Prosecutorial Misconduct

Louisiana Justice Recused From “Angola 5” Death-Penalty Appeal After Radio Interview Commenting on the Case

Louisiana Supreme Court Justice Scott Crichton (pictured) will not participate in deciding the appeal of a prisoner sentenced to death in a controversial, high-profile prison killing, after Crichton publicly commented on the case during an appearance on a local radio program. On November 21, Crichton recused himself from the pending appeal of death-row prisoner David Brown, one day after Brown's lawyers sought his removal from the case because of Crichton's on-air comments about the "Angola 5" case and the judge's derrogatory references to capital appeals. Brown is one of the five men charged in the murder of prison guard, Capt. David Knapp at the Angola State Penitentiary in 1999. Crichton's "notice of self-recusal" provided no explanation for his decision. However, Brown's lawyers had argued in their recusal motion that, during an October 23 talk-radio appearance on the KEEL Morning Show with Robert and Erin, "[Crichton] and his interviewer agreed that inmates with life sentences 'have nothing to lose' and that murders by prisoners, like 'the Angola 5 in South Louisiana,' prove that the death penalty is a deterrent because inmates who have been executed cannot then harm prison guards." The lawyers also argued that Crichton had expressed personal opinions about the death penalty both on the October 23 program and in other recent radio interviews that violated the Code of Judicial Conduct and disqualified him participating in Brown's death-penalty appeal. In addition to his comments about the Angola 5 case, Justice Crichton—a former death-penalty prosecutor and judge in Caddo Parish, where the rate of death sentences per homicide was nearly 8 times greater between 2006 and 2015 than in the rest of Louisiana—disparaged death-penalty appeals, saying that it "boggles my mind" when an "inmate who has committed capital murder who is on death row is begging for his life. Think about the fact that the victim gets no due process." In 2014, a trial court had reversed Brown's death sentence after finding that Hugo Holland—another former Caddo Parish prosecutor who had been appointed as a special prosecutor to handle the case—had withheld evidence that a prisoner interviewed in connection with the murder had told prosecutors that two of the five men charged in the killing had admitted to him that only they had committed the murder. The Louisiana Supreme Court later reinstated Brown's death sentence, ruling that the suppression of this evidence was not "material" to the jury's sentence. Crichton had complained in previous appearances on the talk show about the appeal process in the death-penalty case of Nathaniel Code, against whom Crichton had obtained a death sentence in the 1980s: “He’s been on this crazy post-conviction relief status,” Crichton said. “He had 18 years of [post-conviction appeals] in the state system, which is absurd, obscene, and hideous.”

Nevada Pardons Man Imprisoned 21 Years as a Result of Wrongful Capital Murder Prosecution

Nevada has pardoned Fred Steese (pictured), who spent 21 years in prison after Las Vegas prosecutors wrongly sought the death penalty against him while witholding evidence that he was not even in the state at the time the murder occurred. In what news reports described as "a clear rebuke to the Las Vegas prosecutors," the Nevada Board of Pardons Commissioners voted 8-1 on November 8 to grant Steese a full pardon. “I’m a new man now,” Steese said. “It’s lifted a black cloud over me.” The seven justices of the Nevada Supreme Court and Governor Brian Sandoval voted in favor of clearing Steese's name; only Adam Laxalt, the state's attorney general and a current candidate for governor, voted against the pardon. Steese was charged with capital murder in the high-profile 1992 killing of Las Vegas circus performer, Gerard Soules. He was prosecuted by Bill Kephart and Doug Herndon, who both went on to become district judges in Las Vegas. Steese was in Idaho at the time of Soules's death, but signed a false confession after a five-hour interrogation and 35 hours without sleep. At trial he presented numerous alibi witness who testified that he was in Idaho at the time. Kephart—who also committed misconduct in several other capital trials before being elected as a judge in 2014—argued to the jury (with no supporting evidence) that the witnesses had seen Steese's brother in Idaho and that Steese had manufactured the alibi. After Steese was convicted in 1995, prosecutors withdrew the death penalty and Sreese was sentenced to two life sentences. He spent two decades in prison before federal public defenders proved that his brother, estranged since childhood, couldn’t have helped with Steese’s alibi. The federal defenders' investigation also unearthed phone records in the prosecution’s files that proved Steese was in Idaho at the time of the murder. In 2012, a Nevada Eighth Judicial District Court judge issued an Order of Actual Innocence, declaring that Steese didn’t kill anyone. But the Clark County District Attorney’s Office refused to admit it had convicted an innocent man. In 2013, Assistant District Attorney Pamela Weckerly told Steese she’d agree to release him from prison only if he entered an Alford plea, in which, while maintaining his innocence, he admitted there was sufficient evidence on which he could be convicted. After gaining his freedom, Steese—still with a murer conviction on his record— struggled to find employment and experienced periods of homelessness before finding work as a cross-country trucker. At the pardon hearing, Steese’s pro-bono attorney lawyer, Lisa Rasmussen, said that from the time of his interrogation through the time of his release from prison, his constitutional rights had been “violated in a huge way.” Rasmussen condemned the prosecutorial misconduct in the case as “an embarrassment and a black mark on Clark County and the state of Nevada." After Steese himself testified, the board heard from Kathy Nasrey, the sister of Gerard Soules, who demanded that Kephart, Herndon, and others be held accountable for knowingly convicting an innocent man while her brother’s killer remained on the loose. “Now that it was clear that certain lawyers and detectives helped convict an innocent man,” she said, “will they be held accountable for taking away 20 years of his life?”

