Prosecutorial Misconduct

Ohio Parole Board Recommends Clemency for Death-Row Prisoner William Montgomery

Faced with doubts about prosecutorial misconduct and the accuracy of forensic evidence, the Ohio Parole Board has recommended that Governor John Kasich grant executive clemency to William T. Montgomery (pictured), scheduled to be executed on April 11. Montgomery was convicted and sentence to death in 1986 for two murders he has long maintained he did not commit. An Ohio federal district court, affirmed by a federal appeals court panel, overturned his conviction in 2007 because prosecutors had suppressed evidence and witness statements that undermined its version of how the crime occurred, but with five judges dissenting, the full U.S. Court of Appeals for the Sixth Circuit reinstated the conviction. Montgomery's supporters argued to the parole board that there was too much doubt about his guilt to risk executing a potentially innocent man. Prosecutors argued at trial that Montgomery murdered Debra Ogle and then killed her roommate, Cynthia Tincher to prevent her from testifying against him, then dumped Ms. Ogle's body in the woods where it was not discovered for four days. However, prosecutors withheld from the defense evidence that multiple witnesses had seen Ms. Ogle alive four days after she supposedly had been killed and an independent review of the autopsy report showed that Ms. Ogle's body likely had been discovered within hours of her death. The report noted that a body left in the woods for four days in above-freezing temperatures would have shown signs of decomposition, insect infestation, and animal predation, none of which were present, and the body's state of lividity indicated death had occurred within twelve hours of its discovery. Adding to the doubt in the case, Montgomery's co-defendant, Glover Heard told police five different stories before settling on a version of events that fit the prosecution's theory and, instead of facing the death penalty, was sentenced to a term of years with eligibility for parole. Montgomery’s lawyers also presented the parole board with affidavits that undermined its confidence in the jury verdict, including one from a juror who was confused as to what the law required, another from a juror who had doubts about Montgomery’s guilt, and a third juror whose psychiatric behavior raised questions about her ability to serve. The Board majority cited both the State’s failure to disclose the witness reports that Ms. Ogle was alive after the State claimed she had been killed and the jurors’ affidavits as reasons for recommending commutation. Four Board members opposed commutation, arguing that the information presented was insufficient to overturn the jury verdict and finding no “manifest injustice” in the case that they believed warranted clemency. In an op-ed in the Toledo Blade, Phyllis Crocker, Dean of the University of Detroit Mercy School of Law and a former member of the Ohio Supreme Court Joint Task on the Administration of Ohio’s Death Penalty, wrote: "At best, Montgomery was convicted on a false set of facts and at worst, he may be actually innocent. In death penalty cases there must be no doubt whatsoever. There is too much doubt to allow this execution." Montgomery's lawyer, Jon Oebker, reiterated that his client's assertion of innocence and said the defense plans to "explore every avenue we can." Governor Kasich must issue a decision on the pardons board's recommendation before the April 11 execution date.

California Supreme Court Grants New Trial to Man Sent to Death Row 25 Years Ago by False Forensic Evidence

