Whip it good

It appears the mantra, Defund the Police, may be dead and buried. Minnesota having another trial of a Police Officer who killed a young man thinking she was pulling out a taser vs a gun begins this week, they also voted to not defund the Police through a bill that would have replaced the Police Department with a new Department of Public Safety, one focused on public health solutions.

Austin in 2020 had also created a board, Reimagining Public Safety Task force, to study and report on issues that have been cited in many of the issues regarding Police and Public safety. (Such as traffic stops and no knock warrants as an example) It has made legit recommendations; HOWEVER, that same board has had so many restrictions with regards to its presentations, their reports and other concepts that many did not make it to the City Council for review. But on a positive note they did remove $150 Million from the Police Budget for other areas of public health and safety. How that will play out is yet to be seen as again the recommendations and ideas from the panel were not well reviewed or even properly presented, and this may be Austin but it is still Texas folks.

And with that we still forget that the Police are just one cog in the wheel of Justice and that is one slow wheel. The Prosecutors, the Defense Attorneys, Judges, Private industry that manages anything from Jails to Parole services all have an interest in the way it plays across the spectrum and they are the last to want to take a cut in their interests and roles. Money talks and no one walks in this corrupt revolving door of the halls of injustice.

Of late there have been many stories of those recently freed due to some of the issues surrounding their cases, the most famous is the man accused of raping the author, Alice Sebold. This for me is a very classic case of the Railroad Car of Justice. And there have been other stories of those denied parole because they refuse to apologize and admit guilt when they never committed the crimes. Again this is a very critical element of justice and it is fucking punitive. I say this as there is nothing in the statues or laws that govern punishment and sentencing that require this and if so then why not do it at trial and see if that gets you out of jail free. Nah, not happening. The shame and metaphor of that comes from religion folks, you know the Church that we the State are distinct from, supposedly.

And with that I want to point out that New York holds the award for the state with the most wrongful convictions in the US. Wow thought that one would go to Louisiana. No it is Illinois and Texas for the second and third place winner. But the issue here is very key to note, convictions; Not all cases make it to trial, they are plead out and punishment is levied in a distinctly separate hearing with no opposing Attorneys often present. It is sort of a fait acompli and that is why NY leads, they simply burn through more criminals. And this is also a reflection of a system that tolerates laziness. I have yet to meet anyone in that system that does not define the word LAZY. I was listening to a podcast, Suspect, Campside, about a murder in the Seattle area around the same time I was still living there. And this is an excellent example of how bad the Police fail to do their job and the rest line in place. The only exception was the Public Defender who was a rare breed of dog who actually gave a shit. This again is an exception to the rule, watch on Netflix another case in Seattle around the same time, Unbelievable, to see the level of incompetence play out there.

When I read this in the Times yesterday it again drove the point home that defunding the Police is only one part of a very complex puzzle where the pieces seem to interlock in ways that make it harder to take apart than put together. But these men and women are actually douchebags who often leave the public sector to become private counsel using their connections and inside knowledge to manipulate their clients into believing they actually do work and find solutions, when in reality they are just doing what they always did – as little as possible. Next please! So reform them too.

How Can You Destroy a Person’s Life and Only Get a Slap on the Wrist?

Dec. 4, 2021 The New York Times Opinion

By The Editorial Board

The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.

Prosecutors are among the most powerful players in the criminal justice system. They can send a defendant off to years in prison, or even to death row. Most wield this power honorably. Yet, when prosecutors don’t, they rarely pay a price, even for repeated and egregious misconduct that puts innocent people behind bars.

Why? Because they are protected by layers of silence and secrecy that are written into local, state and federal policy, shielding them from any real accountability for wrongdoing.

New York City offers a prime example of a problem endemic to the nation. Consider the city’s official reaction to the barrelful of misconduct in Queens that a group of law professors recently brought to light. As The Times reported last month, the professors filed grievances against 21 prosecutors in the borough — for everything from lying in open court to withholding key evidence from the defense — and then posted those grievances to a public website.

These weren’t close calls. In every instance an appeals court had made a finding of prosecutorial misconduct; in many cases the misconduct was so severe that it required overturning a guilty verdict and releasing someone from prison. Three men wrongfully convicted of a 1996 murder were exonerated after 24 years behind bars. But that rectified only the most glaring injustice. To date, none of the prosecutors have faced any public consequences. Some are still working.

How did the city respond to this litany of widespread misconduct by its own agents? It went after the professors who publicized it.

In a letter to the committee that handles misconduct charges, New York City’s top lawyer, known as the corporation counsel, accused the professors of abusing the grievance process “to promote a political agenda” and of violating a state law that requires formal complaints about lawyers’ conduct to be kept secret unless judicial authorities decide otherwise. (They virtually never do.) The grievance committee agreed to punish the professors by denying them access to any future updates on their complaints — even though state law requires that complainants be kept informed throughout the process. The upshot is that the committee could dismiss the complaints tomorrow and no one would know.

For good measure, the corporation counsel then sought to keep secret the letter requesting the professors be punished for violating the secrecy law. This isn’t just shooting the messenger; it’s tossing the gun into the East River and threatening anyone who tries to fish it out.

We know about all this because the professors sued the city in federal court, claiming that the secrecy law infringes on the First Amendment. How could it not? If someone tells a Times reporter about a prosecutor’s misconduct, the reporter is free to write a story addressing those allegations for all the world to see. But if the same person files a formal grievance about the same misconduct with the state, she’s barred from talking about it. It’s not even clear what the punishment for violating the law would be — as evidenced by the fact that dozens of prominent lawyers, including former New York judges and even prosecutors, went public with grievances they filed against Rudy Giuliani over his role in Donald Trump’s efforts to subvert the 2020 election and encourage the Jan. 6 riot at the Capitol. To date, none of these lawyers have faced public sanctions for speaking to the press.

In theory, the secrecy law exists to protect lawyers from being smeared by frivolous complaints, but that rationale makes no sense when applied to prosecutors, who are public officials doing the state’s work. In the Queens cases, their misconduct is already a matter of public record. Even if it weren’t, there is no principled reason to prevent the public airing of complaints — not to mention public hearings — against officials who have the power to send people to prison. Certainly the defendants they face off against in court don’t enjoy such privileges.

New York shelters its lawyers from disciplinary measures more than most states in the country, even as it ranks near the top in total number of exonerations — a majority of which are the result of misconduct by prosecutors.

Meanwhile, the few attempts to increase oversight of New York prosecutors have been stymied. A 2018 law established a commission specifically to deal with prosecutorial misconduct in a more independent and transparent way. But the state district attorneys’ association challenged it and a court struck it down as unconstitutional. Lawmakers designed a new commission this year, but it appears that no commissioners have yet been appointed to it.

New York’s prosecutor-protection racket is, alas, far from unique. In Washington, the Justice Department aggressively shields its own prosecutors from outside accountability thanks to a 1988 law that lets the agency essentially police itself. All other federal agencies — and even parts of the Justice Department, like the F.B.I. and the Drug Enforcement Administration — are subject to oversight by independent inspectors general, who conduct thorough investigations and issue lengthy reports with their findings. Federal prosecutors skate by on an internal review process that is run out of the Office of Professional Responsibility, whose head is appointed by, and reports directly to, the attorney general. The office almost never makes its findings public, and when it does it often provides only a brief summary months after the fact. In the words of one legal-ethics expert, it’s a “black hole.” (By contrast, the inspector general’s office of the Justice Department just released its semiannual report, as it is required to do by law, detailing the 52 reports it issued between April and September of this year, as well as the closing of investigations that resulted in 68 convictions or guilty pleas and 66 firings, resignations or disciplinary actions.)

The level of scrutiny that federal prosecutors are subject to matters so much because they are just as prone to misconduct as their state and local counterparts. Take the botched prosecution of former Senator Ted Stevens of Alaska on corruption charges, or the legal green light Justice Department lawyers gave interrogators to torture terrorism suspects, or the more recent revelation that Jeffrey Epstein, the sexual predator, got a sweetheart deal in 2008 from his prosecutor, Alex Acosta, who later became labor secretary in the Trump administration. Yet in the latter two cases, the Office of Professional Responsibility found no misconduct. Mr. Acosta was guilty only of “poor judgment,” the office said. In the Stevens case, the office found misconduct but said it was unintentional, and it let the prosecutors off with a slap on the wrist. Have there been other similarly egregious failures to hold prosecutors to account? Almost certainly. But we don’t know because the Justice Department doesn’t tell us.

There is no principled reason for federal prosecutors to avoid the accountability expected of all public servants. Their exemption from the general rule was adopted in 1988 as a favor to Dick Thornburgh, who was then the attorney general and had tried to derail the creation of an inspector general for the Justice Department. Years later, Mr. Thornburgh admitted he had been wrong. “This is a highly professional operation that goes where the evidence leads and is not directed by the way the political winds are blowing,” he said at a gathering marking the law’s 25th anniversary in 2014. “I’ve come to be a true believer.”

So have large numbers of Republicans and Democrats in Congress, a remarkable fact at a moment when the parties can’t agree on the time of day. Their fix is straightforward: Eliminate the loophole in the 1988 law and empower the inspector general to review claims against federal prosecutors, just as the office currently does in cases involving other Justice Department employees. A Senate bill co-sponsored by Mike Lee, Republican of Utah, and Dick Durbin, Democrat of Illinois, would do exactly this. Yet Attorney General Merrick Garland is continuing in the tradition of his predecessors by opposing any change to the existing system.

Prosecutors can work in the interests of fairness and justice, but they can also cheat and destroy people’s lives. They should be held accountable when they do — both to vindicate their victims and to help ensure that they can’t do it again.

Numbers Don’t Lie

…but Prosecutor’s do.

The amount of exonerations and the continuing exposure, including a reprimand from a Federal Judge, has shown that the problems with law enforcement is well often with law enforcement.

The problems with Police departments are well documented and reported and yet again no real reform has been made with little to no federal legislation regarding sentencing reform, examination of police training, establishing federal forensic policy and standards to what defines Prosecutorial misconduct and the removal of immunity to ensure that the taxpayers can resolve and recover some of the costs that have been the responsibility of taxpayers for decades let alone the victims, both those wrongfully convicted but the victims themselves who believed that justice was being served.

I cannot imagine thinking that the individual incarcerated for bringing me harm was in fact not the one who brought and served myself or my loved ones such pain.  But you see even victims in the zeal to retaliate and seek revenge are victims again by those whom they entrusted to serve and protect.  Lying to them, manipulating facts, using invalid evidence or testimony all to get a “win” not about making it “right.”  It is not about the victim nor even the accused it is about law enforcement.

The problem with the “system” is that the one with checks and balances has neither.

