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July 8th, 2016
A Question for Prosecutors: What is Your Mission-To Seek the Truth, the Conviction or Both?
I recently read an article in Reason magazine (via the website) entitled “Confessions of an Ex-Prosecutor: Culture and law conspire to make prosecutors hostile to constitutional rights.” The culture perpetuated by prosecutors is too often to win a conviction- at all costs. Constitutional rights seem to stop at the doorsteps of far too many district attorney offices when it comes to getting a conviction. Evidence of innocence far too often takes a back seat to a good theory or a victim who can sway the jury enough to get a conviction, even when the prosecutor has little evidence of an individual’s guilt. The conviction is the deity that prosecutors praise; constitutional rights of defendants are mere suggestions in the minds of far too many prosecutors. Here is a quote from the article in Reason:
“Three types of culture—the culture of the prosecutor’s office, American popular culture, and the culture created by the modern legal norms of criminal justice— shaped how I saw the rights of the people I prosecuted. If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called “hard blows, not foul ones.” But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught me that explicitly—nobody had to.”
This was the lesson learned from a defense attorney who began his legal career as a 26 year old prosecutor. He goes on to discuss his experiences as a federal prosecutor and what he observed. Ken White writes:
“…I even learned it by watching prosecutors commit misconduct—the deliberate or reckless infringement of defendants’ constitutional rights. I saw prosecutors make ridiculous and bad-faith arguments defending law enforcement, and prevail on them. I saw them make preposterous assertions about the constitution because they could, and because judges would indulge them. I saw them reject my claims that my clients’ rights were violated because they were the government and my client was the defendant and that was their job.”
Ken White attempts to explain why prosecutors behave as they do. He attempts to provide some insight into the culture of prosecutors- a shared fear. He writes: “Just as the brotherhood of prosecutors was premised on shared experience, it was also premised on shared fear. As a defense attorney, I fear that I’ll fail my client and they will be unjustly imprisoned. But as a prosecutor, the culture taught me to fear that I’d make a mistake and a guilty defendant would go free to wreak havoc on society. That fear constantly colored my assessment of legal issues.”
He explained a case of one of the people he had to prosecute. To paraphrase, the individual had lost his job and was evicted from his apartment. The individual went to the bank to withdraw money from an insurance settlement, only to be told that there was a hold on the check. Emotionally distressed, the individual told the teller that he had a bomb. He was given thousands of dollars, much less than what was in his account. The individual took the money, went to his car, and remained there until his arrest- he expected his arrest. White explains that he wasn’t keen on throwing the book at the guy as it was obviously something that he would not have done automatically. But his supervisor brought up a DUI incident and said that he must be prosecuted to the fullest extent of the law. He writes:
“I rather timidly questioned my supervisor. Should this man face the weight of federal criminal prosecution? Aren’t his circumstances unique, and unlikely to recur? Shouldn’t we find another approach?
My supervisor—a decent, moral man—pointed me to the defendant’s criminal record of drunk driving. If we let him go, he reasoned, do you want him out on the road with your young wife? What if he causes a crash and someone is killed because we were lenient?
So I took the case to trial, and the jury—functioning in an idealized way, as they sometimes do—hung 11 to 1 for acquittal. But I learned my lesson: As a prosecutor, I was responsible for what may happen if I failed to convict these people. The fate of their future possible victims are on me.
