Court allows execution to proceed after receiving evidence of prosecutorial misconduct

Last Tuesday night the State of Texas murdered Alvin Braziel - despite the fact prosecutors admitted, hours before the scheduled execution that they had committed prosecutorial misconduct during the trial.

Nevertheless the Court of Criminal Appeals stepped aside and allowed the execution to proceed - once again demonstrating why the men and women who sit on that court are called Judges and not Justices.

Tom D'Amore and George West were the prosecutors who tried the case. Mr. D'Amore contacted Mr. Braziel's attorneys the night before the scheduled execution and told them that Mr. West had deliberately provoked a reaction from the victim's wife by showing her an autopsy picture of her dead husband. When Mr. Braziel asked for a mistrial after her outburst, the court denied the request after Mr. West assured the court that he had not intended for the outburst to occur.

Mr. Braziel's attorneys petitioned the trial court to call off the execution. The court said it would if they were sent a sworn statement from Mr. West. However, even after receiving the sworn statement, the trial court tossed it in the trash and washed its hands of the matter. His attorneys filed a similar request with the Court of Criminal Appeals at 5pm stating that this information only came to them the night before.

"It is axiomatic that a death sentence is irreversible and no one could reasonably believe that it should be carried out with such serious allegations of possible prosecutorial misconduct pending." -- Judge Elsa Alcala

Over dissents from Judges Elsa Alcala and Scott Walker, the Court of Criminal Appeals declared that it didn't care that a mistrial should have been declared and refused to halt the execution.

After he was strapped down to the gurney in the death house, Mr. Braziel apologized to the victim's widow for killing her husband.

This was never a case about mistaken identity or wrongful conviction. Mr. Braziel raped a woman and killed her husband. But when the Court of Criminal Appeals says that it couldn't care less if the state committed prosecutorial misconduct at trial, the Court is saying that it has little interest in guaranteeing a fair trial for those accused of criminal conduct.

It is entirely possible, and very probable, that a second trial would have produced a similar result. In fact I would be surprised if a second jury didn't convict Mr. Braziel and sentence him to death as well.  If the widow's outburst hadn't occurred it's also very likely that the verdict and sentence would have been the same. But, the state shouldn't be given a pass on their conduct just because it's a bad case with bad facts for the defendant.

What will Cliven Bundy do next?

On December 23, I wrote about the dismissal of the cases against Cliven Bundy and his band of Angry White Men with Guns.

Today US District Court Judge Gloria Navarro decided that the US Government violated Brady to such an extent that the only cure was for a dismissal with prejudice.

And so it goes, Cliven Bundy and his band of unmerry men have, once again, gotten away with their criminal acts - this time thanks to federal prosecutors screwing the pooch and withholding potentially exculpatory material from the defense.

There is no question that Bundy and his boys occupied federal lands, with weapons, despite orders to vacate the premises. There is also no question that this is part of an effort among wingnuts to privatize federal lands out west for the benefit of a few.

There is also no question that what happened in this case happens in criminal cases all across this country every day of the week. This one turned out differently because a disenchanted federal witness testified about the evidence that was withheld. And that's not what ordinarily happens.

As defense attorneys we have no idea what evidence the government has generated. We only have access to that evidence prosecutors turn over to us and that evidence that we subpoena because we have a feeling that something might not be right.

The problem is that if no one turns it over and the defense doesn't know it exists, there's no consequence for withholding it. And with the sheer number of cases that end up with a plea agreement because the defendant can't post bail or otherwise get out of jail after being arrested, there isn't time to dig deep enough to find out what hasn't been produced.

While today's decision is a win for the rule of law, it is also further evidence that we have a two-tiered justice system - one for those who can afford it and another for those who can't.

The Bundys fell in the former, most of our clients fall in the latter.

You couldn't screw it up this bad if you tried (or could you?)

I have very mixed emotions about the dumpster fire that has become the Cliven Bundy trial. This week, US District Judge Gloria Navarro declared a mistrial after finding that government prosecutors had withheld potentially exculpatory evidence from defense attorneys. She will decide in February whether the government's case should be dismissed with prejudice.