Wayward prosecutors go unpunished as prison time for victims piles up

Brooke Williams & Shawn Musgrave | New England Center for Investigative Reporting

Massachusetts prosecutors have violated defendants’ rights to a fair trial regularly and without punishment, even as wrongfully convicted victims of tainted prosecutions have spent years in prison before being freed, decades of court rulings show.

The state’s Supreme Judicial Court and Appeals Court have reversed at least 120 criminal convictions since 1985 in part or entirely because of the prosecuting attorney’s misconduct described in the judges’ rationale for the overturned verdicts.

The New England Center for Investigative Reporting reviewed more than 1,000 rulings in which defendants alleged prosecutorial misconduct. In addition to the 120 reversals, judges criticized the prosecution’s behavior in another 250 cases, but found the lapses not serious enough to affect the jury’s decision, and upheld the convictions.

At least 11 convicted defendants in the reviewed cases were ultimately exonerated. Added together, their time served for crimes they didn’t commit totaled more than 100 years. Others were convicted again or pleaded guilty when facing retrial, sometimes to lesser charges with sentences reduced.
Some prosecutors failed to turn over important evidence to defense attorneys or didn’t disclose information bearing negatively on witness credibility, judges said. Others misrepresented evidence in their closing statements to the court.

While the 120 reversals are only a small fraction of all convictions, they show the self-regulatory system meant to deal with lawyers’ ethical lapses is unusually protective of prosecutors. When courts throw out convictions citing prosecutorial misconduct, they rarely name wayward prosecutors or refer them for discipline.

NECIR found no case in Massachusetts where a prosecutor was disbarred for professional misconduct since 1974, when the state Board of Bar Overseers was created to hear complaints against attorneys. Only two public reprimands for professional misconduct were found in that 42-year span, and they came without fines or other punishment.

At least seven prosecutors whose behavior prompted courts to reverse convictions went on to higher posts. Some became judges and district attorneys.

“Prosecutors have more power than anyone, in many respects, over the lives of the average person,” said Daniel Medwed, professor at the Northeastern University School of Law. “But there is almost no accountability, no transparency, and the public isn’t paying attention — that is a very, very combustible concoction.”

Odyssey of Ulysses

Charles Campo, a former Suffolk County assistant district attorney, successfully prosecuted Ulysses Charles for the rape and robbery of three women in Boston in 1984. Campo’s own notes discovered more than a decade later showed one victim’s description of her attacker didn’t match Charles, Superior Court Justice Barbara Rouse found in a decision that resulted in Charles’ release from prison in 2001.

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For decades, judges in Massachusetts have been pointing to prosecutorial misconduct:

In 1977, Chief Justice Edward Hennessey warned of a “rash” of prosecutorial errors passing through the Supreme Judicial Court and encouraged his colleagues to “stand more ready to reverse the judgments in such cases.” More than 30 years later, in a 2009 dissent, Justice Janis Berry of the Appeals Court made the same plea, citing “case after case” of prosecutorial recklessness.

Another Appeals Court Justice, Frederick Brown, took prosecutors to task for flagrant closing arguments throughout his nearly 40-year tenure.

“After nearly two decades of seeing the same transgressions continuously occurring,” Brown wrote in 1993, he was beginning to have “genuine doubts” about the motives of assistant district attorneys. He added, “Our profession and society deserve much better from public prosecutors.” A year later, frustrated by what he characterized as “careless and flagrant disregard,” Brown wrote, “Nothing seems to get through. Why cannot prosecutors get it right?” Seven years later, in 2001, Brown’s exhaustion was evident in the tone of his ruling, which described the same type of misconduct and simply pointed to what he called his “usual refrain.”

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For decades, judges in Massachusetts have been pointing to prosecutorial misconduct:
In 1977, Chief Justice Edward Hennessey warned of a “rash” of prosecutorial errors passing through the Supreme Judicial Court and encouraged his colleagues to “stand more ready to reverse the judgments in such cases.” More than 30 years later, in a 2009 dissent, Justice Janis Berry of the Appeals Court made the same plea, citing “case after case” of prosecutorial recklessness.
Another Appeals Court Justice, Frederick Brown, took prosecutors to task for flagrant closing arguments throughout his nearly 40-year tenure.
“After nearly two decades of seeing the same transgressions continuously occurring,” Brown wrote in 1993, he was beginning to have “genuine doubts” about the motives of assistant district attorneys. He added, “Our profession and society deserve much better from public prosecutors.” A year later, frustrated by what he characterized as “careless and flagrant disregard,” Brown wrote, “Nothing seems to get through. Why cannot prosecutors get it right?” Seven years later, in 2001, Brown’s exhaustion was evident in the tone of his ruling, which described the same type of misconduct and simply pointed to what he called his “usual refrain.”

The victim said she believed her attacker was circumcised. Charles is not. Medical records showed another victim told a doctor in the hospital shortly after the rapes that her attacker had an American accent, according to a ruling by U.S. District Court Judge Nancy Gertner in a later civil case filed by Charles against the City of Boston. At trial, Campo had entered into a stipulation that the victim told the doctor the attacker spoke with an accent that was “non-American,” Gertner wrote. Charles has a strong Caribbean accent.   

Rouse’s decision relied chiefly on new DNA evidence that excluded Charles as the rapist. But she also said Campo’s failure to disclose the victim’s circumcision description of the attacker was sufficient grounds in itself for a new trial. Prosecutors declined to re-try the case.

After serving nearly two decades of an 80-year sentence, Charles was exonerated. He later was awarded $3.75 million in settlements of lawsuits against the city and the Commonwealth.

No public reprimand of Campo could be found in the Board of Bar Overseers’ searchable records online. Asked about Campo, Constance Vecchione, the board’s bar counsel, said she can’t comment on matters outside public disciplinary cases.

Campo, who is now in private practice, said he “prosecuted this case fairly” and “did not misstate evidence or enter into a stipulation believing it to be false.” The wording of the stipulation “was agreed to by both sides and supported by the trial testimony,” and it was never disputed “that the assailant had a non-American accent,” he said.

Charles, 66, now lives in Roxbury. In an interview, he called the settlements small compensation for the time he lost in prison. He blamed Campo for the loss of his daughter, who killed herself while he was incarcerated.

“My daughter was never the same, she lost her f***ing mind because I was in prison, and committed suicide over this piece of garbage,” he said.

Wayward but anonymous

When judges toss convictions or indictments due to misconduct, they almost always omit the errant prosecutor’s name, as they did in all but seven of the 120 reversal decisions. That makes it difficult to identify those with a history of misconduct.

Judges shield the identities because many have worked as prosecutors and they sympathize with their heavy workloads, and because they share a general cultural norm against snitching on colleagues, said Adam Gershowitz, a professor at William & Mary Law School in Virginia, who has argued for naming.

Going back at least three decades, a handful of judges in Massachusetts have called their colleagues to task for not naming names.

In a 1983 decision that reversed a first degree murder conviction because the prosecutor’s “trial tactics” were so egregious, Supreme Judicial Court Justice Ruth Abrams blasted her colleagues’ insistence on omitting his name:

“The prosecutor’s misconduct forces the friends and family of the victim to relive the trauma of the crime and again suffer the ordeal of a trial. The prosecutor’s misconduct penalizes the defendant, who again must undergo the fear and anxiety associated with a criminal trial. Why, then, is the prosecutor, whose conduct results in such consequences, not named in our opinion?”

NECIR identified four prosecutors whose actions prompted judges to toss convictions more than once. Only one was disciplined and is currently in private practice.

The Supreme Judicial Court reversed the rape conviction of David Tucceri because the prosecutor, Middlesex County Assistant District Attorney J. William Codinha, “failed to disclose” a mugshot during the 1978 trial showing the defendant had a mustache at the time of the crime even though the victim said her attacker was clean-shaven.

A search of the bar overseers’ public database turned up no Codinha reprimand.

A copy of David Tucceri’s mugshot found in a microfiche archive.

The Supreme Judicial Court said the prosecutor “must have been, and certainly should have been, aware before trial that the photographs existed.” The court did not name Codinha, whose name was found on Tucceri trial documents in a microfiche archive.

The Supreme Judicial Court reversed another of his cases in 1983, this time for what one of the SJC judges described as “egregious” conduct, which included inflammatory statements that likened the murder victim’s body to “charred meat.” During the trial for murder and arson, Codinha commented on the defendant’s decision not to testify at the trial — a Constitutional right that prosecutors are not supposed to question. Upon retrial, the defendant pleaded guilty and received a life sentence.

Codinha, now in private practice, served in Middlesex for about six years, including as chief trial counsel in the prosecutors’ office. In 2013, Governor Deval Patrick appointed him to the Judicial Nominating Commission, which vets prospective judges.

In a brief phone interview, Codinha said he didn’t remember the two reversed cases, out of the many he prosecuted. He didn’t respond to subsequent questions.

Bogus confession

Three prosecutions by Francis Bloom, a former assistant district attorney in Hampden County, resulted in convictions that were later reversed by the courts in cases that involved allegations of misconduct against him.

In one of the cases, George Perrot was convicted for rape and armed robbery as part of two break-ins in Springfield in 1985, when he was 17 years old.

In an unsuccessful appeal in 1995, judges upheld Perrot’s conviction but slammed Bloom’s behavior, saying he had “forged” a “bogus” post-conviction confession in Perrot’s name that implicated him in the rapes and robbery and had him pointing the finger at two close friends in another break-in. The aim was to coerce confessions from the friends, the judges said.

The forged statement didn’t come to light until after Perrot’s original trial, and wasn’t used against him.

But Perrot’s lawyer in the 1995 appeal, Kenneth Seiger, argued that his willingness to make up a confession cast a shadow over any evidence that Bloom used to get the conviction, including forensics and witness statements. The problem, he said in an interview, is that the jury never knew Bloom was capable of forging a confession.

“Wouldn’t you want to know if you were on the jury?” he asked.

In January of this year, a judge granted Perrot’s fourth motion for a new trial on grounds that hair evidence and expert testimony in the case was discredited by newer science. He was released from prison, prompting an appeal by Hampden County prosecutors.

Perrot’s mom, Beverly Garrant, said in an interview that the prosecution was “an attack on my family” too painful to describe — “almost 30 years for something he didn’t do.”

Bloom also prosecuted Mark Schand, who was 21 when he was arrested in 1986. A jury convicted him of first-degree murder based largely on the testimony of eyewitnesses. Three of the key witnesses later recanted — one on his deathbed — saying they had identified Schand in a line-up in exchange for Bloom’s and police officers’ promises of lenient treatment in separate charges they were facing.

Prosecutors are required to tell the court and jury when they have made such deals.

After Mark Schand was convicted, a key witness wrote in a sworn affidavit that he was told to implicate Schand by police and prosecutor Francis Bloom.

In Schand’s trial, Bloom disclosed a promise to one witness of help with a prison placement. In later court proceedings, he testified he made no other promises.