That camaraderie—that fear—colored my evaluation each time I assessed whether an action would violate a defendant’s rights. The office culture helped make me. https://reason.com/archives/2016/06/23/confessions- of-an-ex-prosecutor/1
I will repeat a line from above” “… I was responsible for what may happen if I failed to convict these people. The fate of their future possible victims are on me.” This is interesting for as we know from so many cases (Michel Morton, John Thompson, Cameron Todd Willingham, Anthony Graves, Gregory Taylor, the list goes on), prosecutors withheld evidence and prosecuted these individuals resulting in their spending nearly two decades in prison- collectively more than 8 decades- and even being put to death by the state.). Michael Morton, for example, was accused of murdering his wife. The actual murderer went on to murder again, while the prosecutor focused so heavily on Morton and on Morton’s conviction, that His mind wasn’t on possible future victims or if he actually had the wrong man. This should infect the culture of prosecutor offices- “what if by withholding this evidence that is favorable to the defendant that I will allow the guilty culprit to go unpunished,” is what they should ask themselves. Isn’t that an easy thought? I mean really, why would a prosecutor withhold evidence favorable to a defendant if it can clear a defendant, and, therefore, lead them in the direction of the actual culprit. Do prosecutors not care about all victims. Did Ken Anderson, the individual who prosecuted Michael Morton, not care about the death of a woman killed by the same man who murdered Morton’s wife after he focused and pursued Morton? This should haunt prosecutors, but they are so hung up on the conviction in the immediate case that they wish not to look beyond the “what if I am wrong” question. If I am so sure that I have the right person, then why am I willing to violate this person’s constitutional rights, particularly when it comes to the Brady Rule regarding exculpatory evidence that is favorable to the defendant? When prosecutors convict innocent people, the guilty culprit remains free to commit more crimes. If one were to look at just the incidents of innocent people on death row, one can understand the number of people who committed heinous crimes, but who were let go because prosecutors focused on the innocent, one would see how serious and disturbing this is. To quote Samuel Gross, law professor at the University of Michigan and the editor of the National Registry of Wrongful Convictions:
“How many people are convicted of crimes they did not commit? Last year, a study I co-authored on the issue was published in the Proceedings of the National Academy of Sciences. It shows that 4.1 percent of defendants who are sentenced to death in the United States are later shown to be innocent: 1 in 25.
Death sentences are uniquely well-documented. We don’t know nearly enough about other kinds of criminal cases to estimate the rate of wrongful convictions for those. The rate could be lower than for capital murders, or it could be higher. Of course, in a country with millions of criminal convictions a year and more than 2 million people behind bars, even 1 percent amounts to tens of thousands of tragic errors.” https://www.washingtonpost.com/opinions/the- cost-of-convicting-the-innocent/2015/07/24/260fc3a2-1aae-11e5- 93b7-5eddc056ad8a_story.html
These individuals spent years in prison because a prosecutor got it wrong. And once a prosecutor gets it wrong, the system remains in favor of the prosecutor’s actions. But the individuals who actually committed the crimes for which the innocent were/are serving time, are free to live lives unaccountable for the crimes they committed. Do prosecutors lie awake at night thinking about the potential victims in these cases, or, again, is it only the victims in the cases that are before them that they care about. Is this fair to the victim, to believe that the person they put the most trust in, the prosecutor, failed to bring about true justice. The victim does not get closure when the innocent is convicted. Trust in the system can be eroded, but, as Ken White says in this article, prosecutors still maintain a high degree of trust, and, as such, victims do not often step up and attempt to hold prosecutors accountable. Getting back to Michael Morton’s case, the prosecutor in his case, Ken Anderson, went on to serve as a judge for 25 years before the Texas State Bar FINALLY held him accountable- a ten day jail sentence and a loss of his law license- http://www.dallasnews.com/news/local-news/20131108-ex-prosecutor-gets-10-days-in-jail-over-michael-morton-case.ece
Anderson’s successor John Bradley continued the culture of the office and refused to allow a bandana worn by the actual culprit to be tested for DNA. When it was finally tested, Morton was exonerated, but not before a 25 year prison sentence with the belief that he murdered his wife hanging over his head. Bradley lost his election- the victim’s family (the family of the second person murdered by the person who murdered Morton’s wife) got involved in the campaign-wrongful convictions became a significant part of this campaign (http://www.texasmonthly.com/politics/why-john-bradley-lost/) . This is what really needs to happen; this is what will force prosecutors to change the culture of their offices, when victims speak up. How can a prosecutor hear a confession, for example, and opt to suppress it because it doesn’t fit his theory. I am getting to my cousin, Rodney K. Stanberry’s case later, but the prosecutor did everything that should not have been done, but he got a conviction, and the system has never and probably will never hold him accountable, but neither will the victim’s family because of the level of trust that they have in him. The families of those who watched individuals set free and exonerated should be asking questions, should be demanding investigations, should hold prosecutors accountable, for if prosecutors claim to work on behalf of victims, then they must also change the culture of conviction at all costs, for the sake of providing victims with true closure. I have a friend who does not want to serve on a jury. She watched the documentary on the Steven Avery and expressed that she does not want to be responsible for sending an innocent person to prison because prosecutors are acting in a corrupt fashion. I responded that my cousin may not have been convicted if there were people on the jury who were unwilling to believe everything that the prosecutor fed them. People who are going to be objective and not swayed by a prosecutor because he/she is a prosecutor are needed in order to provide some balance in the courtroom.
