When Will Prosecutors Be Held Accountable for Their Actions- The Case of William J. Ziegler


April 23, 2015

Why Aren’t Prosecutors Held Accountable for Their Actions-The Case of William J. Ziegler

I took that deal for one reason and one reason only and that was to go home,” said Ziegler as he was released.  “I maintain my innocence to this day.” http://www.wkrg.com/story/28823742/former-death-row-inmate-set-to-be-freed

As a condition of his release on April 16th, 2015, 39 year old William Ziegler, who spent 13 years on death row and 15 years and 50 days in prison for a brutal crime that he likely did not commit, had to say that he was guilty of “aiding and abetting murder”. But as a condition to continue to prosecute cases, the prosecutor in his case, Mobile Chief Assistant District Attorney Deborah Tillman, will not have to say that she withheld exculpatory evidence and/or acknowledge any prosecutorial misconduct that led to Zielger spending 13 years of his life on death row.  No one in the media will pursue this question, and after a day or two,  Ziegler’s case will receive little coverage.  At what point will prosecutors be held accountable for their actions?  As I state here  and many, many times, prosecutors are needed, necessary, important, and do what is right most of the time, at least that is what we have to believe as citizens who need them to pursue justice and to help to protect communities. But when they step out of that cone of trust by engaging in unethical practices, it is important for the action to be acknowledged, for reforms to take place.  But the response to Ziegler’s case from the Mobile District Attorney’s Office has been that we have done nothing wrong. Why aren’t prosecutors in the Mobile District Attorney’s Office and/or representatives of the state asked to apologize, to be accountable, or to discuss what will be done to avoid prosecutorial misconduct in the future?

The Mobile Press Register (al.com/mobile) and Lagniappe Mobile have written many articles on the William Ziegler case. Reporters such as Brendan Kirby and Gabe Tynes of these publications have taken the reader into the details of the Ziegler case, I recommend that you read their respective publications and reports on this case.  Ziegler has had many high powered attorneys who practice in Mobile, as well as attorneys at a New York based law firm, Sydney Austin LLP.  Unlike his original attorney who failed him ( see http://blog.al.com/live/2013/02/how_the_system_failed_william.html and http://classic.lagniappemobile.com/article.asp?articleID=4371) Ziegler’s current attorneys were able to bring about justice.  From an article in Lagniappe from April 2011:

“But Yazdi’s handling of Ziegler’s defense would later lead to a hearing to determine if the attorney had so poorly prepared that his client’s constitutional rights were violated.
“This approach is not strategic, it’s not informed, it’s incoherent, it’s inconsistent. It’s not what attorneys are supposed to do, and it falls well below the standard of what is required of reasonably effective counsel,” a petitioner would later say during a review of Yazdi’s handling of this brutal murder trial.” http://classic.lagniappemobile.com/article.asp?articleID=4371)

In his Rule 32 appeal, Ziegler had a chance to experience what it was like to have attorneys fighting on his behalf, who cared about him, and who, ultimately, cared about the pursuit of justice. These attorneys used the tools that the system respects to free Ziegler.  The system does not respond to “moralsuasion,” and far too many District Attorneys do not care about an inmate’s innocence after the jury convicts the person. Truth becomes a casualty of war in this convict at all cost game they play, and one equalizer is the attorney, such as the attorneys on Ziegler’s appellate team, willing to devote time and money to right a wrong.  Many District Attorneys won’t even establish Conviction Integrity Units (http://wrongfulconvictionsblog.org/2014/12/11/center-for-prosecutor-integrity-surveys-rise-of-conviction-integrity-units/ and http://freerodneystanberry.com/blog/2014/03/27/mobile-police-department-establishes-special-committee-why-cant-mobile-district-attorneys-office-establish-a-conviction-integrity-unit/) because, well, far too many are not interested in righting a wrong, rather, they are more interested in upholding a conviction at all costs, and hoping they will never get caught red-handed in cases where prosecutorial misconduct led to the conviction of innocent people.  Another potential equalizer to the “convict at all costs” mentality are the local publications that use the tools they have to shed the light on how easy it is to get a wrongful conviction.

