Prosecutorial 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.

OUTLIER COUNTIES: Maricopa, Arizona—"Outrageously Exploited Power," "Crippled" Defense, and Five Exonerations

Maricopa County, Arizona imposed 28 death sentences between 2010 and 2015 and, as described in a BuzzFeed news analysis of a new report on outlier death penalty practices, "stands out for its stark examples of the problems found across the counties that most often sentence people to death." The report, Too Broken to Fix, by Harvard University's Fair Punishment Project, studied the nation's 16 most prolific death-sentencing counties and found that Maricopa County exhibited systemic problems with extreme prosecutorial misconduct, deficient defense representation, racial bias, excessive punishment, and innocence. The county's top prosecutor, Andrew Thomas, pursued capital charges at nearly double the rate of his predecesssor after winning election in 2004. His pattern of gross misconduct led a three-member panel of the Arizona Supreme Court to disbar him in 2012 for having "outrageously exploited power, flagrantly fostered fear, and disgracefully misused the law.” Three Maricopa prosecutors who served under Thomas accounted for more than one-third of all capital cases the Arizona Supreme Court has been called upon to review on direct appeal since 2006, "amass[ing] findings of improper behavior in eight [cases]." The excessive number of capital prosecutions in Thomas' tenure created a "capital case crisis" that "crippled the county's public defender system" and left a dozen murder defendants without lawyers. Four lawyers who were appointed accounted for nearly a quarter of all Arizona death cases that have reached the state supreme court since 2006. One Marciopa defense attorney, Herman Alcantar, represented five pretrial capital defendants at once, making it almost impossible for him to adequately represent his clients. In one of those cases, a month before trial, he had not filed any substantive motions or met with his client in over a year. Nathanial Carr represented four people now on death row, and spent less than two days presenting mitigation for each one. He wrote that one client, who had an IQ of 72, "looks like a killer, not a retard." In the six years covered by the Fair Punishment Project's report on outlier counties, 57% of Maricopa's death sentences were imposed on people of color. In that same period, no people of color were sentenced to death anywhere else in Arizona. Five Maricopa County death row inmates have been exonerated. Ray Krone (pictured) was convicted on junk science testimony after a prosecutor falsely claimed, "bite marks are as unique as fingerprints." He was later exonerated by DNA testing. Debra Milke spent 22 years on death row before her case was reversed and the state courts barred the prosecution from retrying her because of extensive official misconduct. An appellate court called her case, "a severe stain on the Arizona justice system."

Florida Prosecutor, Public Defender Tied to Outlier Death Penalty Practices Suffer Landslide Election Loss

In a primary election described as reshaping the political landscape of Northeast Florida, the region voted in a landslide Tuesday to oust State Attorney Angela Corey (pictured) and Public Defender Matt Shirk. The pair's controversial policies had made Duval County one of the most prolific death sentencing counties in the country and had led to national derision of its criminal justice system. Some legal experts touted Corey's defeat by political newcomer Melissa Nelson as evidence of voter backlash against overaggressive prosecutorial policies. Northeastern Law School professor Daniel Medwed said the election showed that “the era of tough-on-crime rhetoric is coming to a close" and Fordham University law professor John Pfaff said Corey’s defeat "continues a small—but important—trend of powerful, incumbent prosecutors losing primary elections for being too aggressive." Local legal experts drew a link between the election results and Corey's hard-line death penalty practices. University of Florida law school professor Kenneth Nunn, said that “[f]or too long, Duval County has been an outlier in its excessive use of the death penalty, its harsh punishment of juveniles, and its reliance on outdated sentencing practices." Florida International University Law School Professor Stephen Harper found it "refreshing to see a prosecutor who is so overly aggressive defeated in a conservative southern jurisdiction. This goes to show, among other things, that the death penalty is on its way out.” In the Public Defender election, incumbent Matthew Shirk had drawn criticism by firing the most experienced death penalty and juvenile court lawyers and installing as his chief of homicide a lawyer who had 16 clients on death row and whom courts had found to have provided ineffective representation is several death penalty cases. Shirk was defeated by retired Judge Charlie Cofer, who had spent 18 years in the Public Defender’s Office and then 17 years as a county judge. Last fall, voters in Caddo Parish (Shreveport), Louisiana voted out a prosecutorial regime known nationally for its aggressive pursuit of the death penalty and elected its first black District Attorney.

OUTLIER COUNTIES: Duval, Florida--Controversial Prosecutor, Inadequate Defense, Systemic Death Penalty Problems

