A Response to Mobile Bar Association President Michael UpChurch’s Observations


May 10, 2013

(In keeping with theme of President Upchurch’s article, a prosecutor and criminal defense attorney, an innocent man’s life hangs in the balance: WKRG-Mobile http://www.youtube.com/watch?v=cEVURKsGoMI)

A Response to Mobile Bar Association President Michael UpChurch’s Observations

I read with interest Mobile Bar Association President Michael E. Upchurch’s “President’s Comments” in the May 2013th edition of the Mobile Bar Association’s newsletter.  His comments were about a comparison of the life of a civil attorney to the lives of criminal defense attorneys and prosecutors.  He goes into detail about how civil attorneys don’t have the stomach to deal with the things prosecutors see and/or do not have the glamour of criminal defense attorneys.  He writes:

“Criminal defense lawyers have big personalities. Civil lawyers seem tame and boring in comparison. Maybe eccentricity is bred out of civil lawyers. There just isn’t any analog in civil practice to a lawyer who advertises with “Get Out of Jail Free” cards. Civil lawyers have names like Rupert and Pierpont. The criminal bar has “Cowboy Bob.” Male civil lawyers have conservative haircuts. A criminal defense lawyer can go to court sporting a ponytail. A civil lawyer is considered wild if he wears a bow tie or drives a convertible. A criminal defense lawyer can parachute naked into a backyard barbeque with a bottle of tequila in one hand and a live iguana in the other and no one raises an eyebrow.

Prosecutors and criminal defense lawyers do the work many others do not have the stomach for. They have strong constitutions. A criminal lawyer or prosecutor can attend an autopsy after eating fried pickles, two burritos, and a piece of pie and fall asleep standing up. Some civil lawyers get queasy looking at photographs of a swollen eye and a neck brace. http://origin.library.constantcontact.com/download/get/file/1106306587790-68/May2013.pdf

 

This is among the opening paragraphs and it is an interesting and intriguing read.

I wonder what it would be like to be a criminal defense lawyer or prosecutor.

This is the opening line of his President’s Comments section.  President Upchurch is a civil attorney, as you likely knew. But I, too, a non-lawyer, but an observer of prosecutors, wonder what it is like to be a prosecutor.  Prosecutors often develop a “convict at all cost” mentality.  As Upchurch states,

“Prosecutors carry the burden of representing the entire community in all their cases. They are expected to get a conviction in every trial, no matter the evidence or the equities. Prosecutors are criticized even when they win, because they asked for too little punishment, or too much, or sought the death penalty, or did not. They are overworked, underpaid and under-equipped.”http://origin.library.constantcontact.com/download/get/file/1106306587790-68/May2013.pdf

 

This may be true, in terms of prosecutors being expected to get a conviction in every trial, but does the public expect and want prosecutors to win cases where they know the person is innocent? But the true question is whether life as a prosecutor means that one has to prosecute the innocent if it means, in the mind of a prosecutor, that the victim will receive some justice.  If a prosecutor gives a person immunity in return for confessing to what actually occurred, if the prosecutor later discovers that the confession is corroborated and the person (who confessed) is guilty, will the prosecutor dismiss the confession anyway because it doesn’t fit his theory, and pursue an innocent man, or will the prosecutor feel obligated to do what is necessary to seek truth and justice? Is it the mindset of the prosecutor to ignore the guilty to pursue the innocent if it means that a conviction will be easier? What would it be like to work under this type of pressure?  What is the moral obligation? Or are moral beliefs and thoughts checked at the door because the convict at all cost mentality prevails? No one believes or should believe the latter as prosecutors are moral beings who want to seek truth and justice, but, in a small number of cases, may convict an innocent person, whether intentional or unintentional, it happens. What incentive would a prosecutor have to ignore the guilty to pursue the innocent? What must it be like to have to make those decisions? Let’s say you were a prosecutor and your heard this confession before trial (http://www.freerodneystanberry.com/the_confession-_testimonial_immunity_agreement). What would you do?