Federal Court Finds Intentional Misconduct by Alabama Prosecutor, But Lets Death Penalty Stand

Finding that an Alabama prosecutor with a history of misconduct had "intentionally" made improper comments in the capital trial of Artez Hammonds (pictured) "in flagrant violation" of a pre-trial order warning him not to do so, the U.S. Court of Appeals for the Eleventh Circuit nevertheless denied Hammonds's appeal and permitted his conviction and death sentence to stand. While the court noted that the prosecutor, District Attorney Douglas Valeska "had been reprimanded in prior cases for engaging in precisely the same unconstitutional and unethical behavior" and said it was "very disturbed" by the prosecutor's deliberate unconstitutional references to Hammonds's decision not to testify and to his prior incarceration, the court ultimately held that the comments did not affect the jury's verdict and denied him relief. While in prison for an unrelated offense, Hammonds was tried, convicted, and sentenced to death in Houston County in 1997 for the rape and murder of a white woman in a high-profile case that had gone unsolved for six years. Despite a population of only 100,000, the county currently has 18 people on its death row. As of January 1, 2013, its death row ranked 30th in size among all counties in the United States, even though it was less than one-quarter the size of any other county in the top thirty, and two-thirds of those counties had populations of more than one million. Valeska served as Houston County's district attorney for three decades until his retirement in January 2017, obtaining more than a dozen death sentences during that period. A study by the Equal Justice Initiative in May of 2008 reported a 16-fold increase in the number of death sentences in Houston County between 1995 and 2008, while Valeska was in office, over the death sentences imposed in the previous two decades. During his time in office, Valeska was found to have violated the rights of capital defendants on numerous occasions by unconstitutionally striking African Americans from death penalty juries because of their race and making improper inflammatory comments during trial. Because of this history, Hammonds's trial lawyer specifically requested the court, before the trial started, to order Valeska to refrain from commenting on Hammonds's decision to exercise his Fifth Amendment right not to testify. But, as the Eleventh Circuit wrote, "neither the Constitution nor a direct order from the court inhibited Valeska" from improperly commenting on Hammonds's choice not to testify. The court critcized the Alabama Attorney General's office, which represented the state during the appeal, for "perpetuat[ing] the charade that Valeska did not intend" to violate Hammonds's rights, saying that the state attorney's "insistence on defending this improper conduct implicitly condones the unethical tactics that Valeska used" and invites other prosecutors to engage in similar "unsavory conduct." The court provided a copy of its opinion to the Alabama State Bar to review Valeska's conduct for possible disciplinary action.