In 2013, a judge allowed Schand a new trial on the basis of new eyewitness testimony and a recantation by one witness. The Hampden County District Attorney’s office dropped the charges against him, which resulted in his release, and denied any misconduct.

Schand said his civil rights were violated in a lawsuit he filed last year, naming Hampden County and others. He alleged “a system that rewarded criminal suspects for cooperating with prosecution authorities by providing false testimony and false identifications” in exchange for leniency.
Schand, who has spent more than half his life behind bars, said when he went to prison, his wife Mia was pregnant with their third child, who is now 28. “I missed their entire lives,” Schand said. “Now I’m a grandfather.”

After leaving prison in 2013, Schand said he had trouble finding a job because of a nearly three-decade gap in employment history and the sordid tale behind it.

“People are saying if you did 27 years you must have had some involvement — I can understand that,” he said. “I said just Google the case.”

The Board of Bar Overseers issued a statement reprimanding Bloom in 1993, describing the forged confession as “reprehensible” and “fraudulent.” Eight years later, after his work as a prosecutor, the board publicly reprimanded him again for improper financial recordkeeping.

Now in private practice, Bloom offers “top notch representation for persons severely injured by the negligence of others,” according to his website. Bloom declined to be interviewed about the prosecutions.

“I put it behind me a long time ago,” he said.

Jailhouse snitch

James Rodwell hasn’t been able to say that. Imprisoned for more than 30 years, he has asked Middlesex County Superior Court, in the latest of many such bids, to overturn his murder conviction, producing what he says is fresh evidence that prosecutors failed to disclose a testimony-for-favors deal.

A key witness who allegedly received the deal, David Nagle, testified in court that Rodwell confessed to the crime while they were both in the same jail. Nagle, now deceased, was being held for armed robbery and had been a paid informant for the U.S. Drug Enforcement Administration, according to court records. Middlesex prosecutors, who brought the case against Rodwell, have said over the years that Nagle received no compensation or favors in exchange for testifying against him.

But an affidavit by Rodwell’s attorney, Veronica White, says Nagle told her in 2012, in a recorded interview just months before he died, that a letter he wrote to the district attorney’s office speaking of “my deal to testify in a murder case” was a reference to the Rodwell trial. Her motion for a new trial says Nagle perjured himself.

In arguments on Rodwell’s motion last month, White said police and prosecutors withheld “mountains of exculpatory evidence.” Assistant District Attorney Laura Kirshenbaum argued that Rodwell’s claims about Nagle “can be easily dismissed,” and there was no undisclosed exculpatory evidence in his case file, which the state said it lost.

In the house where Rodwell grew up, the family’s Christmas tree is still up in the hopes he can see it if he’s released. He calls his parents nearly every day. He said he was anxious, as they expect a decision imminently on his appeal.

“The judge has my life in his hands right now,” Rodwell said.

The New England Center for Investigative Reporting is an independent, nonprofit investigative reporting newsroom based at Boston University and WGBH News. WGBH reporter Isaiah Thompson and NECIR interns Naomi LaChance, Bret Hauff, Jacqueline Roman, Amanda Lucidi and Tristan Cimini contributed reporting.

Calling Bart Simpson

This is a big duh. Other than the Judge who actually called out by name the Prosecutors who skirted the law  this is the what immunity brings, misconduct.

Report: Prosecutors rarely disciplined for misconduct

By

MICHAEL KUNZELMAN

The Associated Press

BATON ROUGE, La. (AP) — Prosecutors are rarely held accountable for misconduct and mistakes that have left innocent people imprisoned for crimes they didn’t commit, according to report Tuesday by a nonprofit group that investigates possible wrongful convictions.

The Innocence Project’s report coincides with the fifth anniversary of a U.S. Supreme Court ruling that overturned a $14 million judgment to a former death row inmate who was convicted of murder after New Orleans prosecutors withheld evidence from his defense lawyers.

In response to the ruling, researchers examined 660 criminal cases in Arizona, California, Pennsylvania, New York and Texas where courts ruled there had been prosecutorial misconduct. Their report found only one prosecutor had been disciplined in any of those cases between 2004 and 2008. Convictions were reversed in 133 of those 660 cases, the report said.

“There are almost no adequate systems in place to keep prosecutorial error and misconduct in check and, in fact, prosecutors are rarely held accountable even for intentional misconduct,” the report says.

John Thompson was convicted in 1985 of killing hotel executive Raymond Liuzza Jr. but exonerated after 14 years on death row. He successfully sued the New Orleans district attorney’s office, which had withheld blood test results that excluded Thompson as the perpetrator in an attempted robbery. Prosecutors used Thompson’s conviction in the robbery case to help secure the death penalty in the murder case.

Thompson’s attorneys argued there was ample evidence that former Orleans Parish District Attorney Harry Connick’s office was deliberately indifferent to the need for properly training, monitoring and supervising prosecutors.

But a divided Supreme Court overturned Thompson’s $14 million award in 2011, ruling that the New Orleans district attorney’s office shouldn’t be punished for not specifically training prosecutors on their obligations to share evidence that could prove a defendant’s innocence.

The Innocence Project’s report says the court’s decision means prosecutors “enjoy almost complete immunity from civil liability.”

“Given their broad powers, it is critical that effective systems of accountability are implemented to incentivize prosecutors to act within their ethical and legal bound,” the report adds.

The Good The Bad the Ugly

When I read the blog post from Open File my first instinct was to laugh. There is some odd misguided belief that Seattle is a liberal bastion of loving people who seem to think a hug and a pat on the back and a “welfare” check is the standard.  Wrong again. We are no different than any number of cities under investigation by the Feds, our Cops shooting people in the street, on buses or light rail and and our Prosecutors as equally corrupt and malfeasance as the ones in any other city.  Apparently Los Angeles and Orange County are duking it out (maybe literally)  with us but West Coast rules right the midwest?  Or how about East Coast or down South? Let us be honest the reality is that the Criminal Justice Paradigm is filled with a lot of shit, it is like the Catholic Church only with less molestation and nowhere near the cool outfits.

The Judge who calls out the Prosecutors for contempt, not as in contempt as that is an entirely different legal meaning, no longer work for King County Prosecutor’s Office. It appears they left before the scathing ruling, but the irony or hilarity (no ecstay here that is a bad drug! Just say no!) is that they are now Defense Attorneys.  Takes a scumbag to know a scumbag!   I would love Kozinski to be a Supreme Court nominee he would be quite the contender. But no stick with the usual and that we have with Judge Garland, a former Prosecutor.

The system is as corrupt if not more so than any crime ring that has ever stood before it, only less functional. 

WA: The Prudent Course: The Ninth Circuit Flags Unethical Prosecutorial Actions in King County; Judge Kozinski Names the Prosecutors Involved

by Bert | Mar 23, 2016 | Washington

Judge Alex Kozinski, who has made headlines over the past few years for raising concerns about our nation’s epidemic of prosecutorial misconduct, is making good on his promise to “name names” when prosecutors engage in chicanery. On Monday, Kozinski authored the Ninth Circuit Court of Appeals’ majority opinion in Frost v. Gilbert, a state prisoner’s appeal from a denial of habeas corpus in the Western District of Washington. After identifying the members of the prosecutor’s office involved in the misconduct, Judge Kozinski wrote these blunt words:

The individuals we have named may wish to furnish a copy of this opinion to the state bar and seek to clear their names by providing an explanation for its consideration. This would seem to be the prudent course.

Mr. Frost had been convicted for committing a spree of armed robberies and a burglary. His case had already appeared before the Ninth Circuit, which had granted him a new trial because the trial court improperly restricted the defense team’s closing argument. But, the U.S. Supreme Court reversed that decision, holding that the court of appeals did not properly apply the strictures of the (draconian) Anti-Terrorism and Effective Death Penalty Act. It threw the ball back into the Ninth Circuit’s court for further proceedings.

This time around, the Ninth Circuit not only revisited the closing argument issue—quickly ruling against Mr. Frost—but also explored for the first time claims about prosecutorial misconduct. The opinion explains the role of one of the state’s key witnesses, Edward Shaw:Shaw . . . was an acquaintance who testified about how Frost interacted with ringleader Matthew Williams, who Frost claimed coerced him into participating in the crimes. In April 2003, Shaw met with detectives to discuss what he knew about Frost’s involvement. At that time, Shaw had pending charges for unlawful possession of drugs and a firearm.

 Shaw asked for favorable treatment in exchange for information about Frost’s criminal activity but the prosecution refused to make a deal. Nevertheless, Shaw disclosed what he knew. Frost was arrested the same day. . . . Subsequently, but before Frost’s trial, Shaw was charged with second-degree assault with a deadly weapon growing out of a domestic-violence incident. In November 2003, a few weeks before Frost’s trial, Shaw signed two plea agreements. He received a nine-month sentence for all his crimes, conditioned on his testifying truthfully against Frost.

At trial, Shaw deflated Frost’s duress claim, testifying that Frost giggled when he spoke to Shaw about the crimes after-the-fact. Shaw acknowledged that he had made a plea agreement about his unlawful possession charges, but he made no mention of the domestic violence charges. Moreover, the prosecution only put into the record an unsigned copy of the one plea Shaw disclosed; it turned out the signed copy was actually different because it contained a handwritten reference to the domestic violence case number. Over five years passed before any member of the defense team ever learned of the undisclosed plea agreement.

Judge Kozinski’s majority opinion first explains why the Ninth Circuit should consider the Petitioner’s prosecutorial misconduct claims. The lower court ruled that Mr. Frost was prohibited from presenting the claims because he did not raise them in a timely fashion. But, the majority opinion points out that Mr. Frost—without a lawyer at the time—diligently and repeatedly requested the information that the prosecutor’s office originally concealed. In response to those requests, the State continued to provide inaccurate and incomplete responses, which forced Mr. Frost to present his misconduct claims late. He only learned fully about Shaw’s plea agreements after a lawyer was appointed to represent him on his habeas petition, after the filing deadline had already passed.

Despite finding “cause” for Mr. Frost bringing his Brady and Napue claims late, the court went on to explain that it could not grant him a new trial unless he proved “prejudice.” In other words, he needed to demonstrate a reasonable likelihood that the allegedly false testimony Shaw gave at the trial affected the jury’s decision to find him guilty. Because it was unlikely that Shaw would have gotten significantly more time on the undisclosed domestic violence charges than he was already facing on the unlawful possession charges, and because other evidence—Frost’s own testimony—cast doubt on the duress defense, the court found that there was no prejudice.

