Posted on January 30, 2012 by Walter Reaves

Just how far can the police go?

Scott Henson at Grits for Breakfast commented on a story about the tactics used by the Austin Police Department in an attempt to gain a confession in an old case. The case was none other than the one that MIchael Morton was convicted for - the death of his wife, Christine. You probably remember that is the case where John Bradley fought for years to prevent DNA testing  - testing that eventually cleared Morton and implicated another person - Mark Norwood.

In an attempt to gain a confession the Austin PD took a DNA report from another case and doctored it so that it appeared to be in Norwood's case. They then showed it to Norwood, claiming the DNA evidence pointed to him. According to the police they had already been verbally told the results implicated Norwood, but didn't have the report yet.

To Norwood's credit he didn't confess. Had he done so, the confession probably would have been suppressed. Does that mean the officers should be off the hook - no harm, no foul?

It surprises many people to learn that the police are allowed to lie to suspects. They can tell a suspect they have evidence that doesn't exist, or tell him witnesses have already given statements. While that doesn't seem fair, fairness has never been much of a concern to police. "The end justifies the means" is a belief that is entrenched in law enforcement. And there really is nothing to curb the potential for abuse.

We know innocent people confess. And even if they aren't innocent does that mean that police should be able to use whatever means are necessary to solve a case?

Scott believes the investigators in this case may have problems, and I hope he is right. While officers have a right to lie, they don't have a right to create and manufacture evidence, which they did here. Clearly they violated the Texas Statute prohibiting tampering with evidence. (Art. 37.09) But will they ever be prosecuted? My guess is no. After all, a prosecution might chill future investigations, and allow criminals to go free. And who would have to prosecute them - the prosecutors they work with on a regular basis.

I've written before about the need to hold prosecutor's accountable - otherwise there is no incentive for them to do the right thing, and follow the rules. The police are no different. There are laws on the books, and they aren't immune just because they are the ones who enforce them.

This is definitely a story worth following.

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Posted on March 29, 2011 by Walter Reaves

Color me amazed - and skeptical

The ABA journal had an article yesterday about an Oklahoma prosecutor who is facing an ethics complaint for his conduct in a capital murder case. The bar association claims the lawyer used an eyewitness who he should have known was lying.  The prosecutor of course insists the witness was telling the truth, and his lawyer has complained that he did not participate in a post-conviction hearing, and therefore didn't get to tell his side of the story. (sounds kind of like a grand jury).

I don't know the facts, but I would assume they are pretty compelling. It's not easy to prove a witness testified falsely - even when they admit it. Unless you have some type of physical evidence, the court will often find an explanation for the change other than they lied. I'm guessing there must be a lot more here that I don't know. Especially since the defendant was granted relief in federal court - not exactly and everyday occurrence.

I've said before here, here, and here that prosecutors have no incentive to vet the evidence they put on. The standard response is "we'll let the jury decide". The screening process is amost non-existent; while they should weed out questionable cases - and evidence - at the outset, very few prosecutors do that. And why should they? The worst that can  happen is that they get a not guilty.

Prosecutors are almost completely immune from civil suits, which leaves only the bar to police their conduct. They have not had a history of doing so, which makes this case all the more interesting.

I have no idea what the ultimate outcome will be. However, even if no sanctions are imposed, a message has still been sent - as prosecutors are so fond of arguing. Maybe prosecutors will look a little more closely at the evidence they put out there, and think twice before calling that witness who even they have doubts about.

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Posted on October 22, 2010 by Walter Reaves

How do prosecutors get away with this?

Recently Chicago prosecutors agreed to dismiss charges against Maurice Patterson, who had been convicted in 2004 of murder and sentenced to 30 years. He was back in court because it was discovered that blood on a knife found near the murder contained the victim's blood, along with another person. That was important because at trial prosecutors claimed there was no blood on the knife, and therefore it was not connected to the murder.

in reporting the dismissal the State's attorney said the prosecutors acted in good faith, and noted that the judge found there was no intentional misconduct. They also took offense at any suggestion of misconduct, saying it was "wrong and unfair" to make such claims. They say that, without ever offering an explanation for what happened.

It appears that the lab reports showed blood, which was then tested. So did the prosecutors look at the lab report and mis-interpret the statement that blood was found on the knife? Did they not get the report? If they didn't have the report, then they were certainly reckless in saying no blood was on the knife - without actually knowing that. Did the police lie about blood being on the knife.  I don't know what happened, and while I can't think of a plausible excuse, maybe one exists. What bothers me is this is business as usual. Prosecutors are free to misrepresent evidence without any consequences. We've seen it time and time again.  The explanation that it was an honest mistake is accepted without question. Whatever the real reason in this case, at best the prosecutor  played fast and loose with the truth.

