Prosecutorial Misconduct

Death Sentences Drop in Three High-Use Counties As Prosecutors Change

Changes in who is District Attorney have caused a dramatic decline in death sentences in 3 counties that historically have produced a disproportionate number of death sentences in the United States, according to a story from The Marshall Project. Harris County (Houston), Texas, Oklahoma County, Oklahoma, and Philadelphia County, Pennsylvania were all among the 2% of counties that accounted for 56% of inmates on death row as of 2013, but the resignations or retirements of their long-time District Attorneys have been followed by significant drops in the number of new death sentences. In Harris County, DA Johnny Holmes secured an average of 12 death sentences a year from 1992 to 2000. His immediate successor obtained about 6 death sentences a year, and DAs elected since 2008 have averaged about 1 death sentence per year. Similarly, Oklahoma County saw about 2.5 death sentences a year under long-time DA Robert Macy, but has handed down just 3 sentences since 2009. In both Harris and Oklahoma counties, exonerations shook public confidence in the justice system, also contributing to the drop in death sentences. An FBI review of an Oklahoma police chemist who worked closely with Macy uncovered deliberately falsified DNA tests and withheld evidence, which defense attorney Doug Parr said made people, "more skeptical of death penalty prosecutions." In Philadelphia, DA Lynne Abraham obtained an average of 9.5 death sentences per year in the 1990s. According to the article, the picture began to change in response to budget shortfalls and criticisms about racial disparities in death sentences. In 2009, Philadelphia elected a new DA, Seth Williams, who, the article says, promised to improve relations with minorities. In the last 5 years, Philadelphia has had only 3 death sentences. (Click image to enlarge.)

Delaware Prosecutor Suspended for Misconduct in Capital Trial

The Supreme Court of Delaware voted unanimously on July 27 to suspend former Deputy Attorney General R. David Favata as a result of his misconduct during a recent capital trial. With a single dissent as to the length of the suspension, the Court banned Favata from the practice of law for six months and one day for intentional misconduct during the capital trial of Isaiah McCoy. Earlier this year, the state Supreme Court overturned McCoy's conviction and death sentence and ordered a new trial because of Favata's misconduct. The court found that Favata had committed seven distinct ethical violations in McCoy's case, including vouching for the testimony of a key government witness, repeatedly belittling McCoy as he attempted to represent himself at trial, and lying to the judge about attempting to intimidate McCoy. At one point, Favata objected to defense questioning of the victim's girlfriend and during the objection told the jury that McCoy had "shot her boyfriend." During a break in the proceedings, Favata commented in front of McCoy about a mafia code of silence, and said he would put a detective back on the stand to tell everyone that McCoy was a snitch. After McCoy raised the matter with the court, Favata lied about making these comments, prompting a court officer to pass a note to the judge saying that McCoy was telling the truth. Favata also repeatedly disparaged McCoy's attempt to represent himself, saying "The trouble with dealing with somebody with a limited education and no legal education is he doesn't clearly understand what he's reading." The prosecutor also demeaned McCoy by telling him to "start acting lke a man" and criticizing his attire, saying "You can dress him up. He’s still a murderer.” The case was the second time since 2014 that Delaware courts granted a new trial for prosecutorial misconduct in a capital case. In May 2014, Jermaine Wright won a new trial after 21 years on death row when 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.

Texas Disbars Prosecutor for Misconduct in Sending Innocent Man to Death Row

On June 12, the State Bar of Texas disbarred Burleson County District Attorney Charles Sebesta, the prosecutor whose misconduct led to the wrongful conviction of death row exoneree Anthony Graves (pictured, r.). The bar found that Sebesta violated no fewer than five of the Texas Disciplinary Rules of Professional Conduct, including making a false statement to a court, using evidence known to be false, and failing to disclose exculpatory evidence to the defense. In 2006, the U.S. Court of Appeals for the Fifth Circuit overturned Graves' conviction, finding that prosecutors elicited false statements and failed to provide key evidence to Graves' attorneys. Graves was exonerated in 2010, when a special prosecutor re-examined the case, found no credible evidence against Graves, and dropped the charges against him. Assisted by pro bono attorneys Neal Manne, Charles Eskridge, and Kathryn Kase, Graves filed a grievance against Sebesta in 2014 because, according to his attorneys, "even after Mr. Graves' exoneration, Mr. Sebesta continued to claim he had done nothing wrong in prosecuting Mr. Graves. Grotesquely, Mr. Sebesta continued to torment Mr. Graves and his family by insisting both in public statements and on a web site he maintained that Mr. Graves really was a murderer and was guilty of the crimes." Graves said, "No one who makes it a goal to send a man to death row without evidence—and worse, while hiding evidence of my innocence—deserves to be a lawyer in Texas."

