Prosecutorial Misconduct

INNOCENCE: Alfred Dewayne Brown is Released from Texas Death Row; Nation's 154th Death-Row Exoneration

Harris County, Texas prosecutors announced on June 8 that they have dismissed charges against Alfred Dewayne Brown, who had been sentenced to death in 2005 for the murders of a Houston police officer and a store clerk during a robbery. The Texas Court of Criminal Appeals had overturned Brown's conviction last year because prosecutors withheld a phone record that supported Brown's alibi. Prosecutors in 2013 said that the phone record had been inadvertently misplaced. Brown had long maintained that he had been alone at his girlfriend's apartment at the time of the murder, and that he had called her after seeing reports of the shooting on television. Defense lawyers argued that the time of the phone call established that Brown could not have been at the store when the murder occurred. There was no physical evidence against Brown, and a series of Pulitzer prize-winning columns by Houston Chronicle writer Lisa Falkenberg disclosed irregularities in the grand jury process, that Brown's girlfriend had faced intimidating questioning and threats of perjury by a police officer who was the grand jury foreman, and that she had been jailed for seven weeks until she changed her testimony to implicate Brown. She has since recanted that testimony. District Attorney Devon Anderson said, "After very careful consideration, I have decided that at this time, there is insufficient evidence to corroborate the testimony of Brown's co-defendant. Accordingly, we dismissed Alfred Brown's capital murder case earlier today. It is the right thing to do." Since 2007, Brown's attorneys have compiled strong evidence that the murder was committed by another man with a history of robbery and connections to the co-defendants in the crime. Despite a 2008 motion to test the alternate suspect's DNA, such a test has not been carried out. Alfred Brown is the 154th person exonerated from death row since 1973, the 13th in Texas, and the fourth in 2015.

Orange County Prosecutors Banned from Death Penalty Case for Systemic Pattern of Misconduct

California Superior Court Judge Thomas Goethals (pictured) disqualified the entire Orange County District Attorney's Office from prosecuting a death penalty case after finding that prosecutors had engaged in a systemic pattern of police and prosecutorial misconduct involving the deliberate, but undisclosed, use of prison informants to obtain incriminating statements from defendants. None of the 250 prosecutors in the office are now permitted to participate in the case. Attorneys for the defendant, Scott Dekraai, say that after he had invoked his right to counsel, he was deliberately placed near a repeat jailhouse informant who had been given instructions to try to elicit a confession from him. Such a practice is unconstitutional because the informant in a cellmate interaction orchestrated by prosecutors or police is in effect an agent of the police, and the interaction is too much like an interrogation. Defense attorneys also discovered that the Orange County Sheriff's Department had maintained a secret record-keeping system for more than 25 years that detailed its systemic surreptitious use of prison informants. That system contained potentially exculpatory information, but officials denied its existence and refused to turn over records to defense counsel, in violation of the law. California Attorney General Kamala Harris has appealed Judge Geothals' ruling, but said her office will investigate the allegations.

Federal Court Overturns Ohio Shaken-Baby Conviction and Death Sentence Based on Withheld Evidence

A federal district court has overturned the conviction of Genesis Hill (pictured), who was sentenced to death in Ohio in 1991 for the death of his six-month-old daughter, Domika, based upon a questionable shaken-baby diagnosis. On April 24, 2019, Chief Judge Edmund A. Sargus, Jr. of the U.S. District Court for the Southern District of Ohio found that Ohio prosecutors had unconstitutionally withheld exculpatory evidence that called into question the credibility of a key witness and the testimony of the state’s forensic expert at trial. That evidence and several new affidavits produced by the defense, Chief Judge Sargus said, demonstrate that Domika’s death was most likely accidental and that no reasonable juror exposed to all the evidence would have found Hill guilty.

Hill was convicted of capital murder based on forensic testimony that he had shaken his infant daughter, causing a head injury that killed her. Crucial testimony came from Teresa Dudley, Domika’s mother, and from Dr. Amy Martin, a deputy coroner and forensic pathologist who performed Domika’s autopsy. On appeal, Hill presented a police report that had been withheld from his defense team that suggested Dudley may have been involved in the child’s death. He also submitted three affidavits – two from witnesses who saw what appeared to be Dudley and a friend hiding Domika’s body, and one from Dr. Martin stating that, based on changes in scientific literature, her assessment of Domika’s injuries has changed. The Court found that the new evidence established Hill’s “actual innocence” and overcame procedural roadblocks that would otherwise have required the court to deny his petition as untimely.

