Saturday, December 7, 2013

At the Trough

I am excited to finally begin to read Radley Balko's book on the Rise of the Warrior Cop. We are a Nation under one law - the law of less.  One with less civil rights, including the right to vote, to walk freely on the streets, to drive a car, to attend a school, to be a person of color or even gender, and the biggest division - be one of less income.

Not a day goes by where another article is about the burgeoning prison system and the results it has on our economy, our cities and the lives that are affected forever. Tough on crime? No we are brutal.

That beloved old rag that we call the Constitution is becoming a rag that is waved about cavalierly to suit the purpose of the waver and that can be either in deflection or intention, hard to know the difference anymore.

We want to believe, Mulder, we do that we are justice for all and equality for everyone. No.

This week even school districts are finally coming to grips with "zero tolerance" is doing more harm than good. This article discusses the problems that have resulted and the young lives whose lives are forever destroyed because of the police "intervention" in what is often simple discipline problems that are not about danger but often social and economical. These lives would be better served in ways and means that in our pro gun, pro life, pro jail world in ways that seems to be an antithesis of their beliefs. Stand your ground, don't back down now represents America and in turn we are all falling down.

And as we look to the criminal justice system it is not fair nor just nor even operational. Drive thru medicine? Well try drive thru justice. Turn em and burn em is a saying in the restaurant trade, well it should be in our court system.

More articles this week again about the wrong individuals being interned for crimes they don't commit. Or this study by Human Rights Watch that analyzes why plea bargaining is necessary as Prosecutors retaliate to those who refuse to do so and have the audacity to demand a trial, their right by law.  If you think it is just drug offenses, just say no.

Rights? Laws? For those who write and enforce them, for everyone else it is perfect compliance or fear the wrath of Lady Justice. She is a bitch.

The below article discusses the real reason behind much of the problems in the system - the Prosecutor. They are immune from lawsuits and in turn citing by Bar Associations or even professional misconduct. Even in this case in Texas, a prosecutor was cited for misconduct but like the Police they protect and serve, the sentence was minimal.

I frequently hear "she/he is a good Prosecutor" or that is listed on may current practicing Lawyer as there professional reference to indicate they "know the system" and in turn get you a better deal. The operative word is deal as that is what it all is a card game or a gamble. The last person I would ever want representing me is a former Prosecutor. Have you seen or witnessed them in court? They are not any more intelligent or even legally knowledgeable, they are however, nasty, vitriolic and deceptive.

Those are the earmarks and skill set of a "good" Prosecutor and in turn their kill rate and scalps on belts is how they are measured as "successful."   That is not someone I would want to hire as I could never trust nor respect someone even if I was on their side of the aisle.   They don't do any better in Court. Why?  They don't go to Court. They know no one wants to go there regardless and god forbid some truth gets out. Truth and Justice are mutually exclusive.

We are a first world nation with a third world judicial system.


Prosecutors and Prosecutorial Misconduct
September 1, 2003

Article by Julia Lutsky

The men and women charged with protecting the state by shielding it from those who violate the laws are in a unique situation: They are that part of the judicial system which defines the law or laws that have been broken, and they must define the conduct of the accused for the judge or jury. Similarly, since they are elected members of the judicial branch of government, state district attorneys must present themselves to the voting public both as upholders of the laws forbidding criminal conduct, and as protectors of the civil liberties of the accused.

E. Michael McCann, elected prosecutor in Milwaukee, Wisconsin, in 1968, speaking of the pressures related to elections, observes that, “The discretion of the district attorney [in delineating charges, calling witnesses and presenting evidence] is broad and subject to almost no control or judicial review.” By the same token, once a verdict has been handed down, the prosecuting attorney is reticent to revisit the case - as if the decision were “garbed with a pristine quality and any reduction therefrom appears to cast [him or her] in an adverse light and to compromise the integrity of the criminal justice system.” This is, McCann contends, “in fact, an abdication of the district attorney’s responsibilities.”

A Massachusetts prosecutor once asserted that, “Innocent men are never convicted. Don’t worry about it. It never happens... It is a physical impossibility.” Would that he were correct! Even with the advent of DNA testing proving that many have been wrongly convicted, however, it remains true that the public tends to maintain a firm belief in the judicial system and trusts it “to do the right thing.” In reality, without a basic public trust in the system, “justice” becomes nothing more than a pipedream.

