Prosecutorial Accountability and State Bar Responsibility-When Will it Become the Norm?
“”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.
Duke Lacrosse Case-A Learning Tool
District Attorney Ashley Rich is right to use the Duke Lacrosse case as a learning tool. But let’s take this a bit further. Legislators do not shy away from tough on crime talk and prosecutors do not shy away from putting as many people who come before them in prison as possible. Oftentimes, when a particularly heinous crime takes place, legislation is named after the victim as a reminder that society cares about this issue and will prosecute it to the fullest extent of the law. While the world was watching the accusations against the Duke Lacrosse players and as the North Carolina State Bar was preparing sanctions against Michael Nifong, the prosecutor in the Duke case, what if a member of the state legislature and even a member of Congress as federal prosecutors aren’t immune to prosecutorial misconduct as we’ve seen via some great work by the Washington Post’s Spencer Hsu (http://www.washingtonpost.com/local/crime/convicted-defendants-left-uninformed-of-forensic-flaws-found-by-justice-dept/2012/04/16/gIQAWTcgMT_story.html) passed legislation to substantially address prosecutorial misconduct? While the public was outraged over Nifong’s work, bills should have been flying all over the place to send a message to prosecutors that prosecutorial misconduct will not be tolerated. What if State Bar Associations started looking more closely at the work of prosecutors based on judicial rulings that overturned cases and started making examples of prosecutors following the Duke Lacrosse case? Then, possibly, we could say that District Attorney Ashley Rich and others intimately understood the Duke Lacrosse case as “an example of what not to do.” When one looks at the prosecution of William Ziegler, for example, one sees an Assistant District Attorney who worked alongside DA Ashley Rich for many, many years, and the silence of Rich after his case was overturned, one wonders exactly what did she learn not to do. So what if District Attorneys around the country who engaged in prosecutorial misconduct were identified by State Bar Associations and, subsequently sanctioned? Would that mean that today, perhaps a prosecutor would not withhold evidence that a defendant is innocent? Prosecutors have a lot of power in our judicial system and State Bar Associations aren’t really going to police their own to the extent necessary to prevent prosecutorial and ethical misconduct. So let me get out of fantasy land and discuss the significance of the actions of the Texas State Bar Association in the Mike Morton and Anthony Graves cases. Can you imagine the “Michael Nfong Prosecutorial Accountability Act” that would serve as a warning and as a reminder for prosecutors who ignore evidence of innocence so that they can get a conviction?
When Texas Gets it Right-Again
Well, in June 2015, we learned that Charles Sebesta, a former District Attorney in Burleson County (Texas), was stripped of his law license and disbarred by the State Bar in Texas for sentencing Anthony Graves to prison for crimes he did not commit. Anthony Graves spent nearly 2 decades in prison, including 16 years in solitary confinement and 12 years on death row. His moving, chilling, and sad experiences on death row can be read and viewed here (http://time.com/3915168/solitary-confinement/?xid=tcoshare and https://www.youtube.com/watch?v=6WAGnK6tyYs) This is the second time in two years that a (former) district attorney in Texas had been disbarred for their role in a wrongful conviction. The first one during this two year period was Ken Anderson who prosecuted Michael Morton. Morton spent nearly 25 years in prison for crimes he did not commit. And if you ask me, I think Anderson’s successor John Bradley (http://www.texasmonthly.com/story/why-john-bradley-lost) should come under scrutiny for he not only spent years blocking DNA testing that could have cleared Morton years before his exoneration took place, but he openly mocked Morton for his claims of innocence. From the Texas Monthly:
A widely-read local blog, the Wilco Watchdog, relentlessly dissected Bradley’s missteps in the case:
Bradley mocked Mr. Morton’s claim that DNA testing on the bandana and other items could possibly be linked, in Mr. Bradley’s words, to “a mystery killer”… Bradley derided Michael Morton’s request to test the evidence in light of the unsolved case as “silly,” and he told Rick Casey of the Houston Chronicle that Morton was “grasping at straws” by refusing to give up his quest for DNA testing. http://www.texasmonthly.com/story/why-john-bradley-lost/page/0/1