In most judicial opinions about Brady issues, the discussion ends there. If the court does not find prejudice, it denies the defendant relief and moves on. Indeed, one of the most confounding things about the Brady doctrine is that the Supreme Court has held there is no “violation” of an individual’s due process rights unless there is prejudice. A prosecutor hiding exculpatory evidence is not enough to trigger constitutional concerns, apparently. And, without a violation, reprimanding prosecutors for their misdeeds is much more difficult. But, as Professor Eugene Volokh reported in the Washington Post, Judge Kozinski recognizes that “[n]aming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights.” Thus, even though the court found no prejudice upon which it could reverse Mr. Frost’s conviction, Kozinski took the critical step of identifying the people who withheld exculpatory evidence and continued to conceal it.

The goods can be found in Part II(C) of the opinion. Importantly, this part is not a holding of the Ninth Circuit because one of the judges in the majority did not join this section. Therefore, with a minority of the court behind him, Kozinski included Part II(C) as a way to make clear that prosecutors should not expect continued judicial silence about State misconduct.

Although we conclude that Frost is not entitled to relief, we find the facts giving rise to his Brady and Napue claims most troubling. As the matter has been presented to us, there is cause to believe that the King County Prosecuting Attorney’s office violated Brady and Napue by willfully withholding evidence of Shaw’s domestic-violence plea deal and by permitting Shaw to lie on the stand. . . . So far as we are aware, the individuals involved have never been held to account for their conduct. As the dissent acknowledges, the deputy prosecuting attorney in Frost’s case, Zachary Wagnild, introduced into evidence an unsigned plea agreement . . . . [with a] difference [from the signed agreement] . . . [that] was material . . . . The dissent chalks this all up to a case of ‘the left hand [not knowing] what the right hand was doing’ in a busy office with multiple prosecuting attorneys. But it’s more akin to one hand washing the other.

And:

We are also troubled by the conduct of Gary Ernsdorff, the deputy prosecuting attorney who handled Shaw’s domestic-violence case. . . . The domestic-violence plea agreement had been signed on November 3, a month before Frost’s trial even began, but it was kept secret until it was too late for Frost to use it in his defense. . . . Finally, we are concerned by the actions of Kelli Williams, the public records officer for the King County Prosecuting Attorney’s office at the time Frost sought information about Shaw. . . . Williams provided incorrect or misleading information in response to his requests.

Perhaps most remarkably, this Part concludes with the specific reference to the state bar and how these individuals should handle potential disciplinary repercussions. Kozinski’s words are worth repeating:
The individuals we have named may wish to furnish a copy of this opinion to the state bar and seek to clear their names by providing an explanation for its consideration. This would seem to be the prudent course.

The Ninth Circuit sharply divided in this case, and Judge Richard Tallman wrote a heated partial-dissent, which called out Kozinski for going too far in launching “ad hominem attacks.” The opinion puts plenty of blame at the feet of Frost and his lawyers for failing to uncover the undisclosed plea agreement by consulting the public docket on Shaw’s cases two days after his trial ended in a conviction. As if the defense attorneys were not entitled to rely on the propriety of the witness’s testimony and the State’s obligation to correct false testimony. Incredibly, it also faulted Frost for not paying the $195 fee for copying materials about Shaw’s criminal cases while he was incarcerated and unrepresented and without access to resources. The partial-dissent also takes Kozinski to task for drawing conclusions about prosecutorial misconduct where there has been no evidentiary hearing or official fact-finding. Tallman, once an Assistant US Attorney in the jurisdiction from which Frost’s case emerged, expressed evident displeasure that someone “tarnished” the “character and integrity of several public employees” in King County under these circumstances.

One major question is whether Kozinski’s opinion—which takes the laudable if unusual step of identifying misbehaving members of the prosecutor’s office by name—will inspire other judges to follow suit. And, more generally, will courts recognize what Kozinski expressed about prosecutorial suppression of exculpatory evidence in his now-famous dissent in Olsen in late 2013: “Only judges can put a stop to it.” Or, will the status quo—in which judges are “strangely reluctant” to call out prosecutors let alone hold their convictions to account—continue to prevail?

A Black Eye

The Supreme Court has made it virtually impossible to sue errant Prosecutors or Judges from civil litigation. Even in the cases of extreme malfeasance there is little done to to stop the runaway trains from ever enabling them to continue to this unabated. The irony that they profess to be such stalwarts of the law while continuing violating it is of course the standard, the average, the common ground, the win at all costs mantra that many who have since left admit that was all they were obliged and cared to do. Good to know that justice was not interfering in that in any way.

 How does this change? Well electing Prosecutors who need to uphold the law and in turn any of those whom serve, eliminate the idea that there is “immunity” and in turn have better ways to appoint Judges over electing them who feel compelled to act upon the rhetoric that seems to enable if not encourage misconduct under the aegis “tough on crime.” Then in turn provide constant observations, assessments and trainings of all those in the criminal justice system so that many of the part time justices that hit a court in between seeing clients in their regular practice are fully informed as to the type of law they are overseeing. I am sorry but to think a real estate Lawyer is able to oversee a criminal proceeding is just that – criminal.

 How to Prosecute Abusive Prosecutors

By BRANDON BUSKEY
The New York Times
 NOV. 27, 2015

WHEN it comes to poor people arrested for felonies in Scott County, Miss., Judge Marcus D. Gordon doesn’t bother with the Constitution. He refuses to appoint counsel until arrestees have been formally charged by an indictment, which means they must languish in jail without legal representation for as long as a year.

Judge Gordon has robbed countless individuals of their freedom, locking them away from their loved ones and livelihoods for months on end. (I am the lead lawyer in a class-action suit filed by the American Civil Liberties Union against Scott County and Judge Gordon.) In a recent interview, the judge, who sits on the Mississippi State Circuit Court, was unapologetic about his regime of indefinite detention: “The criminal system is a system of criminals. Sure, their rights are violated.” But, he added, “That’s the hardship of the criminal system.”

There are many words to describe the judge’s blunt disregard of the Sixth Amendment right to counsel. Callous. Appalling. Cruel. Here’s another possibility: criminal — liable to prosecution and, if found guilty, prison time.

Every weekday, get thought-provoking commentary from Op-Ed columnists, The Times editorial board and contributing writers from around the world.

If this notion seems radical, it shouldn’t. Federal law already provides a mechanism to prosecute judges and district attorneys as criminals when they willfully deprive people of their civil rights: Title 18, Section 242, of the federal code.

This isn’t some dusty, rarely used legal tool. The Department of Justice typically wields Section 242 against police and correctional officers accused of physical or sexual violence. But Section 242 applies with equal force to those who prosecute and sentence, the state officials whose deliberate skirting of civil rights can be most devastating.

At least, that’s how it is on paper. The federal government has not in recent memory pursued a judge under Section 242, and it has only rarely enforced this law against prosecutors.

It is absolutely essential to bring rogue law enforcement officers to justice, particularly in a post-Ferguson world in which violations of constitutional rights have come under intense scrutiny. However, the government’s focus on abuses by law enforcement officials leaves the burden of curbing abuse by judges and prosecutors to private individuals.

This is a responsibility few lawyers are willing to accept, in large part because the United States Supreme Court has made pursuing a civil case against a prosecutor or judge practically impossible.

Consider the case of John Thompson, who spent 14 years on death row for a murder he didn’t commit because the New Orleans Parish district attorney’s office intentionally concealed forensic evidence establishing his innocence. After his exoneration, Mr. Thompson sued the office under Section 1983 of the Civil Rights Act of 1871, landmark legislation intended to provide a federal forum to those deprived of their civil rights by state officials.

Though Mr. Thompson won a $14 million jury award, the Supreme Court set aside the verdict on appeal. Notwithstanding the fact that the New Orleans prosecutors had similarly withheld evidence in at least four other cases, or the fact that several prosecutors suppressed the evidence in Mr. Thompson’s own case, the court said that Mr. Thompson had failed to demonstrate a pattern of wrongdoing by the district attorney’s office, which it held was required by Section 1983. The court’s decision illustrates just one of a host of protections it has given to prosecutors and judges to shield them from liability.

Civil cases like Mr. Thompson’s reveal a frightening reality. In privileging the discretion of prosecutors and judges to enforce the law, we have come perilously close to placing these officials above the law. We do not know the extent to which judges and prosecutors cross the line into criminality. After all, cellphones rarely capture the moment when a judge or prosecutor illegally locks someone away.

Nonetheless, advocates across the country continue to expose judges who unlawfully deprive defendants of lawyers or throw people in jail simply because they are too poor to pay small amounts of money. We are constantly confronted with wrongful convictions rooted in a prosecutor’s belief that winning a case is more important than seeking justice. These experiences compel us to recognize that sometimes the criminals our justice system most needs to confront are actually running it.

There is a solution: federal criminal prosecutions of state judges and prosecutors who flout the law. The nearly insurmountable barriers to justice in civil court don’t apply in criminal prosecutions. Indeed, the Supreme Court has invoked the availability of Section 242 prosecutions to justify its sealing of federal courthouse doors against people seeking to vindicate their civil rights.

Last month, the Department of Justice provided a rare glimpse of the law’s untapped potential. A Missouri prosecutor pleaded guilty under Section 242 of concealing police officers’ brutal assault of an arrestee, then prosecuting the victim on charges the officers fabricated to cover up their crime.

Missouri marks a promising, yet incomplete mandate. Judges and prosecutors violate civil rights every day, in plain sight, and with seeming impunity. To make them answer for these crimes, the federal government must continue to extend its reach beyond the streets and into the courtroom.

IMBY

This is happening in my backyard, the controversy over a Tacoma Prosecutor who puts the A in abuse.

I have been following this as I don’t think its an exception to the rule it is the rule. Radley Balko at The Washington Post has been a relentless provocateur about the problems in Cado Parrish in New Orleans and the misconduct by Harry Connick, the Senior not the Junior and his predecessor,  and many would say well that is New Orleans, they are corrupt and racist.  Yes and so are they in the great Northwest.   As one Teacher said to me they live in Wallingford drive Subaru’s and are in denial.  We have a lot of denial here as I have said we too are like cities in the South divided by bridges. 

So when I read this in Open File the arrogance, the hubris and the sheer amazement that a local paper decided to go forward with this despite it all shows me that every now and then Journalists do something called journalism and seek to right societal wrongs.  Now if people would actually read them and then act upon it then we might have something.

WA: Pierce County DA: “I elect judges, the people don’t.”

In the latest sign of serious corruption in the office of Pierce County District Attorney Mark Lindquist, a county investigation has issued a damning 67-page report, triggered by a whisteblower complaint filed earlier this year, portraying a prosecutor’s office riven with ethics violations and run on a system of retaliation against employees and defense attorneys who dare to criticize the district attorney.

Readers of the Open File will be familiar by now with Lindquist’s office, which, thanks to the thorough reporting of the News Tribune, has been shown to have the highest rate of reversals in Washington State, a dubious practice of spending public resources to bully the press, and which has faced withering criticism from veteran staff prosecutors over alleged ethics violations. Lindquist himself is now the subject of an extraordinarily rare, court approved voter-recall effort.