The withheld police report contains the account of the first officer who responded to the report of a missing child. The officer said that Dudley ran from police when they arrived at the scene, a fact not presented at Hill’s trial. A day before Domika’s body was found, Dudley repeatedly implored police to check in the location where the girl’s body was eventually discovered. Two new affidavits also support the theory that Dudley was involved in Domika’s death, or at least in hiding her body and blaming the death on Hill. Two witnesses who did not testify at Hill’s trial reported that they had seen Dudley and a friend of hers carrying a brown Similac baby formula box down the street toward the alley in which Domika’s body was later discovered. The baby was found inside a Similac box. One of the witnesses also said in an affidavit that the day before Domika’s body was found, Dudley told her that Domika was dead.

In addition to the withheld police report and supporting affidavits, Hill presented an affidavit from Dr. Martin, recanting her testimony that Domika’s death was a homicide. Dr. Martin said that, “based in part of my experience as a forensic pathologist over the past 25 years, as well as the scientific literature now available that discusses more clearly the characteristics of crushing injuries to the head in children, I believe [the victim's] head injury is much more consistent with a crush injury then with inflicted impacts, and certainly more consistent with a crush injury than with injuries seen in shaking or shaking/impact.” The doctor’s new statement is consistent with Hill’s claim at the time of trial that he had fallen from a retaining wall while holding his daughter and that his knee had landed on her head. Martin’s statement also reflects the change in scientific consensus regarding “shaken baby syndrome,” a diagnosis that has sent hundreds of parents and caregivers to prison, including some to death row, but has now been debunked in medical and legal journals. Two people, Sabrina Butler and Rodricus Crawford, have been exonerated from death row after they were wrongfully convicted of killing their children on the basis of false forensic testimony when the medical evidence showed no crime had occurred.

The district court ordered prosecutors to retry or release Hill within 180 days. The state may appeal the ruling.

U.S. Supreme Court Orders Reconsideration of “Vindictive Prosecution” in Virginia Capital Case

The U.S. Supreme Court has ordered the Virginia Supreme Court to address a claim brought by former death-row prisoner Justin Wolfe (pictured) that prosecutors had engaged in unconstitutional vindictive prosecution against him after federal courts had found that his conviction and death sentence had been obtained through egregious prosecutorial misconduct. The Virginia Supreme Court had ruled that Wolfe’s guilty plea to the enhanced charges brought against him after his first conviction was overturned barred him from challenging the prosecutors’ conduct. In a two-sentence order on January 7, 2019, the Supreme Court granted Wolfe’s petition to review his case, summarily reversed the state court decision, and directed the Virginia Supreme Court to consider Wolfe’s vindictive prosecution claim.

Wolfe was convicted and sentenced to death in 2002 on charges that he had hired Owen Barber to kill Daniel Petrole, Jr. His conviction was overturned in 2011 when U.S. District Court Judge Raymond A. Jackson found that the prosecution had intentionally withheld exculpatory evidence, threatened a witness with the death penalty if he did not testify against Wolfe, and presented false testimony to the jury. Judge Jackson described the prosecutorial and police misconduct in the case as “abhorrent to the judicial process.” Barber, the admitted triggerman and the state’s key witness against Wolfe, had recanted his testimony in 2005. He said, “The prosecution and my own defense attorney placed me in a position in which I felt that I had to choose between falsely testifying against Justin or dying.” Prosecutors had in their possession, but withheld from the defense, a police report documenting that a detective had suggested to Barber that he implicate Wolfe in the murder or face execution, as well as information that Barber had confessed to his roommate that he had acted alone in committing the murder. The prosecution attempted to justify its conduct by saying it had withheld the evidence to avoid providing Wolfe with information that could be used “to fabricate a defense.”

In 2012, Judge Jackson ordered Virginia to release Wolfe and barred a retrial, saying that a prosecution visit to Barber in 2012 in which it again threatened him with the death penalty if he did not cooperate showed "the same subtle but unmistakable coercion" as earlier efforts to induce his testimony. Six months later, the U.S. Court of Appeals for the Fourth Circuit reversed the District Court’s ruling and allowed the state to retry Wolfe. Prosecutors not only sought to retry Wolfe, but added six new charges. Rather than face the possibility of another death sentence, Wolfe agreed to a plea deal. He pled guilty and was sentenced to 83 years in prison, with 42 years suspended. He attempted to appeal the validity of the plea “in light of the Commonwealth’s vindictive prosecution,” but the Virginia Supreme Court on February 5, 2018 refused his petition for appeal. He sought review in the U.S. Supreme Court, arguing that his appeal should be allowed under its 2018 decision in Class v. United States, which held that “‘a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute.’” The Supreme Court reversed the Virginia Supreme Court’s ruling and sent the case back for further consideration in light of Class.

