a result of prosecutorial misconduct, and four—including two wrongly prosecuted by Williams—were exonerated. Thompson later won a federal jury verdict for $14 million in 2007 after suing the District Attorney's Office for prosecutorial misconduct, but the U.S. Supreme Court, in a controversial 5-4 decision written by Justice Clarence Thomas, reversed the verdict, ruling that the prosecutors had immunity from liability. In a 2011 op-ed in the New York Times, The Prosecution Rests, but I Can't, Thompson wrote that more than money, justice was at stake. "I don't care about the money," he said. "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."

Court Finds Prosecutorial Misconduct, but Allows Colorado Death Sentence to Stand

An Arapahoe County judge has denied the appeal of Colorado death-row prisoner Sir Mario Owens (pictured), despite finding that prosecutors withheld evidence and failed to disclose money, gifts, and favors they provided informants in exchange for their testimony. In a 1,343-page Order and Opinion issued on September 14, Senior Judge Christopher Munch found that county prosecutors had presented false evidence from two of their most critical witnesses and unconstitutionally withheld more than 20 separate pieces of evidence that could have helped the defense challenge the testimony of seven prosecution witnesses, but said a defendant "must establish more than helpfulness to sustain a claim of constitutional error." The ruling followed the controversial removal from the case of Senior Judge Gerald Rafferty, as the judge was preparing his decision after having presided over the case for more than a decade. Rafferty had ordered the prosecution to produce hundreds of pages of records and granted 37 weeks of hearings on what he had characterized as prosecutors’ “deliberate choice” to withhold evidence from the defense. Owens was sentenced to death in June 2008 for the 2005 shooting death of Javad Marshall-Fields (the son of a Colarado state representative) and Fields's fiancé, Vivian Wolfe. A co-defendant, Robert Ray, was separately tried and sentenced to death. The case against Owens was largely circumstantial. As described by news reports in The Colorado Independent, there was "no definitive physical evidence, no confession, and no eyewitnesses who identified Owens in a case prosecutors built almost entirely on the testimony of informant witnesses to whom the DA’s office gave plea bargains, funds, or both in return for their cooperation against Owens."  Owens alleged that the prosecution had withheld evidence from the defense that they had secured the testimony of cooperating informants by making thousands of dollars of cash payments and providing undisclosed favors in unrelated criminal cases. The Denver Post reported that one witness had been "promised and later given a district attorney’s office car" and another "received $3,400 in benefits, including cash for Christmas presents in the months prior to testifying on behalf of the prosecution." The Colorado Independent's review of court records reported that "one of the main witnesses [had been] threatened with being charged for the murders Owens was accused of and with receiving two life sentences" if he didn’t cooperate. Another witness had been granted an undisclosed suspended jail sentence conditioned upon cooperating with prosecutors in Owens’s case. "People working for the prosecution would appear at informant witnesses’ court hearings and ask for lesser sentences on the condition that they testify against Owens," the paper wrote, and "informants who had been convicted of crimes were allowed to violate probation and commit future crimes without consequences as long as they cooperated." Owens's appeal has attracted attention because it was the first in Colorado's "unitary review" process that had been billed as speeding up capital appeals. Instead, it has substantially increased the length of appeals. It also raised questions of transparency because of the extraordinary levels of secrecy throughout the proceedings. Court files were sealed and a gag order prevented the parties from speaking about the case for seven years, until the order was lifted in 2013. Numerous case exhibits remain under seal. Owens's lawyers issued a written statement saying “We disagree with the court’s conclusion that none of this matters and can be tolerated in Colorado in any case, never mind a capital one. This is a sad day for ... the Colorado criminal justice system.”