The California Supreme Court has vacated the conviction of Vicente Figueroa Benavides (pictured), saying that the forensic evidence that sent the former Mexican farmworker to death row 25 years ago was “extensive,” “pervasive,” “impactful,” and “false.” Benavides, now 68, was sentenced to death in 1993 after being found guilty of brutally murdering Consuelo Verdugo, his girlfriend’s 21-month-old toddler, by raping and anally sodomizing her. However, the court said, medical evidence showed that the girl was never raped or sodomized and may not have been murdered at all. Instead, she may have died from complications from having been struck by a car. Benavides—whose lawyers have argued is developmentally disabled and possesses the mental ability of a 7-year-old—told the police and jury during the trial that he lost track of the toddler while he was preparing dinner on November 17, 1991 and he found her outdoors, vomiting. Consuelo’s mother took her to a local medical center that evening, where her condition worsened. After surgery and two hospital transfers, the child died a week later. At trial, forensic pathologist Dr. James Diblin testified that the toddler had died from “blunt force penetrating injury of the anus” and claimed that the major internal injuries she suffered were the result of rape. He further testified that arm injuries, internal trauma, dilated pupils, and compression rib fractures that Consuelo sustained had been “caused by tight squeezing during a sexual assault.” Dr. Jess Diamond, who evaluated the toddler at Kern Medical Center, also initially testified that the baby had been raped. However, medical records obtained by Benavides’s post-conviction lawyers showed that the examining physicians had not seen any signs of bleeding when Consuelo was brought to the hospital, and a nurse who helped treat the toddler said that neither she nor any of her colleagues saw evidence of anal or vaginal trauma when the child arrived. Instead, the court said, the injuries to Consuelo’s genitalia and anus were “attribut[able] to medical intervention,” including repeated failed efforts to insert a catheter and the improper use of an adult-sized catheter on the small child. “After reviewing the medical records and photographs that I should have been provided in 1993,” Dr. Diamond withdrew his assessment that Consuelo had been raped. “I am convinced that this case presents a tremendous failing of the criminal justice system," he said. The defense also presented evidence from Dr. Astrid Heger, one of the country’s leading experts on child abuse, who described Dr. Didbin’s assertion that Consuelo’s injuries had been the product of sexual assault as “so unlikely to the point of being absurd. … No such mechanism of injury has ever been reported in any literature of child abuse or child assault.” She said the internal injuries the child sustained were commonly seen in victims of automobile accidents. During oral argument, Associate Justice Carol Corrigan, a former prosecutor, described Dibdin's testimony as being “among the most hair-raising false evidence that I’ve encountered in all the time that I’ve been looking at criminal cases." Chief Justice Tani Cantil-Sakauye compared the sexual assault allegations to “a bomb dropped on the jury” that prevented the jurors from considering the evidence that the toddler may have been hit by a car. Prosecutors admitted that the forensic evidence they used to convict Benavides was false, but asked the state court to sustain a conviction for second-degree murder. With its key evidence discredited, Kern County District Attorney Lisa Green said it was improbable that prosecutors would attempt to retry Benavides. If the charges are dismissed, Benavides would be the fourth California death-row prisoner to be exonerated since the state brought back the death penalty in 1974.

Email Shows Texas DA Had Phone Records Showing Alfred Brown Was Innocent, But Prosecuted Him Anyway

According to newly disclosed records, the Harris County assistant district attorney who prosecuted Texas death-row exoneree Alfred DeWayne Brown was aware of phone records that corroborated Brown's assertion of innocence long before the case went to trial, but withheld the records from the defense and intimidated a witness who original testimony was supported by the records into falsely testifying against Brown. Brown was convicted and sentenced to death in 2005 for the murders of a Houston police officer and a store clerk during a 2003 robbery. No physical evidence linked him to the murders and he consistently maintained that he had been at his girlfriend's apartment when the murders occurred. Brown won a new trial in 2014 after police investigator Breck McDaniel discovered copies of the phone records in his garage. At the time, prosecutors said that the records had been inadvertently misplaced. However, an email that was released by the Harris County district attorney's office on March 2 in response to a civil suit filed by Brown shows that McDaniel alerted former Harris County prosecutor Dan Rizzo to the existence of the records on April 22, 2003, the day after his girlfriend, Erica Dockery, had told the grand jury that Brown had called her from her apartment. McDaniel told Rizzo in the email that he had obtained Dockery’s phone records “hoping that it would clearly refute Erica’s claim that she received a call at work” from Brown. Instead, McDaniel said, “the call detail records from the apartment shows that the home phone dialed Erica's place of employment” twice on the morning of the killing and that Dockery had called Brown back from work. A Pulitzer-Prize-winning Houston Chronicle investigation revealed in July 2014 that, after her testimony, a police officer who served as the grand jury foreman in the case threatened Dockery with perjury for supporting Brown's alibi. Then—after Rizzo had received the email confirming the truthfulness of Dockery’s testimony—prosecutors jailed Dockery for seven weeks until she changed her testimony to implicate Brown. After Brown was exonerated, he applied for approximately $1.9 million in cash and annuity payments under Texas’ exoneration compensation law. Prosecutors claimed that the court proceedings leading to Brown’s release did not constitute a determination that he was “actually innocent,” and his application was rejected in April 2016. Cate Edwards, Brown’s lawyer in the civil case, called the email revelations “horrifying.” Brian Stolarz, who represented Brown in the appeals leading to his exoneration, called the disclosures “[v]indication.” He said he was “sickened and disheartened” that “[o]nly now, after a civil lawsuit, does the whole truth finally come out.’ But he said he was “encouraged that Dewayne is vindicated and his long journey to justice is near the end.” Harris County District Attorney Kim Ogg, who took office in November 2016 on a platform of criminal justice reform, issued a statement saying that “The Texas Disciplinary Rules of Professional Conduct require that ‘the appropriate disciplinary authority’ shall be informed when a lawyer becomes aware that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in all other respects.” The statement said “the Harris County District Attorney’s Office will notify the State Bar of Texas of the newly discovered evidence so that it may investigate the prosecutor’s professional conduct while handling the Brown case.”