“I took that deal for one reason and one reason only and that was to go home,” said Ziegler as he was released.  “I maintain my innocence to this day.”  http://www.wkrg.com/story/28823742/former-death-row-inmate-set-to-be-freed

These are the words spoken by William John Ziegler as he faced reporters following his release.  This plea, like an Alford plea, is a way that the State can avoid culpability for those actions. It is a way to say to the public that he may not committed this crime, but is he truly innocent. We were just protecting you from this criminal. But who protects the public from prosecutors who pursue theories and not evidence in an effort to get the conviction? Who protects the public when prosecutors have exculpatory evidence  but choose to not disclose it because it does not fit their theory? Who protects the integrity of the system when innocent people are sent to prison? We should not feel comfortable in this country when we see a steady stream of headlines about people serving 10, 20, 30, and 40 years in prison for crimes they did not commit. Alabama just witnessed another man released from death row, Anthony Ray Hinton, who spent 30 years on death row. That should shock us to the core.  While Ziegler had to take a plea deal as a condition of his release, the prosecutor in his case will not have to apologize for her actions that led to his being placed on death row.  Even if she thought he aided and abetted the individuals responsible for the death of the 19 year old victim, her pursuit of a capital murder calls into question of what did she know and when did she know it, but beyond that, making a decision to pursue a case knowing that the evidence did not support his involvement in the brutal crime that was committed. Chief Assistant District Attorney Tillman is quoted in an article published in Lagniappe in 2012 that Ziegler should have taken the plea like the others.  Here is how it is written in Lagniappe:

Tillman said Judge Kendall, who heard Ziegler’s case and ultimately upheld the jury’s death penalty recommendation, was known as a “very fair” judge. She also said Ziegler was offered a plea deal similar to his co-defendants, but he was the only one who rejected it.

 

“I respect her right as a judge to issue the ruling, but I and this office strongly disagree with it,” Tillman said. “I’ve been doing this for almost 20 years and I know that I did not do anything wrong in terms of prosecutorial misconduct.”            http://classic.lagniappemobile.com/article.asp?articleID=5961&sid=1

Was the capital murder charge a way to force him to take a plea in 2001? He maintained his innocence then and now, he did not take the plea in 2001 because he likely held on to the belief that the jury had to see through the state’s deception. He took a plea in 2015 because he realizes that the deck is stacked against people who maintain their innocence, that the “House”, in the end, always wins.  It is unfortunate that our system teaches us these harsh lessons and the price William Ziegler had to pay to learn this was 13 years on death row.   But because district attorneys are rarely prosecuted for their actions, we won’t witness any charges against a prosecutor that may result in said prosecutor taking a plea deal.

As I wrote in a previous blog:

“William Ziegler’s retrial will take place later this year. While the Attorney General of Alabama will prosecute the case, you will see what the Mobile District Attorney’s Office did to get this conviction and the callous attitude they have with regard to Judge Sarah Stewart’s 218 findings/ruling about his case. You will get tremendous insight into how the Mobile District Attorney’s Office can convict innocent people. In the Ziegler case, the state’s theory about where the victim’s body was found was incorrect and the evidence shows it and Judge Stewart criticized from the number of African Americans struck from the jury and, this I did not realize, one of the state’s theories (Mobile Assistant Attorney Deborah Tillman prosecuted the case and maintains that the Mobile District Attorney’s Office did nothing wrong), was that Ziegler murdered the victim because he had been called the “n-word”- the word is actually used in the transcript (see this article about the case http://blog.al.com/live/2013/02/how_the_system_failed_william.html). Here is what Judge Stewart wrote in her order that also justified the need for a new trial for William Ziegler:

“183. Trial counsel’s failure to raise a Batson challenge despite prima facie

record evidence of discrimination requires reversal because the evidence demonstrates that the Mobile County District Attorney used a large number of peremptory challenges to remove African American venirepersons, engaged in little or no voir dire examination of those African American veniremembers, engaged in disparate treatment of similarly situated white and African American veniremembers, and struck veniremembers who had nothing in common other than race. The Alabama Supreme Court in Branch, 526 So. 2d 609, 622-23 (Ala. 1987), established a non-exhaustive list of evidence that can give rise to an inference of discrimination and a prima facie case under Batson. Based upon its review of the evidence at the hearing and the record evidence submitted by Ziegler, the Court finds that many of the Branch categories giving rise to an inference of discrimination existed in Ziegler’s case and would have supported a Batson challenge.