Capitally Charged, Alabama Man Imprisoned 10 Years Without Trial

In a racially charged case raising questions of prosecutorial overcharging, inadequate representation, and questionable jury practices, Kharon Davis (pictured), an African-American man charged with capital murder in Dothan, Alabama, has been imprisoned for 10 years without trial. Davis—who has consistently maintained his innocence and whose prior offense was driving without a license—was 22 years old when he and two others were arrested for the shooting death of a man from whom they were purchasing marijuana. After refusing a plea deal, Davis’s case has gone through two judges, three prosecutors, four sets of defense lawyers, and nine scheduled trial dates, and he has been placed in segregation in the county jail for minor infractions, faced restrictions on his ability to review legal documents, and been denied visits by his mother. A New York Times report described the pre-trial delays as “among the most protracted” the paper could find, and George Washington University law professor and constitutional consultant Jonathan Turley said “It is impossible to look at [the case] and not find it deeply, deeply troubling.” Houston County’s District Attorney Doug Valeska’s decision to seek the death penalty reignited questions of the county’s overuse of the death penalty. Despite a population of only 103,000, its 17-person death row makes Houston County one of the most prolific death-sentencing counties in the country. The county’s prosecutorial and law enforcement practices have also come under scrutiny: a number of capital cases have been overturned for racially biased jury selection, presenting improper evidence, and improper comments to juries. In 2015, Valeska also was accused of covering up evidence that a group of Dothan police officers with ties to white supremacist groups had been planting drugs on young black men. Davis’s case has been rife with questionable activity. His first lawyer, Benjamin Meredith, was the father of one of the investigating officers in the case and cross-examined his son in the preliminary hearing. That conflict was not disclosed for four years, after a new judge was appointed in the case, when Valeska brought it to the attention of the court. In those four years, Meredith had filed only two motions on Davis’s behalf. In that same time, Davis’s co-defendant, Lorenzo Staley, who told police where to find the gun used in the murder, went to trial in 2009 and was acquitted. A second co-defendant, Kevin McCloud—a childhood friend of Davis’s who had no criminal record—had pled guilty and agreed to testify against Davis to avoid the death penalty, although McCloud later said in a letter that Valeska had asked him to “get on the stand and lie” about Davis’s involvement in the case. The case was further delayed when, looking through the court record of Staley’s trial, new defense counsel discovered a gunshot residue kit that prosecutors had failed to disclose. A new district attorney who had once represented one of the co-defendants was elected in February 2017, requiring the case to be transferred to the attorney general’s office. At that point, the prosecution dropped the death penalty from the case. Finally, on September 19, the trial was again held up amid allegations that some members of the newly empaneled jury of 11 whites and one black may have had improper contact with people connected to the case.

STUDY: Worst Crimes Carry Highest Risk of Bad Evidence, Wrongful Convictions

Two professors of sociology and criminology who reviewed more than 1500 cases in which convicted prisoners were later exonerated have found a direct relationship between the seriousness of the crime and miscarriages of justice: "the 'worst of the worst crimes,'” they say, "produce the 'worst of the worst evidence.'" In their research—reported in the law review article, The Worst of the Worst: Heinous Crimes and Erroneous Evidence—University of Denver professors Scott Phillips (pictured) and Jamie Richardson found that "as the seriousness of a crime increases, so too does the chance of a wrongful conviction." Prosecutions for the most serious crimes tend to involve the most inaccurate and unreliable evidence, they said, and the risks are greatest in cases producing murder convictions and death sentences. "The types of vile crimes in which the state is most apt to seek the death penalty are the same crimes in which the state is most apt to participate in the production of erroneous evidence..., from false confession to untruthful snitches, government misconduct, and bad science." Delving into the phenomenon of false confessions, the professors found that "[a]s the seriousness of a particular crime increases, or the seriousness of the general crime problem increases, police interrogation becomes more aggressive. In turn, aggressive interrogation produces more true confessions and more false confessions." They say police officers are under institutional pressures to solve high-profile cases and the "most heinous" and serious crimes, which leads them to use more aggressive tactics to obtain a confession. Phillips and Richardson divided cases with false confessions into two categories: general-population exonerees convicted in murder and other cases; and the cases of death-row exonerees, examined by the level of heinousness of the murder. According to the National Registry of Exonerations, 234 of those 1535 exonerated from 1989 through 2014 falsely confessed, 22 of whom were sentenced to death. The sociologists found that 21% of those convicted of murder falsely confessed, as compared with only 7% of those convicted of less serious crimes. In exoneration cases in which DNA evidence bolstered claims of innocence, 41% of those wrongly convicted of murder had confessed, a false confessions rate that was seven times higher than those convicted of crimes other than murder. As for death-row exonerees, 39% of people who were convicted of the most heinous murders confessed, five times the false confession rate (7%) of those who convicted of murders the researchers had determined were less heinous. Phillips and Richardson also found that the heinousness of the murder predicts "the government's reliance on an untruthful snitch, government misconduct, and bad science." Of the death-row exonerations, the state committed misconduct in 86% percent of high-heinous murders, compared to 66% percent of low-heinous murders; the state used prison informant testimony implicating the wrong suspect in 42% of high-heinous murders, as compared to 15% of low-heinous murders; and bad science was presented in 39% of high heinous murders, compared to 23% of low heinous murders. 