Colorado Supreme Court Overturns Prison-Murder Conviction, Says Prosecutors Withheld Evidence in Death-Penalty Case

The Colorado Supreme Court has upheld a trial court ruling overturning the first-degree murder conviction of David Bueno (pictured) after Arapahoe County prosecutors who sought the death penalty against him in a prison killing hid evidence that pointed to another suspect. The January 22 ruling comes in the wake of a trial court ruling that prosecutors in the state's 18th Judicial District, which includes Arapahoe County, also suppressed more than twenty pieces of evidence that should have been disclosed to the defense in the capital trials of death-row prisoners Sir Mario Owens and Robert Ray. Bueno's lawyer, David Lane, called the pattern of prosecutorial conduct in the 18th Judicial District, "Mississippi in the mountains." "Ethically, prosecutors are required to seek justice, not convictions," he said. "But they apparently lose sight of that on a regular basis, especially on death-penalty cases in the 18th Judicial District." Bueno and a second Latino prisoner, Alex Perez, were charged with stabbing a white prisoner, Jeffrey Heird, to death in 2004. The day before the murder, another white prisoner, Michael Snyder, told his wife in a phone call recorded by the prison that he had been ordered to stab a prisoner. The evening after the murder, a prison nurse found a note containing threats by a white supremacist prison group to kill “men of the white race who refuse to accept their proud race.” The nurse immediately prepared an incident report that included a copy of the letter. One day later, another white inmate died under suspicious circumstances and a prison lieutenant who was investigating the death prepared a second report suggesting the deaths might be connected. The court wrote that undisputed evidence established that "the prosecution possessed both of these reports within days of Heird’s murder but did not provide copies of them to Bueno until five years later," after he had been convicted. Despite specific requests by the defense to be provided all incident reports, and in violation of its constitutional obligation to disclose all potentially exculpatory evidence, the court found prosecutors had made “a conscious decision ... to keep the information from the Defendant." The court agreed with the trial judge that these violations were prejudicial because "[t]he identity of Heird’s killer was the core issue at trial, with Bueno arguing that white supremacists had committed the murder," and the jury had taken four days to deliberate, including asking the court how to overcome a deadlock. The jury then imposed a life sentence, rejecting the death penalty in the case. In a 2010 interview with Westword after the trial court had overturned Bueno's conviction, Lane called it "truly stunning that the prosecutors in this case hid evidence that was so favorable to the defense" and said "it is particularly shocking in light of the fact that this was a death penalty case." A 2015 study showed significant racial and geographic disparities in the prosecution of death-penalty cases in Colorado, with non-white defendants and defendants in the 18th Judicial District statistically more likely to be capitally prosecuted. All three prisoners on Colorado's death row are from the 18th Judicial District. 18th District DA George Brauchler, who opposed the grant of a new trial in the case, is currently seeking election as Colorado's Attorney General.

“Innocence Deniers” and Coercive Plea Agreements Impede Death-Row Exonerations Across the U.S.

A prosecutor's duty, the U.S. Supreme Court wrote in 1935, "is not that it shall win a case, but that justice shall be done." Yet prosecutors across the U.S. have refused to acknowledge the innocence of defendants who have been wrongfully convicted, obstructing release by retrying death-sentenced defendants despite exonerating evidence, or conditioning their release upon "Alford pleas," which force defendants to choose between clearing their names or obtaining their freedom. In an article for Slate, Lara Bazelon chronicles cases of prosecutors whom she calls "innocence deniers," and the exonerations they have willfully obstructed. Bazelon highlights the retrials of exonerees Rolando Cruz and Alejandro Hernandez, wrongfully convicted and sentenced to death in Illinois. After their initial conviction, a serial murderer, Brian Dugan, confessed to committing the crime alone, but prosecutors persisted in retrying Cruz and Hernandez. Their second conviction was also overturned, but despite DNA testing that had corroborated Dugan's confession, prosecutors subjected them to trial for a third time. Cruz was acquitted and prosecutors dropped Hernandez's charges. After the exoneration, three prosecutors involved in the case were indicted but acquitted of obstruction of justice and perjury. A related phenomenon, the use of Alford pleas, is described in a New York Times story by Megan Rose. In an Alford plea, the defendant admits that the evidence against him or her would be sufficient to convict, but continues to assert innocence. The prisoner remains convicted of the crime and is resentenced to time already served and allowed to go free. These deals are often used in exoneration cases that involve official misconduct, because defendants who enter these pleas are typically barred from bringing lawsuits against prosecutors. Montez Spradley (pictured), an Alabama death-row prisoner, agreed to an Alford plea in 2015 after his attorneys discovered constitutional violations in his case, including undisclosed payments to a key witness. The agreement ended investigation into the prosecutorial misconduct. In June 2017, Ha'im Al Matin Sharif was released from Nevada's death row, nearly 30 years after he was convicted of killing his girlfriend's 11-month-old daughter, after medical evidence revealed that the baby died from infantile scurvy, rather than from physical abuse. Police had coerced the girlfriend into providing false testimony implicating Sharif by threatening to take her other children away if she did not cooperate. Prosecutors insisted that Sharif plead guilty to second-degree murder to obtain his release. One month earlier, Jimmy Dennis was released from twenty-five years of solitary confinement on Pennsylvania's death row after pleading no contest to lesser charges. His release marked the culmination of three unrelated cases in which misconduct by the same two Philadelphia homicide detectives had framed capital defendants. Innocence denial has the serious side effect of leaving the real perpetrators free while prosecutors continue to oppose release of innocent prisoners. The Innocence Project has secured the DNA exonerations of 353 people, and identified 152 actual perpetrators in those cases who went on to commit at least 150 additional violent crimes. Official misconduct is the leading cause of wrongful capital convictions.

