Prosecutorial Misconduct

Harvard Law Professor Chronicles 'The Death Penalty's Last Stand'

In a recent article in Slate, Harvard Law School Professor Charles Ogletree, the executive director of the university's Charles Hamilton Houston Institute for Race and Justice, says "the death penalty is collapsing under the weight of its own corruption and cruelty." He emphasizes the increasing isolation of capital punishment to a few outlier jurisdictions, particularly highlighting Caddo Parish, Louisiana. Caddo Parish received national attention when, shortly after the exoneration of Glenn Ford, who was wrongfully convicted and spent 30 years on death row, District Attorney Dale Cox said the state should "kill more people." Ogletree described the legacy of racial violence and intimidation in the parish, including that Caddo Parish, which has been responsible for 8 of Louisiana's 12 death sentences since 2010, was "the site of more lynchings of black men than all but one other county In America." Until 2011, a Confederate flag flew atop a monument to the Confederacy outside the entrance to the parish courthouse in Shreveport where jurors reported for duty. In 2015, a study (click image to enlarge) found that Caddo prosecutors struck prospective black jurors at triple the rate of other jurors. Ogletree spotlighted a number of questionable death sentences imposed on Caddo defendants who may have been innocent and framed, were intellectually disabled or mentally ill teenagers, or who suffered from serious brain damage and mental illness, and who were provided systemically deficient representation. "Caddo offers us a microcosm of what remains of the death penalty in America today," Ogletree says. 33 jurisdictions have abolished the death penalty or not carried out an execution in more than 9 years. Just six states performed executions in 2015, and three-quarters of the people who were executed last year raised serious questions about mental health or innocence. Death sentences were at a record low (49), and 14, he said, came from two states - Alabama and Florida - that allow non-unanimous jury recommendations of death. Ogletree concludes, "The death penalty in America today is the death penalty of Caddo Parish—a cruel relic of a bygone and more barbarous era. We don’t need it, and I welcome its demise."

Delaware Supreme Court Overturns Third Death Sentence in Two Years Due to Prosecutorial Misconduct

For the third time in two years, the Delaware Supreme Court has reversed the conviction of a death row inmate because his trial was tainted by prosecutorial misconduct. On December 14, the court ordered a retrial for Chauncey Starling, who was convicted in 2003 of killing two people in a Wilmington barber shop, in part because prosecutors had failed to disclose that they had dropped charges against a key witness for violating his parole. Instead, prosecutors informed defense counsel that those charges were still pending. Earlier this year, the court overturned the conviction of Isaiah McCoy because of misconduct by a deputy attorney general, who was later suspended from practicing law as a result of seven ethical violations in the case. In 2014, Jermaine Wright was granted a new trial because prosecutors and police withheld exculpatory evidence about possible alternate suspects in a case in which no forensic or eyewitness evidence linked Wright to the crime. No physical evidence linked Starling to the barbershop murders, as well. The court ruled that the misconduct, in combination with two prejudicial failures by defense counse, had denied Starling a fair trial. The court wrote, "Like all citizens, [Starling] is entitled to a fair trial that adheres to the procedural requirements with effective representation. Because those procedural requirements were not met, and counsel defending him was ineffective, we are compelled to reverse and remand for a new trial and proceedings not inconsistent with this opinion." 

Missouri Supreme Court Overturns Conviction of Reginald Clemons

The Missouri Supreme Court ruled 4-3 on November 24 to vacate the conviction and death sentence of Reginald (Reggie) Clemons (pictured), who has been on death row for 22 years for the interracial rape and murder of two sisters. The court said that Clemons, did not receive a fair trial because of prosecutorial misconduct. In particular, the court was troubled by what it concluded was a deliberate failure by prosecutiors to provide Clemons' defense with evidence that he had been beaten to elicit a confession. “The record includes substantial, credible evidence that Mr Clemons’ confession was coerced by physical abuse inflicted by the police that would require that his confession be suppressed," Chief Justice Patricia Breckenridge wrote. The court said that the prosecution's misconduct was even more prejudicial in this case because, after withholding evidence of the beating by police, it then filed a motion to bar the defense from arguing that Clemons confession had been coerced, successfully asserting that the evidence at trial did not support an inference that police had beaten Clemons. The court's decision relied heavily on the findings of a Special Master who reviewed the case in 2013. Clemons also raised the issue of his sentence being disproportionate to those of the other men involved in the crime. Of the four defendants in the case, Clemons and two other black men received death sentences, while the one white defendant is now out on parole. The court declined to address the issue of proportionality because the other evidence was sufficient to overturn Clemons' conviction. A 2012 report by The Guardian identified 21 discrepancies in the prosecution's case against Clemons, including, among others, that the prosecution never disclosed the existence of a rape kit that could have identified the perpetrator and presented no evidence from the rape kit at trial; presented testimony in a co-defendant's trial that another person actually pushed the sisters off a bridge into the Mississippi River; and that prosecutors discriminatorily exercised their discretionary strikes to prevent seven black jurors from sitting on the case. The state of Missouri has 60 days from the ruling to decide whether to retry Clemons.