184. First, the crime for which Ziegler was charged “had racial overtones.””

Ziegler was the only non-white defendant in a capital murder trial in which the victim was white, his three co-defendants were white, and most of the State’s witnesses were white. Additionally, one of the prosecution’s theory of a motive was based on the concept that Ziegler became enraged and began striking Baker when he called Ziegler a “nigger,” which the prosecution informed the jury of during voir dire. (T. Tr. 42:15-43:18.)http://media.al.com/live/other/Ziegler%20ruling.pdf (see pages 72-74)

Why would a prosecutor use this tactic if there was no evidence indicating that it was true? Why when asked about Judge Stewart’s ruling, Assistant District Attorney Deborah Tillman continues to say: “I know that our office did not do anything improper, and I did not do anything improper,” [she said].”http://blog.al.com/live/2013/02/how_the_system_failed_william.html

(The paragraphs above are quoted from this blog- http://freerodneystanberry.com/blog/2015/01/04/another-year-is-upon-us-the-fight-for-justice-must-continue/). But Tillman said she did nothing wrong from a prosecutorial misconduct.  Prosecutors don’t go on trial, so, again, we won’t be able to determine that in a court of law, but certainly Mobile District Attorney Ashley Rich, were she concerned with the findings in the Ziegler case, should express concern about prosecutorial misconduct in this case.

Alabama Attorney General-Forcing the Truth About Evidence

John Tyston Jr., December 7, 2010 “We will not destroy any records in this office. Never have, never will.” (From a letter written on the letterhead of the Mobile District Attorney’s Office in response to a letter from me-Artemesia Stanberry-   

From Lagniappe (April 2015) in an interview featuring two of Ziegler’s attorneys- One of the interesting things about the case, particularly after it came back for retrial, is the record that proved the state had lost or destroyed at least seven or so pieces of evidence that we would certainly contend was material. That was proven by the state itself.

The staff at Lagniappe Mobile sat down with William Ziegler and his attorneys within an hour after his release.  One of Ziegler’s attorneys (Nick Lagemann) said this:

(Lagniappe):”Let me ask you more about that evidence and your recent motion to dismiss. If it had gone to trial, would that evidence, or lack thereof, been admissible in a new trial?

 

Lagemann: The overall answer would be yes. Exactly how that would come in, I think was one of the — assuming the judge, if she did not dismiss it overall based on that motion and we went to trial, I think the judge would have been called upon to make a number of evidentiary rulings about what would come in, what would already be proven and established about the fact that they (the state) had lost or destroyed multiple pieces of evidence. One of the interesting things about the case, particularly after it came back for retrial, is the record that proved the state had lost or destroyed at least seven or so pieces of evidence that we would certainly contend was material. That was proven by the state itself.

I think you would see in our original motion there was a footnote that, for lack of a better term, we commended the Attorney General’s office for bringing that to the attention of the court. I would say that was a marked contrast to what the case was previously like when it had been handled by the District Attorney’s office. I do think the Attorney General’s office, in responding to the discovery order, I think acted wholly consistently and very professionally in bringing forward or establishing the record that showed that this evidence had been lost or destroyed. But I think to your original question, yes I think absolutely that the clothing of the victim, when it was supportive of our defense, that it had been lost or destroyed when it was in possession of the District Attorney’s office. There was an affidavit for Jay Bennett’s car that must have contained information that was totally inconsistent with the state’s theory of the crime. It has never been found in any file, in the multiple files where it should have been. That the audiotape recordings …”

Ziegler: They are still missing to this day. http://lagniappemobile.com/conviction-appeal-innocent-inmates-left-behind-interview-former-alabama-death-row-inmate-william-ziegler/?all=1

