Prosecutorial Misconduct

OUTLIER COUNTIES: Miami-Dade Death Sentences Reflect Constitutional Defects, Misconduct

Miami-Dade County has historically been a significant contributor to Florida's death row and large proportions of its recent death sentences raise serious constitutional questions about the practices that result in death verdicts and the characteristics of the defendants who are sentenced to death. Miami-Dade imposed five death sentences between 2010 and 2015, placing it among the 16 counties that produced more death sentences than 99.5% of all U.S. counties. The questionable reliability of the Miami-Dade death penalty cases is illustrated by the characteristics of the seven cases that came before the Florida Supreme Court on direct appeal from 2006-2015. Six of those cases (86%) involved a non-unanimous jury recommendation for death, a practice the Florida Supreme Court struck down as unconstitutional in October 2016. Miami-Dade had the second highest rate of prosecutorial misconduct among the 16 most prolific death-sentencing counties and nearly a third (29%) of the cases decided on direct appeal since 2006 involved misconduct. In reversing one of the cases for misconduct, the court said the prosecutor “appeared to be committed to winning a death recommendation rather than simply seeking justice.” In another, the court overturned the death sentence as a result of the prosecutor's "inflammatory, egregious, and legally improper closing argument.” One former Assistant State Attorney, who was credited with sending more people to death row than any other Florida prosecutor, spoke disparagingly of the role of mitigating evidence in capital cases, saying, “Of course I feel bad that society has created a monster, but should the bad background in the past disable us from imposing an appropriate punishment now?” And the defendants judges sentenced to death in four of the cases had presented significant mitigating evidence that made them nearly indistinguishable from those who are exempt from capital punishment as a result of their age or mental health status. Yet such a full presentation of mitigating evidence was atypical in the cases that resulted in death verdicts. The lawyers in those cases presented an average of one day of mitigating evidence. The new death sentences also reflect the role of race. All five of the defendants sentenced to death in Miami-Dade from 2010-2015 were Black or Latino, and a study of sentencing rates in Florida found that defendants are 6.5 times more likely to be executed if the victim is a White female than if the victim is a Black male.

Circuit Court Overturns South Carolina Death Sentence for Prosecutor's Racially Inflammatory Argument

The U.S. Court of Appeals for the Fourth Circuit has upheld a federal district court's decision ordering a new sentencing hearing for Johnny Bennett, a black man who was sentenced to death by an all-white South Carolina jury in a trial tainted by a prosecutor's racially-inflammatory cross-examination and argument. Bennett was prosecuted by Donald Myers (pictured), known as “Death Penalty Donnie” for having sent 28 South Carolina defendants to death row. In response to defense argument at Bennett's sentencing proceedings in 2000 that Bennett would not pose a future danger to society if incarcerated for life, Myers repeatedly invoked violent animal references, calling Bennett "King Kong on a bad day," a “caveman,” a “mountain man,” a “monster,” a “big old tiger,” and “[t]he beast of burden.” Earlier in the trial, Meyers had elicited irrelevant testimony that a white witness whom Bennett had assaulted when he was a juvenile had dreamt of "being chased by black savages." The prosecuter also gratuitously asked a witness about sexual relations Bennett had had with a "blonde-headed" prison guard. A juror later described Bennett as "just a dumb ni**er." The South Carolina Supreme Court upheld Bennett's sentence, saying that the "King Kong" comment was “not suggestive of a giant black gorilla who abducts a white woman, but rather, descriptive of [Bennett’s] size and strength as they related to his past crimes.” It ruled that the jurors comments did not show that he was “racially biased at the time of the ... trial.” In March 2016, a federal district court overturned Bennett's sentence, saying that Myers had "made multiple statements clearly calculated to excite the jury with racial imagery and stereotypes." The District Court judge called Myers' arguments "a not so subtle dog whistle on race that this court cannot and will not ignore." Judge J. Harvie Wilkinson, writing the Fourth Circuit opinion called Myers' comments "unmistakably calculated to inflame racial fears and apprehensions on the part of the jury." He wrote, "It is impossible to divorce the prosecutor’s 'King Kong' remark, 'caveman' label, and other descriptions of a black capital defendant from their odious historical context. And in context, the prosecutor’s comments mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution." John Blume, who represented Bennett in the Fourth Circuit argument, said it was "antithetical to the criminal justice system for a prosecutor to pander to an all-white jury's racial fears and implicit biases."