Bradley would be defeated in a 2012 primary election by Jana Duty and wrongful convictions would be a main part of the campaign. The family of the victim of the individual who actually committed the crimes for which Morton served 24 yrs of his life in prison, was in opposition to Bradley for if Anderson had done his due diligence with the prosecution of Michael Morton, the actual culprit would not have gone on to commit a brutal rape and murder. It is a rare occasion that a prosecutor is held accountable for his/her actions. It is also rare that the headlines when this does occur last beyond a day or two. How many of you have seen a headline about Anthony Graves’ prosecutor being disbarred? It took place during the week when the media was focused on the Rachel Dolezal story. When the Texas State Bar disbarred Charles Sebesta, it should be a reason for media outlets to use this as a means to inquire about the practices of District Attorneys within their respective localities. This year we also learned that the Texas State Bar has accused the prosecutor in Cameron Todd Willingham’s case (http://www.slate.com/articles/news_and_politics/jurisprudence/2015/03/cameron_todd_willingham_prosecutor_john_jackson_charges_corrupt_prosecution.html). Willingham was executed by the State of Texas in 2004. Life is too short for innocent people to be sent to prisons while prosecutors who send them to prison use the convictions as a building block to get reelected and, in some cases, promoted to a judgeship. Willingham’s life was cut short by the State after a prosecutor, John H. Jackson, apparently worked to get a conviction at all cost at the expense of pursuing actual justice. Consider this:
“What’s perhaps more sickening than the neglected forensic evidence in this case is the other work that Jackson, the prosecuting attorney, did to win a conviction and see that Willingham’s every appeal was denied. These efforts include allegedly coercing and paying off a jailhouse informant to testify that Willingham had confessed to him, lying to the jury about whether the informant had been offered any benefits in exchange for his testimony, and withholding the informant’s recantation while Willingham sat on death row. Or, as the Marshall Project, which has been reporting on Jackson’s alleged misdeeds for the past year, described the state bar’s accusations: “obstruction of justice, making false statements and concealing evidence favorable to Willingham’s defense.”” http://www.slate.com/articles/news_and_politics/jurisprudence/2015/03/cameron_todd_willingham_prosecutor_john_jackson_charges_corrupt_prosecution.html
Prosecutor John H. Jackson will repeat the mantra of so many district attorneys who handled wrongful convictions, and that is nothing was done wrong. And even though the Texas State Bar has filed misconduct charges against Jackson, the punishment will also be a slap on the wrist, while Willingham’s family has to live with his execution by the hands of the state, resulting from the work on John H. Jackson. And, if Willingham is innocent, the victim’s family doesn’t receive closure.
Years of waiting for Justice
Collectively, Michael Morton and Anthony Graves spent a total of 40 years in prison for crimes they did not commit. This doesn’t include the arrest date, trial date, and conviction date. 40 years!!!! During their years in prison, their prosecutors went on to have productive careers; Ken Anderson even went on to serve as a judge. Imagine spending these years in prison wondering how are prosecutors able to blatantly ignore, withhold, suppress evidence that proved that you were innocent. While you’re sitting in prison wondering how can the system be so messed up, the people playing a role in keeping the system messed up are rewarded. In addition to his exoneration, Michael Morton was able to see his prosecutor get arrested and disbarred. Well, this must have been a great feeling knowing that the system recognized that prosecutors should not have the power to steal an innocent person’s life, but justice came in the form of a 10 day jail sentence for Anderson, for which he only served a fraction of that and, again, this is after he’d spent over two decades as a judge. Ken Anderson was able to build wealth, prestige and prepare for the next generation. There is no mention as to whether or not he has to contribute some of his pension to the State to help in the compensation of those wrongfully convicted. So, in the end, he was able to build a career, take responsibility of what was done in the Morton’s case by way of disbarment (he was now retired) and a few days in jail. If that is the punishment prosecutors can expect, there is no deterrent factor. So engage in prosecutorial misconduct today and 30 years from now, you MAY be held accountable by having your law license taken away after you’ve concluded your career of practicing law. In the meantime, those who are wrongfully convicted often see their families dissolved (Michael Morton not only lost his wife to a brutal crime for which he was accused, but his own son changed his name on his 18th birthday because he (the son) trusted the prosecutor and the system to the extent that he thought his father was guilty. Those who are wrongfully convicted have to fight for compensation upon their exoneration (for those who actually are exoneration). While one cannot put a dollar amount on the years lost to incarceration, one can work harder to prevent wrongful convictions so that the wrongfully convicted won’t have to put their lives on hold languishing in a prison, suffering through the entire ordeal.