What this tells us is that if the Alabama Attorney General’s office did not have the responsibility or preparing for a new trial in the hopes of getting a new conviction, the Mobile District Attorney’s Office would not have even pretended to look for evidence that was “lost or destroyed.” They would have denied it.  As it stands, according to this article, Chief ADA Deborah Tillman and Chief Investigator Mike Morgan spent, according to Tillman, time near Christmas last year searching for the evidence (see pages 21-22 of Ziegler’s Motion to Dismiss that is embedded in this article-.  Here is specifically what prosecutors with the Alabama Attorney General’s Office stated: “In January, a team of prosecutors led by Assistant Attorney General Stephanie Billingslea told Stewart the state could no longer account for: the original affidavit filed to obtain a search warrant for Ziegler’s home and car owned by a co-defendant; any audio recordings from the interrogation of any of the witnesses who eventually pinned the crime on Ziegler; the victim’s clothing; police photographs of a car defense attorneys argue was used to transport the victim and would undermine the prosecution’s version of events; an evidence bag a witness testified at the Rule 32 hearing contained a bloody sweatshirt; a “be on the lookout” issued for the car; or any records of initial interviews with a witness who later recanted her testimony at the Rule 32 hearing.” http://lagniappemobile.com/judge-considers-motion-dismiss-capital-murder-retrial/  Tillman and Morgan could not locate these items.

What Candidate Ashley Rich said in 2010 versus her actions (or lack thereof)  

“”If as a prosecutor you do not disclose exculpatory evidence, your career is over.  Integrity is something that is so important because when you are a prosecutor, you not only have the duty to prosecute people and to put people in jail, but you also have a duty to uphold the law. You have the duty to do that with integrity and with the ethical standards in place… You must disclose exculpatory evidence because if you don’t, nothing good comes from it and essentially you have prosecuted someone who may not have committed the crimes because you didn’t disclose exculpatory evidence.  It is good that we have the Duke LaCrosse case as an example of what not to do.”  (From Thu, 16 Sep 2010 10:58:28 -0400 (Ashley Rich Radio Interview -http://freerodneystanberry.com/blog/wp-content/uploads/2012/07/u7am0916AshleyRich.mp3) Her remarks about the Duke case can be heard at around the 12 minute mark. 

Regardless of whether the reader believes that William Ziegler is innocent or guilty, it should be beyond problematic the way his case was prosecuted- using the N-word in front of potential jurors as a theory of why Ziegler would assist in the stabbing of an individual 100 times, withholding exculpatory evidence, and losing/destroying evidence reaches the level that candidate Rich said she was concerned about.  Nevertheless, prosecutor Tillman is the Chief Assistant District Attorney in the Mobile District Attorney’s Office, and Mobile District Attorney Ashley Rich will not now nor ever, in my opinion, provide anything but a united front with regard to this case.  Tillman said in articles in the past that she and her office have done nothing wrong, even the Attorney General’s Office, yes, the Office of Luther Strange, has acknowledged that the state lost or destroyed evidence. What do they care if they put William Ziegler on death row, it is the cost of doing business for them.  But they should care because the integrity of the system is very important, as candidate Ashley Rich stated when she was running to become the District Attorney. Prior to becoming District Attorney, Ashley Rich served as an assistant district attorney for 14 years under John Tyson, Jr., alongside Deborah Tillman, alongside Martha Tierney-now in private practice after decades with the Mobile District Attorney’s Office (who listened during a court proceeding but said nothing when a former DA with the office say that he travelled to New York to visit a suspect in Rikers prison but did not take notes because he was on vacation), and alongside ADA Jennifer Wright, described as Rich’s protegee in one publication, who prosecuted Toby Priest (http://freerodneystanberry.com/blog/2011/11/16/reaction-to-article-in-lagniappe-about-the-toby-priest-case/) District Attorney Ashley Rich has no incentive to open up a can of worms because it may lead to an uncomfortable discussion about the practices of the Mobile District Attorney’s Office. I continue to believe that had her opponent won, his incentive would have been the pursuit of justice and accountability (Here is an exchange I had with her opponent Mark Erwin and with Ashley Rich during the campaign- http://freerodneystanberry.com/blog/2012/11/21/another-judge-grants-a-new-trial-in-mobile-alabama-a-reaction-to-the-lagniappe-article-on-william-zieglar/)

I’ve mentioned this before in this blog  “Recall that Eucellis Sullivan was asked to leave the Mobile District Attorney’s Office by District Attorney Ashley Rich. As reported by Local15 News:

“I was terminated from my job as an Asst. D.A.,” she said. Hired by John Tyson, Sullivan had spent last four years prosecuting all types of cases for the office, but LOCAL 15 News was there Thursday as she went back to clean out her desk after she says she was escorted out of the building earlier, just like the criminals she prosecuted.