The new report, issued by the Pierce County Human Resources Commission, makes a series of remarkable findings. Among them are:

• Referring to his efforts to promote his own deputies to the bench, Lindquist told a retired judge, “I elect judges, the people don’t.”
• Multiple people interviewed reported hearing Lindquist saying during his reelection campaign that he “would get $100K of free publicity from the murders” of four police officers in Lakewood, Washington in 2009.
• Lindquist singled out a group of defense attorneys who had been critical of him and instructed his deputies not to offer their clients any “good deals.”

For a full rundown on the report’s findings, you can read the News Tribune’s article here.
This report comes in the same week that we learned of yet another finding of prosecutorial misconduct by one of Lindquist’s deputies. Last week Washington State appeals court overturned a child-rape conviction holding that a deputy prosecutor improperly appealed to the passions of the jury in her closing arguments.

The News Tribune reported the decision of a state appeals court reversing four counts of first-degree child rape and two counts of first-degree child molestation against fifty-one year-old Alfred James Thierry Jr.

The unanimous opinion found that deputy prosecutor Kara Sanchez, in her closing argument, had improperly argued that if the jury were to acquit Thierry it would be tantamount to discrediting all child testimony in sex abuse cases, and that a not-guilty verdict could thus endanger all other child sex abuse prosecutions.

The prosecutor’s message was that if the jury did not believe JT’s testimony, and thus by implication acquitted Thierry, “then the State may as well just give up prosecuting these cases, and the law might as well say that [t]he word of a child is not enough.” The message, in other words, was that the jury needed to convict Thierry in order to allow reliance on the testimony of victims of child sex abuse and to protect future victims of such abuse. This hyperbole invited the jury to decide the case on an emotional basis, relying on a threatened impact on other cases, or society in general, rather than on the merits of the State’s case.

After holding this insinuation improper, the court went on to find that it was sufficiently prejudicial to effect the outcome of the trial. The case against Thierry rested “almost entirely” on the testimony of the child, JT. In addition to appealing to the jury’s fear that acquittal would result in the state abandoning child sex abuse prosecutions altogether, the court found Sanchez aggravated the prejudice caused by her misconduct by thoroughly mischaracterizing the defense’s own summation.

As noted, defense counsel never suggested that the jury should not believe JT because of his age. Thierry’s attorney based her impeachment entirely on specific inconsistencies in JT’s statements, possible motives to lie suggested by evidence in the record, and JT’s testimony that he liked to write stories. Thierry’s attorney certainly never argued, as the prosecutor claimed, that the jury should not credit JT’s testimony simply “because he’s a child.”

In a useful reminder of the proper role of the prosecutor, the court added a more general admonishment against the practice of mischaracterizing defense counsel’s assertions on behalf of their clients.

The tactic of misrepresenting defense counsel’s argument in rebuttal, effectively creating a straw man easily destroyed in the minds of the jury, does not comport with the prosecutor’s duty to seek convictions based only on probative evidence and sound reason. Because the jury will normally place great confidence in the faithful execution of the obligations of a prosecuting attorney, [a prosecutor’s] improper insinuations or suggestions are apt to carry more weight against a defendant (internal quotations omitted).

In the face of the report just issued and the demonstrated record of Mark Lindquist and many of the prosecutors in his office, this admonishment sounds almost genteel. “The faithful execution of the obligations of a prosecuting attorney” isn’t close to what is going on in Pierce County.

 

Organizers, meanwhile, have begun collecting the signatures required to place Lindquist’s recall on next November’s ballot.

The Disorder of Law & Order

I will not add my comments on this. My positions on our system of injustice are throughout the blog. This is just another player on the stage who frankly makes Iago seem complacent.

And on that note, the Prosecutor who was the executioner in Cado Parish has decided to not run for re-election. Shame he couldn’t fall on his sword.

So please read Judge Kozinski’s thoughts on these individuals who hold power in one fell swoop. They are just Attorney’s but they act as if they are God. They are Attorney’s and you know what I call them – assholes

His words speak volumes and the volume is quite loud.

Judge Kozinski on prosecutorial misconduct
By Eugene Volokh
July 17 2015
The Volokh Conspiracy
The Washington Post

On Tuesday, I began serializing “Criminal Law 2.0,” a new article by Judge Alex Kozinski — for whom I clerked 20 years ago, who is one of our nation’s most prominent appellate judges and has long been seen as on balance a libertarianish conservative (appointed by President Ronald Reagan). The introduction gave 12 reasons to worry about our criminal justice system; Wednesday’s post discussed wrongful convictions; yesterday’s post discusses the jury system, and ways to improve it; today’s post discusses prosecutorial misconduct; and I’ll post other parts of the article in the days to come. I’ve added some paragraph breaks and removed the footnotes (which are available in the PDF version), but otherwise this is as Judge Kozinski wrote it:

Prosecutors hold tremendous power, more than anyone other than jurors, and often much more than jurors because most cases don’t go to trial. Prosecutors and their investigators have unparalleled access to the evidence, both inculpatory and exculpatory, and while they are required to provide exculpatory evidence to the defense under Brady, Giglio, and Kyles v. Whitley, it is very difficult for the defense to find out whether the prosecution is complying with this obligation.

Prosecutors also have tremendous control over witnesses: They can offer incentives — often highly compelling incentives — for suspects to testify. This includes providing sweetheart plea deals to alleged co-conspirators and engineering jail-house encounters between the defendant and known informants.

Sometimes they feed snitches non-public information about the crime so that the statements they attribute to the defendant will sound authentic. And, of course, prosecutors can pile on charges so as to make it exceedingly risky for a defendant to go to trial. There are countless ways in which prosecutors can prejudice the fact-finding process and undermine a defendant’s right to a fair trial.

This, of course, is not their job. Rather, as the Supreme Court has held, “[A prosecutor] is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.”

All prosecutors purport to operate just this way and I believe that most do. My direct experience is largely with federal prosecutors and, with a few exceptions, I have found them to be fair-minded, forthright and highly conscientious.

But there are disturbing indications that a non-trivial number of prosecutors — and sometimes entire prosecutorial offices — engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.

Prosecutorial misconduct is a particularly difficult problem to deal with because so much of what prosecutors do is secret. If a prosecutor fails to disclose exculpatory evidence to the defense, who is to know? Or if a prosecutor delays disclosure of evidence helpful to the defense until the defendant has accepted an unfavorable plea bargain, no one will be the wiser. Or if prosecutors rely on the testimony of cops they know to be liars, or if they acquiesce in a police scheme to create inculpatory evidence, it will take an extraordinary degree of luck and persistence to discover it — and in most cases it will never be discovered.

There are distressingly many cases where such misconduct has been documented, but I will mention just three to illustrate the point. The first is United States v. Stevens, the prosecution of Ted Stevens, the longest serving Republican Senator in history.

Senator Stevens was charged with corruption for accepting the services of a building contractor and paying him far below market price — essentially a bribe. The government’s case hinged on the testimony of the contractor, but the government failed to disclose the initial statement the contractor made to the FBI that he was probably overpaid for the services. The government also failed to disclose that the contractor was under investigation for unrelated crimes and thus had good reason to curry favor with the authorities.

Stevens was convicted just a week before he stood for re-election and in the wake of the conviction, he was narrowly defeated, changing the balance of power in the Senate. The government’s perfidy came to light when a brave FBI agent by the name of Chad Joy blew the whistle on the government’s knowing concealment of exculpatory evidence.

Did the government react in horror at having been caught with its hands in the cookie jar? Did Justice Department lawyers rend their garments and place ashes on their head to mourn this violation of their most fundamental duty of candor and fairness? No way, no how. Instead, the government argued strenuously that its ill-gotten conviction should stand because boys will be boys and the evidence wasn’t material to the case anyway.

It was only the extraordinary persistence and the courageous intervention of District Judge Emmet Sullivan, who made it clear that he was going to dismiss the Stevens case and then ordered an investigation of the government’s misconduct that forced the Justice Department to admit its malfeasance — what else could it do? — and move to vacate the former senator’s conviction. Instead of contrition, what we have seen is Justice Department officials of the highest rank suffering torn glenoid labrums from furiously patting themselves on the back for having “done the right thing.”

[Footnote moved: This wasn’t the only prosecution that has had profound effects on American politics. “A revelation in journalist Judith Miller’s new memoir, ‘The Story: A Reporter’s Journey,’ exposes unscrupulous conduct by Special Counsel Patrick J. Fitzgerald in the 2007 trial of I. Lewis ‘Scooter’ Libby.” According to Berkowitz, “It is painful to contemplate how many lives — American and Iraqi — might have been spared had Mr. Libby, the foremost champion within the White House in 2003 of stabilizing Iraq through counterinsurgency operations, not been sidelined and eventually forced to resign because of Mr. Fitzgerald’s multiyear investigation and relentless federal prosecution.”

Overly aggressive prosecution also wrecked the political career of longtime Iowa state legislator Henry Rayhons. The Attorney General of Iowa charged 78-year-old Rayhons with rape for having sex with his own wife, who was afflicted with Alzheimer’s. By the time the jury acquitted Rayhons, he had withdrawn from the re-election race for a seat he had held for 18 years.]

The second case comes from my own experience. The defendant was Debra Milke, who spent 23 years on Arizona’s death row after a conviction and sentence obtained in 1990 based on an oral confession she supposedly made to Phoenix police detective Armando Saldate Jr. as a result of a 20-minute interrogation. No one was present in the room with Milke except Saldate, who refused to record the session, despite his supervisor’s admonition that he do so. When the session ended, Saldate came out with nothing in writing — not even a Miranda waiver — and claimed Milke had confessed; Milke immediately and steadfastly denied it.

The jury believed Saldate, but what the prosecution failed to disclose is that Saldate had a long and documented history of lying in court; he also had a serious disciplinary infraction bearing on his credibility: He had sought to extort sex from a lone female motorist and then lied about it when she reported the incident. It is not difficult to imagine that a jury may have been skeptical of Saldate’s testimony that Milke confessed, had it known about his track record. But the Maricopa County District Attorney’s office did not disclose this information, although it was party to many of the proceedings where Saldate had been found to be a liar.

The evidence remained hidden for two decades until an unusually dedicated team of lawyers and investigators spent hundreds of hours digging through all of the criminal prosecutions in Maricopa County during the era when Saldate had been an investigator. It winnowed down those cases and focused on those where Saldate provided evidence. And the state doggedly refused to turn over Saldate’s disciplinary record until forced to disgorge it by an order of the district judge who considered Milke’s federal habeas petition.