 

President Upchurch said that prosecutors are required to share the information they gathered with criminal defense attorneys. He writes:

 

“Civil lawyers bury each other in paper. A civil lawyer gets upset if subpart (d) of interrogatory 87 is not answered fully. A criminal defense lawyer gets diddley in the way of written discovery, and shrugs it off. A prosecutor has to give up her good evidence on request, in every case. A civil defense lawyer would pout for a month if he had to disclose even one street address voluntarily.” http://origin.library.constantcontact.com/download/get/file/1106306587790-68/May2013.pdf

 

What if in the desire to win, the prosecutor withholds “good evidence” that disproves a theory and further supports what the person who confessed stated.  Would they continue to pursue the innocent because it fits a theory? I wonder if President Upchurch could answer a question for me.  If a prosecutor is working on a case and he travels to a prison in another state, let’s say he travels from Mobile, Alabama to a prison in New York, if the prosecutor says he was on vacation when he visited the prison so he did not take any notes, is that ethical, is it legal, is it a dilemma that prosecutors face when they are pursuing a theory? What must it be like to be a prosecutor that in the zest to win and to prove a theory that pursuit of true justice must be thrown out the window. What must that be like? Well, as Upchurch stated, the public expects you to win, so maybe you do not disclose the evidence.  Upchurch used the pronoun “she” throughout his article, possibly to acknowledge Mobile County first female District Attorney, Ashley Rich.  She has already shown that the win is very important.  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

 

On a side note, it was interesting to see Atty. Sullivan recently appear as a criminal defense attorney in a case that pitted her against the prosecutor and there was an acquittal and a mistrial. Here are quotes from the criminal defense attorney and the prosecutor in the case in question:

 

“It happens sometimes that a jury cannot reach a verdict,” Patterson said. {Patterson is a long-time Assistant District Attorney in the Mobile County District Attorney’s Office}

Defense attorney Eucellis Sullivan welcomed the verdict. “It’s great news,” she said. “I’m glad that the jury listened to the evidence and weighed it in their deliberations.” http://blog.al.com/live/2013/03/mobile_man_acquitted_of_raping.html

I wonder what it would be like to be a criminal defense lawyer or prosecutor

Mobile Bar Association President Upchurch asks this question at the beginning of his comments.  To be a criminal defense attorney such as Cowboy Bob Clark, mentioned by Upchurch, is to understand that when you have a client that is actually innocent and when you have clients that are actually guilty, prosecutors, at times, treat them both as if they are guilty, innocent until proven guilty does not define what it is like to be a prosecutor.  Fair trials can interfere with convictions.  So to be a criminal defense attorney is to understand that if a prosecutor wants to convict an innocent man because it fits a theory or because a star witness and/or the victim of a crime says the defendant is guilty, no matter the evidence that shows that the person is actually innocent, the prosecutor will move to do whatever is necessary to convict.  To be a criminal defense attorney is to understand that when you have a client that is guilty as sin, if prosecuting that client disproves a prosecutor’s theory or contradicts what the victim says, that prosecutor will opt not to prosecute your client, meaning that they would rather allow the victim and society to perceive that justice was served rather than actually pursuing justice.  To be a criminal defense attorney, you understand this, this is how the dance between criminal defense attorneys and prosecutors works and, on occasion, to be a criminal defense attorney is to strike a chord with prosecutors about it during a trial in the hopes that it will sway a jury.  For instance, Mobile Press Register Reporter Brendan K. Kirby reported in an article the following:

“MOBILE, Alabama – Closing arguments in Jackeith Harrison’s attempted murder and robbery trial got contentious this afternoon, with defense lawyer Robert F. “Cowboy Bob” Clark accusing prosecutors of dishonesty.

Mobile County District Attorney Ashley Rich, voice rising,  angrily disputed that accusation……

…..“Why did they deceive you? What benefit is there to them? Do you want to be deceived, or do you want to be convinced beyond a reasonable doubt?” he said. “I submit to you they haven’t proven anything beyond a reasonable doubt. She (Rich) hasn’t been fair. She hasn’t been honest.”

Rich told jurors that she took it as a personal attack on her integrity.

“What was going on in that store that night was raw, and it was real, and it was terrifying.” — District Attorney Ashley Rich.

“It is despicable what he gets up here and says to you,” she said.  (http://blog.al.com/live/2013/05/heated_closing_arguments_accus.html)

I wonder what it would be like to be a criminal defense lawyer or prosecutor.