False or Flawed Forensic Evidence Raises Questions About Two Texas Capital Convictions

Two recent appellate decisions by the Texas courts have thrust into the national spotlight the continuing controversy over the use of false or flawed forensic testimony to secure convictions in death penalty cases. On October 18, the Texas Court of Criminal Appeals ordered a Travis County (Austin) trial court to conduct a hearing to consider evidence that the Austin police crime lab had botched its analysis of DNA evidence and presented scientifically false DNA testimony leading to the conviction and death sentencing of Areli Escobar in 2011. The same day, the court reversed an order of a Harris County (Houston) trial court that had granted Arthur Brown a new trial after the lower court had found that prosecutors had presented false ballistics testimony in securing Brown's conviction and death sentence in 1993. In his petition for relief, Escobar argued that he was entitled to a “comprehensive, independent review” of the scientific evidence presented in his case because his capital conviction “rests on forensic evidence developed by incompetent scientists using bad science.” The Austin crime lab has come under fire during the past few years as a result of improper procedures and poor quality control—problems that ultimately resulted in the closure of the lab and dismissal of almost all its employees. The court of appeals directed the trial court to examine Escobar's claims that the lab staffed his case with poorly trained analysts, cross-contaminated samples, practiced questionable analytical methods, and provided false and misleading DNA testimony that tainted his prosecution for the sexual assault and murder of a neighbor. The appeals court also ruled that Escobar was entitled to review of a claim that prosecutors had presented misleading forensic testimony about his proximity to the murder scene based on false or misleading cell-tower location information. The same day that it granted Escobar further review of his claims, the appeals court overturned the decision of a Houston trial court that had granted Brown a new trial based on the prosecution's presentation of false or misleading ballistic expert testimony at his trial. In securing his conviction and death sentence for four drug-related murders that he and two accomplices allegedly committed in southwest Houston, prosecutors relied on the testimony of a firearms expert who said "absolutely" that the bullets recovered from the victims matched two guns that were linked to Brown. Brown's execution had been stayed in October 2013 to allow for additonal review of that evidence. After reviewing the new ballistic evidence, the trial court determined that the state presented forensic testimony that was "plainly wrong and false" with respect to one of the guns and that was "plainly false" with respect to the other gun. However, the appeals court ruled that, even if the forensic evidence was false, it did not entitle Brown to a new trial because the jury could have still convicted him under Texas's law of the parties, a broad rule that makes a defendant criminally liable for the actions of his accomplices. Judge Elsa Alcala dissented, rejecting the majority's conclusion that guilt was a foregone conclusion and noting that "other evidence of guilt was exceedingly weak when examined without the support of the erroneous firearms evidence." She noted that the testimony from the two witnesses at the crime scene had credibility issues, and Brown's sister recanted her testimony that Brown had told her he shot and killed six people, saying she had been coerced into testifying falsely. Given these facts, Judge Alcala concluded that knowledge that the forensic testimony painting Brown as the shooter was false and unreliable may have affected the jury's determination of guilt or the sentence it imposed in the case. 

USS Cole Lawyers Resign From Guantánamo Death-Penalty Defense, Say Government Spied on Client Communications