Louisiana Supreme Court Orders New Trial for Rodricus Crawford in Controversial Caddo Parish Death Penalty Case

The Louisiana Supreme Court has overturned the conviction of Rodricus Crawford (pictured) and ordered that he be given a new trial in a controversial death penalty case that attracted national attention amid evidence of race discrimination, prosecutorial excess, and actual innocence. Crawford was convicted of murdering his young son based upon the testimony of a local doctor who claimed the boy had been suffocated, although autopsy results showed pervasive bronchopneumonia in the boy's lungs and sepsis in his blood, indicating that he may have died of pneumonia. After the trial, Crawford's lawyers presented additional evidence from experts in the fields of pediatric pathology, pediatric neuropathology, and pediatric infectious disease that the child died of natural causes from pneumonia and sepsis. The court did not overturn the conviction on those grounds, however, ruling that the local doctor's testimony had provided a sufficient evidentiary basis from which jurors could have convicted Crawford. Instead, it ruled that prosecutor Dale Cox -- who gained notoriety for telling the Shreveport Times that Louisiana needs to "kill more people" with the death penalty -- had violated the constitutional prohibition against striking jurors on the basis of race when he exercised peremptory challenges to exclude five African Americans from serving on the jury. A 2015 study of jury selection in 332 criminal trials in Caddo Parish between January 2003 and December 2012 by the human rights organization Reprieve Australia showed that, historically, Caddo prosecutors were three times as likely to strike an African-American from jury service than a prospective white juror. Crawford's lawyer, Cecelia Kappel, praised the Court's decision, saying “I am so thankful that they did the right thing in this case. It was a terrible tragedy since Day 1, and his conviction was a total injustice and the court really stepped up and fixed it, and I am looking forward to continuing to work with the DA’s office in order to reach a just outcome.” James E. Stewart, who was elected as the parish’s first black district attorney in 2015, said he would reassign the case to a new assistant district attorney for "re-evaluation ... to make a determination of a proper course of action to proceed forward in this matter.” Caddo Parish is one of the 2% of counties that is responsible for 56% of all death row inmates in the U.S. and was the subject of a recent report by Harvard University's Fair Punishment Project on outlier death penalty practices. Cox -- who in 2014 wrote a memo saying that Crawford "deserves as much physical suffering as it is humanly possible to endure before he dies" and told the the jury that Jesus Christ would have imposed the death penalty in this case -- along with one other Caddo Parish prosecutor, was responsible for 3/4 of all death sentences imposed in Louisiana over a recent five-year period.

OUTLIER COUNTIES: San Bernardino, California Shares Problematic Patterns of Neighboring Counties

San Bernardino County, California is one of five Southern California counties that have produced more death sentences since 2010 than 99.5% of all U.S. counties. Along with its neighbors, Kern County, Riverside County, Orange County, and Los Angeles County, San Bernardino forms a "new Death Belt," a region with high numbers of death sentences marked by overzealous prosecutors and poor representation for defendants facing a death sentence. In January 2013, San Bernardino had 37 prisoners on death row, making it the 11th largest death row in the country. It has a death sentencing rate 40% higher than the California average. According to the Fair Punishment Project, "A review of direct appeals from the past decade reveals that the San Bernardino County District Attorney’s office has continuously sought the death penalty for very young adults, individuals with mental illness, and an individual who was convicted of capital murder even though he was not the triggerman." District Attorney Mike Ramos has said that minimum competency requirements for capital appeals attorneys are "ridiculous" and "a delay tactic," but history shows that inadequate counsel has been a serious problem in San Bernardino for decades. S. Donald Ames, who has represented four men sentenced to death in San Bernardino, told the jury in one trial that, "execution would help" defendant Melvin Wade. At the trial of Richard Gamache, who was 18 at the time of the crime for which he was being tried, Ames said, "[If] you intend to kill somebody, what the hell difference does it make how young you are?" The United States Court of Appeals for the Ninth Circuit described his representation of Demetrie Mayfield as "deplorable," unanimously overturning Mayfield's 1983 death sentence when Ames had billed only 40 hours in preparation for both the guilt and penalty phases of trial and had his first and only substantive meeting with Mayfield the morning the trial began. Another court-appointed lawyer, Michael Belter, who has had at least 15 clients sent to death row across four Southern California counties, presented less than 2 days of mitigating evidence at the trial of Rickie Lee Fowler, who was convicted of starting a brush fire that resulted in 5 deaths. Abundant mitigation evidence was available for Fowler, who had been sexually molested by a neighbor, physically abused and neglected as a child, and introduced to methamphetamines by his father when he was only 8 years old. Statistics from San Bernardino capital cases also exhibit strong race-of-victim bias. About 82% of victims in the county's 14 capital cases decided on appeal between 2006 and 2015 were White, as compared to murder statistics showing that only 13% of the county's homicide victims in 2013 were White. (Click image to enlarge.)