District Attorney Ashley Rich raised her voice because criminal defense attorney Cowboy Bob Clark questioned her integrity in a courtroom, in front of jurors, during a trial. What is it like to be a criminal defense attorney who knows that a prosecutor had a solid and truthful confession from one’s client, but opts to get that confession suppressed? Why, again, because it does not fit a theory. Right then and there you know that the mind of a prosecutor is to do all that he/she can to go after the person they want to believe committed the crimes even though you know and they know that they are letting a guilty person (the person who confessed) go.  To be a criminal defense attorney is to exploit this knowledge and to strike a chord with prosecutors even for clients you know are guilty for a prosecutor left opened the question of his/her integrity when they protected the truly guilty to go after the innocent.  A case in point, this confession made in the office of Bob Clark and in front of the Mobile County Assistant District Attorney Joe Carl “Buzz” Jordan three years before a trial (http://freerodneystanberry.com/yahoo_site_admin/assets/docs/20100914155256.256155350.pdf ) and please don’t think it stopped at one prosecutor in the Mobile District Attorney’s Office, please view this article (  http://www.bostonreview.net/BR38.2/beth_schwartzapfel_valerie_finley_innocent_convictions.php).  When a prosecutor refuses to acknowledge that an innocent person has been convicted, how can he/she not continue to invite questions of integrity?  No matter how many awards a prosecutor receives for sending people to death row and no matter how many convictions he/she may have, to keep an innocent person in prison is extremely tough to overcome, or at least it should be. But what if you are a criminal defense attorney who knows that some prosecutors have no qualms about prosecuting and keeping the innocent in prison? You exploit it in a courtroom.  Attorney Upchurch wrote in his “Comments” piece:

“There is also an invisible connection between criminal defense lawyers and prosecutors. They eye each other warily across the courtroom, but share an intimate understanding of what innocence and guilt really mean.

Their cases immerse them in an underworld of soul-rattling ugliness and hopelessness. If they buckled under the weight of it, they would end up casualties on the same battlefield. But they don’t buckle. They rise above it. This is their bond.” http://origin.library.constantcontact.com/download/get/file/1106306587790-68/May2013.pdf

In my interpretation this says that criminal defense attorneys are ok with what prosecutors do before a trial as long prosecutors understand what they will do during a trial, even if it means that tactics used to question your integrity in front of a jury may take place from time to time.  The criminal justice system is a game of wins and losses, this is the adversarial part of the system, no harm, no foul- oh, except when the innocent gets caught up in the game.

As I included in a letter to former Mobile Bar Association President Henry Calloway in 2011:

“On  November 25th, the New York Times Magazine published an article entitled “The Prosecution’s Case Against DNA.”  Here is an excerpt from that article:

 

        • Why prosecutors sometimes fight post-conviction evidence so adamantly depends on each case. Some legitimately believe the new evidence is not exonerating. But legal scholars looking at the issue suggest that prosecutors’ concerns about their political future and a culture that values winning over justice also come into play. “They are attached to their convictions,” Garrett says, “and they don’t want to see their work called into question.”“Jed Stone, a local defense lawyer, described the legal community as “an echo chamber.” “The problem with everyone coming from the same background, from the same state’s attorney’s office, from the same narrow political spectrum, is there is a failure to see the other side,” he said. “You begin to view people as others. And when you begin to see people as other than you, they begin to become expendable.” http://www.nytimes.com/2011/11/27/magazine/dna-evidence-lake-county.html?pagewanted=9&hp The complete letter to former President Calloway can be found here: http://freerodneystanberry.com/yahoo_site_admin/assets/docs/callawaybarassociation.295123209.docx

I wonder what it would be like to be a criminal defense lawyer or prosecutor

On the differences between criminal defense attorneys and prosecutors, one wants to win at all cost whether the client is guilty or innocent as in the United States of America, every individual has the right to an attorney and when an attorney takes on a client, he or she wants to do what is in the best interest of his/her client.  The other also has a win and all cost mentality that will, at times, lead to the withholding of exculpatory evidence, the suppression of confessions, and will rely on victim eyewitness misidentification to win a case.  And while the criminal defense attorney who, once a trial is over, doesn’t deal with a client unless he/she is handling an appeal, the prosecutor spends 5, 10, 15, 20 and more years to ensure that the conviction is upheld.  To be like a prosecutor means to work to uphold the conviction when there is evidence that the person convicted is actually innocent.  The public got some understanding of this with the case of Michael Morton of Texas who spent 25 years of his life in prison for crimes he did not commit. Not only did the prosecutor withhold evidence, he (Ken Anderson) and his successor (John Bradley) fought to block Morton’s request to have DNA tested. They went as far as to mock Morton for maintaining his innocence and his request to get evidence proving his innocence tested. After 25 years, Morton got some justice, he was freed, exonerated, compensated, the Texas Bar is suing the prosecutor, the Texas Legislature named a bill after him that deals with the disclosure of evidence by prosecutors and,  following a Texas Court of Inquiry hearing, a Texas Judge issued the arrest of then prosecutor now judge Ken Anderson (http://freerodneystanberry.com/blog/2013/04/22/when-texas-gets-it-right-former-prosecutor-held-criminally-responsible-for-putting-innocent-man-in-prison/). No one should be surprised by what happened in Michael Morton’s and John Thompson’s case for it is the norm, there may be a small number of innocent people convicted, but when it happens, far too many prosecutors will continue to fight to keep the innocent in prison and to ignore calls for needed reforms to help prevent the innocent from languishing in prison.

