Prosecutorial Misconduct

30 Years After Landmark Case, Exclusion of Black Jurors Continues to Plague Death Penalty

Thirty years after the U.S. Supreme Court's 1986 decision in Batson v. Kentucky prohibited the intentional exclusion of prospective jurors on the basis of race, discrimination in capital jury selection continues to plague the administration of the death penalty across the country. In articles for The Huffington Post and Slate, Angel S. Harris, assistant counsel at the NAACP Legal Defense and Educational Fund, and Robert Smith, a senior fellow at Harvard Law School's Charles Hamilton Houston Institute for Race and Justice, link the continuing exclusion of black jurors in death penalty cases to the legacy of lynching in America. "While Black men are no longer lynched before all-white crowds gathered on the courthouse lawn," as was one of Harris' relatives in Florida, "Black men are all-too-often condemned to death by all-white juries that are produced by prosecutors’ deliberate exclusion of people of color, particularly Black people, from jury service," she wrote. In his Slate article, Smith describes the persistence of race-based use of discretionary strikes by prosecutors in numerous jurisdictions, and notes that "[t]he mix of prosecutorial impropriety and the exclusion of black jurors has always been a potent combination for injecting racial bias into death penalty cases." He and Harris point to studies in Caddo Parish, Louisiana, and Houston County, Alabama showing systemically discriminatory use of discretionary strikes to remove black jurors from service in death penalty cases, recent cases in which the Nevada Supreme Court found racially discriminatory jury selection in Clark County, as well as race-based jury selection practices in such cities as Dallas and Philadelphia. These practices, Smith says, expose "the inextricable ties between race and the death penalty." The successful exclusion of jurors of color also produces less reliable verdicts, Harris says, pointing to studies showing that because, "compared to diverse juries, all-white juries spend less time deliberating, make more errors, rely on implicit biases and consider fewer alternative perspectives." The U.S. Supreme Court is currently considering Foster v. Chatman (defendant Timothy Foster is pictured), a Georgia death penalty case in which prosecutors struck all the black jurors after highlighting and marking their names on the jury list and ranking them against each other in case "it comes down to having to pick one of the black jurors." Prosecutors then argued to the all-white jury to sentence Foster to death to “deter other people out there in the projects.” 

Orange County Prosecutors Drop Death Penalty in Misconduct-Plagued Case, May Avoid Surrendering DNA Evidence

Kenneth Clair (pictured), whose California death sentence was overturned last year, says he is innocent and that the Orange County District Attorney's office is withholding DNA evidence that would prove it. His prosecutors have declared that they will not seek the death penalty against Clair in a new sentencing hearing, and in so doing may avoid pretrial discovery proceedings in which they could have been required to turn over the potentially exclupatory DNA evidence to the defense. Clair was sentenced to death for the 1984 rape and murder of Linda Faye Rodgers. Two children who were eyewitnesses told first responders that the perpetrator was a white man, but police instead charged Clair, a black man, who had had been arrested for trespassing at the Rodgers' home several days before the murder. At that time, Rodgers' young daughter said that police "have the wrong man. That black man didn't do it." Although the murder scene was covered in blood, a woman who saw Clair shortly after the crime observed nothing unusual in his appearance. In the three decades since his trial, witnesses who testified for the prosecution have recanted, evidence emerged of an undisclosed deal the District Attorney's Office made with one witness for his testimony against Clair, and the U.S. Court of Appeals for the Ninth Circuit found that Clair's lawyer had provided ineffective representation in the penalty phase of his trial. The court overturned Clair's death sentence, but not his conviction. In 2008, DNA testing implicated a man tied to a Fresno case, but District Attorney Tony Rackauckas has withheld the identity of that person, saying the man was too young in 1984 to have been the perpetrator. Clair told the OC Weekly in a recent interview, "I am an innocent man.... I'd bet $1 million, it's a white person's [DNA], like what the kids told the first responders." Clair's case is now before Superior Court Judge Thomas M. Goethals, who recently banned the entire Orange County DA's office from participating in a separate death penalty case because of a history of misconduct involving its repeated failures to disclose the misuse of prison informants and the favorable deals it had offered those informants for their testimony against defendants.