Mr. Bundy and his band of merry men became famous when they resisted the government's effort to collect grazing fees back in 2014. For more than 20 years Mr. Bundy had been grazing his cattle on federal land in Nevada without paying grazing fees.

After an armed stand-off (sound familiar), government agents left with their tails between their legs and no money in their wallets. Los federales made no other attempts to collect the money owed to taxpayers.

Emboldened by his success, Mr. Bundy and his band of merrier men decided that Oregon would be the next front in his battle against the government. Mr. Bundy's group carried out a 41-day long armed occupation of the Malheur National Wildlife Refuge in support of Oregon ranchers sentenced to jail for setting fires on federal lands.

Now, before I go any further, it's time for a little digression. During the occupation, federal agents treated the Bundys with kid gloves. I shudder to think what the government's reaction would have been had the occupiers been black or brown or any color other than white.

Despite video evidence, e-mail messages, photos and Facebook posts, the government's case has crumbled because prosecutors failed to turn over surveillance footage, threat assessments and FBI reports - after first denying they ever existed. Even more disturbing is the admission (again, after initial denials) that prosecutors had recordings of another defendant's jailhouse conversations with his attorney.

Of course, for those of who work in the criminal (in)justice system, none of these revelations are all that surprising. What's generally more surprising is them coming to light.

As much as I hate to see armed wingnuts like Cliven Bundy and his bank of merry men running around free, I cannot stand by and try to justify the government's failure to disclose potentially exculpatory evidence to the defense. And that paints it just a little too sterile as prosecutors lied and misrepresented the truth to the Court. That's not a failure to disclose, that's a freaking ethics violation.

I don't think that Judge Navarro has any other choice but to dismiss the case outright next year due to prosecutorial misconduct.

The only question I'm left with is whether or not the government torpedoed its own case because it didn't want to make martyrs of the Bundys.

Another innocent man freed from prison

How many more stories are we going to have to read about innocent men and women being released from prison after serving two decades or more because prosecutors failed to disclose exculpatory evidence at trial? How many more lives are we going to allow to be ruined because prosecutors are more interested in winning a case than they are in getting it right? And I'm not just talking about the wasted years of the innocent man - I'm talking about the enormous cost to his family.

Jonathan Fleming was convicted of the 1989 murder of Darryl Rush in Brooklyn. For more than two decades he missed every birthday, wedding, graduation and funeral for his family and friends. Those are 24 years of wasted memories that he can never get back.

When Mr. Fleming was accused of the murder he told the police he was in Florida. A review of the file revealed that the police had a hotel receipt from the day of the shooting and a note from the Orlando Police Department that hotel employees remembered seeing him that day.

Those items were never turned over to Mr. Fleming's attorneys. Despite his protestations, Mr. Fleming was convicted.

Even after a witness admitted to lying on the stand after the conviction, prosecutors continued to defend the conviction.

Mr. Fleming's conviction was overturned as the result of a review of questionable convictions from the Kings County District Attorney's Office. But for that investigation by the Conviction Review Unit, Mr. Fleming might still be behind bars today.

Mr. Fleming has announced that he will sue everyone he can for the injustice he was forced to endure for almost a quarter-century. But all the money in the world can never give him back the thing he lost - time.

As for the prosecutors who tried the case, the only appropriate remedy is disbarment. What they did was so reprehensible there is a special ring in Dante's hell for them. To the ADAs who handled Mr. Fleming's case, he was nothing but a case number. I'm sure they tossed out numbers to his attorneys like they were candy. What the hell, it's not like it would affect them one little bit. Close out one case and pick up the next one.

They betrayed their oath of office. They betrayed their oath to uphold the law and the constitution. They betrayed their profession. They betrayed themselves. They are scum and they don't deserve to call themselves lawyers anymore. Until we decide to put some teeth into Brady and our criminal discovery statutes, this will continue to happen. Until courts decide to impose sanctions on prosecutors who play hide-the-sausage with exculpatory evidence, this will continue to happen.

The other day Scott Greenfield wrote about a judge who did just that when he found out that a prosecutor withheld exculpatory evidence. Of course his sanction - banning the prosecutor from his courtroom - wasn't nearly harsh enough.