The U.S. Supreme Court has denied review of a petition filed by lawyers on behalf of Abd al Rahim al Nashiri—accused of orchestrating al-Qaida’s October 12, 2000 suicide bombing of the USS Cole warship off the coast of Yemen—challenging the legality of his death penalty trial before a Guantánamo Bay military commission. But in what has been described as "a stunning setback" to what would have been the first death-penalty trial held before the special military tribunals established in the wake of the 9/11 attacks, the entire civilian legal team has resigned from the case amid allegations that the government was illicitly listening in on their legal meetings. The Miami Herald reported on October 13, just three days before the Supreme Court decision, that the Chief Defense Counsel for the Military Commissions Defense Organization, Brigadier General John Baker (pictured) had “found good cause” to permit Nashiri's defense team to withdraw from the case as a result of ethical concerns created by alleged government spying on privileged attorney-client meetings. In June 2017, Gen. Baker advised war court defense attorneys that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo, saying that he was “not confident that the prohibition on improper monitoring of attorney-client meetings” at the detention center was being followed. Attorney Rick Kammen, who has defended Nashiri since 2008, alleges in the Supreme Court petition that his team discovered classified information contradicting government assurances that the facilities in which they met with Nashiri were not being improperly surveiled. In the past, the spying has included, among other things, "microphones hidden in smoke detectors." Because the information relating to the violation of the right to counsel is classified, the defense lawyers have been ordered by the judge in the case, Air Force Colonel Vance Spath, not to share the information with the public or their client. Although Brig. Gen. Baker has released Kammen from representing Nashiri, the case cannot proceed until another experienced death-penalty defender is brought onboard. Two other civilian defense attorneys who are Pentagon employees—Rosa Eliades and Mary Spears—also quit the case with permission from Baker but remain on his staff. The only member of Nashiri's defense team who remains on the case is Lieutenant Alaric Piette—a former Navy SEAL who has never tried a murder case. “I am certainly not qualified as learned [death-penalty] counsel,” Lt. Piette told the Miami Herald, which he says Nashiri “is entitled to and should have ... since the government is trying to kill him.” Kammen says the defense team is "angry about being placed in an ethically untenable position, disappointed in not being able to see the case through, and devastated to leave Mr. Nashiri, whom we genuinely like and who deserves a real chance for justice.” The pretrial proceedings at the Guantánamo Bay that were scheduled to begin on October 30th are expected to be delayed for months, until learned death-penalty counsel who has received Top Secret security clearance to review the evidence in the case is appointed.

Former Arkansas Death-Row Prisoner Rickey Dale Newman Exonerated After Nearly 17 Years in Prison

An Arkansas trial judge has dismissed all charges against former death-row prisoner, Rickey Dale Newman (pictured), setting him free on October 11 after having spent nearly 17 years in custody following the February 2001 murder of a transient woman in a "hobo park" on the outskirts of Van Buren, Arkansas. Newman became the 160th person since 1973 to be exonerated after having having been wrongly convicted and sentenced to death. Newman, a former Marine with major depression, chronic posttraumatic stress disorder from childhood abuse, and an IQ in the intellectually disabled range, was seriously mentally ill and homeless at the time he was charged with murdering Marie Cholette. He was convicted and sentenced to death in June 2002 after a one-day trial in which the court permitted him to represent himself. No physical evidence linked Newman to the murder, but at trial a prosecution expert falsely testified that hair found on Newman's clothing came from the victim. Newman also told the jury he had committed the murder and asked them to impose the death penalty. He subsequently sought to waive his appeals and be executed. The Arkansas Supreme Court initially held that Newman had been mentally competent and granted his request to drop his appeals. However, four days before his scheduled execution on July 26, 2005, Newman permitted federal public defenders, including his current counsel, Julie Brain, to seek a stay of execution. DNA evidence on the blanket on which the victim was found excluded Newman, and the federal defenders obtained DNA testing of the hair evidence that disproved the prosecution's trial testimony. They also discovered that prosecutors had withheld from the defense evidence from the murder scene that contradicted what Newman had described in his confession. A federal court hearing disclosed that the state mental health doctor had made significant errors in administering and scoring tests he had relied upon for his testimony that Newman had been competent to stand trial. The Arkansas Supreme Court subsequently ordered new hearings on Newman's competency and on the evidence the prosecution had withheld from the defense. After those hearings, it wrote that "the record overwhelmingly illustrates that Newman’s cognitive deficits and mental illnesses interfered with his ability to effectively and rationally assist counsel" and overturned Newman's conviction. In September, it issued another ruling barring the use of Newman's incompetent confessions in any retrial. On October 2, Brain submitted a letter to the court saying that “Mr. Newman has now been incarcerated for over 16 years for a murder that he did not commit” and that the Arkansas Supreme Court had found that the invalid statements he had given while mentally incompetent were "the only meaningful evidence against him." In response, special prosecutor Ron Fields submitted letter to the court asking that charges be dismissed. Fields wrote that, without the confessions, prosecutors lacked sufficient evidence to obtain a conviction and "it would be a waste of tax payers money to retry [Newman]."