Each prosecuting attorney, then, must uphold not only the law but the people’s trust, even as he or she faces further challenges to the manner in which prosecution is carried out. The state’s attorney has two jobs: to show probable cause to a judge or to a grand jury, depending on the state, and then, when an indictment is handed down, prove to a trial jury consisting, at least theoretically, of peers of the accused, that the accused is guilty beyond a reasonable doubt. Because trials tend to be expensive the district attorney may try to get the prospective defendant to plead guilty to a lesser crime thus obviating the need for trial. The state’s attorney is, therefore, on the cutting edge of authority.

Another factor further inflames this volatile mixture: a trial is not designed to seek justice; it is, rather, an adversarial system in action, a contest between the defense and the prosecution. Whoever has the best and most combative lawyer will win the case. Since the state has infinitely more resources than all but a very few defendants, the defendant, though theoretically innocent until proven guilty, is at a disadvantage even before the trial begins. Add to this the opportunity for error and/or misconduct on the part of either the defense or the prosecuting attorney and the defendant becomes more vulnerable still.

The Center for Public Integrity (CPI), a Washington based nonprofit organization founded in 1990 which conducts investigative journalism, recently completed a two year survey of appellate decisions dealing with prosecutorial misconduct. “Since 1970,” it states, “ individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences in over 2,000 cases. In another 500 cases, appellate judges offered opinions—either dissents or concurrences— in which they found the misconduct warranted a reversal. In thousands more, judges labeled prosecutorial behavior inappropriate, but upheld convictions using a doctrine called ‘harmless error’”, that is, an error in the conduct of a trial which an appellate court finds is not sufficient for it to reverse or modify the lower court’s judgment such as a technical error which has no bearing on the outcome of the trial or an error that was corrected during the course of the trial. During the thirty year period from 1970 the Center found at least 2,017 cases in which judges or appellate courts had cited prosecutorial misconduct as a factor in dismissing charges, reversing decisions or reducing sentences.

A prosecuting attorney who puts an innocent person in jail has been ruled to be immune from civil suits by the Supreme Court (Imbler vs. Pachtman, 1976); the Court’s reasoning held that prosecutors might be intimidated by the threat of civil litigation. That doctors are not immune from their mistakes, nor are lawyers in private practice, might lead one to wonder if the courts were not simply protecting their own. Prosecutors, like other attorneys, are, however subject to censure by the state’s Bar Association: each state has its own disciplinary authority and governing Rules of Professional Responsibility defining misconduct. A lawyer violating these rules can receive increasingly strong punishments from private admonition or reprimand to public reprimand, suspension from the practice of law for a specified period, or permanent disbarment. He or she may also be assessed the costs of the disciplinary proceedings which can amount to thousands of dollars. An attorney may also be given a punishment which includes a probationary period. Or the complaint may be dismissed as groundless. Of 44 attorney discipline cases studied, the Center found that 7 complaints were dismissed and in 20 more the attorneys received private or public censure. In only 12 cases were attorneys’ licenses suspended; in two more the attorneys were disbarred.

What is prosecutorial misconduct? And what are the multiple ways this misconduct has compromised justice? Following are some of ways cited and examples of them in practice as detailed in the CPI report:

Making assumptions as to the guilt of a defendant to the extent that exculpatory evidence is not sought or is overlooked;
withholding evidence from the defendant or the defendant’s attorney;
mishandling of physical evidence (hiding, destroying or tampering with evidence, case files or court records); failing to disclose exculpatory evidence;
displaying bias toward or having a vendetta against the defendant or defendant’s counsel.

Investigative reporter Steve Weinberg, who, together with Attorney Neil Gordon, writer Brooke Williams and a team of researchers with Center for Public Integrity conducted the above mentioned study, wrote extensively of the 1983 case of Ellen Reasonover, an African American woman, in St. Louis County, Missouri. Reasonover learned of the murder of a white service station attendant while watching television. She remembered that she had visited the service station at around the time the crime occurred and so, in response to a call by the police for information from the community and after discussing the matter at length with her mother, she called to report what she had seen. When she identified two already incarcerated men (both African American) from mug shots police put her in jail alleging she was trying to deflect suspicion from herself. Another potential witness, this time a white male who identified the same two mug shots, was not placed in jail. In addition, Reasonover had two half brothers who were known criminals. Thus she found herself tried and convicted for the murder. Sixteen years later a federal judge released her, finding her innocent and the victim of prosecutorial misconduct.