Divided Pennsylvania Court Upholds New Sentencing Hearing in Judicial Bias Case Overturned by U.S. Supreme Court

In a case that led to a landmark U.S. Supreme Court decision on judicial bias, a divided Pennsylvania Supreme Court on August 22 upheld a lower court's order overturning the death penalty imposed on Terrance Williams (pictured) for the murder of a Philadelphia church deacon. The court split 2-2 on the outcome of a new appeal that had been ordered by the U.S. Supreme Court after former Philadelphia District Attorney Ronald Castille—who had personally authorized seeking the death penalty against Williams—participated as a state supreme court justice in deciding a 2014 appeal that reinstated the death penalty against Williams. Under court rules, the tie vote left in place a 2012 decision by a Philadelphia trial court judge that had granted Williams a new penalty hearing. Three other justices who had participated with former Justice Castille in deciding the 2014 appeal recused themselves from the new appeal. In 1984, Williams—then barely 18 years old—killed Amos Norwood, who Williams alleges had been sexually abusing him for years. The teen never met his defense lawyer until shortly before the trial and did not confide in him that he had been sexually abused. Instead, Williams testified that he was innocent and had never met Norwood. With Williams facing an execution warrant in 2012, the state's lead witness, Marc Draper—a childhood friend of Williams and a co-defendant in the case—came forward and admitted that prosecutors had instructed him to be silent about the sexual abuse and to testify that the murder had been part of a robbery. Williams filed a petition for clemency that drew support from Norwood’s widow, five of the jurors in the case, and advocates against child abuse. Three of the five members of the Pardons Board—including the state attorney general—voted in favor of clemency, but Pennsylvania law requires a unanimous vote before the governor has authority to commute a death sentence. Days before the scheduled execution, Philadelphia Common Pleas Court Judge M. Teresa Sarmina ordered the prosecution to turn over its files to her to determine whether they contained any evidence that should have been disclosed to the defense. The files contained evidence that prosecutors had presented false testimony from Draper; withheld evidence that it had given him favorable treatment for his testimony; suppressed evidence that Norwood had sexually abused Williams and other boys; and misrepresented to the jury that Norwood had been simply a "kind man" and "innocent" good Samaritan who had been murdered after offering Williams a ride home. Judge Sarmina upheld Williams' conviction, but ruled that the combination of the government's suppression of exculpatory evidence and deliberate false argument to the jury denied Williams a fair sentencing decision. Williams was facing a new execution date when Governor Tom Wolf issued a reprieve and imposed a moratorium on executions in February 2015. The Philadelphia District Attorney's office challenged the governor's use of the reprieve power, but the Pennsylvania Supreme Court unanimously ruled in Williams's favor in December 2015.  Shortly thereafter, the U.S. Supreme Court agreed to hear Williams's judicial bias claim. The case now returns to Judge Sarmina for resentencing proceedings. Williams’s lawyer, Shawn Nolan, who heads the Philadelphia federal defender's capital habeas unit, thanked the court for its decision and urged the Philadelphia District Attorney’s Office to drop the death penalty in the case. “[T]hey should never have sought death against a teenager who killed his sexual abuser,” Nolan said.

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