In Alabama, Anthony Ray Hinton was recently released from death row after serving nearly three decades of his life in prison. Although it was physically impossible for him to be at the scene of the crime, he was arrested, convicted, and made his home on Alabama’s death row for three decades. Here is a paragraph about his case from the Equal Justice Initiative, a group that freed Hinton from death row:
“In 1985, two Birmingham area fast-food restaurants were robbed and the managers, John Davidson and Thomas Wayne Vason, were fatally shot. There were no eyewitnesses or fingerprint evidence; police had no suspects and pressure to solve the murders grew as similar crimes continued. On July 25, 1985, a restaurant in Bessemer was robbed and the manager was shot but not seriously wounded. Anthony Hinton was arrested after the manager identified him from a photo lineup, even though he was working in a locked warehouse fifteen miles away at the time of the crime. Police seized an old revolver belonging to Mr. Hinton’s mother, and state firearm examiners said that was the gun used in all three crimes. The prosecutor—who had a documented history of racial bias and said he could tell Mr. Hinton was guilty and “evil” solely from his appearance—told the court that its experts’ asserted match between Mrs. Hinton’s gun and the bullets from all three crimes was the only evidence linking Mr. Hinton to the Davidson and Vason murders.” http://www.eji.org/deathpenalty/innocence/hinton
The prosecutor, given what you see above, said he was guilty and evil solely from his appearance. Where is the Alabama State Bar’s press release about this case? Will they have a special edition of “The Alabama Lawyer” devoted to prosecutorial responsibility? The Innocence Project has been responsible for 330 DNA exonerations since the project has come into existence. While not all of the exonerations may have been about prosecutorial misconduct, they do have a link entitled government misconduct that provides some insight into practices the government, read prosecutors, have engaged in to get a wrongful conviction, and it highlights Michael Morton’s case (http://www.innocenceproject.org/)
Can the Media Help?
There has been some really good investigative journalism in the area of wrongful convictions. One of my favorites was an investigative article written by Beth Schwartzapfel entitled “No Country for Innocent Men” about the Timothy Cole case http://www.motherjones.com/politics/2011/12/tim-cole-rick-perry. Cole would eventually be exonerated, but not before his untimely death 13 years into his prison sentence from a health related issue. He died in prison. He was in his 20s when he entered prison and in his 30s when he died in prison. He didn’t live to see his exoneration. But he did live through those agonizing years in prison trying to understand how law enforcement was able to get a witness to identify him as the perpetrator. Cole cried when he was convicted, as you can imagine. The Texas State Legislator named a bill after him, “The Timothy Cole Act” which is designed to help those who are wrongfully convicted and the state of Texas established the Timothy Cole Advisory Panel on Wrongful Convictions to study the causes of wrongful convictions (http://www.motherjones.com/politics/2011/12/tim-cole-rick-perry). But before Beth’s article, there was media attention paid to Cole’s case once it became evident that Texas convicted another innocent man. Investigative journalists have written important pieces about wrongful convictions. But what is needed is additional scrutiny of District Attorney’s when it becomes evident that the person’s conviction should not have happened in the first place. So it is not enough for Anthony Ray Hinton, for example, to be exonerated, rather, the media need to engage in serious inquiry into the District Attorney’s that put them there. Local news publications have to continue with the follow-up- meaning that when there are cases that they’ve covered that are overturned, and they see similarities with cases that are not overturned, they should ask and investigate the follow-up question, what is the professional standard of ethics, how and how often do District Attorneys inform their Assistant District Attorneys about standards, such as not withholding exculpatory evidence, and how seriously does the State Bar take these matters. Following the News & Observer’s investigative report on cases covered by former Durham County, DA Tracey Cline (yes, the same office that Michael Nifong headed), they included an article about professional codes of conduct. You can see the articles entitled “Twisted Truth”: http://www.newsobserver.com/news/special-reports/twisted-truth/ Three years later, Cline has been suspended for five years for complaints made about her handling of several case (http://www.newsobserver.com/news/local/counties/durham-county/article23179362.html) . Again, what if newspapers around the country engaged in these investigative reports by not only focusing on the representation of the inmate, or lack thereof, and the role of the judge, but by looking at a broader view of how prosecutors fail. There seems to be a Teflon effect when it comes to