On the issue of trust, Ken White writes in his article, “Confessions of an ex-prosecutor” the following:
“Even as Americans are facing the ruination of their lives at the hands of prosecutors, even when they’re innocent, even when they’re being mistreated by the government, they’re still skeptical of defense lawyers and trusting of prosecutors. They prefer to hire a former federal prosecutor because they don’t want to think of themselves as someone who has to hire a criminal defense lawyer.
That’s the power of culture. American culture relentlessly tells prosecutors that they are by definition the good guys. It tells them that assertions of rights are, at best, impediments to be overcome, and at worst cynical ploys by villains. It is tremendously difficult to ignore those cultural messages and give defendants’ constitutional rights the attention they deserve.”
As I’ve stated on numerous occasions, prosecutors are needed, most are decent, hard-working, people who want to put away the “bad guys.” But sometimes prosecutors act without integrity; sometimes they allow the pursuit of the conviction. I wrote in a blog entitled “The Prosecutor and the Criminal”,after reading Picking Cotton: Our Memoir on Injustice and Redemption by Ronald Cotton and Jennifer Thompson Cannino and The Confession by John Grisham. In this blog, I talk about how prosecutors sometimes act less as public servants and more like the criminals that they prosecute. http://freerodneystanberry.com/blog/2011/08/11/the-prosecutor-and-the-criminal/
In some cases, the criminal has more integrity than the prosecutor who is supposed to uphold public trust. When those prosecutors are not held accountable, it weakens the idea that there is truth and justice for all. In another article on Reason magazine’s website entitled “When Prosecutors Withhold Information, Innocent People Go to Prison- Or Worse,” there is a discussion of the consequences of prosecutors violating the rights of the accused. Some prosecutors slowly take the lives of innocent people, quietly impact the lives of so many. If they had to wear body cameras, perhaps the public will be more aware of the destructive nature of SOME prosecutors. It is rare that the Department of Justice and the State Bar Associations to investigate even the worst violations of prosecutorial misconduct. And the U.S. Supreme Court has given them immunity. This is a serious problem, yet prosecutors are not often scrutinized, they have very little accountability. A law professor at Santa Clara University examined 5000 cases and found that prosecutors withheld favorable evidence in 620 of the cases and a judge ruled that withholding this violation of the law in only 22 cases- even judges sanction what they do as we intimately found out in my cousin, Rodney K. Stanberry’s case, where Judge Ferrill McRae (http://prospect.org/article/judge-lynch-mob) allowed prosecutor Buzz Jordan (Mobile, Alabama) to suppress a confession and then presided over Rodney’s post-conviction appeal and chastised Rodney for having the audacity to address this. There are no body cameras on prosecutors and the death of the innocent and incarcerated, when it happens, isn’t immediate, so there are no media, nor sustained rallies, for the most part, but remember Timothy Cole of Texas (http://www.motherjones.com/politics/2011/12/tim-cole-rick-perry ) died of an asthma attack in his 13th year of a wrongful conviction, Troy Davis and Cameron Todd Willingham were eventually executed. Many today will fall victim to prosecutorial misconduct and many today, including Rodney K. Stanberry, remain in prison (nearly 20 years) because prosecutors care far too much about the conviction as opposed to the truth.