Federal Judge Overturns South Carolina Death Sentence Because of Prosecutor's Racist Arguments

A South Carolina federal district court has vacated the death sentence imposed on Johnny Bennett, an African-American defendant condemned by an all-white jury after prosecutor Donald Myers (pictured) had "made multiple statements clearly calculated to excite the jury with racial imagery and stereotypes." Myers' misconduct included eliciting irrelevant evidence that Bennett had an interracial sexual relationship with a white woman and that a white witness whom Bennett had assaulted when he was a juvenile had dreamt of "being chased by black savages." During closing argument, Myers also called Bennett - who was 6'7" and 300 pounds - "King Kong," a "monster," a "beast of burden," and a "caveman." Judge Richard Gergel wrote that comparing Bennett to King Kong reflected America's "long and ugly history of depicting African-Americans as monkeys and apes" and characterized Myers' racially-charged statements as "a not so subtle dog whistle on race that this court cannot and will not ignore." Myers has been chief prosecutor for South Carolina's Eleventh Judicial Circuit since 1977. Under his tenure, the circuit has produced 39 death sentences, more than any of the state's 15 other circuits, sentencing - and sometimes re-sentencing - 28 defendants to death. The circuit's death sentencing rate of 6.8 death sentences per 100 murders is the highest of any circuit in the state and 3.5 times higher than the state average. Myers personally obtained all of the death verdicts handed down in the Circuit, although many have been overturned, including several for prosecutorial misconduct. Myers recently announced that he will not seek re-election because he is approaching the mandatory retirement age.  His retirement announcement came less than a month after he was arrested for drunk driving, his third alcohol-related charge since 2005.  

U.S. Supreme Court Hears Argument in Pennsylvania Judicial Bias Case

On February 29, the U.S. Supreme Court heard oral argument in Williams v. Pennsylvania, a case challenging former Pennsylvania Supreme Court Chief Justice Ronald Castille's participation in the state's appeal of a death penalty case involving Terry Williams (pictured), whose capital prosecution Castille personally authorized in his earlier role as Philadelphia District Attorney. A lower court judge overturned Williams' death sentence in 2012 finding that Philadelphia prosecutors had withheld exculpatory evidence, including that Williams' victim had a history of molesting boys. That evidence would would have supported Williams' claim that he, too, had been sexually abused by the victim. That misconduct, which occured while Castille was District Attorney, was the central issue before the state Supreme Court in the state's appeal in Williams' case. The Pennsylvania Supreme Court reversed the lower court decision and reinstated Williams' death sentence. In an amicus brief filed by the Ethics Bureau at Yale Law School, Lawrence J. Fox wrote, "Judges who wear 'two hats' in the same case violate the requirement of judicial impartiality. Chief Justice Castille's conduct deeply undermined the integrity of the judicial proceedings and trampled any notion of due process for Mr. Williams." During today's argument, several Justices expressed concerns about Castille's participation. Justice Sonia Sotomayor said Castille should have recused himself from Williams' case because "he signed his name" on the authorization to seek the death penalty. Justice Anthony Kennedy said he did not think the passage of nearly 30 years between Williams' trial and his appeal lessened Castille's potential bias.