And still they went on practicing law like nothing happened. It didn't bother them that an innocent man was sitting in prison because they didn't hand over exculpatory evidence to the defense. It's not like they even gave a fuck that the evidence didn't support their theory of the case.

And let's take a wild guess at what kind of testimony it was that led to Mr. Fleming's wrongful conviction -- could it possibly have been eyewitness testimony? Isn't that another link with most of the publicized exoneration cases? In many cases it was the DNA evidence that proved innocence after eyewitness testimony put them behind bars.

While we should take pleasure in Mr. Fleming's exoneration, we can never forget that this incident serves as yet another indictment of our criminal (in)justice system.

Dropping the other shoe

Michael Morton spent 25 years in prison for a crime he didn't commit. Once evidence surfaced that Mr. Morton might just have been innocent of the murder of his wife, the Williamson County District Attorney, John Bradley, fought tooth and nail to prevent the evidence from being tested.

The DA at the time of Mr. Morton's trial, Ken Anderson, was now a state district court judge in Williamson County and the office was circling the wagons to cover up the sins of one of their own.

Eventually the evidence was tested - and it exonerated Mr. Morton.

Twenty-five years is a long time to sit in prison - especially if you were wrongly convicted. Even worse if that conviction were the result of prosecutorial misconduct. There is nothing that can make up for that time. Mr. Morton will never have the opportunity to see his son grow up. An apology from the court and a check from the state can't cover the debt Mr. Morton is owed.

During the investigation of the murder of Christine Morton, investigators interviewed Mr. Morton's three-year-old son who told police that his father wasn't at home when his mother was killed. There were also police reports about a suspicious van in the area and a man who wandered up behind the Morton's house on more than one occasion.

Prosecutors failed to disclose that information to the defense before or during trial. And, of course, the jury never heard a word about any of it. Making it worse, Judge. Anderson then lied to the judge presiding over Mr. Morton's trial when asked about the evidence.

But now the other shoe has dropped. On Friday, State District Judge Louis Sturns, presiding over a court of inquiry, found that Judge Anderson broke two laws in his handling of the matter and that he committed criminal contempt when he lied to the court. Then Judge Sturns ordered Judge Anderson arrested.

In a blunt and scathing ruling, District Judge Louis Sturns said Anderson acted to defraud the trial court and Morton’s defense lawyers, resulting in an innocent man serving almost 25 years in prison. 

“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” Sturns said.

Let that sink in for a moment.

First the judge tells a fellow judge that he broke the law while handling the Morton case, then he issues an arrest order for a sitting judge. That just doesn't happen in Texas.

Judge Anderson was taken into custody, posted bond and was released that evening. But the sting of Judge Sturns' words will never be erased. A sitting state district judge broke the law and lied to a judge all in the name of trying to win a case against a man he knew - or should have known - was innocent of the charge.

Judge Anderson challenged the ruling and informed Judge Sturns that he plans to appeal on the grounds that the court of inquiry exceeded the scope of its authority and that the statute of limitations had already run. He also claimed that the evidence didn't support Judge Sturns' findings.

It is more than a little interesting to note that Judge Anderson has never denied hiding the evidence. Neither he nor John Bradley found anything wrong with not disclosing exculpatory evidence to Mr. Morton's attorneys

While the Michael Morton Act expanding the items the state must turn over to the defense prior to trial is a step in the right direction, the actions of Judge Sturns are the equivalent of turning the entire truck around. A ruling that a piece of evidence is inadmissible is one thing - a ruling that a prosecutor's actions constituted a criminal act is something entirely different.

If we want to make certain that no one else has to go through what Michael Morton went through, we have to start holding prosecutors accountable for their actions. This isn't a game we play, what goes in those courtrooms affect people's lives in profound ways. Judge Anderson's actions not only robbed Mr. Morton of 25 years, they also robbed his loved ones of those 25 years.

I just wonder if Judge Anderson has enough honor to step down from the bench he has disgraced.