After we vacated the conviction and gave Arizona a chance to re-try Milke, the Arizona Court of Appeals barred any re-trial in an opinion so scathing it made the New York Times. The Court of Appeals described the “long course of Brady/ Giglio violations in this case” as a “flagrant denial of due process” and “a severe stain on the Arizona justice system” — one that it hoped would “remain unique in the history of Arizona law.” The Arizona Supreme Court recently denied the state’s petition for review, so the Court of Appeals decision stands. Maricopa County Attorney Bill Montgomery lamented that “[t]he denial of [the] petition for review is a dark day for Arizona’s criminal justice system.”

The third case is unfolding as I write these words. It involves the prosecution in Orange County of Scott Dekraai, who was convicted of having shot several people at a hair salon and is facing a capital penalty-phase trial.

The prosecution presented evidence from a jailhouse informant, Fernando Perez, whom Dekraai had purportedly confessed to. It turns out that Perez was a serial informant who had presented similar confessions. Defense counsel challenged the informant, and Superior Court Judge Thomas Goethals ordered the prosecution to produce evidence bearing on this claim. He eventually found that the Orange County District Attorney’s office had engaged in a “chronic failure” to disclose exculpatory evidence pertaining to a scheme run in conjunction with jailers to place jailhouse snitches known to be liars near suspects they wished to incriminate, effectively manufacturing false confessions.

The judge then took the drastic step of disqualifying the Orange County District Attorney’s office from further participation in the case. But this result came only after public defender Scott Sanders “wasted two years uncovering government misconduct, time that he could have spent preparing Dekraai’s defense against the death penalty.” Pulling an elephant’s teeth is surely easier than extracting exculpatory evidence from an unwilling prosecution team.

These cases are hardly unique or isolated. But they illustrate that three ingredients must be present before we can be sure that the prosecution has met its Brady obligations under the law applicable in most jurisdictions. First, you must have a highly committed defense lawyer with significant resources at his disposal. Second, you must have a judge who cares and who has the gumption to hold the prosecutor’s feet to the fire when a credible claim of misconduct has been presented.

And, third, you need a great deal of luck, or the truth may never come out. The misconduct uncovered in the Milke and Dekraai cases seems to implicate many other cases where criminal defendants are spending decades in prison. We can only speculate how many others are wasting their lives behind bars because they lacked the right lawyer or the right judge or the luck needed to uncover prosecutorial misconduct.

While most prosecutors are fair and honest, a legal environment that tolerates sharp prosecutorial practices gives important and undeserved career advantages to prosecutors who are willing to step over the line, tempting others to do the same. Having strict rules that prosecutors must follow will thus not merely avoid the risk of letting a guilty man free to commit other crimes while an innocent one languishes his life away, it will also preserve the integrity of the prosecutorial process by shielding principled prosecutors from unfair competition from their less principled colleagues.

Les Miscreants

The title of this needs to be edited to be Reining in Prosecutors. If we approached the malfeasance and misconduct exposed with regards to this group of miscreants we would have a whole new flurry of laws, arrests and jailbirds but alas the most they get is a reprimand.

Reining In Federal Prosecutors

By MONA LYNCH
The New York Times
JUNE 2, 2015

IN recent months, police departments and prison systems have been taking heat for the systemic abuses that mar our nation’s justice system. But one key player has been notably absent: For decades, our federal court system has been quietly perpetrating some of the deepest injustices in the name of the war on drugs.

Federal laws passed at the height of our punitive frenzy in the 1980s have been abused by overzealous federal prosecutors to compel guilty pleas and obtain long, unjust prison sentences, especially against black drug defendants. We must rein in these practices if we are to reshape our country’s criminal justice system for the 21st century.

Prosecutors have a number of tools at their disposal, the most powerful of which is the “851,” which can be filed against those with prior drug convictions to at least double mandatory minimum sentences. In the worst case, a 10-year mandatory minimum becomes a life sentence without parole for a defendant with two prior convictions.

The 851 statute was passed in 1970 to give prosecutors more discretion to seek harsh sentences against only the most serious offenders, and exempt lower-level defendants. But it has been deployed in exactly the opposite manner.

I have conducted in-depth qualitative research and interviews in four federal districts; in each, the 851 threat loomed for nearly everyone with the eligible prior record. In the words of one of my interviewees, “the 851 is the ultimate lever” used by prosecutors to force a guilty plea. And it almost always worked: Defendants were compelled to waive their rights and plead guilty to ensure that their sentences were not doubled, or worse.

What happens to the defendant who doesn’t go along? The threat becomes a reality. Take the case of a former defendant whom I’ll call Brandon.

Brandon may not have been squeaky clean when he landed in federal court on drug charges, but he certainly was no drug kingpin. A week or two before his arrest, he reignited a friendship with a high school classmate — I’ll call him Frank — at the time a relatively large-scale crack dealer. After reconnecting, Brandon went for a drive with Frank and Frank’s girlfriend on a single drug-supply run, something the couple did on a weekly basis.

On the way home, a state trooper pulled over Frank’s car, searched it, retrieved the drugs and arrested them. Each was charged with conspiracy to distribute hundreds of grams of crack cocaine.

All three had prior drug convictions, so the 851 threat loomed. Frank and his girlfriend succumbed to the pressure and pleaded guilty. But Brandon had a strong case. By all accounts, including law enforcement’s, he was neither Frank’s partner nor involved in any continuing conspiracy with the couple.

So Brandon went to trial. And the prosecutor played her ace card, filing the 851 on the eve of trial. He was convicted. At sentencing, Frank received 20 years in prison and his girlfriend received probation. Brandon, who chose to exercise his right to trial, received a life sentence with no possibility of parole.

How many Brandons there are in the system is unknown; no entity tracks the threat or use of the 851 in drug cases. We do know, however, from qualitative research like mine and recent work by the United States Sentencing Commission that its coercive use has been pervasive.

Data also indicate that mandatory minimums and enhancements like the 851 have been disproportionately used against black defendants. While research shows that illicit drug use and distribution is generally proportionate to the racial makeup of the nation’s population, black people are overrepresented as drug defendants in federal courts, constituting 30 percent of all those sentenced for drug crimes, and a full two-thirds of those who receive life sentences.

Between 1992 and 2012, about 2,300 black men have been sentenced to life for federal drug convictions, 72 percent of whom had asserted their right to trial. While data cannot pinpoint the 851 as the trigger of those life sentences, it does indicate that 96 percent were subject to drug mandatory minimums at sentencing.

Some effort has been made to address the overzealous use of the 851 threat. In 2014, Attorney General Eric H. Holder Jr. directed prosecutors to refrain from using the 851 as a threat or inducement in plea negotiations. But while his directive has clearly changed behavior in some districts, the 851 threat remains alive in others.

As we grapple with the consequences of a three-decade-long law-and-order binge that has disproportionately affected black communities, we must repair the damage done in the past and prevent a repeat in the future. That means revisiting the unconscionably long sentences that keep Brandon and others behind bars for most or all of their lives, and it means removing hammers like the 851 from the prosecutors’ toolbox to prevent their future abuse.

Mona Lynch is a professor of criminology, law and society at the University of California, Irvine, and a visiting scholar at the Russell Sage Foundation.

They Eat Their Young

The last week has brought about quite a turn of events with Judges and Prosecutors turning on each other as the proverbial shit hit the fan.

Orange County famous for their housewives, a series of unbelievable Police and Prosecutorial misconduct has led a Judge to condemn their entire Prosecutorial staff.  The article below from Slate is lengthy but well worth the read to understand how this is affecting legitimate cases as well as those who have found innocent individuals guilty as the zeal to persecute, whoops prosecute, dictate and dominate all rational thought, investigations and legality.

You’re All Out
A defense attorney uncovers a brazen scheme to manipulate evidence, and prosecutors and police finally get caught.

By Dahlia Lithwick
Slate

Prosecutorial and police misconduct are often dismissed as just a few bad apples doing a few bad apple-ish things. But what happens when it’s entrenched and systemic and goes unchecked for years? That looks to be the case in Orange County, California, where the situation got so completely out of hand this spring that Superior Court Judge Thomas Goethals issued an order disqualifying the entire Orange County District Attorney’s Office (that’s all 250 prosecutors) from continuing to prosecute a major death penalty case.

After literally years of alleged misconduct involving jailhouse informants, as well as prosecutors’ repeated failures to turn over exculpatory material, Judge Goethals determined in March that the office can simply no longer work on the case of mass murderer Scott Dekraai, who pleaded guilty last year to killing his ex-wife and seven others at a beauty salon in 2011.

Revelations of misconduct in the Dekraai case have raised questions about patterns of obstruction and deception that have unraveled various other murder cases in the county, which has a population larger than that of 20 different states. Other cases involving informants who were eliciting illegal confessions have emerged, entire cases have collapsed, and more may follow. The story goes way back to the 1980s, as R. Scott Moxley explains at length in the OC Weekly, to a prosecutorial scandal that ended in the execution of one defendant and a lengthy sentence for his alleged co-conspirator. Their convictions were based on the testimony of various jailhouse informants even though they told conflicting stories. That scandal rocked the area then, and this new one shows eerie parallels.

The story affords “a rare glimpse into something the criminal justice system does that it actually does all the time.”nAlexandra Natapoff, author of Snitching

All this is happening right up the road from Los Angeles, home of one of the most massive jailhouse informant scandals in history. In 1989, in an infamous interview with 60 Minutes and an explosive piece in the Los Angeles Times, former jailhouse snitch Leslie Vernon White demonstrated how he fabricated the confessions of other inmates, then leveraged them for reduced sentences. The White revelations led to a grand jury investigation that revealed that jailhouse snitches often lied, and that police and prosecutors—knowing they were lying—used them anyhow. L.A. has since enacted significant reforms of its jailhouse informant policies. Not so Orange County. And both the scope and scale of the Orange County shenanigans are remarkable.

One issue in the Dekraai case is whether deputies deliberately placed him near a prized informant to elicit illegal confessions. While preparing for the penalty phase of the trial, Santa Ana assistant public defender Scott Sanders, who is defending Dekraai, discovered that a jailhouse informant who had produced damning evidence about his client had done the same thing in another case Sanders was handling. After further investigation, Sanders claimed that a branch of the Orange County Sheriff’s Department called “special handling” would deliberately place jailhouse snitches in cells next to high-value inmates awaiting trials, with instructions to collect confessions, a practice that is unconstitutional.

Together with his law clerks, Sanders spent a year unearthing and then reconstructing a tranche of 60,000 pages of records indicating that the county sheriff’s office routinely used and coordinated with those informants to get around the constitutional prohibition on eliciting incriminating statements from defendants who had lawyered up and should not have been interrogated. The sheriff’s department has admitted that mistakes were made. The DA’s office claims there was nothing coordinated or systemic going on. But Judge Goethals disagreed, finding that the new revelations called into question the integrity of the entire Orange County District Attorney’s office.