So, prosecutors continue to do what they do, the culture continues to be entrenched, and there remains very little incentive for prosecutors to change the culture of the office. Even if a prosecutor looks at Ken Anderson- the prosecutor in Michael Morton’s case- he/she sees that it took 25 years before he was held accountable, the same in the case of the prosecutor in Anthony Graves case, accountability came two decades later. A successful career can be made off of high conviction rates and the odds of being held accountable when there is prosecutorial misconduct is so low that a cost benefit analysis can be made to just continue to operate within the culture of the office. Ken White, in the first article cited in this blog (courtesy) of Reason magazine’s website wrote:
“As a young prosecutor I found myself analyzing each constitutional question not in terms of whether the defendant’s rights were respected, but in terms of how I could show it was irrelevant that they weren’t. I didn’t make up that approach out of a black heart. I learned it from the legal culture.”
And so it goes.
Rodney K. Stanberry
As referenced earlier, I have a cousin who remains in prison or crimes he did not commit. He was arrested in 1992, convicted in 1995, and began his prison sentence in 1997. He was convicted of burglary, robbery and attempted murder. He is in his 19th year of a 20 year sentence. What happened in his case should be a subject of a movie. What the prosecutor in his case was able to do in his case should still be the subject of investigation. Rodney tried to play crimefighter- meaning he tried to prevent crimes and, as a result, he is in prison. Rodney tried to keep weapons from moving from Alabama to New York and for that, he remains in prison while the prosecutor in his case (https://www.youtube.com/watch?v=cEVURKsGoMI ) continues to practice law, even defending a family member of the victim in 2013, citing Rodney’s case- if a prosecutor ever wants to ensure that the victim’s family doesn’t question them, then they should use Buzz Jordan’s playbook. (http://blog.al.com/live/2013/11/jury_rules_maysville_woman_was.html and http://freerodneystanberry.com/blog/2013/02/20/gun-control-what-happened-when-a-gun-enthusiast-tried-to-stop-the-sale-of-weapons-the-case-of-rodney-k-stanberry/)
It hurts to my core understanding how prosecutorial misconduct and sanctioning said conduct have resulted in my cousin, Rodney K. Stanberry, remaining in prison for 20 years for crimes he did not commit. The public tends to respond to police shootings, as they should, but the public should know that prosecutors conveniently “lose” evidence that could actually clear an innocent man. In my cousin’s case, a police officer tasked to collect evidence took a photo of a mask and gloves at the scene of the crime, but claims to have not collected them- don’t laugh it is true. Just as a prosecutor- Buzz Jordan- also in Rodney’s case claimed to interview at a prison in New York (he traveled from Alabama to New York) but claimed to have not taken notes because he was on vacation. Don’t laugh, it is true. Just as the same prosecutor hears a confession by one of the two actual perpetrators in the crimes for which Rodney is on his 19th in prison, and dismisses it because it did not fit his theory. He even asked the person if he were given lunch meat in return for his confession. Lunch meat- as if a person with a felony on his record already would confess on behalf of someone that he barely knew (if that can even be said) for lunch meat. Don’t laugh, it is true. It is a shame that no one opted to run against Mobile DA Ashley Rich this time around, not even token opposition, for the only way that the culture will change is if there is a DA with a different mindset in the office. In six years, one of her prosecutors with the mindset Ken White (Reason) as a young prosecutor when he was caught up in the culture will run, and hopefully, someone, like the Ken White- the ex-prosecutor will prevail. A Conviction Integrity Unit needs to be established in the Mobile District Attorney’s Office for Rodney to have a chance to to be exonerated even after his term concludes. While rare, it has happened. I believe Brooklyn, New York DA Ken Thompson has exonerated at least one person after his sentence has been served. Here is a link to a conviction review unit within his office- http://brooklynda.org/conviction-review-unit/ That is why I will never give up this battle to exonerate my cousin- exoneration is the destination. One has to hold out hope for justice, such as it is when an innocent man serves 20 years in prison for crimes he did not commit. This hurts so much and it doesn’t get easier.