prosecutors who engage in unethical practices to get a wrongful conviction. Staying in North Carolina, Governor McCrory recently pardoned Henry McCullom and his step-brother Leon Brown. Both served nearly 31 years in prison for crimes they did not commit, a combined total of more than 60 years. They were teenagers with mental deficiencies when convicted. Not long after their arrest, then District Attorney Joe Freeman Britt of Robeson County, North Carolina, convicted the person who actually committed the crimes for which McCullum and Brown were accused (the person was convicted for another crime, but the similarities were such that it would have been obvious to a prosecutor that that man was guilty for both). But, I suppose seeing that he got three convictions for the price of one, he was silent on what he knew in terms of the actual culprits guilt in committing the crimes for which McCullom and Brown were punished. Britt, once known as America’s deadliest DA for the number of death row convictions he had under his belt, continues to deny that he did anything wrong (http://www.newsobserver.com/news/special-reports/twisted-truth/). And because McCullom and Brown did not play Lacrosse at Duke University, you probably hadn’t heard his (Britt’s) name until now. I am not sure if there are efforts by the North Carolina State Bar to disbar him (as he served as a district attorney and judge), but is it not interesting that two prosecutors out of Durham, North Carolina were disbarred and I have yet to see reports that the North Carolina State Bar is pursuing an inquiry into Britt or of the several exonerations seen in North Carolina in recent years, some thanks to the work of the North Carolina Innocence Inquiry Commission. To be fair, there has to be a grievance filed, but I would like to see the amount of print dedicated to Tracey Cline and Michael Nifong devoted to these others cases as well where prosecutorial misconduct sent people to prison for years, decades, even. My point in bringing up the Raleigh News & Observer’s “Twisted Truth” series and sharing with you the links is that the series they did was an attempt to hold a prosecutor accountable, they were very thorough, offering you information about the grievances filed by the State Bar, interviews with people who had something to add about Cline’s work, and so on. Imagine if the media, even those outlets that allowed for investigative pieces about wrongful convictions to be covered in their publications would do this type of work in an effort to hold prosecutors accountable? We may actually get that Michael Nifong Prosecutorial Responsibility Act. Consider this:
Anthony Graves- 16 years in prison- (convicted in 1994–prosecutor disbarred in 2015 )
Michael Morton- 24 years in prison (convicted in 1987- prosecutor disbarred in 2013)
Anthony Ray Hinton- 30 years in prison, prosecutor not disbarred
Henry McCollom- 31 years in prison, prosecutor not disbarred
Leon Brown- 31 years in prison, prosecutor not disbarred
Timothy Cole- died in prison on his 13th year of a prison sentence, prosecutor not disbarred
Greg Taylor- 17 years in prison, prosecutor not disbarred
Darrel Hunt- 19 years in prison, prosecutor not disbarred
Duke Lacrosse players- 0 years in prison (accused in 2006, prosecutor disbarred in 2007, NC Attorney General Apology- 2007)
What message does this send? Again, I am not trying to make an issue of the players accused of a crime, rather, I am trying to understand why in this case, possibly the first and only in history, does a prosecutor get disbarred so quickly over allegations of prosecutorial misconduct. What is different between that case and the countless others where we see prosecutors engaging in misconduct? Why is it that Mobile District Attorney can discuss lessons to be learned from the Duke Lacrosse case, but not from any number of other cases? Getting back to the Anthony Graves case, consider this from the Texas Monthly in an article written by Pamela Colloff:
“In a sweeping ruling released this morning, the bar found that Sebesta had violated no fewer than five tenets of the Texas Disciplinary Rules of Professional Conduct, including:
3.03(a)(l ): “A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.”
3.03(a)(5): “A lawyer shall not knowingly offer or use evidence that the lawyer knows to be false.”
3.09(d): “A prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…”
8.04(a)(l): “A lawyer shall not violate these rules, knowingly assist or induce another to do so, or do so through the acts of another…”
8.04(a)(3): “A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
When I reached Graves in Houston this morning, he expressed his gratitude to the bar for ensuring that Sebesta had finally faced consequences for his actions. “I never thought that a young, African-American man from the projects could file a grievance against a powerful, white DA in Texas and win,” he said.
But he cautioned that a victory in his case alone was not enough. “I think this is a great first step,” he said. “But a lot of people in Washington and Burleson counties were prosecuted and convicted by Charles Sebesta, and some of them are still behind bars. All of those cases need to be examined, too.”