Another victim of prosecutorial misconduct

Over at Grits for Breakfast we have yet another tale of a man who has sat in prison for more than a decade due to prosecutorial misconduct. Compounding matters is the very real possibility that Kenneth Wayne Boyd is innocent.

Suppressed evidence, jailhouse snitches and liars, liars and more liars. Somewhere along the way, then-Shelby County District Attorney Karen Price must have forgotten that edict from the Texas Supreme Court that prosecutors have an ethical duty to see that justice is done. Ironically, as Grits points out, Ms. Price is in a run-off for the Republican nomination for DA.

It's cases like this that scholars like to point out when anyone has the temerity to criticize the criminal (in)justice system in this country. Academics like to tell us that our system of justice might get it wrong at first but, by golly, the truth will come out in the end.

Of course this is coming from the mouths of erudite judges, professors and commentators who have never had the pleasure of spending a decade or more behind bars. Most have never seen the inside of a jail.

Yes, eventually Clarence Brandley, Anthony Graves and Michael Morton did walk out of prison as free men. But they can never be given back what was taken from them. They can never get back the years they lost. They can never get back the time with their children. They can never get back the loved ones who died while they were locked up. The state can give them all the money in the world - but there is no remedy for being wrongfully convicted.

There is no telling how many men and women are sitting behind bars today as a result of prosecutorial misconduct. As I've stated before, there is no way of knowing when the state is withholding exculpatory evidence. If the prosecutor keeps it a secret - the defense will never know about it until it is too late.

This sad state of affairs will continue until we decide to do something about it. It's not enough to release someone and vacate their conviction. It's not enough to hand them a check and tell them you're dreadfully sorry they lost a huge chunk of their lives. The only way this will stop is when prosecutors are held criminally liable for their actions.

It should be a felony offense with no statute of limitations. Maybe taking away someone's ticket to ride will be enough to make prosecutors err on the side of disclosure when presented with evidence that may be beneficial to the defense. Maybe the threat of prison will be enough to remind prosecutors of their ethical duty to see that justice is done. Maybe the fear of criminal prosecution will be enough to remind prosecutors that a win-at-all-costs mentality is the enemy of justice.

Who the hell am I kidding. It'll never happen.

How long until they decide to outlaw trial by jury?

The backlash against the not guilty verdicts in the Casey Anthony case has reached Texas. State Sen. Chris Harris (R-Arlington) has let the world know that he intends to introduce a bill that would make it a felony to fail to report a missing child.

That's just what we need in the Lone Star State, another felony.

And, just so we can be reminded that bad facts made even worse laws - Sen. Harris said he will affix Caylee Anthony's name to the proposed legislation. Because we all know that that's what this knee jerk reaction to a jury verdict is all about.

Sen. Harris doesn't give a rat's ass about Caylee Anthony. He saw the opportunity to curry favor with the wing nuts in his district by slapping around the right wing's latest bogeyman -- Casey Anthony.

Don't blame Ms. Anthony for the jury's verdict, Mr. Harris. Take a closer look at the prosecutors. Did they overplay their hand by seeking the death penalty? Did they have one iota of actual physical evidence tying Ms. Anthony to the alleged crime?

While we're drafting legislation in response to a verdict in a Florida trial -- how about you draft legislation that would make it a felony for a prosecutor to withhold exculpatory evidence like a witness who recants his testimony the night before trial. We could call it the Anthony Graves Act.

We could draft legislation that would make it a felony for a prosecutor to hide forensic evidence in order to prevent the defense from running tests. We could call it the Clarence Brandley Act.

We could draft legislation that would make it a felony for prosecutors to put on scientific evidence that they know is nothing but pseudo-scientific junk. We could call it the Cameron Willingham Act.

But no. Wrongful convictions aren't on Sen. Harris' radar. He has no problem with folks being convicted as the result of prosecutorial misconduct and junk science. He has no problem with juries who convict people on less than proof beyond all reasonable doubt. He has no problem with judges who are more concerned with efficiency than justice.

Apparently Sen. Harris has a problem with juries who follow the law.

Protecting their own

As I was looking through my Google Reader on Wednesday, I happened upon a post on Grits for Breakfast in which Scott Henson questioned why prosecutors enjoy absolute immunity for their misdeeds while peace officers  are only granted "qualified" immunity.