Orange County Misconduct Scandal Costs Taxpayers $2.5 Million in Failed Capital Prosecution

The failed capital prosecution of Scott Dekraai for the worst mass murder in Orange County, California history has cost taxpayers more than $2.5 million—more than double the average cost of a California death-penalty case—and the pricetag for continuing investigations into official misconduct by the county district attorney's and sheriff's offices continues to rise. Unlike most capital cases, the costs were not primarily for the trial itself, but the product of a multi-year investigation and court hearings into decades-long abuses by Orange County law enforcement involving the deliberate misuse of jailhouse informants to obtain incriminating statements from targeted prisoners, including Dekraai. “The price of misconduct is steep,” said Seattle University criminal justice professor Peter Collins, an expert on death penalty costs. Dekraai pleaded guilty to eight counts of murder in May 2014, and in normal circumstances, the penalty phase of the case would have been completed later that year. However, for the past three years, the case has been dominated by the informant scandal. In May 2015, Judge Thomas Goethals disqualified the entire Orange County District Attorney's Office from involvement in the case after finding that prosecutors had engaged in widespread misconduct, failed to disclose the improper practices, and repeatedly lied to the court about it. Additional failures by the county sheriff's office to comply with court orders to produce records related to the scandal extended the length of the court's investigation, and ultimately led to the court barring the state from pursuing the death penalty. According to an analysis by the Southern California News Group, taxpayers had already spent more than $2.5 million on the case, not including costs incurred by the Orange County District Attorney's office—which said it did not track what it spent on the case—or by the state attorney general's office after it took over the case. Known costs include approximately $1 million for defense costs over the nearly six years the case has been pending; an estimated $743,000 in costs for court time and personnel; more than $370,000 in costs for a grand jury investigation; $290,000 in pretrial incarceration costs; and more than $100,000 for the county to provide legal representation to the sheriff's department during the investigation. In addition to prosecutor salaries and other prosecution costs, the $2.5 million estimate does not include the costs of the Orange County District Attorney's appeal of the order removing it from the case; any state money spent on the ongoing investigation into the county's informant abuses; nor the costs of a U.S. Department of Justice civil rights investigation into the informant scandal. Dekraai is scheduled to be sentenced on September 22 to eight terms of life without parole. 

OUTLIER COUNTIES: Judicial Override, Race Bias, Official Misconduct Rampant in Mobile, Alabama's Use of Death Penalty

Judicial override of jury recommendations of life, the imposition of death sentences after non-unanimous jury sentencing recommendations, and prosecutorial misconduct, race bias, and ineffective defense counsel have made Mobile County, Alabama one of the most prolific death sentencing counties in the United States. Mobile judges imposed 8 death sentences between 2010 and 2015, 88% in cases with white victims. A recent report by Harvard University's Fair Punishment Project attributes this high rate of death sentencing to Alabama's outlier practice of permitting judges to impose death sentences after non-unanimous jury sentencing recommendations. The Project found that only 2 of the 10 Mobile death penalty cases decided on direct appeal since 2006 involved unanimous juries. Judicial override of jury recommendations for life—a practice that today is permitted only in Alabama—also has contributed to unfairness and arbitrariness in Mobile capital cases. Two Mobile County judges, Braxton Kittrell and Ferrill McRae, have used this practice to impose a total of 11 death sentences. According to the Equal Justice Initiative, McRae has overriden more jury life verdicts (6) than any other Alabama judge, including death sentences imposed on George Martin (pictured) and 4 other African-American defendants. During a re-election campaign, McRae ran television ads touting his support for capital punishment and naming defendants whom he had sentenced to death. He also reportedly refused to sign a bail-reduction application in one non-capital case because he “first wanted to know the client’s ‘color’” and allegedly told an attorney in another case not to provide zealous representation “because we need more n***ers in jail.” McCrae has never overturned a jury's death recommendation to impose a life sentence, even when an all-white jury had recommended death for an intellectually disabled black man who could not read the confession that he signed. Mobile prosecutors have also been described as "overzealous" in seeking death. Just two prosecutors, Ashley Rich and Jo Beth Murphee, account for 90% of the Mobile death penalty cases decided on appeal since 2006, and both have had death sentences overturned for improper prosecutorial practices. The Fair Punishment Project found that "the average defense presentation of mitigation evidence in Mobile County capital trials lasts less than one full day" and that one lawyer, Greg Hughes, had been defense counsel for 40% percent of all the Mobile capital cases reviewed on direct appeal since 2006. As a result of a combination of prosecutorial and juror misconduct and ineffective defense representation, Mobile death row prisoner William Zeigler—who maintains his innocence—was granted a new trial in November 2012. In 2015, Ziegler accepted a plea deal for time served and was immediately released. In March 2016, another Mobile trial judge barred prosecutors from retrying Martin, finding that prosecutors had engaged in "willful misconduct" by suppressing a range of exculpatory evidence. This included evidence that the prosecution's lead witness had told investigators he had seen a "large black man" in a trooper's uniform in the vicinity of the murder (Martin is 5'6"), that investigators had shown the witness photos of every black trooper from Mobile County, and that the witness not only had not identified Martin, but had selected the picture of a different trooper. Martin's jury voted 8-4 to spare his life, but Judge McRae overrode their recommendation. The prosecution's appeal of the Martin ruling is pending in the Alabama appellate courts.