Former Death-Row Prisoner Exonerated in Illinois, Seized by ICE

Former Illinois death-row prisoner Gabriel Solache (pictured), a Mexican national whose death sentence was one of 157 commuted by Governor George Ryan in January 2003, was exonerated on December 21, 2017 after twenty years of wrongful imprisonment, but immediately seized by agents of the U.S. Immigration and Customs Enforcement Agency. Cook County prosecutors dropped charges against Solache and his co-defendant Arturo DeLeon-Reyes after Circuit Court Judge James Obbish overturned their convictions, finding that disgraced Chicago detective Reynaldo Guevara had told “bald-faced lies” under oath when he testified to having no memory of interrogating Solache and DeLeon-Reyes and denied having beaten false confessions out of the men. DeLeon-Reyes also was immediately arrested by ICE agents. Solache and DeLeon-Reyes were convicted in separate trials, and Solache was sentenced to death, for the 1998 stabbing deaths of Jacinta and Mariano Soto during a home robbery. No physical or biological evidence linked either man to the murder, but they were convicted based upon confessions they have long said were coerced by Guevara over the course of three days of interrogation in which they were denied their right to consular assistance by the Mexican government, deprived of sleep, and given little food or drink until they falsely implicated themselves. Solache's purported confession was written entirely in English by an assistant state attorney who did not speak Spanish. Solache did not speak or read English and said that Guevara never translated the written statement for Solache before getting him to sign it. Guevera has been accused of framing defendants of murder in 51 cases. According to Northwestern University's Center on Wrongful Convictions, Solache and DeLeon-Reyes are the sixth and seventh defendants freed in the last two years as a result of misconduct by Guevara. To date, nine defendants have been released in cases in which Guevara was alleged to have beaten them or coerced witnesses into providing false testimony. Solache is the 161st person wrongly convicted and sentenced to death in the United States to have been exonerated since 1973, and the twenty-first in Illinois. At least a dozen of those exonerations have involved misconduct by Chicago police, including five cases in which the notorious "Burge Squad" beat or tortured confessions out of innocent defendants. Aaron Patterson, Leroy OrangeMadison Hobley, and Stanley Howard—members of the "Death Row Ten," who asserted that their convictions were the product of false confessions obtained as a result of police torture at the hands of notorious Chicago Police Commander Jon Burge—received full pardons by Governor Ryan. Ronald Kitchen, another member of the Death Row Ten, was exonerated in July 2009. Among the tactics the "Burge Squad" employed to elicit confessions were shocking suspects in the genitals with cattle prods, beating suspects over the head with phonebooks, and pointing guns in the faces of minors.

Clark County, Nevada Losing Capital Convictions Because of Prosecutors' Race Discrimination in Jury Selection