Mr. Henson linked to an article by Erwin Chemerinsky, the dean of the UC-Irvine Law School and a constitutional law scholar, in which Mr. Chemerinsky looked at two recent US Supreme Court cases in which the high court ruled against exonerated citizens seeking recompense for the time they spent locked up on wrongful convictions.

Unfortunately, the Supreme Court has not gotten the message. Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct. In both instances, the Court held that the victims could not recover. Together, these cases send a disturbing message that the Court is shielding prosecutors from liability. The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct. 

There is a serious problem in this country. Our criminal (in)justice system, through the erosion of defendant's constitutional rights and admission of junk science, has locked away hundreds of people whose convictions were later overturned -- not through the appeals process but through the filing of writs. The vast majority of these convictions were overturned when DNA tests (not available, or performed, at the time of trial) revealed that the person convicted for the crime was not the person who committed the crime.

In many of these cases prosecutors withheld evidence that may have led to a different result. In many cases these constitutional violations were intentional. And, in most of those cases, the prosecution had multiple opportunities to correct the error but chose not to.

To answer Mr. Henson's question "why" prosecutors enjoy absolute immunity from lawsuits alleging misconduct, we have to look at who's making the rules. Now I can only speak about Harris County but the vast majority of criminal judges at 1201 Franklin came from the Harris County District Attorney's Office. I am quite certain this is not a phenomenon unique to southeast Texas.

Judges already have a hard enough time believing that police officers beat suspects without reason and lie in their reports and on the stand. These judges have a hard enough time believing that eyewitness testimony is inherently unreliable and that forensic evidence is often of dubious provenance. Many of these judges have a hard time believing that a defendant is innocent unless proven guilty beyond all reasonable doubt (if you have any questions, just look at the bond conditions imposed on some defendants). Why on earth would one of these judges believe that prosecutors behave badly?

Why would a judge believe that the prosecutor who walks into her courtroom everyday was capable of withholding exculpatory evidence? Why would a judge believe that her former colleagues intentionally violated the constitutional rights of criminal defendants? Why would a judge who campaigned as being "tough on crime" believe that "her" prosecutors breached their ethical duty to see that justice was done?

And why would anyone on the bench care about the person freed from prison years later for a crime he didn't commit? Why would they care about the years he lost? Who cares whether he can pick up the pieces of his shattered life and start over again? That's not the judge's problem. He had a trial. So what if the jury got it wrong due to prosecutorial misconduct? So what if the jury got it wrong because of junk science?

If he wasn't guilty of that one, he was probably guilty of something else, right?

Federal judge orders criminal investigation of prosecutors

If the prosecutors from the Harris County District Attorney's Office who were disciplined for a Batson violation think their punishment was severe, they should be thankful that they weren't prosecuting former U.S. Senator Ted Stevens (R-Alaska).

After dismissing the Senator's conviction, U.S. District Judge Emmitt Sullivan ordered a criminal investigation into the prosecutors who withheld Brady material.

I always find it amusing when the law and order set comes to the conclusion that our criminal justice system doesn't always work the way it should.

"Until recently my faith in the criminal justice system, particularly the judicial system, was unwavering. But what some members of the prosecution team did nearly destroyed my faith. Their conduct had consequences for me that they will never realize and can never be reversed." - Sen. Ted Stevens.

Prosecutors failed to disclose to the defense that a key prosecution witness had changed his story. The witness testified that a mutual friend told him not to expect payment for the renovations he made to Sen. Stevens' house. In an earlier, undisclosed meeting with prosecutors, the witness said he didn't recall that conversation -- and he valued his work at less than prosecutors alleged.

"I was sick to my stomach...How could they abandon their responsibilities." -- defense attorney Brendan Sullivan.

It would be naive to believe that what happened in Sen. Stevens' trial was an isolated incident. The prosecutors' conduct is emblematic of a "win at any cost" mentality that affects too many attorneys who argue on behalf of The State.

A prosecutor's job is to see that justice is done, not to build a resume on the lives and reputations of citizens accused of criminal activities.