OUTLIER COUNTIES: Former Death Penalty Capital Shows Signs of Change

Harris County, Texas, the county that leads the nation in executions, has served as a bellwether in recent years of the nationwide decline of the death penalty. Although the 10 new death sentences imposed in Harris County since 2010 are more than were imposed in 99.5% of U.S. counties, they are significantly fewer than the 53 new death sentences that were handed down in Harris in 1998-2003 and the 16 from 2004-2009. The 2016 Kinder Institute survey of Houston residents showed that just 27% prefer the death penalty over life sentences for those convicted of first-degree murder. Though the number of death sentences has dropped, systemic problems of prosecutorial misconduct, inadequate representation, and racial bias persist. Kelly Siegler, a prosecutor who obtained 19 death sentences, was found by a Texas court to have committed 36 instances of misconduct in a single murder case. In another case, she brought the victim's bloodstained bed into the courtroom and reenacted the murder using one of the knives from the crime scene. Harris County became nationally known in the 1990s for bad defense lawyering when a capital defense attorney slept through his client's trial. A judge told the defendant, "the Constitution does not say that the lawyer has to be awake." Today, Harris County defendants still receive ineffective counsel because of a pay system that discourages defense lawyers from seeking plea bargains or hiring expert witnesses. Every new death sentence imposed in Harris County since November 2004 (not including resentences) has been imposed upon a Black or Latino defendant. Former Harris County District Attorney Chuck Rosenthal, who oversaw 40 death sentences between 2001 and 2008, resigned after a civil suit uncovered racist emails he sent using his official email account. The U.S. Supreme Court is currently deciding Buck v. Davis, a Harris County case in which a Black defendant was sentenced to death after his defense attorney introduced racially-biased testimony during sentencing. Three Harris County defendants have been exonerated from death row, most recently Alfred Brown (pictured) in 2015. Prosecutors withheld evidence that corroborated Brown's alibi, Brown's girlfriend was threatened and eventually imprisoned until she agreed to testify against him, and officials refused requests to test DNA that may implicate another suspect.

OUTLIER COUNTIES: Kern County, California Leads Nation in Police Killings, Ranks Among Highest in Death Sentences

Kern County, California—one of five Southern California counties that have been described as the "new Death Belt"—sent six people to death row between 2006 and 2015, more than 99.4% of U.S. counties. Its death sentence-to-homicide rate during the 10-year-period from 2006 to 2015 also was 2.3 times higher than in the rest of the state. In this same time frame, Kern had the highest rate of civilians killed by police of any county in the country:  between 2005 and 2015, police killed 79 people in Kern County, a rate of 0.9 killings per year per 100,000 residents. In The Washington Post, Radley Balko explained the policy link between high rates of police killings and high use of the death penalty, noting that District Attorneys set the tone for law enforcement in their counties and are usually in charge of investigating excessive use of force by police. "It isn’t difficult to see how when a DA takes a 'win at all costs' approach to fighting crime, that philosophy would permeate an entire county’s law enforcement apparatus, from the beat cop to the DA herself or himself," Balko said. In Kern County, police killings and high numbers of death sentences are part of a larger narrative of official misconduct. Ed Jagels, the longtime District Attorney in Kern County, led the campaign to oust Chief Justice Rose Bird and two other Justices from the California Supreme Court over their votes in death penalty cases. He boasted about Kern leading the state of California in incarceration rate. A largely-fabricated sex abuse scandal led to 26 exonerations. Prosecutors have been found to have altered interrogation transcripts and hidden unfavorable blood test results. According to Harvard University's Fair Punishment Project, current District Attorney Lisa Green "promised to continue to be an example of aggressive prosecution" when she took over in 2010. Saying that for some capital defendants "Justice ... is nothing less than death," she advocated for a state referendum limiting death penalty appeals. Ineffective defense lawyering has also contributed to Kern's high death sentencing rate. In one particularly egregious case, a defense attorney emailed his co-counsel before the sentencing phase of a capital trial, saying, “I don’t know what a penalty trial really looks like—it’s starting to concern me.” Though half of Kern's defendants sentenced to death from 2010-2015 had intellectual disability, brain damage, or mental illness, defense lawyers presented an average of less than 3 days' worth of evidence to spare the defendant's life. In numerous cases, lawyers presented a day or less of mitigating evidence.