I wonder what it would be like to be a criminal defense lawyer or prosecutor

This brings me to my final point, what is it like to be a prosecutor:  To have the power to get away with anything. Law Professor and author Angela J. Davis responded to a New York Times question “Do Prosecutors Have too Much Power.” She wrote:

“We live in a democracy in which we hold accountable those to whom we grant power, but we have fallen short when it comes to prosecutors. State and local prosecutors are presumably held accountable through the electoral process, but few voters know enough about the prosecution function to make a meaningful decision at the ballot box. When prosecutors run for office, they don’t talk about their charging and plea bargaining policies (if such policies even exist). With a few notable exceptions, most prosecutors run on a “tough on crime” message, providing little, if any, information about anything else. There is even less accountability on the federal level where U.S. attorneys are appointed by the president.

….Unchecked power in the hands of prosecutors is as much a threat to our democracy as it is with any other government official, if not more. Prosecutorial decisions often result in a loss of liberty and even life. We must do a better job of holding prosecutors accountable — at the ballot box and through bar counsel prosecutions, when appropriate.”

( http://www.nytimes.com/roomfordebate/2012/08/19/do-prosecutors-have-too-much-power/federal-proscutors-have-way-too-much-power)

Imagine having that much power, to be a prosecutor means not having to imagine it, it is a reality.  As Mobile Bar Association President Upchurch stated:

 

“There is an independence to criminal defense lawyers, and a passion and authority in prosecutors, that a civil lawyer might envy. Prosecutors get to carry a badge. They go under the tape at crime scenes. They convene grand juries. All civil lawyers get to do is subpoena medical records.” http://origin.library.constantcontact.com/download/get/file/1106306587790-68/May2013.pdf

 

But what happens when prosecutors act in a way that is beyond the authority given to them?

State Bar Associations Must Act Forcefully in Pursuit of Justice

“….  Certainly, there are many district attorneys who abide by the rules and take seriously their duties to seek justice, even when it means losing a case. But there are those who have abused their authority, and they have become emboldened by a weak State Bar that has not acted forcefully enough to address misconduct in the legal profession.” http://www.statesman.com/news/news/opinion/bar-must-act-forcefully-in-pursuit-of-justice/nRg9H/

So we see what Texas, including the Texas State Bar has done to address the abuse of one prosecutor and we see an editorial from a Texas State paper about what Bar Associations need to do.  But what happens if there is a case in Alabama, let’s say in Mobile, Alabama where Attorney Upchurch presides over the Mobile Bar Association?  Will they respond to calls to at least work towards putting mechanisms in place to prevent the innocence from being incarcerated and to help the innocent already incarcerated obtain their freedom?  The Alabama Bar Association and the Mobile Bar Association have not responded to letters I’ve written to them in the past about the case of Rodney K. Stanberry. This is a letter written a couple of years ago, a more updated one is referenced above.   http://www.freerodneystanberry.com/sample_letters_to_rileytyson_alabama_and_mobile_bar_associations). These letters have been to inform them about Rodney’s case and to urge them to encourage District Attorney Offices in Alabama to implement Conviction Integrity Units designed to address prior cases where evidence of wrongful convictions exists and to help prevent wrongful convictions.  While I have received one response from the American Bar Association essentially directing me to the state bar association, I’ve never received any form of communication from the Alabama and Mobile Bar Associations.  The last line of the article from The Statesmen is very important to sink in for those who truly believe in justice and fairness: “The Texas legal system certainly needs the State Bar watchdog to bark. But a watchdog that is unwilling to bite cannot effectively protect the house.” http://freerodneystanberry.com/blog/2011/11/22/justice-is-denied-when-justice-is-delayed-holding-district-attorney%e2%80%99s-accountable/

In just the two years since Mobile District Attorney Ashley Rich has been in Office, two different judges have ordered the granting of new trials. I write about the William Zieglar and Toby Priest cases here: 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/.  What the Assistant District Attorneys say in these articles are very telling about the convict and maintain the conviction at all cost mentality found in far too many district attorney’s offices.

