Prosecutorial Misconduct

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. 

OUTLIER COUNTIES: Legacy of Racism Persists in Caddo Parish, Which Had Nation's Second-Highest Number of Lynchings

The death-sentencing rate per homicide in Caddo Parish, Louisiana was nearly 8 times greater between 2006 and 2015 than the rest of the state, making a parish with only 5% of Louisiana's population responsible for 38% of the death sentences imposed statewide. Caddo currently has more people on death row than any other parish in the state. Known as "Bloody Caddo," the parish had the second highest number of lynchings of any county in the nation. The Confederate flag flew in front of the steps to the courthouse until 2011 (pictured), where a monument to the Confederacy still stands. Inside that courthouse, 80% of defendants sentenced to death between 2010 and 2015 were Black, and no White person has ever been executed for killing a Black person in Caddo Parish. Caddo received national attention in 2015 when Acting District Attorney Dale Cox said he believed the state needed to "kill more people." Cox was personally responsible for one-third of the death sentences in Louisiana from 2010 to 2015. His controversial statements were in response to questions about the exoneration of Glenn Ford, a Black man convicted by an all-White jury, who spent 30 years on death row for a crime he did not commit. Ford's case illustrated many of the factors that have contributed to the overproduction of death sentences in Caddo Parish: racial bias in jury selection and the application of death sentences, inadequate representation, and official misconduct. A 2015 study by Reprieve Australia found that prosecutors used peremptory strikes against 46% of Black jurors, but only 15% of other jurors. One Black prospective juror was removed from a jury pool in 2009 for objecting to the presence of the Confederate flag in front of the courthouse. Like Ford, who was represented by two appointed attorneys who had never represented a criminal defendant at trial, most Caddo Parish defendants have not received adequate representation. In the last decade, 75% of people sentenced to death in Caddo Parish were represented by at least one lawyer who does not meet recently-imposed standards for capital attorneys. Official misconduct, like the false police testimony in Ford's trial, has also contributed to the high number of death sentences in Caddo. In 2014, Dale Cox wrote a memo regarding the capital trial of Rodricus Crawford in which he stated that Crawford, "deserves as much physical suffering as it is humanly possible to endure before he dies." Crawford was convicted and sentenced to death for allegedly killing his infant son, despite medical evidence that the child actually died of pneumonia. Caddo prosecutors have a history of seeking death against the most vulnerable Black defendants: Lamondre Tucker and Laderrick Campbell were 18 years old at the time of their offenses and both had IQs in the intellectually disabled range; Corey Williams, who was 16 and removed from death row after being found to be intellectually disabled, is still serving a life sentence despite powerful evidence that his confession was coerced and that others committed the offense for which he was condemned. In November 2015, Caddo Parish elected its first Black District Attorney, James E. Stewart, Sr., who pledged, "to bring professionalism and ethics back to the district attorney’s office." 

Roger King, Former Philadelphia Prosecutor Who Once Held Record For Most Death Penalty Convictions, Dies

Roger King, a former prosecutor in Philadelphia who at one point was responsible for 20% of all the death sentences imposed in Pennsylvania, died of kidney cancer on August 24. When King retired in 2008, he held the record for most death sentences obtained by a single Pennsylvania prosecutor. None of the men he sent to death row has ever been executed. While King's aggressive pursuit of death sentences contributed to his "larger than life" reputation, it also involved charges of misconduct that included the pursuit of the death penalty against at least seven men who may have been innocent. William Nieves was prosecuted by King in 1994 and convicted based upon questionable eyewitness testimony. He was exonerated from death row in 2000 after his new attorney presented evidence that his first jury never heard that an eyewitness had originally identified the perpetrator as a short black man, not the tall, light-skinned Nieves. King also withheld exculpatory evidence in the trial of James Dennis (pictured) who was granted a new trial on August 23. The Pennsylvania federal appeals court found that King had suppressed "a receipt corroborating Dennis' alibi, an inconsistent statement by the Commonwealth's key eyewitness, and documents indicating that another individual committed the murder," which, the court said, "effectively gutted" the prosecution's case. A Philadelphia judge overturned the 1993 conviction of a third death row prisoner prosecuted by King, Frederick Thomas, who—as with Nieves and Dennis—were convicted on shaky eyewitness testimony and without any physical evidence against them. Before Thomas was granted a new trial in 2002, the state's two eyewitnesses recanted their testimony and police officer James Ryan—whom the defense said had framed Thomas—was convicted on corruption charges arising out of his conduct in other cases, including falsifying police reports and making false arrests. King also prosecuted four innocent men in Philadelphia's "Lex Street Massacre," the worst mass murder in Philadelphia history. No physical evidence linked any of the men to the killings, but King proceeded with one questionable witness and the coerced confession of one of the defendants. After 18 months in prison without being tried, the court dismissed all charges against the men. The four sued for their wrongful incarceration and obtained a $1.9 million settlement from the city. 

OUTLIER COUNTIES: Official Misconduct, Race Bias Permeate Death Penalty in Clark County, Nevada

The geographic arbitrariness, high rates of official misconduct, racial discrimination, and poor defense representation characteristic of outlier jurisdictions that disproportionately seek and impose the death penalty in the United States are all present in Clark County, Nevada's administration of the death penalty. From 2010 through 2015, nine death sentences were imposed in Clark County, while no one was sentenced to death in any other county in Nevada during that same period. In an analysis by Harvard University's Fair Punishment Project of the 16 counties that imposed the most death sentences in the United States over that period, Clark exhibited the highest levels of prosecutorial misconduct, with the Nevada Supreme Court finding misconduct in 47% of the Clark County death penalty cases it reviewed on direct appeal since 2006. Part of this, according to the Fair Punishment Project, is attributable to the "sloppiness that comes along with overextended lawyers," but that overextension was itself a by-product of prosecutorial decisionmaking. In 2011, Clark County had more pending capital cases per capita than any other county in the nation. David Roger, who was District Attorney until 2012 when he resigned to become counsel for the Las Vegas police union, refused to offer or accept plea deals in death penalty cases. At that time, Clark County exhibited another charactistic present in many counties that overaggressively pursue capital punishment: police violence against civilians. The county was the subject of numerous citizen complaints describing police brutality, deadly force, and excessive use of force disproportionately directed at racial minorities, and the ACLU and NAACP had petitioned the Justice Department to investigate what it called a pattern of civil rights abuses by law enforcement. In 2015, Clark ranked fourth in the nation in the per capita rate of police killings of civilians. Racial bias also plagues Clark County death penalty cases: the Nevada Supreme Court overturned two convictions in less than two years because of race discrimination in jury selection by Clark County prosecutors. In the period covered by the Fair Punishment Project report, 71% of victims in cases that resulted in a death sentence were white, though only 33% of murder victims in Las Vegas, which composes most of Clark County, were white. The exoneration of Roberto Miranda highlights another systemic problem in Clark County death penalty cases: inadequate representation. Roberto Miranda spent 14 years on death row before being exonerated, and later sued the county for poor public defense practices, including assigning inexperienced attorneys to capital defendants. In a court filing, the county responded, "As a matter of law, attorneys who have graduated from law school and passed the bar should be considered adequately trained to handle capital murder cases." Over the period of the Fair Punishment Project study, the case for life presented by defense lawyers in the cases that resulted in death verdicts lasted an average of only 1.1 days. Clark County's death penalty practices have also been extremely costly. A University of Nevada-Las Vegas study estimated in 2012 that the 80 capital cases prosecuted in the county would cost $15 million more than if they were to be prosecuted without the death penalty.

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