One thing is for sure - whatever the reason, Mr. Patterson spent six years in jail for nothing. At the very least, he should get an explanation.

 

 

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Posted on December 16, 2009 by Walter Reaves

Are prosecutors acting up more?

Although I haven't been following the case, it appears the charges against Broadcom founder Henry Nicholas are on the verge of being dismissed. Nicholas and several executives have been charged various offenses. Last week the judge set aside a guilty plea against the former chairman, and co-founder of the company because of misconduct by the prosecutor. Yesterday the judge threw out the charges against Nicholas, leaving only a separate drug charge. It appears that charge may also be headed for dismissal for the same reasons.

It hasn't been that long ago that the conviction of Senator Ted Stevens was set aside for prosecutorial misconduct. So you have at least cases this year where the court has effectively sanctioned the prosecutor for their conduct. Claims of prosecutorial misconduct are nothing new. In fact, its a favorite claim of defendants in post-conviction proceedings. Most of those claims are frivolous, and nothing more than a complaint about the complaint about the conviction. Claims against prosecutors are almost as prevalent as claims against defense lawyers.

What is new is that the claims are being taken seriously - at least in some cases. The standard reaction in most cases has been to sanction the lawyer for making the complaint. Courts assumed there was nothing to them - after all, the prosecutor in their court would never do something wrong. They were out seeking justice - right?

Until recently, I can't remember the last successful claim of prosecutorial misconduct. So what does it mean? Are prosecutors acting worse? Or are courts just more willing to entertain the argument? The bottom line in these cases is the position of the defendants. A wealthy defendant and a senator. Not only do they have money to mount a defense, they also have something most defendants don't have - credibility. Judges can identify with them, and I think are more open to entertain the thought that the prosecution might be based on something other than evidence.

The question remains whether the willingness to consider these claims will extend to other cases. At least the precedent has been set.

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Posted on December 1, 2008 by Walter Reaves

When does the defense go too far?

In case you haven't heard about this, Vanity Fair recently had an article about a mother who refused to accept a guilty verdict in her son's murder case. John Giuca's mother, Doreen Guiliano, was apparently prepared to do anything to help her son. She ultimately created a false persona, by dying and her hair, and getting herself in shape. She then went "undercover", and befriended one of the jurors. She earned his trust, smoking marijuana with him, cooking for him, and who knows what else.He ended confiding in her that he should have never been on the case because he knew some of the people involved, and knew the defendants were guilty. She was recording everything, so it is all on tape.

The son's lawyer now has the information, and has to to determine how to use it to obtain a new trial.

With a story as unusual as this, you expect people to start talking about. Some have praised her tenacity, focusing on the fact that she uncovered what was no doubt serious juror misconduct. Others have raised the question of what effects this could have on potential jurors.

There are several things that bother me about this. One is the lengths she went to in order to gather information. If the police engaged in that sort of conduct, it would be entrapment. While they might form a personal relationship, they certainly wouldn't go to this extreme. It bothers me that anyone would be willing to do that; it appears she essentially prostituted herself to obtain information. I realize my personal moral code may be different from others, but I have a hard time believing most people would do that.

Another problem I have is the focus on the results; no matter what she did, she uncovered information of misconduct. The police routinely make that argument to excuse their failure to follow the law.  The same people condoning the action in this case are the ones who vehemently argue the ends do not justify the means when it comes to the government. I realize there are differences, because private citizens do not operate under the same constraints as government agents. We must impose limits on the government, because of the potential for abusing their power. But in the end, does that mean a private citizen can do anything to obtain information.

I have to agree in part with Scott Greenfield that we should be concerned with the effect this may have on potential jurors. Jury service is an inconvenience, and most jurors expect that once the case is over, they are finished. I'm sure they don't expect to be stalked, or investigated. If potential jurors started worrying about that, you have to wonder how many people would be willing to serve. There is also another problem I see, which is encouraging this type of conduct, and creating the impression that most jurors hide information.  In my experience, cases like this are extremely rare; it's rare that a juror will know the victim in the first place, and even rarer that they either don't disclose it, or someone doesn't already know about it. That doesn't mean contacting jurors doesn't have a place, because it does. It is always useful to find out their thoughts about what happened, and try to determine if anything improper occurred during deliberation. Those contacts however are generally not very intrusive.

Assuming they are able to use this information, there is no guarantee a new trial is going to be granted. That depends on a number of things, including what influence the juror's knowledge had on the decision. If he kept that knowledge to himself, and didn't share it with other jurors, the court may determine there is no harm. The evidence of guilt is also an issue. I don't know anything about the case, but if the evidence of guilt is overwhelming, the failure to disclose the information is going to have less effect.

This will be an interesting case to follow. In many way, they are in uncharted waters, and no matter, some precedent is going to be set.

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