Sexually Abused Teen Who Killed His Abuser Faces Execution Despite Inadequate Defense, Judge's Conflict of Interest

Terry Williams was barely 18 when he killed Amos Norwood, a man who had been sexually abusing him since Williams was 13. A recent article in Mother Jones discusses how the Philadelphia District Attorney's office - which championed the cause of sexual abuse victims during landmark prosecutions of several clergy abuse cases - is aggressively seeking to execute Williams, employing the very stereotypes about abuse victims it publicly rejected in the clergy trials. At the time of those trials, D.A. Seth Williams said "[a]s we have learned, it is extremely difficult for sexual abuse victims to admit that the assault happened, and then to actually report the abuse to authorities can be even harder for them." But in Terry Williams' case, the office has argued both that his silence discredits his claim of having been repeatedly sexually abused and that the killing was a product of  "gay-prostitute rage." Williams never met his court-appointed lawyer until the day before his trial and, not trusting the lawyer, did not reveal his history of sexual abuse. Philadelphia prosecutors knew that WIlliams had been sexually abused before and had evidence that Norwood had made sexual advances toward other young boys. Nevertheless, prosecutors removed references to Norwood's abusive proclivities from several witness statements before providing sanitized versions of those statements to Williams' defense. In a separate case, the same prosecutor, Andrea Foulkes, had tried Williams for the murder of Herbert Hamilton, who had paid Williams for sex when Williams was a teenager. In that trial, the jury acquitted Williams, who was 17 at the time of that killing, of first-degree murder, after hearing evidence of Hamilton's relationship with Williams and convicted him of the lesser charge of third-degree murder. Judge Teresa Sarmina wrote, "The third degree verdict in the Hamilton case, colored Ms. Foulkes' decisions when she prosecuted [Williams] for the murder of Amos Norwood." Despite her awareness of Norwood's sexual proclivities, Foulkes told the jury Williams had killed him "for no other reason but that a kind man offered him a ride home." Pennsylvania Supreme Court Chief Justice Ronald Castille - the former Philadelphia D.A. - refused to recuse himself from WIlliams' appeal, even though Castille had personally authorized Williams' prosecution and, during his judicial election campaign, had trumpeted his record of sending 45 people to death row. Norwood's widow joined more than 350,000 people in supporting Williams' bid for clemency, but the pardons board's 3-2 recommendation for clemency fell short of the state's unanimity requirement. Terry Williams faced an execution date of March 4, 2015, but was granted a reprieve when Gov. Tom Wolf announced a moratorium on the death penalty in February. In October 2015, the U.S. Supreme Court agreed to hear Williams' challenge to Castille's participation in his appeal.

History of Misconduct Chronicled in Oklahoma County With 41 Executions

Oklahoma County has executed 41 prisoners since 1976, the third highest in the country, and is among the 2% of American counties responsible for 56% of the men and women currently on the nation's death rows. A ThinkProgress report chronicles the decades-long pattern of misconduct committed under its long-time District Attorney "Cowboy Bob" Macy (pictured). Macy sent 54 people to death row during his 21 years as District Attorney, more than any other prosecutor in the U.S. in that period. “Macy would pretty much do whatever it took to win,” including making inflammatory arguments and routinely withholding exculpatory evidence, says David Autry, an Oklahoma County public defender from the Macy era. 23 of the Macy capital convictions relied heavily on the testimony of disgraced police chemist Joyce Gilchrist, whom an FBI investigation in 2001 concluded had offered testimony "that went beyond the acceptable limits of science.” An internal police investigation discovered that evidence in many of Gilchrist's major cases was missing, along with three years of her blood analysis files. In the case of Curtis McCarty, one of three death-row exonerees prosecuted under Macy, Gilchrist falsely testified that hairs found at the crime scene matched McCarty's and that his blood type matched the semen found on the victim's body. A later investigation revealed that Gilchrist had altered her notes to implicate McCarty and that the hairs she had tested were missing. McCarty was exonerated in 2007 after independent DNA testing excluded him as a suspect. Almost half of the 23 people who were sentenced to death in trials where Gilchrist testified were executed before their cases could be reviewed and ThinkProgress reports that as many as 38 of those Macy sent to death row have been executed.