Initially, Judge Goethals had ruled that the DA’s office was negligent in failing to turn exculpatory information over, finding that “the district attorney’s well-documented failures in this case, although disappointing, even disheartening to any interested member of this community, were negligent rather than malicious.” But that seems to have changed following further revelations of refusal to turn over evidence.

In an explosive moment following a hearing last year, Sanders revealed that the Orange County Sheriff’s Department has maintained a massive, secret, 25-year-old computerized record-keeping system called TRED. These TRED documents were full of potentially exculpatory data, but the agency officials had systematically refused to turn any of them over, or even acknowledge their very existence, to defense counsel.

In his March order, Goethals wrote: “It is now apparent that the discovery situation in this case is far worse than the court previously realized. In fact, a wealth of potentially relevant discovery material—an entire computerized data base built and maintained by the Orange County Sheriff over the course of many years which is a repository for information related directly to the very issues that this court was examining as a result of the defendant’s motion—remained secret, despite numerous specific discovery orders issued by this court, until long after the initial evidentiary hearing in this case was concluded and rulings were made.”

Laura Fernandez of Yale Law School, who studies prosecutorial misconduct, says it’s amazing that both the sheriff’s office and the DA’s office worked together to cover up the misconduct: “From my perspective,” she says, “what really sets Orange County apart is the massive cover-up by both law enforcement and prosecutors—a cover-up that appears to have risen to the level of perjury and obstruction of justice. Law enforcement officers and prosecutors in Orange County have gone to such lengths to conceal their wide-ranging misconduct that they have effectively turned the criminal justice system on its head: dismissing charges and reducing sentences in extraordinarily serious cases, utterly failing to investigate unsolved crimes and many murders (by informants—in order to prevent that evidence from ever getting to defense lawyers), while simultaneously pushing forward where it would seem to make no sense (except that it conceals more bad acts by the state), as in the case of an innocent 14-year old boy who was wrongfully detained for two years.”

Dekraai has already pled guilty to killing eight people, so the issue in his case is whether his due process rights have been violated with respect to his sentence. His attorney, Sanders, says he should be ineligible for the death penalty because of the misconduct by the prosecution and the sheriff’s department. Judge Goethals has thus far declined to take capital punishment off the table. California Attorney General Kamala Harris’ office was supposed to have inherited the prosecution of the Dekraai case, but she has appealed Goethals’ ruling. She also announced that her office will launch an investigation into all allegations. That has elicited its own criticism, with legal experts suggesting that a truly independent investigation needs to be launched; one that recognizes that the close ties between the attorney general’s office and the DA’s office warrant a completely neutral commission.

What’s wrong with using jailhouse informants? It depends on how they are used. Testimony from snitches is certainly legal—even if the informant gets rewarded with a reduced sentence or material benefits or even cold, hard cash. But evidently the Orange County informants were deliberately moved to be closer to high value targets, they taped their conversations, and the records of much of this conduct were then hidden. As Dean Erwin Chemerinsky explains, the Constitution limits the use of jailhouse informants to situations in which statements are made voluntarily to cellmates, not orchestrated and recorded by jailhouse officials, all of which makes the interaction too much like an interrogation.

 The 1964 Supreme Court case Massiah v. United States bars the government from eliciting incriminating statements from a defendant after the right to counsel has kicked in. In Dekraai’s case the issue was how jailhouse informant Fernando Perez found his way into a cell next to Dekraai, befriended him, and then reported hearing him “bragging” about the Seal Beach murders.

The answer to that question is troubling. According to a 505-page motion filed by Sanders, Dekraai was somehow placed next to a guy known as “Inmate F,” (Perez) who then buddied up to Dekraai, heard all he had to say and then—to hear prosecutors tell it—came forward out of the goodness of his heart. As Sanders explained:

It appeared that the prosecution had been the recipient of extraordinarily good luck. The inmate housed closest to Dekraai was a good listener, a great note taker, and someone so selfless that he wanted to assist the OCDA [Orange County district attorney] and local law enforcement without wishing for anything in return. OCDA Investigator Erickson’s subsequently written report confirmed this picture of Inmate F. The prosecution promised nothing in return for his assistance, which was perfect for Inmate F. because he wanted nothing.

The problem for the Orange County District Attorney’s Office arose after Sanders started digging into details about Inmate F and happened upon, just for starters, a note in his file stating: “WAS TERMINATED AS A C.I. [confidential informant]—DO NOT USE AS A C.I.” as well as his colorful history of three-strikes convictions and conspiracies to murder fellow inmates.

Last August, Judge Goethals ruled that prosecutors couldn’t use the Perez statements during the penalty phase of the trial, but he also found that there was no evidence of a conspiracy, just that mistakes were made. But after Sanders found the TRED records, it became clear that sheriff’s officials—not a nurse, as they had sworn, under oath—had put Perez next to Dekraai’s cell, and that the violations were likely deliberate and coordinated.

Alexandra Natapoff, who teaches at Loyola Law School in Los Angeles and wrote the book Snitching, explains that the reason this is an important story is that it affords “a rare glimpse into something the criminal justice system does that it actually does all the time.” She adds: “What’s newsworthy is not that it’s unique. What’s newsworthy is that we actually found out. What Scott Sanders did is a public service: He showed us something shocking and also unfortunately run of the mill.”

The problem with the system set up in Orange County, according to Sanders, was that jailhouse informants were asked to collect incriminating statements and then share them with prosecutors in exchange for reduced charges or other favors. Last November, the Orange County Register reported that two prolific informants with extensive criminal records had received more than $150,000 from law enforcement agencies for obtaining information from jailed suspects awaiting trials.

And even though snitching happens everywhere, and inmates are well aware that there are benefits to be gained for eliciting information, there are few mechanisms that exist to correct the perverse incentive to trade false information for rewards. As Moxley notes, the Los Angeles Times’ 1989 investigation, Jailhouse Snitches: Trading Lies for Freedom, exposed many of these problems. The article quoted Steve Vulpis, then an L.A. County Jail inmate, who admitted he and other informants told prosecutors anything they wanted to hear in order “to go home.” The story also quoted one informant from Orange County: “He was blunt in his assessment of courtroom shams conducted by other snitches and sponsored by the government, saying, ‘A way you can get around maybe not being able to get a confession right away [from a targeted inmate] is create one.’ ” The problem persists after all these years. In a report this week for America Tonight, Al Jazeera obtained damning tapes of likely Orange County snitches negotiating for testimony.

The Dekraai case became a turning point in Orange County when Judge Goethals got mad. He found that two deputies, Ben Garcia and Seth Tunstall, who belonged to the “special handling” unit dealing with informants, testified falsely to the court, denying the very existence of the TRED records at a crucial hearing last year. He also found that a prosecutor, Eric Petersen, had testified falsely.

Natapoff observes that another stunning aspect of the Orange County scandal is that a defense team was able to break through the prosecutors’ and sheriff’s office wall of silence. “Here you have longstanding collusion between the sheriff’s department and the DA’s office, and then the willingness to lie about the practice, even to the extent of committing perjury, under oath, in court to cover up those practices.” Noting that most everything about jailhouse informants happens in what she calls a “culture of secrecy,” Natapoff recalls that at the start of this case nobody would believe Sanders’ claims. He sounded like a conspiracy nut. This despite the fact that everyone knew this, or something like this, could be happening.

In the end it took a crusading public defender and a judge finally willing to believe him to smoke out the wrongdoing. In tossing the entire DA’s office off the Dekraai case, Judge Goethals wrote that “certain aspects of the district attorney’s performance in this case might be described as a comedy of errors but for the fact that it has been so sadly deficient. … There is nothing funny about that.” The disqualification of an entire prosecutor’s office rarely, if ever, occurs. But Judge Goethals finally concluded that in hiding exculpatory evidence, and then covering up the whole mess, the “District Attorney has a conflict of interest in this case, which has actually deprived this defendant of due process in the past.”

Why should we care what happens to Dekraai, a confessed serial murderer? We should care about the system, not the man who committed this atrocity. “Dekraai is a very bad defendant,” says Natapoff. “And we permit these unconstitutional practices to persist because at some level some people do feel that criminals should be apprehended by any means necessary and this exonerates the behavior of the law enforcement officials. But it’s a Faustian bargain,” she says, and it represents the cultural view of people who have “come to despair that justice can ever be conducted in a constitutional and lawful way.”

The constitutional protections built into our criminal justice system are not perfect. But the events of the past year in Orange County reveal that the alternative—a nihilistic sense that we can do whatever we must to nail the criminals—is far more dangerous. Especially if we let the most dangerous criminals walk in exchange for snitching in trivial cases. Yet more dangerous still is our tendency to turn a blind eye on the practices that are now coming to light in Orange County. They happen in secret because not enough people want to know about them. And they will continue to happen because so many people keep trying so hard not to care.

Then we have the Cleveland Prosecutor going “uh the Judge did it wrong.” Now usually these two are joined at the hip when it comes to Jurisprudence.  There are few Judges who will cross a Prosecutor as they wield the gavel in many municipalities and the Judges depend on their powerful allegiance to ensure re-election.  I mean when one’s constituents are felons it’s not as if they are planning to vote.

Prosecutor Faults Judge in Cleveland Police Verdict
By The Associated Press,  May 30 2015 

CLEVELAND — While acknowledging that he cannot appeal an acquittal, an Ohio prosecutor says a judge made serious errors before finding a Cleveland police officer not guilty in the deaths of two unarmed suspects, and he wants an appeals court to order the judge to correct the record. 

The prosecutor, Timothy J. McGinty of Cuyahoga County, said in court documents that were posted Friday on The Plain Dealer website that Judge John O’Donnell’s reasoning in the voluntary-manslaughter trial of Officer Michael Brelo could set a legal precedent that would “endanger the public.” 

Mr. McGinty said Officer Brelo’s acquittal on May 23 in the 2012 deaths of Malissa Williams and Timothy Russell in a storm of police bullets was based on the judge’s mistaken analysis of laws concerning police use of deadly force and on homicide involving more than one person who fired shots. He said the judge had also considered the wrong lesser charge — felonious assault — when he should have considered attempted voluntary manslaughter or aggravated assault. 

“As it stands, the trial court’s verdict will endanger the public, allow for one of multiple actors to escape culpability and lead to more unnecessary deaths by police-created crossfire situations,” Mr. McGinty said in his filing with the appeals court. 

“This court must return the case with the corrections of law to the trial court with instructions to deliberate and reach a verdict with the correct application of the law and correct determination of lesser offense of voluntary manslaughter — attempted voluntary manslaughter or aggravated assault,” he said. 

The judge was not available for comment Friday on Mr. McGinty’s request, the newspaper said. 

Officer Brelo’s case is one of many nationwide that have sparked protest over deadly police confrontations. About 70 people were arrested after the verdict, although the protest was quieter than others after grand juries decided against indicting white officers in the deaths of black unarmed suspects in Ferguson, Mo., and New York. 