“I was called into Ashley Rich’s office and they informed me that my services were no longer needed, I was told that a letter of resignation was prepared if I wanted to sign it and I declined signing the letter, I was just shocked because I wasn’t given a reason.”

This is what the District Attorney Ashely Rich told LOCAL 15 News, “Since I took office she has lost seven cases and only won two.”…..

…..”The people expect me to put criminals in jail they expect the team I put together to put people in jail she just wasn’t doing that that’s all I have to say,” Rich said. http://www.local15tv.com/news/local/story/Ousted-Asst-D-A-Says-Firing-was-Unjust-D-A/_k_jw7YebUuoBnZ-_2FUAg.cspx

As I stated earlier, former Mobile County District Attorney John Tyson, Jr. said in a letter to me that “We will not destroy any records in this office.  Never have, never will.” (Tuesday, December 7, 2010). Do you think District Attorney Ashley Rich has looked at the cases that her Chief Assistant Attorney has worked on before or after her work on the Ziegler case? Do you think that District Attorney Ashley Rich will conduct an investigation as to what happened to those 7 lost items referenced by the Alabama Attorney General? Do you think that Chief Assistant District Attorney Deborah Tillman will receive the Eucellis Sullivan treatment? Of course not.  There will not be reforms in that office until there is new leadership.  The media will not hold the office accountable.  If only reporters can express the same level of concern over how Ziegler’s original attorney represented him to how the Mobile District Attorney’s Office prosecuted him.   A former Prichard Police officer was arrested in 2013 and recently sentenced to 25 years in prison on drug charges.  His cases will be reviewed. What does it take for cases prosecuted by the Mobile District Attorney’s Office to be reviewed for possible prosecutorial misconduct?

This is minor in the scheme of things, but District Attorney Ashley Rich publicly (in that she shared her concern with the media) reprimanded and disciplined an attorney who brewed his own beer before doing so was legal in Alabama .  She can muster more outrage over that than she apparently can when her office engage in conduct (misconduct) that puts a man on death row. Yes, she talked about integrity of the system and not withholding exculpatory evidence when she was a candidate for the office. John Tyson, Jr. says the office has never destroyed evidence and never will, yet, thanks to the Alabama Attorney General’s Office, it is now acknowledged that evidence could not be found.  But, again, this is business as usual.  Where is the person campaigning to bring about reforms to the office? Will District Attorney Ashley Rich run unopposed during the primaries?

Back to Accountability

The Texas State Bar successfully sued Ken Anderson, prosecutor who got the wrongful conviction of Michael Morton  and are pursuing a suit regarding the Cameron Todd Willingham case, a man executed for crimes he likely did not commit.  Among Zielger’s team of attorneys included Henry A.  Callaway, a former President of the Mobile Bar Association.  He has had an intimate look into how the Mobile District Attorney’s Office prosecuted William Ziegler. He is in a position, given also his relationship with the Alabama State Bar, to encourage the Alabama State Bar to mimic the actions of the Texas State Bar in the Michael Morton case.  But it likely won’t happen, as Callaway was recently appointed to serve as a federal bankruptcy attorney, a 14 year appointment (http://www.handarendall.com/news_detail.php?news=209).  And so the beat goes on.

Peace,

Artemesia Stanberry

Just to reiterate the actions and practices that are apparently acceptable By District Attorney Ashley Rich, here is how the Equal Justice Initiative puts it:

“Last year, an Alabama appeals court ruled that Mr. Ziegler, who was sentenced to death in Mobile County in 2003, must be given a new trial because prosecutors failed to disclose evidence that a key witness falsely identified Mr. Ziegler as the man who threatened to kill the victim. The prosecution also failed to turn over evidence showing the killing happened in a car belonging to the State’s only eyewitness — not in the woods, as the witness claimed and the State contended at trial.”http://www.eji.org/node/1072  End Quote. But Chief Assistant District Attorney Deborah Tillman says she did nothing wrong.  And so it goes.

 

 

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