U.S. Supreme Court Reverses Arizona Death Sentence After Jury Not Told of Defendant's Ineligibility for Parole

The U.S. Supreme Court has overturned a death sentence imposed on Shawn Patrick Lynch by an Arizona jury that had not been told he would have been ineligible for parole if jurors sentenced to him to life imprisonment. In a 6-2 decision on May 31, the Court agreed to review Lynch's case, vacated the judgment of the Arizona Supreme Court, and summarily reversed Lynch's death sentence. Under Arizona law, the only sentences the jury could impose in Lynch's case were life without possibility of parole or the death penalty. The prosecution in the case presented evidence and argument to the jury suggesting that Lynch would pose a future danger to society unless he were sentenced to death. At the same time, it filed a motion, which the trial judge granted, to prevent Lynch's lawyer from informing the jury that its life sentencing option carried no possibility of parole. The trial court also did not instruct the jury that Lynch would be ineligible for parole if sentenced to life. The Supreme Court held that this violated Lynch's right to due process, as set forth in its 1994 decision in Simmons v. South Carolina. Simmons ruled that a capital defendant is entitled to inform the jury of his parole ineligibility whenever his future dangerousness is at issue and the only sentencing alternatives available to the jury are death or life imprisonment without possibility of parole. This was Lynch's third penalty phase. In his first penalty trial, the jury was unable to reach a unanimous verdict and the court declared a penalty mistrial. Lynch was again sentenced to death at his second penalty trial, but that sentence was overturned because of misconduct by prosecutor Juan Martinez, who had misrepresented to the jury that the aggravating factor “excessively cruel, heinous or depraved” constituted three separate aggravating circumstances. In his latest resentencing trial in 2012, the Arizona Supreme Court found that Martinez had “disturbingly made a number of inappropriate comments” and had engaged in "some instances" of misconduct. However, it ruled that the “prosecutorial misconduct ... was not so pronounced or sustained as to require a new sentencing trial.” Lynch's case now returns to state court for a fourth sentencing trial.

Supreme Court Rules Georgia Prosecutors Struck Death Penalty Jurors Because They Were Black, Grants New Trial

On May 23, the U.S. Supreme Court overturned the conviction and death sentence of Timothy Foster (pictured) because Georgia prosecutors improperly exercised their discretionary jury strikes on the basis of race to exclude African American jurors. The vote was 7-1, with Justice Thomas the lone dissenter. Foster is now entitled to a new trial. Foster, who is black, was sentenced to death by an all-white jury after prosecutors used their peremptory challenges to remove every black prospective juror from the jury pool. Foster's trial lawyer challenged those strikes under the 1986 Supreme Court decision Batson v. Kentucky, which banned the practice of striking jurors on the basis of race, but the trial court credited the race-neutral reasons for the strikes that prosecutors offered at the time. Years later, Foster obtained the prosecutors' jury selection notes, which showed that prosecutors had highlighted the names of each of the black prospective jurors in green on four different copies of the jury list; circled the word “BLACK” next to the “Race” question on the juror questionnaires of five black prospective jurors; identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; and ranked the black prospective jurors against one another in case “it comes down to having to pick one of the black jurors.” Foster filed another Batson claim in the state courts after having discovered these notes, but the Georgia Supreme Court rejected it, saying the issue had already been adjudicated. The U.S. Supreme Court said that the Georgia Supreme Court's decision was "clearly erroneous." "Foster established purposeful discrimination in the State’s strikes of two black prospective jurors," the Court said. "Evidence that a prosecutor’s reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination." Among the reasons given by prosecutors for striking one black juror, Marilyn Garrett, included her age and the fact that she was divorced, but they allowed three out of four divorced white jurors to serve, and also allowed service by white jurors of similar age to Garrett. Stephen Bright, an attorney for Foster, said, "The decision in this case will not end discrimination in jury selection. Justice Thurgood Marshall said in Batson v. Kentucky that it would end only with the elimination of peremptory strikes. The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination. Jury strikes motivated by race cannot be tolerated. The exclusion of black citizens from jury service results in juries that do not represent their communities and undermines the credibility and legitimacy of the criminal justice system.”

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