In the Ohio case, Officer Brelo and other officers fired 137 shots at a car with Mr. Russell and Ms. Williams inside it on Nov. 29, 2012. The shooting occurred at the end of a 22-mile chase involving more than 100 Cleveland police officers and 60 cruisers after Mr. Russell’s car backfired while speeding past Police Headquarters. During the chase, an officer reported that he thought he had seen Ms. Williams with a gun. At the end, police mistook police gunfire for shots from Mr. Russell’s car. 

Officer Brelo fired 49 of those shots that night, but it was the final 15 fired into the windshield from the hood of Mr. Russell’s car that led to his indictment and a four-week trial. 

In his filing on Friday, Mr. McGinty said reasonable use of deadly force did not extend to Officer Brelo’s actions. 

“The United States Constitution does not provide cover for those officers who abandon all cover and place themselves and other officers in danger, using deadly force not as a last resort but, like Brelo did, in a manner inconsistent with reason, inconsistent with training, and inconsistent with established federal law.” 

But, he added, “the law as stated in the verdict places no restraint on the tactics civilian police officers are to use, finding the use of any tactics to be justifiable so long as the officer perceives a subjective fear of his or her life.” 

The prosecutor also said the judge had mistakenly reasoned that the state must prove one person among the several who fired that day was the sole cause of the two deaths.

The incestuous co-dependence of Police, Prosecutors and Judges is something apparent if one spent any time observing the relationships between the parties when in court and particularly in trial.   So it is surprising to see any turn upon the other.

And we have one more episode of The World Turns.   Bad Judge! Bad! When a Prosecutor attempts to have a Judge removed that is not news as they prefer to have their partners-in-crime in the court. (yes pun intended)  Well thankfully he was admonished for doing so. Admonished. Bad Prosecutor! Bad!

State bar admonishes former Yakima County prosecutor Hagarty
By Molly Rosbach
Yakima Herald
May 23, 2015

Former Yakima County Prosecutor Jim Hagarty has received an admonition from the state bar association’s disciplinary board, bar documents show.

The admonition, a mild disciplinary order, was in response to a complaint filed by court consultant Harold Delia last May during the trial of the four suspects in the Vern Holbrook murder case.

Delia, who said he was acting as a concerned citizen and not in his official capacity, submitted the complaint after Hagarty in May 2014 wrote a four-page letter to Yakima County Superior Court presiding Judge David Elofson accusing Judge Ruth Reukauf of bias against prosecutors in several cases, including the Holbrook case, and asking that Elofson either persuade Reukauf to step aside or remove her.

Holbrook was a prominent real estate broker who died after being brutally attacked in May 2013. Prosecutors blamed a business deal gone bad for the death. A former business partner, Daniel Blizzard, was convicted of first-degree murder for orchestrating the attack. A second man, Luis Gomez-Monges, was convicted of the same charge for carrying out the attack. Reukauf eventually sentenced Blizzard to 341/2 years in prison and Gomez-Monges to nearly 27 years.

At the time of the trial, Delia said Hagarty’s efforts amounted to trying to intimidate the judge, particularly because Hagarty was not personally prosecuting the case and had not submitted his concerns via proper channels.

In his formal complaint, Delia wrote that “As a result of (Hagarty’s) letter, the defense attorneys have moved for dismissal of the murder charges based on prosecutorial misconduct. Consequently, the trial date has been delayed, which effects (sic) the speed trial rights of the defendants,” and that the dispute drew focus from the criminal trial.

“This letter has had a direct impact and cost on the administration of justice, the rights of each of the defendants, and potentially impacts public safety,” Delia wrote. “It is, at a minimum, an attack on the integrity of the judicial system.”

The review committee of the Washington State Bar Association’s disciplinary board signed the brief admonition document on April 29 and it was filed publicly 
May 15.

The admonition does not carry any sanctions or disciplinary actions, but Delia said he’s satisfied.

“For me, I wanted to make sure that it doesn’t happen again,” he said of Hagarty’s previous actions.

“I wasn’t really that interested in what the punishment was; I was more interested in that he was accountable for what he did, and I think this makes him accountable.”

Reached by phone, Hagarty said he has no comment on the order.

Land of the Free?

With over 3 million persons incarcerated and that does not include the thousands that are on lifetime probation or have been convicted of gross misdemeanors and are not serving time but have paid millions in fees, those whose property were seized without evidence of a crime committed and the endless persecution of individuals who we just don’t like.

The New York Times the other day had a cover story that 1.5 million black men are missing. This is either by incarceration or by early death. These are lives that could have been productive, payed taxes, built communities, businesses and helped families stay off of public assistance, aided in raising children and in turn cost the states less not more by building up rather than taking down.

Then this week the reign of terror never ceases to amaze with the shootings, the deaths and the varying assaults by Police Officers or acting Police in pursuit of supposed crime.

We have the Volunteer Cop who mistook a gun for a taser. (Who will still be vacationing in the Bahamas to unwind after such stress)

The 2nd Cop (who was black) in the Walter Scott shooting.. and what was his role other than stand there apparently.

Fatal Shot in Queens naturally supposedly cause he fired first

Cop not guilty for Manslaughter. Again this seems to be a reflection of how he was charged much like the Menendez/Martin case in Florida where the Prosecutor obscures the charge by downgrading it or muddying it..which they don’t if you are a member of the great unwashed.

The death of Freddie Gray by a spinal cord injury that occurred out of camera and apparently by accident, the fault yet undetermined.

Cop free on Bond after another traffic stop gone wrong.

Settlement for man shot in his doorway by Police

Don’t Judge! The man’s name ironically Shepard, for now he shall not walk.

Hey the kid got in the way of my fists.

Cheesecake photos taken by cop, shame she was dead while doing so.

By the way Chicago has quite the history of police violence so hey what else is new.

Smile, you’re on Candid Camera.

Hey it’s a dirty job someone has to do it. Good thing he was back he needed to kill some more

But this goes back, way back. Ah the 70s when all this truly began in earnest.

And the exoneration’s and judicial overturning sentences are still continuing. The most recent today from the snitch file and of course the misconduct that accompanies it. Well as my mother used to say, hang around with trash long enough you start to smell like it. Maybe that is why Cops and Prosecutors are such fucking douches, they can’t disassociate.

This is from Open File… and the last sentence says all I can say about this subject.

Are we the land of the free or it is all just a temporary state of mind?

GA: Murder Conviction Overturned in Classic Abuse of Jailhouse Informant SystemBy alec – April 23, 2015
Open File

In a classic example of the abuse of jailhouse informant testimony, the Atlanta Journal Constitution reports that the Georgia Supreme Court has overturned the 2007 arson and felony-murder convictions of a Haralson County man.

Justin Chapman was charged with setting a fire at his duplex in Bremen, a fire in which an elderly neighbor died, supposedly in retaliation for his landlady telling him he had to move. The main witness against Chapman was Joseph White, who shared a jail cell with Chapman in the days immediately following his arrest.
At trial, White testified that Chapman had confessed to him about setting the fire. He also testified that he had neither sought nor received any deal for leniency from the prosecutor on the charges he himself was facing.

But as the court’s decision makes abundantly clear, this was a lie. “It is uncontroverted that at the time White testified, several items of favorable evidence in the State’s possession had not been disclosed to the defense.” The first item was a “a video recording of an interview…between White and the district attorney who prosecuted the case” in which they discussed White’s “seeking assistance” with his case.
Such a clear Brady/Giglio violation is depressingly familiar enough, but the prosecutor went still further. White had told him that another man, William Liner, had also been in the jail cell and could corroborate that Chapman had confessed to the arson.

A few days before Chapman’s trial was set to commence, the prosecutor went to interview Liner…Liner told the prosecutor he never heard Chapman confess. In addition, Liner had knowledge that White was actively seeking help with his then-pending charges. In response to these revelations, the prosecutor cancelled the order requiring Liner’s production at trial and Liner never testified. The prosecutor never disclosed Liner’s statements to the defense. Because Liner’s statement’s would have contradicted White’s testimony that Chapman confessed and that other people heard Chapman confess, and would have contradicted White’s testimony that he was not seeking help with his charges, the defense was denied the opportunity to impeach White.
And yet still, this was not enough. Completing a small trifecta of suppression, the prosecutor (unnamed in the opinion), engaged in another sleight-of-hand with important documentary evidence.

White had written a letter to his pastor describing Chapman’s confession, a letter the pastor was to give to the prosecutor. It was accompanied by a cover letter. On the second page of the cover letter, White advised his pastor to “hold off on giving my statement to police. I want to see what’s going on for a few days.” The prosecutor did in fact disclose the letter and the cover letter to the defense during discovery. But he removed the second page.

This evidence [the comment on the second page] contradicted White’s trial testimony that he went to police immediately with details about the arson, as well as undermined his testimony that he was not seeking help from authorities with his own charges.

Trying to cover his tracks, once at trial, the prosecutor “admitted the original document, containing both pages of the cover letter; but he proffered it through the testimony of an investigative officer after White’s trial testimony and after White had been released from his trial subpoena. Defense counsel assumed the document admitted at trial was the same document that had been produced to her via fax and did not closely examine the trial exhibit.”

In sum, then, the state in this case solicited the lies of a jailhouse informant on the stand; suppressed a witness who would have contradicted that informant; and hid documentary evidence that the informant was lying about the sequence of events leading to his testimony.

The court’s decision in this case is a mere seven pages. It contains no broad statements of principal, no high rhetorical condemnation of the prosecutor or the corrupt system of jailhouse informants. In fact, it contains no condemnation at all. Not even a chastisement. It recites the facts, states the Brady standard, and applies it in a more or less mechanical fashion.

The fact that the state of Georgia violated a citizen’s constitutional rights and held him in prison for eight years as a result of a prosecutor’s apparently deliberate effort to cheat him of a fair trial through a broken means of trying suspects is treated as an essentially ministerial matter.
The court here is not unusual in this reticence. When the tiny number of Brady violations that are actually litigated, much less held to be material, are recorded in written decisions, this is most often how they are treated–as part of the system, regrettable perhaps, but ordinary. This is evidenced as much by what courts don’t say as what they do.

In trying to increase accountability for prosecutors, we often highlight the decisions that do contain those broad statements and condemnations because they help sound the alarm about the prosecutorial misconduct that 9th Circuit Judge Kozinski has now famously described as an “epidemic.”

But it is worth remembering just how routine what we discuss here is. The violations are utterly commonplace. The judicial review of them is rare. Decisions in favor of the defendant are rarer still. And even when these come, they are most often couched in language as bland as that used in a case of statutory interpretation. It is but one instance of the larger tyranny of abstraction that runs through the criminal law.

It is the normalcy of all this that must end.