Amid Threatening Comments by Current DA, Death Penalty Dominates Caddo Parish Prosecutor Election

Capital punishment is dominating the discussion in the runoff election between James E. Stewart, Sr. and Dhu Thompson to succeed acting Caddo Parish, Louisiana District Attorney Dale Cox. Cox's controversial statements about the death penalty - including that the state needs to "kill more people" - have focused national attention on the parish, which ranks among the two percent of U.S. counties responsible for 56 percent of the inmates on death row nationwide. On October 27, defense attorneys in the death penalty retrial of Eric Mickelson requested Cox's removal from the case after they overheard him saying he wanted to "cut their (expletive) throats." The attention surrounding Cox, as well as the 2014 exoneration of Glenn Ford and charges that Cox may have put an innocent man, Rodricus Crawford, on death row has forced Stewart and Thompson to focus on their proposed capital punishment policies. Stewart said he would place an emphasis on ethics and professionalism in the DA's office: "The evaluation and screening of cases with an ethical and professional standard alleviates the Glenn Ford type of cases. You don’t get so caught up in the case that you miss certain things along the way, and that can happen if people are not looking at the case correctly." He said he'd like to get rid of peremptory challenges, in which prosecutors can strike jurors without cause. A recent study found that Caddo prosecutors had systematically employed peremptory challenges in a racially biased manner. Thompson said he believes the office has approached the use of the death penalty in a thoughtful way, adding, "What we do is seek justice based on the facts and merits of the case." He also said he does not believe that Glenn Ford was innocent and that the 30 years Ford spent in prison was appropriate.

California Law Aims to Reduce Prosecutorial Misconduct

California has enacted a new law giving judges greater authority to remove individual prosecutors - and in some instances entire prosecutorial offices - from cases if they willfully withhold evidence from the defense. Passage of the law was prompted by disclosure of systemic misuse of jailhouse informants by Orange County prosecuters, which led Superior Court Judge Thomas Goethals (pictured) to bar the entire Orange County District Attorney's Office from participation in a death penalty case earlier this year. That misconduct included secretly using jailhouse informants to elicit confessions from suspects after they had invoked their right to counsel - a practice that has been declared unconstitutional - lying to the courts about the use of informants, and withholding potentially exculpatory evidence. In addition to providing judges expanded authority to remove offending prosecutors from cases, the new law requires judges to report such prosecutors to the state bar, which may take disciplinary action. While denying that there had been any "interntional bad faith withholding of evidence" by prosecutors in his office, Orange County District Attorney Tony Rackaukus praised the statute, calling it "a good law." Jeff Thoma, the president of California Attorneys for Criminal Justice, said, "The public deserves to have confidence that prosecutors are committed to playing by the rules instead of trying to win at all costs. I applaud the passage of AB1328 and it being signed into law. I believe this has the positive effect of insuring greater due process by reducing (discovery) violations and holding those accountable that do so in bad faith."

U.S. Supreme Court to Hear Pennsylvania Case Concerning Judicial Bias

The U.S. Supreme Court has agreed to hear Williams v. Pennsylvania, a case challenging former Pennsylvania Supreme Court Chief Justice Ronald Castille's participation in an appeal of a case that had been tried in Philadelphia while Castille was the city's district attorney. Terrance Williams (pictured) was convicted and sentenced to death in Philadelphia in 1984 for the murder of a man prosecutors had described to the jury as "a kind man [who had] offered [Williams] a ride home." Williams was 18 at the time of the murder. His death sentence was reversed days before his scheduled execution in 2012 because prosecutors under Castille's tenure had withheld information that the victim, a church deacon, had sexually abused teenagers he had met through his church and that the trial prosecutor knew that the victim had sexually abused Williams. In 2014, the Pennsylvania Supreme Court reinstated Williams' death sentence. Williams' lawyers asked Castille to recuse himself from the case, saying he had "personally approved the decision to pursue capital punishment" against Williams, continued to head the office when it defended the death verdict on appeal, and, in his electoral campaign for the Pennsylvania Supreme Court, had touted "the number of defendants he had 'sent' to death row, including [Williams]." Castille denied the motion for recusal and authored a concurring opinion that criticized Williams' lawyers and the judge who had ruled in Williams' favor.

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