INNOCENCE: Alfred Dewayne Brown is Released from Texas Death Row; Nation's 154th Death-Row Exoneration

Harris County, Texas prosecutors announced on June 8 that they have dismissed charges against Alfred Dewayne Brown, who had been sentenced to death in 2005 for the murders of a Houston police officer and a store clerk during a robbery. The Texas Court of Criminal Appeals had overturned Brown's conviction last year because prosecutors withheld a phone record that supported Brown's alibi. Prosecutors in 2013 said that the phone record had been inadvertently misplaced. Brown had long maintained that he had been alone at his girlfriend's apartment at the time of the murder, and that he had called her after seeing reports of the shooting on television. Defense lawyers argued that the time of the phone call established that Brown could not have been at the store when the murder occurred. There was no physical evidence against Brown, and a series of Pulitzer prize-winning columns by Houston Chronicle writer Lisa Falkenberg disclosed irregularities in the grand jury process, that Brown's girlfriend had faced intimidating questioning and threats of perjury by a police officer who was the grand jury foreman, and that she had been jailed for seven weeks until she changed her testimony to implicate Brown. She has since recanted that testimony. District Attorney Devon Anderson said, "After very careful consideration, I have decided that at this time, there is insufficient evidence to corroborate the testimony of Brown's co-defendant. Accordingly, we dismissed Alfred Brown's capital murder case earlier today. It is the right thing to do." Since 2007, Brown's attorneys have compiled strong evidence that the murder was committed by another man with a history of robbery and connections to the co-defendants in the crime. Despite a 2008 motion to test the alternate suspect's DNA, such a test has not been carried out. Alfred Brown is the 154th person exonerated from death row since 1973, the 13th in Texas, and the fourth in 2015.

Orange County Prosecutors Banned from Death Penalty Case for Systemic Pattern of Misconduct

California Superior Court Judge Thomas Goethals (pictured) disqualified the entire Orange County District Attorney's Office from prosecuting a death penalty case after finding that prosecutors had engaged in a systemic pattern of police and prosecutorial misconduct involving the deliberate, but undisclosed, use of prison informants to obtain incriminating statements from defendants. None of the 250 prosecutors in the office are now permitted to participate in the case. Attorneys for the defendant, Scott Dekraai, say that after he had invoked his right to counsel, he was deliberately placed near a repeat jailhouse informant who had been given instructions to try to elicit a confession from him. Such a practice is unconstitutional because the informant in a cellmate interaction orchestrated by prosecutors or police is in effect an agent of the police, and the interaction is too much like an interrogation. Defense attorneys also discovered that the Orange County Sheriff's Department had maintained a secret record-keeping system for more than 25 years that detailed its systemic surreptitious use of prison informants. That system contained potentially exculpatory information, but officials denied its existence and refused to turn over records to defense counsel, in violation of the law. California Attorney General Kamala Harris has appealed Judge Geothals' ruling, but said her office will investigate the allegations.

OUTLIER COUNTIES: Judicial Override, Race Bias, Official Misconduct Rampant in Mobile, Alabama's Use of Death Penalty

Judicial override of jury recommendations of life, the imposition of death sentences after non-unanimous jury sentencing recommendations, and prosecutorial misconduct, race bias, and ineffective defense counsel have made Mobile County, Alabama one of the most prolific death sentencing counties in the United States. Mobile judges imposed 8 death sentences between 2010 and 2015, 88% in cases with white victims. A recent report by Harvard University's Fair Punishment Project attributes this high rate of death sentencing to Alabama's outlier practice of permitting judges to impose death sentences after non-unanimous jury sentencing recommendations. The Project found that only 2 of the 10 Mobile death penalty cases decided on direct appeal since 2006 involved unanimous juries. Judicial override of jury recommendations for life—a practice that today is permitted only in Alabama—also has contributed to unfairness and arbitrariness in Mobile capital cases. Two Mobile County judges, Braxton Kittrell and Ferrill McRae, have used this practice to impose a total of 11 death sentences. According to the Equal Justice Initiative, McRae has overriden more jury life verdicts (6) than any other Alabama judge, including death sentences imposed on George Martin (pictured) and 4 other African-American defendants. During a re-election campaign, McRae ran television ads touting his support for capital punishment and naming defendants whom he had sentenced to death. He also reportedly refused to sign a bail-reduction application in one non-capital case because he “first wanted to know the client’s ‘color’” and allegedly told an attorney in another case not to provide zealous representation “because we need more n***ers in jail.” McCrae has never overturned a jury's death recommendation to impose a life sentence, even when an all-white jury had recommended death for an intellectually disabled black man who could not read the confession that he signed. Mobile prosecutors have also been described as "overzealous" in seeking death. Just two prosecutors, Ashley Rich and Jo Beth Murphee, account for 90% of the Mobile death penalty cases decided on appeal since 2006, and both have had death sentences overturned for improper prosecutorial practices. The Fair Punishment Project found that "the average defense presentation of mitigation evidence in Mobile County capital trials lasts less than one full day" and that one lawyer, Greg Hughes, had been defense counsel for 40% percent of all the Mobile capital cases reviewed on direct appeal since 2006. As a result of a combination of prosecutorial and juror misconduct and ineffective defense representation, Mobile death row prisoner William Zeigler—who maintains his innocence—was granted a new trial in November 2012. In 2015, Ziegler accepted a plea deal for time served and was immediately released. In March 2016, another Mobile trial judge barred prosecutors from retrying Martin, finding that prosecutors had engaged in "willful misconduct" by suppressing a range of exculpatory evidence. This included evidence that the prosecution's lead witness had told investigators he had seen a "large black man" in a trooper's uniform in the vicinity of the murder (Martin is 5'6"), that investigators had shown the witness photos of every black trooper from Mobile County, and that the witness not only had not identified Martin, but had selected the picture of a different trooper. Martin's jury voted 8-4 to spare his life, but Judge McRae overrode their recommendation. The prosecution's appeal of the Martin ruling is pending in the Alabama appellate courts.

