A Rarity but Necessity: Prosecutors Who Break the Law Must Be Prosecuted

Ken Anderson by AP

Ken Anderson by AP

Former Texas District Attorney and state judge Ken Anderson is now facing prosecution for the crimes he committed against the very integrity of our courts and system of justice and against an innocent man, Michael Morton.  Pro Publica, which has done a series recently on prosecutorial misconduct and injustice, has an article today on how the tables are now turned against Anderson.  Michael Morton spent 25 years in prison while Anderson hid the evidence that proved his innocence.  The only just result, which would certainly serve as a deterrent to other prosecutors, would be for Anderson to have to do the same term of imprisonment under the same conditions as Morton endured.  Perhaps then, other prosecutors would be more inclined to follow the law they swore to uphold.  Stay tuned for more updates on the Anderson prosecution.  By the way, even if he is convicted of all the offenses with which he is charged and given the maximum sentence, he won’t serve close to the amount of time that Morton did.

The Pro Publica article, written by Raymond Bonner, is worthy of your full attention. Here is a quote:

However, one thing is abundantly clear: While revelations of misconduct might result in people being freed from prison or granted new trials, action is almost never taken against the offending prosecutors.

An investigation by ProPublica found 30 cases in New York in recent years where convictions had been overturned because of prosecutorial misconduct. Yet in only one instance was a prosecutor punished in any meaningful way.

In fact, many of the New York prosecutors found to have withheld evidence and accepted false testimony were promoted, or received raises, even after courts overturned convictions because of their misconduct.

We urge all attorneys who seek justice to demand that prosecutors be held to the highest standards and abide by the laws they swear to uphold.  Anything less renders any notion of  Justice a farce.

IN THE NEWS AND AROUND THE BLOGOSPHERE

On the fallout from the wrongful conviction of Michael Morton in Texas: Ross Ramsey, NY Times, For Prosecutors, Job’s No Longer a Sure Thing.

On the Amanda Cox case and the absurdities of Italian law: Edward J. Epstein, Huff. Post, The Amanda Knox Circus – Again.

On the arrest of the wrong man in the case of the ricin-poisoned letters sent to President Obama and Senator Roger Wicker of Mississippi: Aaron Kase, Lawyers.Com, How To Fight False Criminal Charges.

On “death row” survivors and the abject failures of the US criminal justice system: David A. Love, Huff. Post, U.S. Death Row Survivors Are One For Ten.

Texas Bar Needs to Clean House & Fast

Screen Shot 2013-03-17 at 12.37.37 AM   This is from an article written last year, but it is worthy of revisiting now to see what, if any, progress has been made.  All that is readily determinable is that Ken Anderson, the prosecutor responsible for the the wrongful conviction of Michael Morton has been  arrested for minor offenses related to that outrage.  That is a start, but unbelievably,he is still a sitting judge and member of the Bar of the State of Texas!

“According to the Texas Supreme Court’s rules on the removal of judges, Anderson will be able to continue in office.The State Commission on Judicial Conduct can suspend a judge only after a felony indictment from a grand jury or if there is a misdemeanor charge involving official misconduct, the rules say.”

Has the Texas State Bar done anything with respect to the many other prosecutors responsible for hiding the evidence discussed in this article from the Texas Tribune by Brandi Grissom? 

What follows is a short excerpt from the article:

Courts Found DA Error in Nearly 25% of Reversed Cases Read More »

DOJ Defends FBI Deputy Director Andrew Weissmann Against Serious Ethics Charges Pending in NY

Weissmann

Serious ethical charges against FBI Deputy Director Andrew Weissmann are pending before the First Judicial Department Disciplinary Committee in New York.  The charges arise from his role in hiding evidence favorable to the defense when he was a federal prosecutor leading the Enron Task Force. The Department of Justice is handling his defense.

According to the DOJ, there was no violation of the rules of ethics, even if Weissmann “plainly suppressed” evidence favorable to the defense—as the Fifth Circuit Court of Appeals held that the Enron Task Force did. Mr. Weissmann, who also serves as General Counsel to the FBI, has pitched his entire ethics defense on the claim that the Rules of Professional Conduct require prosecutors to disclose to the defense team only information that is both favorable and “material.”   Read More »

Pro Publica Series on Prosecutorial Misconduct in NY

scrabble JUSTICE

Our prior POST includes a link to one of the these articles, but the entire series is worthy of reading as the authors detail cases of abuses and system failures in New York.

Sapien and Hernandez reviewed a decade’s worth of court documents and found 30 instances in which state or federal courts identified misconduct serious enough to throw out a conviction.

Yet hardly anyone involved in the prosecutions was held accountable.

The reporters also identified more than 50 instances in which state appellate courts had criticized the tactics of prosecutors but let convictions stand. But as far as we could determine, none of these cases resulted in disciplinary action against anyone in the DA’s offices either.

WHY is there a double standard?  Why are we letting prosecutors commit crimes with impunity?  What is it going to take to make prosecutors follow the law they are supposed to uphold?