Report Finds 'Failure of Leadership' by Orange County District Attorney's Office in Jailhouse Informant Scandal

A new report by a special committee created by Orange County, California District Attorney Tony Rackauckas (pictured) cites a "failure of leadership" as the root cause of a multi-decade history of prosecutorial misconduct involving jailhouse informants. Documents obtained by defense lawyers and The Orange County Register had revealed what the paper called "a secret and well-organized network of snitches" that had been hidden from defense counsel and the courts. In May 2015, California Superior Court Judge Thomas Goethals disqualified the entire Orange County District Attorney's office from participating in the capital trial of Scott Dekraai after Dekraai's attorneys alleged that prosecutors had deliberately violated his constitutional rights by arranging to place him in a cell near an informant who had been instructed to elicit incriminating statements. The court found that the county's prosecutors had repeatedly violated court orders to disclose information about informants, hiding the existence of an intricate computerized data base tracking how they were used. The prosecutor's office also faces criticism for allegedly failing to disclose benefits it provided to an informant - who now says she provided false testimony - in the 1997 capital trial of John Abel. After the informant scandal became public, Rackauckas established a special committee of legal experts to investigate the office's practices and suggest reforms. The committee's report, released on December 30, criticized the office for a "win-at-all-costs mentality," and concludes, "There is an immediate need for stronger leadership, training, supervision, mentoring, and oversight to change the culture." In 2012, Orange County had the 6th largest county death row in the US and was part of the 2% of US counties responsible for more than half of the country's death row. Since then, it has produced 5 more death sentences, more than all California counties except Riverside and Los Angeles.

Southern California Tops Deep South in New Death Sentences Amid Mounting Evidence of Misconduct

Riverside County, California is "the buckle of a new Death Belt," says Professor Robert J. Smith of the University of North Carolina at Chapel Hill, producing 7 death sentences in the first half of 2015. This, Smith says, is "more than California’s other 57 counties combined, more than any other state, and more than the whole Deep South combined." Los Angeles County has produced 33 death sentences since 2010 - the most in the Nation - and 5 Southern California counties (also including KernOrange, and San Bernardino) are among the most prolific 15 counties nationwide in producing death sentences in that time period. Meanwhile, there has been a dramatic drop in new death verdicts in the Deep South, which Smith notes formerly produced the most death sentences. No one has been sentenced to death in 2015 in Georgia, North Carolina, South Carolina, Virginia, or Texas. However, the Southern California counties "have more in common than overzealous use of the death penalty," Smith says. Prosecutor's offices in these counties face charges of rampant misconduct, including deliberately withholding favorable evidence and lying to courts. The entire Orange County District Attorney's office was recused from a recent capital prosecution as a result of extensive misconduct. Its Deputy District Attorney Erik Petersen recently resigned and left the state after he came under scrutiny for the use of an illegal jailhouse informant program to secure testimony against defendants. In Riverside County, federal courts overturned a murder conviction earlier this year because a prosecutor lied about whether an informant received incentives for testifying. Kern and Los Angeles prosecutors have also been cited for repeated acts of misconduct. (Click image to enlarge. Map shows counties that handed down the most death sentences in 2014.)

Texas to Execute Lester Bower After 30 Years on Death Row, Despite Errors and Doubts as to Guilt

UPDATE: Bower was executed as scheduled. EARLIER: Lester Bower is scheduled to be executed in Texas on June 3, after spending more than 30 years on death row. Judges have denied relief on several issues raised by Bower, including a claim that prosecutors had withheld evidence from the defense supporting Bower's consistent assertion that he is innocent. Bower was convicted of the 1983 murder of four men in Grayson County, Texas. He says he met with one of the men to purchase an ultralight aircraft, which the others helped him disassemble and load into his truck. The evidence against him was circumstantial: calls made to the man selling the aircraft and Bower's possession of the same type of ammunition used in the killings, which prosecutors had told the jury was extremely rare. After Bower's conviction, his lawyers obtained records from the FBI and prosecutors indicating that the ammunition was not as rare as prosecutors had said, and of an undisclosed tip that the murders may have been connected to drug trafficking. Later, a woman came forward saying that her boyfriend and his friends had committed the murders after a drug deal went wrong. The wife of one of the other men corroborated her story. In a recent filing, Bower's attorneys said, "This is a case in which there is a significant lingering doubt regarding guilt or innocence." Three Supreme Court justices have said that Bower should have a new sentencing hearing, as a result of what they called a "glaring" constitutional error that impaired the jury's consideration of mitigating evidence.

Pages