OUTLIER COUNTIES: Riverside County, "The Buckle of a New Death Belt"

Riverside County, California imposed more death sentences than any other county in the United States in 2015, accounting for more than half of the state's new death sentences and 16% of new death sentences imposed nationwide. Among other states, only the 9 death sentences imposed in Florida outstripped Riverside's total of 8. The 29 death sentences from 2010-2015 made it the nation's second most profilic death sentencing county during that period, behind only the country's most populous death penalty county, Los Angeles, which has five times as many homicides. While California imposed more death sentences than any other state during that period, Riverside stood out even among California counties, imposing death sentences at a rate that was 9 times greater per homicide than the rest of the state. A 2015 piece by Professor Robert J. Smith of the University of North Carolina at Chapel Hill called Riverside County, "the buckle of a new Death Belt," because it, along with four other southern California counties, had replaced the Deep South in overproducing death sentences. Those five counties, which also include Kern, Orange, Los Angeles, and San Bernadino, have received national attention for misconduct by prosecutors and other public officials. In 2011, a federal magistrate judge characterized the conduct of the Riverside County District Attorney's office as, “turn[ing] a blind eye to fundamental principles of justice,” in a murder case. As with many of the counties that produce disproportionately large numbers of death sentences, the county faces other serious criminal justice problems. The office has been the subject of an investigation into allegedly illegal wiretapping practices, after former DA Paul Zellerbach oversaw what The Desert Sun newspaper described as "an astronomical rise in wiretaps" that was "so vast it once accounted for nearly a fifth of all U.S. wiretaps," including triple the number of wiretaps issued by any other state or federal jurisdiction in 2014. Riverside police ranked 9th in the nation in killings of civilians. The death sentences imposed in the county also exhibit significant racial disparities. 76% of those sentenced to death in Riverside between 2010 and 2015 were defendants of color. Defendants in Riverside County often receive inadequate defense because of a pay structure for court-appointed attorneys that financially penalizes plea bargains and robust investigation of mitigating evidence. In two-thirds of Riverside County cases that were reviewed on direct appeal between 2006 and 2015, defense counsel presented less than two days of mitigation. Among that same group of cases, 55% involved a defendant who was under 21 years old at the time of the offense or had an intellectual impairment, brain damage, or severe mental illness. 7 of the 8 defendants sent to death row in 2015 were represented by appointed private counsel. Only one was represented by the public defender's office. (Click image to enlarge.)

Orange County, California Crime Lab Accused of Doctoring Murder Testimony to Help Prosecutors

The Orange County, California Crime Lab has been accused of doctoring its testimony about DNA evidence to favor the prosecution, after a senior forensic analyst offered conflicting conclusions that bolstered the prosecution in two separate murder cases. A motion filed on September 23 by the Orange County Public Defender's office says prosecutor Kevin Haskins (now a judge) presented testimony from Senior Forensic Scientist Mary Hong in the 2008 capital murder prosecution of Lynn Dean Johnson claiming that the recovery of low quantities of semen from the victim's body meant that the DNA had been deposited "zero to 24 hours" before it was collected by police. The motion says Hong subsequently testified in the murder trial of Wendell Patrick Lemond in 2009, in response to questioning by deputy district attorney Howard Gundy, that low quantities of semen meant that intercourse had occurred at least 24 hours before collection. The testimony in Johnson's case was critical in persuading the jury that the victim—who had multiple partners in the weeks before her death—had sexual contact with Johnson near the time of the murder. In Lemond's case, however, the changed testimony persuaded jurors that an alternate suspect who had been identified as the source of the semen could not have had sex with the victim around the time of the murder. The murders occurred in 1985, but the trials took place two decades later after Hong reopened forensic probes into the cases. Hong's testimony in Johnson contradicted the conclusions reached by criminalist Daniel Gammie when he prepared the original reports in ther cases in 1985. At that time, Gammie indicated in both cases that the sperm had been deposited at least 24 hours before collection. At Johnson's trial, Gammie changed his stance to fit the prosecution's theory and testified that now he would "be very cautious making a statement" like the one in his 1985 report. Having recanted his 1985 conclusions in Johnson's case, prosecutors could not risk presenting him as a witness in Lemond's case. Instead, Gundy presented Hong, but did not tell the jury about her contradictory testimony in the Johnson trial. Sanders' court filing argued that Gammie and Hong's testimony had been tailored to “fit perfectly for the prosecution" in Johnson’s case and that Hong's testimony in Lemond's case was "wholly irreconcilable with the testimony in Johnson. ...She clearly had studied Gammie’s report and analysis and knew that Gammie’s testimony in Johnson and her own—in the hands of defense counsel—would have eviscerated her credibility in Lemond and all of the other cases she has touched throughout the course of her career." The revelation comes amid a widespread prosecutorial misconduct scandal in Orange County, in which a special committee recently cited a "failure of leadership" and "win-at-all-costs mentality" as factors that led to the misuse of jailhouse informants, withholding of evidence, and other misconduct. 

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