U.S. Supreme Court Reverses Arizona Death Sentence After Jury Not Told of Defendant's Ineligibility for Parole

The U.S. Supreme Court has overturned a death sentence imposed on Shawn Patrick Lynch by an Arizona jury that had not been told he would have been ineligible for parole if jurors sentenced to him to life imprisonment. In a 6-2 decision on May 31, the Court agreed to review Lynch's case, vacated the judgment of the Arizona Supreme Court, and summarily reversed Lynch's death sentence. Under Arizona law, the only sentences the jury could impose in Lynch's case were life without possibility of parole or the death penalty. The prosecution in the case presented evidence and argument to the jury suggesting that Lynch would pose a future danger to society unless he were sentenced to death. At the same time, it filed a motion, which the trial judge granted, to prevent Lynch's lawyer from informing the jury that its life sentencing option carried no possibility of parole. The trial court also did not instruct the jury that Lynch would be ineligible for parole if sentenced to life. The Supreme Court held that this violated Lynch's right to due process, as set forth in its 1994 decision in Simmons v. South Carolina. Simmons ruled that a capital defendant is entitled to inform the jury of his parole ineligibility whenever his future dangerousness is at issue and the only sentencing alternatives available to the jury are death or life imprisonment without possibility of parole. This was Lynch's third penalty phase. In his first penalty trial, the jury was unable to reach a unanimous verdict and the court declared a penalty mistrial. Lynch was again sentenced to death at his second penalty trial, but that sentence was overturned because of misconduct by prosecutor Juan Martinez, who had misrepresented to the jury that the aggravating factor “excessively cruel, heinous or depraved” constituted three separate aggravating circumstances. In his latest resentencing trial in 2012, the Arizona Supreme Court found that Martinez had “disturbingly made a number of inappropriate comments” and had engaged in "some instances" of misconduct. However, it ruled that the “prosecutorial misconduct ... was not so pronounced or sustained as to require a new sentencing trial.” Lynch's case now returns to state court for a fourth sentencing trial.

Supreme Court Rules Georgia Prosecutors Struck Death Penalty Jurors Because They Were Black, Grants New Trial

On May 23, the U.S. Supreme Court overturned the conviction and death sentence of Timothy Foster (pictured) because Georgia prosecutors improperly exercised their discretionary jury strikes on the basis of race to exclude African American jurors. The vote was 7-1, with Justice Thomas the lone dissenter. Foster is now entitled to a new trial. Foster, who is black, was sentenced to death by an all-white jury after prosecutors used their peremptory challenges to remove every black prospective juror from the jury pool. Foster's trial lawyer challenged those strikes under the 1986 Supreme Court decision Batson v. Kentucky, which banned the practice of striking jurors on the basis of race, but the trial court credited the race-neutral reasons for the strikes that prosecutors offered at the time. Years later, Foster obtained the prosecutors' jury selection notes, which showed that prosecutors had highlighted the names of each of the black prospective jurors in green on four different copies of the jury list; circled the word “BLACK” next to the “Race” question on the juror questionnaires of five black prospective jurors; identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; and ranked the black prospective jurors against one another in case “it comes down to having to pick one of the black jurors.” Foster filed another Batson claim in the state courts after having discovered these notes, but the Georgia Supreme Court rejected it, saying the issue had already been adjudicated. The U.S. Supreme Court said that the Georgia Supreme Court's decision was "clearly erroneous." "Foster established purposeful discrimination in the State’s strikes of two black prospective jurors," the Court said. "Evidence that a prosecutor’s reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination." Among the reasons given by prosecutors for striking one black juror, Marilyn Garrett, included her age and the fact that she was divorced, but they allowed three out of four divorced white jurors to serve, and also allowed service by white jurors of similar age to Garrett. Stephen Bright, an attorney for Foster, said, "The decision in this case will not end discrimination in jury selection. Justice Thurgood Marshall said in Batson v. Kentucky that it would end only with the elimination of peremptory strikes. The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination. Jury strikes motivated by race cannot be tolerated. The exclusion of black citizens from jury service results in juries that do not represent their communities and undermines the credibility and legitimacy of the criminal justice system.”

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