Ellen Reasonover had been indicted by a grand jury who had, as do all grand juries, heard only the prosecuting attorney’s “facts”; all other evidence exonerating her had been omitted from the hearings. Grand juries, when not absolutely sure of incriminating evidence, often indict under the theory that exculpatory evidence will doubtless surface during the trial. This may be why it has been said that, “a grand jury will convict a ham sandwich.” [Sol Wachtler, former chief justice of New York’s Supreme Court] Three years after her conviction, during a post conviction hearing, it was discovered that the prosecuting attorney had a recording of conversations she had with her boyfriend while they were jailed in adjoining cells. The recording, almost an hour long and made without Reasonover’s knowledge, did not indicate her innocence but did show the confusion expressed by both of them as to why they were where they were. The recording had been given the prosecuting attorney by the police but he never made its presence known to defense counsel. Her conviction was overturned and she was released in 1999. The court cited the exculpatory tape, the credibility of two central witnesses and the failure on the part of the prosecuting attorney to correct false testimony by another witness.

Other ways justice has been compromised by prosecutorial misconduct and cited by the CPI report include: mischaracterizing evidence or facts; using false or misleading evidence; courtroom misconduct such as inappropriate or inflammatory comments in the presence of a jury; or making improper opening or closing statements to the jury; threatening, badgering or tampering with witnesses; introducing inadmissible or inappropriate evidence.

In the early 1980’s, Abu-Ali Abdur’ Rahman was convicted and sentenced to death for the stabbing death of a man and of injury to his female companion during an armed robbery in Nashville, Tennessee. The prosecutorial misconduct during his trial was so evident that six former Tennessee prosecutors filed an amicus curiae on his behalf before the U.S. Supreme Court. Prior to its arrival at the High Court in 2002, however, the appeal had gone through Tennessee courts for years. Though there was no scientific evidence that incriminated Abdur’ Rahman, he was convicted. The prosecutor had failed to point out to the jury that the person who had stabbed the victim must necessarily have been covered with the victim’s blood and that there was no blood on Abdur’ Rahman’s coat - nor had the coat been removed at any time, according to witnesses.

Further, Abdur’ Rahman, while in federal prison in 1972, had been implicated in the death of a prisoner. When the prosecuting attorney (John Zimmerman) presented the evidence in this death to the defense attorney during the penalty phase of the stabbing trial he called it the result of gang wars related to the drug trade. In fact, the death was the result of a fight between Abdur’ Rahman and the dead prisoner; of a burst of anger on the part of Abdur’ Rahman stemming from repeated homosexual attacks made on him by the victim, attacks which he was unable to escape. Zimmerman also withheld from the defense the fact that Abdur’ Rahman was mentally ill and had pleaded not guilty by reason of insanity in the earlier trial. Even in light of all this, in December of 2002, the High Court dismissed Abdur’ Rahman’s appeal without explanation by the majority. Justice John Stevens dissented, commenting that the appeal was “presumably” denied because of technical reasons.

In another of Zimmerman’s murder cases, the Tennessee Supreme Court admonished him for making inflammatory references to biblical passages. During this trial he also asserted the desire of the victim’s family that the defendant, Donald Ray Middlebrooks, be sentenced to death. Though the court held that “We have condemned Biblical and scriptural references in prosecutor’s closing argument so frequently that it is difficult not to conclude that the remarks ... were either made with blatant disregard for our decisions or a level of astonishing ignorance of the state of the law. ... [T]he prosecutor had a legal and ethical duty to refrain from this sort of misconduct”: Even so the court did not reverse the conviction.

In 2001, the Tennessee Court of Criminal Appeals reversed the guilty verdict obtained by Zimmerman in a case of arson and murder against Claude Francis Garrett. The case involved the death by fire of a victim who was found in a utility room when the fire was extinguished. Zimmerman told the jury that Garrett had locked the victim in the utility room and started the fire. An eleven page forensic report stated that the person who had first entered the utility room and found the victim reported that the door had been found unlocked. When asked about the discrepancy and why he hadn’t turned the report over at discovery, Zimmerman said he thought the detective’s memory of discussing the matter with the fire captain was vague and hence unreliable. These are a few examples of misconduct by those who prosecute in the name of the people. Undoubtedly, there are many more cases that were not appealed for lack of funds or adequate legal representation, - or whose appeals were simply not heard.

This article originally appeared in the Fall 2003 issue of Justice Matters.

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