The racially discriminatory jury selection practices of the Clark County, Nevada, District Attorney's office are now causing it to lose convictions in capital cases. In a December 18 article, the prosecutorial watchdog, The Open File, details repeated violations by Clark County death-penalty prosecutors of the constitutional proscription against striking prospective jurors from service on the basis of race. Four times in the past four years, the Nevada Supreme Court has ordered new trials in Clark County cases because prosecutors violated the U.S. Supreme Court's 1986 decision in Batson v. Kentucky  by discriminatorily excluding jurors of color, including in three cases in which the death penalty had been imposed. The Open Files writes that “prosecutors in the Clark County District Attorney’s office either do not know, ignore, or gamble on Batson, unsuccessfully hoping the courts will not hold them accountable to it.” In June 2014, the Nevada Supreme Court reversed the conviction and death sentence of Charles Conner, after prosecutors used six of their nine peremptory strikes against jurors of color, claiming that the jurors were “weak” on the death penalty. The court ruled that this purportedly race-neutral justification was pretextual, noting that one of the black jurors to whom prosecutors claimed the justification applied was an Air Force Reserve officer and full-time correctional officer, who had previously served in the Navy and as a police officer. The court found that the prosecutors' explanations for striking this juror were "belied by the record" and that manufacturing "[a] race-neutral explanation that is belied by the record is evidence of purposeful discrimination.” In March 2016, the court granted African-American death-row prisoner Jason McCarty a new trial after Clark County prosecutors excluded two of three eligible black jurors, pretextually attempting to justifying the strikes on the grounds that one worked in a strip club and the other had a brother with a criminal record. However, prosecuters had run detailed employment background checks on only two of the 36 potential jurors, suggesting to the court that prosecutors had not been genuinely concerned about the excluded juror's employment. The prosecutors also disparately questioned jurors whose family members had criminal histories, asking the black juror whom they struck 15 follow-up questions, while asking a similarly-situated white juror a single follow-up question. In granting McCarty a new trial, the court observed: “Discriminatory jury selection is particularly concerning in capital cases where each juror has the power to decide whether the defendant is deserving of the ultimate penalty, death.” In October 2017, the court also granted a new trial to third death-row prisoner, Julius Bradford, after the trial court had permitted the prosecution to strike one Hispanic and one African-American juror without providing the defense an opportunity to contest the race-based nature of the strikes.

NEW RESOURCE: Academy for Justice Report on Reforming Criminal Justice Tackles the Death Penalty

The Academy for Justice has recently released a new four-volume study, Reforming Criminal Justice, featuring research and analysis by leading academics and a wide range of proposals for criminal justice reform. The project, funded with a grant from the Charles Koch Foundation and produced with the support of Arizona State University and ASU's Sandra Day O’Connor College of Law, contains more than fifty chapters covering a wide range of subjects within the areas of criminalization, policing, trial procedures, and punishment—including a chapter on Capital Punishment by renowned death-penalty scholars Professors Carol S. Steiker (Harvard Law School) and her brother, Jordan M. Steiker (University of Texas School of Law). The Steikers—authors of the critically acclaimed 2016 book, Courting Death: The Supreme Court and Capital Punishment, explore the challenges in reforming the institution of capital punishment, which they describe as being "in a state of flux and fragility." They attribute the near ten-fold decrease in new death sentences since 1996 and the near 70% decrease in executions since the peak in executions in 1999 to “growing concerns about the fairness, accuracy, and effectiveness of the capital justice process across the United States.” The Steikers point to endemic arbitrariness and unfairness resulting from the wide discretion afforded to prosecutors and juries in death penalty cases. Prosecutorial discretion, they say, has produced “wildly divergent capital charging decisions” between prosecutorial offices, making geography, rather than the circumstances of a murder, the chief determinant of whether a case is capitally prosecuted. In turn, they say, the practice of "death-qualification" allows prosecutors to exclude jurors who oppose capital punishment, and the jurors who are empaneled in capital cases exercise the broad discretion they are afforded to produce unfair sentences disproportionately influenced by irrelevant factors such as race and gender. The Steikers also challenge the notion that the reduced use of the death penalty means it is being used more effectively when it is imposed. They say that the death penalty is not limited to “the worst of the worst,” and so lacks meaningful retributive value, while its continuing arbitrariness impedes any arguable deterrent effect. Indeed, they say, offenders with mental illness are disproportionately represented on death row and continue to be disproportionately executed, despite widespread public support for excluding the severely mentally ill from the death penalty. They further question the accuracy of death-penalty verdicts, citing research that estimates more than 4% of those sentenced to death may be actually innocent. The Steikers argue that these systemic issues are “difficult to adequately address through constitutional regulation or legislative reform,” concluding that “the most appropriate path forward may well be moratorium or repeal, solutions embraced by a growing number of jurisdictions.” For states that opt to retain capital punishment, they recommend three major policy reforms: the establishment of capital defense offices at all levels (trial, direct appeal, and state postconviction) to “improve the delivery of capital representation services” in compliance with the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases; centralized state-wide charging processes to combat the politicization of the death penalty by local prosecutors and the resulting geographic arbitrariness in its appliation; and the adoption of legislation to exclude people with severe mental illness from capital prosecution and execution. 

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