Between 2010 and 2015, only 16 counties in the United States imposed five or more death sentences. Duval County, Florida, which consistently ranks among the most punitive death sentencing counties in the country, sentenced 25 capital defendants to death. According to a new report released by the Fair Punishment Project at Harvard University, Duval produced roughly one-quarter of the death sentences imposed in Florida during that period, although the entire Jacksonville Standard Metropolitan Statistical Area -- which includes Duval County and four other counties -- accounts for only about 9% of the state's murders. The Fair Punishment Project says the county's death-sentencing rate per homicide "is more than 40 percent higher than in the rest of the state." The county's prolific death-sentencing practices are attributable to a constellation of outlier practices. Only two states, Florida and Alabama, allow death sentences to be imposed without a unanimous recommendation for death by the sentencing jury. Since 2006, 88% of the 25 Duval death sentences reviewed by the Florida Supreme Court on direct appeal had non-unanimous jury recommendations. A second key factor is the county's prosecutor, state attorney Angela Corey (pictured), of whom The Nation asked, is she "the Cruelest Prosecutor in America?" In a piece for The New York Times, Emily Bazelon focused on Corey to explain the county's heavy use of the death penalty, saying that she "has made her reputation, in part, by winning verdicts that carry the death pen­alty." Bazelon writes that Corey "has one of the highest rates of death sentences in the country, with 24 (19 in Duval) in the eight years since she was elected." Corey has said "[i]t’s my statutory and constitutional duty to seek justice for this community and to give the victim’s family justice," but she is currently pursuing a death sentence against James Rhodes for the murder of Shelby Farah, despite strong opposition from Farah's family. The county's death sentences are also clouded by racial bias. The Fair Punishment notes that, since 2010, 87% of death sentences in Duval were imposed against Black defendants, up from 62% over the preceding two decades. Duval County Judge Mark Hulsey, who presided over the 2012 capital murder trial of a black teenager, Terrance Tyrone Phillips, is the subject of ethics charges after he allegedly told a staff member he "wished all blacks could be sent back to Africa on a boat." Analysts also fault substandard defense representation for affirmatively contributing to Duval's overproduction of death sentences. In 2008, Matt Shirk, the county's newly-elected public defender, a former intern of Corey's who had pledged fiscal responsibility and to "never call a cop a liar," slashed the office's budget and fired 10 lawyers, including senior capital litigators. The Nation reports, "Shirk has boasted that he consistently returns money to the state earmarked for the investigation of mitigation evidence for death-penalty clients." He then installed as his deputy and chief of homicide, Refik Eler, who the Fair Punishment Project reports had been defense counsel "on at least 16 cases that resulted in a death sentence." Courts have found that Eler has provided substandard representation in three capital cases, with a fourth ineffectiveness claim recently argued in the Florida Supreme Court. Both Corey and Shirk face challenges in the August 30 Republican primary election, but neither office has a general election challenger.

New Study Explores "Systemic Deficiencies" in High-Use Death Penalty Counties

As states and counties across the United States are using the death penalty with decreasing frequency, a new report issued by the Fair Punishment Project on August 23 explores the outlier practices of 16 U.S. counties that are bucking the national trend and disproportionally pursuing capital punishment. These jurisdictions, representing one-half of one percent of all U.S. counties or county equivalents, are the only locales in the United States to have imposed five or more death sentences since 2010. Six of the counties are in Alabama and Florida, the only two states that still permit non-unanimous death verdicts. Five are located in highly-populated Southern California counties that have been the focus of repeated allegations of prosecutorial misconduct. The others include Caddo (LA), Clark (NV), Dallas (TX), Harris (TX) and Maricopa (AZ), all of which have been criticized for systemic inequities in their administration of the death penalty. Part one of the report examines the "systemic deficiencies" that contribute to the high number of death sentences in these counties and provides detailed analysis of the circumstances in 8 of the counties (a second part of the study, examining the remaining 8 counties, will be released in September). The report finds that these counties frequently share at least three types of structural failings: "a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion." The study found that these in turn "regularly produce two types of unjust outcomes which disproportionately impact people of color: the wrongful conviction of innocent people, and the excessive punishment of persons who are young or suffer from severe mental illnesses, brain damage, trauma, and intellectual disabilities." 

Death Row Exoneree Requests DOJ Investigation of Systemic Prosecutorial Misconduct in Louisiana

Louisiana death row exoneree John Thompson (pictured, center), who was wrongly convicted of two different New Orleans murders as a result of prosecutorial misconduct, has filed a petition with the United States Department of Justice seeking an investigation of more than 100 cases prosecuted by former Orleans Parish assistant district attorney James Williams. Thompson filed his petition on August 2 under provisions of the Law Enforcement Misconduct Statute, which makes it a violation of federal law for police or prosecutors to engage in a pattern or practice of conduct that deprives individuals of their constitutional rights. Thompson's petition alleges that Williams "grossly violated his duty, the power entrusted to him and the constitutional rights of countless defendants he prosecuted," including five cases in which death sentences Williams obtained were later overturned for official misconduct. Thompson was wrongfully convicted and sentenced to death in 1985. He was exonerated in 2003 after his attorney uncovered crucial blood analysis evidence that had been improperly withheld by the Orelans Parish District Attorney's office. In 2007, a jury awarded him $14 million in damages in a suit he filed against the prosecutor's office, but the U.S. Supreme Court overturned that award by a 5-4 vote in 2011, expanding the scope of individual prosecutorial immunity and finding that Thompson had not proven that the district attorney’s office itself was responsible for the individual prosecutors' negligence. In dissent, Justice Ruth Bader Ginsburg wrote, "What happened here . . . was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish." Thompson said his new petition was prompted in part by concern for defendants who were prosecuted by Williams but did not receive a death sentence. "I was blessed to be on Death Row because it gave me access to attorneys, who eventually proved my innocence," he said. "If I weren't given a death sentence, I'd still be in Angola. My question is: What happened to the 95 or more men who Williams prosecuted but didn't get a death sentence? Where are they now?" Emily Maw, director of the Innocence Project New Orleans, said that New Orleans has the highest exoneration rate per capita in the country. Despite that fact, she said, "no state entity has taken it upon themselves to identify that this is a problem."

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