Texas Set to Execute Robert Pruett for Prison Murder Despite Corruption and Lack of Physical Evidence

Though no physical evidence links him to the crime, Texas is set to execute Robert Pruett (pictured) on October 12 for the 1999 stabbing death of a state correctional officer who was at the center of a prison corruption investigation. Results of a DNA test of the murder weapon in 2015 found DNA that matched neither Pruett nor the victim, Officer Daniel Nagle. According to Pruett’s pending clemency petition, Officer Nagle was working to identify corrupt correctional officers who had been helping prison gangs launder drug money, and his name was discovered on a secret note from an inmate saying that a prison gang wanted him dead. The unidentified DNA, Pruett’s lawyers suggest, may belong “to the person [who] killed Nagle” and that Pruett was framed for the murder. Earlier on the day he was killed, Officer Nagle had given Pruett a disciplinary write-up for eating a sandwich in an unauthorized area. A bloody shank and a torn-up copy of the disciplinary report were found next to the officer’s body. The prosecution's case turned on dubious testimony from prison informants and the testimony of a forensic analyst that linked the tape wrapped around the handle of the shank used to kill Nagle to the prison craft shop in which Pruett’s cellmate worked. The forensic testimony has since been debunked and, according to the clemency petition, a state investigator’s notes disclosed that a key prison witness—Harold Mitchell—had been promised a transfer to a prison close to his family’s home in Virginia if he testified against Pruett and threatened with being charged with Nagle’s murder if he did not. This is the sixth time Pruett has faced an execution warrant. In April 2015, he received a stay of execution to permit DNA testing and the Texas Court of Criminal Appeals granted a stay in August 2016 so the state courts could have more time to review Pruett's new claims relating to the DNA evidence. However, in April 2017, the Texas appeals court ruled that the DNA test results would not have changed the outcome of his trial. The U.S Supreme Court declined to review Pruett’s case on October 2, permitting the execution to proceed. Texas Gov. Greg Abbott, who has presided over 25 executions since taking office in January 2015, has yet to commute any death sentence.

John Thompson, Death-Row Exoneree and Social Justice Activist, Has Died

Death-row exoneree John Thompson (pictured), described by Innocence Project New Orleans director Emily Maw, as "an amazing force in the world" and a "national legend," died October 3 at a New Orleans-area hospital after suffering a heart attack. Exonerated in 2003, he had survived a corrupt Orleans Parish prosecution, seven death warrants, and an imminent execution by the state of Louisiana for a murder he did not commit. Following his release, Thompson became a national advocate for criminal justice reform and founded Resurrection After Exoneration, a re-entry and support program for released prisoners. Thompson's odyssey towards exoneration began when he was wrongly charged with, and wrongly convicted of, two crimes that took place a few months apart in 1984—a carjacking and the unrelated murder of New Orleans hotel executive Ray Liuzza, Jr. He was wrongly sentenced to death for Liuzza's murder. Just 30 days from an execution date, an investigator in his case discovered a report about exculpatory blood evidence on the carjacking victim's clothes that the state had never revealed. The blood did not belong to Thompson and both the carjacking and murder cases against him soon unraveled.  A former prosecutor revealed that one of the prosecutors who tried Thompson, Gerry Deegan, had confessed on his death bed in 1994 that he intentionally hid the blood evidence. Thompson won a new trial and was acquitted and released in 2003. He had spent 18 years in prison (14 years on death row), and lost his grandmother and father during that time. Thompson was prosecuted by the Orleans Parish Assistant District Attorney's office during the administration of District Attorney Harry Connick, Sr. His lead prosecutor, James Williams—who had a replica electric chair on his desk and framed photographs of the men he had sent to death row on his office wall—told a reporter in 2007, “There was no thrill for me unless there was a chance for the death penalty.” 11 of the 36 men sentenced to death during Connick’s tenure had their convictions overturned as a result of prosecutorial misconduct, and four—including two wrongly prosecuted by Williams—were exonerated. Thompson later won a federal jury verdict for $14 million in 2007 after suing the District Attorney's Office for prosecutorial misconduct, but the U.S. Supreme Court, in a controversial 5-4 decision written by Justice Clarence Thomas, reversed the verdict, ruling that the prosecutors had immunity from liability. In a 2011 op-ed in the New York Times, The Prosecution Rests, but I Can't, Thompson wrote that more than money, justice was at stake. "I don't care about the money," he said. "I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn't do and nearly had me killed are not in jail themselves."

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