The River Birch Saga Exposes Prosecutorial Misconduct in New Orleans… And DOJ is Stonewalling

Under any standard of prosecutorial conduct, let alone common decency, the actions of Federal Prosecutors in the New Orleans United States Attorney’s Office must be viewed as deviant and possibly criminal. In the process of trying to build, if not fabricate, a federal corruption case against River Birch Landfill owner, Fred Heebe, outrageous misconduct was exposed.

Not content to sit idly by as the government built its case, “Heebe went on the offensive, and he hit pay dirt, unearthing evidence that two of then-U.S. Attorney Jim Letten’s top prosecutors,” first assistant Jan Mann, and senior litigation counsel, Sal Perricone, “were making inappropriate comments online using aliases.” NOLA.Com  The story of how these prosecutors cum hateful web-posters were identified is itself a remarkable story, as the New Yorker recently reported.  “The resulting scandal ended the careers of both prosecutors, and ultimately was the undoing of Letten, until then the nation’s longest-tenured U.S. attorney.” NOLA.Com The case against Heebe and his associates was abandoned, with extraordinary assurances that he would not be charged. NOLA.Com

Despite the misconduct that was unearthed and the need for the Department of Justice to come clean, in the most recent development, the Department’s Office of Professional Responsibility (“OPR), has declined to make public the results of its “internal” investigation. While this stonewalling could signify that the investigation is ongoing or that criminal charges or other enforcement actions may be distorted with the release of information at this stage, the track records of OPR and the Department’s other Internal Investigatory Bodies unfortunately suggests the opposite: that the Department simply will not police its bad apples.

California District Attorney Should Be Barred For Prosecutorial Misconduct, State Bar Recommends.

Jon Michael Alexander

What do you have to do as a prosecutor to get disbarred? At least one prosecutor in California appears to have committed enough outrageous misconduct to find out.  According to an opinion from a California State Bar Judge, Jon Michael Alexander, the sitting District Attorney for Del Norte County, already disciplined three times previously, should be disbarred for prosecutorial misconduct. Citing to Berger v. United States, 295 U.S. 78, 88 (1935) and its California analogue, People v. Superior Court, 19 Cal.3d 255, 266 (1977), the opinion found by clear and convincing evidence that Alexander “abused his prosecutorial power by speaking with a criminal defendant about her case without her lawyer present; and after learning from her that she, not her co-defendant, owned the illegal drugs found during their arrest, failed to give that exculpatory evidence to the other defendant’s lawyer; then lied to an assistant DA by saying he had not spoken with the defendant (who had recorded the conversation).”  Terry Carter, ABA Journal, District attorney should be disbarred for prosecutorial misconduct, state bar court recommends. The California Supreme Court will review the decision, but it is difficult to imagine what else Alexander has to do to have his license finally and formally stripped.

Misconduct In the News & Around the Blogosphere: The Central Park Five

CentralParkFive

Having lived in and around New York City during the late 1980s and early 1990s, I watched the “Central Park Jogger” Rape Case, and now watch the story of the “Central Park Five” with fascination, disbelief and horror.  First the brutal rape of a successful and promising young woman, Trisha Meili; her life forever changed by an act of senseless violence. Then five African-American and Hispanic boys, Kevin Richardson, Yusef Salaam, Raymond Santana, Antron McCray and Korey Wise, ages 14-16, were wrongfully convicted and imprisoned, their lives irreparably damaged before they began. This saga is finally receiving the wider publicity it deserves through a film by Ken Burns and his daughter, Sarah Burns. The story of the investigation and trial is a case study in prosecutorial misconduct: a rush to judgment by ambitious prosecutors overly mindful of  public furor, followed by tunnel vision, selection bias, confirmation bias, asymmetrical skepticism, and cognitive dissonance all driving the prosecutors to credit information consistent with their existing beliefs, while  discounting inconsistent evidence. For anyone concerned with how prosecutorial decision-making can be distorted, this film is a must-see.  In a collateral consequence often overlooked, another woman was raped as the entire police and prosecution team failed to connect the dots on Matias Reyes, the actual rapist who had been terrorizing the Upper East Side for months.  Like the story of the Enron Task Force prosecutors, this case also contains over-zealous prosecutors ultimately “rewarded” for their work prosecuting innocent boys, with no professional or ethical accountability once their misconduct is uncovered.

*(tel – with thanks to esp for format)

Former State Prosecutor (now Judge) ARRESTED for Crimes Related To His Suppression of Evidence And Wrongful Conviction of Morton

Former D.A. Ken Anderson

 

— Texas Judge Louis Sturns ruled that the former district attorney and prosecutor, Ken Anderson (himself a state court judge) must answer, criminally, for his misconduct which resulted in the wrongful conviction and imprisonment of Michael Morton for almost 25 years.  On Friday, the judge turned the tables on Anderson,who was in the courtroom and immediately arrested. Judge Sturns found that there is sufficient evidence to try Anderson on three charges: criminal contempt of court, tampering with evidence and tampering with government records. This is a very important turn of events and desperately needed to begin to restore credibility to our system of justice that has long given prosecutors far too much unquestioned leeway in deciding what evidence to provide a defendant.  Judge Sturns called it what it was–a fraud on the court and a crime against the defendant.

 

“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” Sturns said.

After Enron

Attorney Sidney Powell on the criminal case that goes on and on.