Mobile Bar Association President Upchurch states in his “Comments” the following:

“There is a special brotherhood among criminal defense lawyers, and within the family of prosecutors. They protect and support each other. They develop close, personal relationships. They stick together.” http://origin.library.constantcontact.com/download/get/file/1106306587790-68/May2013.pdf

This is PRECISELY WHY the Alabama and Mobile State Bar Associations and the State of Alabama need to push for Conviction Integrity Unit and help to fund an Innocent Project or something similar such as North Carolina’s Innocence Inquiry Commission as a District Attorney who may have a 14 year relationship with prosecutors in her office may be hesitant to address what the judges stated in the Zieglar and Priest cases, thus, the “it’s business as usual” message may prevail. I had a painful exchange with a state legislator who did not feel that there was a need for a state funded innocence project in Alabama because the judicial system allows for appeals and that the Governor can grant pardons and clemency. After I shared with the legislator in question this letter from former Governor Riley stating that Alabama Governors DO NOT have the ability to grant pardons, I received no further response (http://freerodneystanberry.com/yahoo_site_admin/assets/docs/Gov_Bob_Riley.3135215.jpg)

I wonder what it would be like to be a criminal defense lawyer or prosecutor (Conclusion)

I am perfectly aware that criminal defense attorneys and prosecutors may see the worst of the worst and it does have an impact on them, prosecutors want to get the bad people off the streets.  But to be a prosecutor should also be to understand that you have a moral, ethical and legal duty to work just as hard to prove innocence  as you do to find guilt- this is what Supreme Court Justice stated Ruth Bader Ginsburg said in the Thompson v. Connick case where John Thompson spent 18 years in prison (14 on death row) for crimes he did not commit, prosecutors withheld evidence showing his innocence, and, unfortunately, the U.S. Supreme Court in a 5-4 decision essentially gave prosecutors further immunity from being held accountable for these actions. As Thompson stated following the disappointing U.S. Supreme Court ruling: “If I’d spilled hot coffee on myself, I could have sued the person who served me the coffee,” he said. “But I can’t sue the prosecutors who nearly murdered me.” (http://www.nytimes.com/2011/03/30/us/30scotus.html?_r=0 see also his New York Times op-ed entitled “The Prosecution Can Rest, But I Can’t” (http://www.nytimes.com/2011/04/10/opinion/10thompson.html?pagewanted=all)

District Attorney Ashley Rich seems to believe what Justice Ginsburg said in the Thompson case that it is among prosecutors unique ethical oblications to produce Brady evidence to the defense. Rich said when she ran for office in 2010 (this when she was a candidate running to be the District Attorney for Mobile County):

“Ashley Rich, a Mobile Assistant DA for 14 years and current candidate to replace John Tyson, Jr. said on a radio show in Mobile, AL on September 16, 2010 during the 7am (cst) hour in response to a question about the Duke LaCrosse case and prosecutors withholding exculpatory evidence: “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.”  She went on to say that she would reopen a case and evidence should be reviewed. www.freerodneystanberry.com or to listen to the radio program: http://freerodneystanberry.com/blog/wp-content/uploads/2012/07/u7am0916AshleyRich1.mp3

So why doesn’t she practice this now? Why, knowing what she knows about the case of Rodney K. Stanberry, does she opt to maintain the conviction as opposed to working towards freeing an innocent man?  To be a prosecutor means sometimes sanctioning the suppression of a legitimate confession, sanctioning the withholding of evidence, ensuring that you do not place a spotlight on the close-knit community of prosecutors by acknowledging that at times, they did not do the right thing, and to practice a maintain a conviction at all cost mentality.  We must never forget the case of Michael Morton, not only did the prosecutor withhold evidence that led to him spending 25 years of his life in prison, but the prosecutors convinced Morton’s family of his guilt and with the power and authority prosecutors wield, they also wield trust.  Morton’s own son changed his name on his 18th birthday, believing his dad was guilty of murdering his mother.  For 25 years Morton was the criminal and a member of the victim’s family, but the prosecutors treated him to one of the most unjust acts imaginable, taking away his freedom, and convincing the jury and his family that they were doing the right thing.  As much as we value prosecutors, value their role in society, value the need for people to work hard to put away bad folks even if the pay is low and the glory can be fleeting, we must value the pursuit of truth and justice, regardless of how much time has passed by, regardless of how it may look.

Mobile Bar Association President Michael Upchurch, please do what you can to encourage prosecutors to pursue true justice and to encourage the establishment of a body to review cases where there is evidence of innocence. And the next time you write a very intriguing column such as the one you wrote in the newsletter that I am commenting on, please include your thoughts about the ethics of prosecuting the innocent and ensuring that they remain in prison. It is a false sense of justice that I’m sure you’d object to.

Peace,

Artemesia Stanberry

www.freerodneystanberry.com and www.freerodneystanberry.com/blog

 

 

 

 

 

 

 

 

 

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