Was disbarment a sufficient punishment for the man who had sent him to death row, I asked? “I think he should be brought before a court of law to answer to charges of attempted murder,” Graves said.” http://www.texasmonthly.com/daily-post/ex-da-who-sent-exoneree-anthony-graves-death-row-disbarred End Quote.
Tell an individual who is a victim of prosecutorial misconduct that District Attorneys should continue on the path of not being held accountable for their actions. District Attorneys run on a tough on crime platform, but remain silent when prosecutors engage in what can be considered criminal acts. Graves stated that his prosecutor should be brought up on an attempted murder charge. Timothy Cole died in prison. Cameron Todd Willingham was executed by the State of Texas (the Texas State Bar is in the process of investigating prosecutor misconduct charges on his prosecutor-John H. Jackson http://www.slate.com/articles/news_and_politics/jurisprudence/2015/03/cameron_todd_willingham_prosecutor_john_jackson_charges_corrupt_prosecution.html , Troy Davis was executed, and the list goes on. How long will prosecutors be able to continue to sentence innocent people to prison without being held accountable? People may object to the notion that some of the aforementioned people are innocent, but one can’t object to the documented prosecutorial misconduct, including not disclosing evidence that demonstrate that they person may be innocent. Once a prosecutor has a theory, evidence to the contrary is difficult for them to share. Again, more than 90 percent of prosecutors and the cases they prosecute are likely good and straight by the book cases, but when they aren’t, accountability should be pursued, as quickly as it was in the Duke Lacrosse case. We dearly need prosecutors, but we need District Attorneys to set standards and safeguards within their respective offices to ensure that innocent people are not convicted. Once prosecutors get a conviction, even when it confronted with the likely innocent of the person convicted, they spend so much time ensuring that the person remains in prison. This perpetuates a travesty of justice and when there is no accountability, the system remains the same.
District Attorney Ashley Rich and the Mobile District Attorney’s Office
I’ve written many times about the Mobile District Attorney’s Office as I have a cousin, Rodney K. Stanberry , who remains in prison for crimes he did not commit. He is in his 18th year of prison. But I’ve also written about other cases, including William Ziegler’s case, a man who spent 13 years on death row for crimes he likely did not commit. He was granted a new trial and he was on the verge of being released, but before he could be released, he had to take a plea deal accepting some fault in the crime- a crime for which he spent 13 years on death row. This is what I included in a previous blog:
“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?” http://freerodneystanberry.com/blog/2015/04/23/who-will-hold-prosecutors-accountable-for-their-actions-the-case-of-william-j-ziegler/
District Attorney Ashley Rich, as mentioned, has been silent on the judicial ruling in this case. While the local media engaged in investigative reports about Ziegler’s case, they haven’t demanded that Rich address key issues with her office as it relates to the Ziegler case. This is a case that questions the integrity of the system. While the prosecutions I cited earlier took place prior to the Michael NiFong/Duke Lacrosse case, is there any doubt that as you read this that there is another Michael Morton, Anthony Graves, Rodney K. Stanberry being prosecuted today using the same practices cited by the Texas Bar? There are no body cameras on prosecutors as they make a decision to keep or discard evidence, as they travel from hundreds of miles to interview a suspect in a prison but claim that no notes were taken as was the case with Rodney K. Stanberry, there are no body cameras on prosecutors as they come face to face with someone who actually committed the crime for which they convicted an innocent person, or as they come face to face with a victim of a crime that could have been spared if prosecutors did the right thing the first time around. There are no body cameras to capture prosecutors at their worst, so we will once again see the headlines about someone exonerated, but then move on to the next trending story. And with this, there will be continued frustration with the system, but with no true reforms. What say you Alabama State Bar? Or State Bars around the nation for that matter. District Attorney Ashley Rich is up for reelection and she will be reelected, as will prosecutors around the nation, and when asked about wrongful convictions, they will say We did nothing wrong. And so it goes.
Articles of Interest:
For an Investigative Report on the case of Rodney K. Stanberry- http://www.bostonreview.net/us/who-shot-valerie-finley
For an article about how District Attorney Ashley Rich’s Office responded to Rodney K. Stanberry’s case- http://newsone.com/1809115/rodney-k-stanberry-is-alabama-still-the-land-of-jim-crow/
Three Blogs of Interest: