Injustice

[BoSoxGal]

Excellent documentary depicting prosecutorial hysteria & arguably egregious misconduct:

http://www.recklessindifference.com/

Extensive report on prosecutorial misconduct in California:

http://tinyurl.com/Preventable-Error

It looks like CA has a real problem ongoing, which likely accounts for the prison overcrowding issue there - at least to some degree.

For the record, a number of the reforms recommended in this report are standard practice in my jurisdiction - I never have to determine what is Brady evidence, for instance, because I simply give everything in the State's file (absent material that is purely work product) to the defense. If I can't make my case on the whole body of admissable evidence, I don't want to make my case.

If I'd been the ADA or deputy county attorney on the case outlined in the documentary, I'd have told my boss to go to hell & walked off the job before I would have agreed to charge & prosecute the case the way it was. In my job I have thus far pissed off victims & cops alike - because I refuse to bend to the passions of others, as there is no place for vengeance in the decision making process I employ in my capacity to use the resources of the State to put individuals on trial for their liberty.



As a personal aside; Andrew D can continue to smear me baselessly all he likes, I won't be run off. (Though I am getting started on my first book, so I do expect to be here less frequently in future.)

I've come a long way since the early days of editec's first attacks at CSB, and I have confidence that my friends here know my character (as much as one can know someone online). More importantly, I've long since realized that it's not my lot in this life to amass fortune or material wealth, but I think everyone I've worked with intimately would attest to my integrity & compassion and when I come to the final stretch, that reputation earned in the course of a career spent in service to my community & high ideals will be enough to comfort me.

[Andrew D]

I never wanted to run you off. As you may recall, I publicly predicted that you would not actually leave.

Which is dandy.

I'm glad that you've noticed that CA has a real problem.

So do the arithmetic. Which tells us more about the state of criminal prosecution in America -- what goes on in the State where one of every eight (give or take) Americans lives? Or what goes on in a State whose biggest city would be just a suburb in California and whose total population puts it in the midrange of California counties?

[BoSoxGal]

You might take a gander at the foreword to the report, where the authors start out by acknowledging that the majority of prosecutors fulfill their ethical mandate to seek justice, not merely convictions; as per the Model Rules.

I've already said I agree that there exists prosecutorial & police misconduct & wrongful convictions arise from that, and that both should be rooted out and addressed wherever and whenever possible. Sometime last year I posted about the new District Attorney in Dallas, TX - the former defense attorney who has opened the office's evidence storage to The Innocence Project to help overturn wrongful convictions. Has he thrown his ideals overboard like so much rotten fruit? http://www.dallasda.com/


Your position is extreme & I have yet to see you produce any evidence to convince me of it - though I am far from closed-minded on the subject of injustice in the criminal justice system.

When you chose, instead of providing sustantive evidence, to engage in personal attack of the worst kind - attacking my ethics and integrity - well, that basically closed my mind to hearing you. And now, though I am sure you don't care, I have lost all respect for an attorney I have largely admired for the past six years.

[Lord Jim]

That's an interesting study BSG....

I actually came across that when I took Andrew up on his wild goose chase deflection; (I didn't bother mentioning it because it had absolutely no relevance to Andrew's claims about prosecutors and their willingness to suborn perjury when they need a conviction...the study doesn't specifically address the charge of "suborning perjury")

So if we look at those numbers....

The Misconduct Study’s findings as to the results in these 707 cases were as follows: In the
vast majority—548 of the 707 cases—courts found misconduct but nevertheless upheld the
convictions, ruling that the misconduct was harmless—that the defendants received fair trials
notwithstanding the prosecutor’s conduct. Only in 159 of the 707 cases—about 20 percent—
did the courts find that the misconduct was harmful; in these cases they either set aside the
conviction or sentence, declared a mistrial or barred evidence.
The Misconduct Study shows that those empowered to address the problem

The Misconduct Study’s findings as to the results in these 707 cases were as follows: In the
vast majority—548 of the 707 cases—courts found misconduct but nevertheless upheld the
convictions, ruling that the misconduct was harmless—that the defendants received fair trials
notwithstanding the prosecutor’s conduct. Only in 159 of the 707 cases—about 20 percent—
did the courts find that the misconduct was harmful; in these cases they either set aside the
conviction or sentence, declared a mistrial or barred evidence.

http://law.scu.edu/ncip/file/Prosecutor ... ersion.pdf

So, of the original 4000 cases, we come down to 159... about 4%.. where the courts found prosecutorial misconduct sufficiently serious to have materially affected the outcome.

Not a good thing by any means, (especially if you happen to be one of those 159 people) but hardly indicative of a rampant problem...(and again, it says nothing specifically about suborning perjury, which obviously is the most severe form of "prosecutorial misconduct" a prosecutor can engage in, and which was the relevant focus of the discussion we tried to have.)

In looking at that report, it seems to me that the far more significant problem is the failure to punish those prosecutors who do engage in prosecutorial misconduct (from the same study)

The Misconduct Study shows that those empowered to address the problem—California state
and federal courts, prosecutors and the California State Bar—repeatedly fail to take meaningful
action. Courts fail to report prosecutorial misconduct (despite having a statutory obligation to
do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it.
Significantly, of the 4,741 public disciplinary actions reported in the California State Bar
Journal from January 1997 to September 2009, only 10 involved prosecutors, and only six
of these were for conduct in the handling of a criminal case. That means that the State Bar
publicly disciplined only one percent of the prosecutors in the 600 cases in which the courts found
prosecutorial misconduct and NCIP researchers identified the prosecutor.
Further, some prosecutors have committed misconduct repeatedly. In the subset of the
707 cases in which NCIP was able to identify the prosecutor involved (600 cases), 67
prosecutors–11.2 percent—committed misconduct in more than one case. Three prosecutors
committed misconduct in four cases, and two did so in five.

So it seems obvious to me that the way to reduce the instance of prosecutorial misconduct even further, is to bring much harsher and more consistent punishment to that minority of prosecutors who are willfully engaging in it, particularly serious instances of misconduct that materially influence the outcome of cases.

[BoSoxGal]

I wholeheartedly support harsh discipline of prosecutors who engage in willful misconduct; I agree with your earlier post that police, counsel, & judges who subvert the process should be punished very harshly, as they tarnish the system and erode its credibility.

We should be constantly striving toward a more perfect criminal justice system & rooting out the egomaniacs & ideologues willing to lie, withhold exculpatory evidence or suborn perjury would benefit us all. Let them go to work in the private sector where the stakes are not so high.

[Andrew D]

A big part of the problem -- and this is a problem not just in criminal prosecutions -- is this so-called "harmless error".

Many times what the "harmless error" conclusion amounts to is this: "Well, yeah, the jury was misinstructed or deprived of evidence that it should have seen or confronted with evidence that it should not have seen or whatever, but we think that the jury would have reached this conclusion anyway."

No.

The parties are entitled to a trial in which a properly instructed jury considers all the properly admissible evidence and no properly inadmissible evidence. The parties should not be condemned to anything less.

ETA:

So, of the original 4000 cases, we come down to 159... about 4%.. where the courts found prosecutorial misconduct sufficiently serious to have materially affected the outcome.

That's a big part of the problem.

The courts have no business deciding whether the misconduct was "sufficiently serious to have materially affected the outcome."

The rule should be misconduct = reversal.

Not "we are going pretend, on the basis of a dry appellate record, to be able to understand what the jury would have done".

(By the way, why is it a horrible thing for me to opine about what prosecutors would do, but perfectly okay for aging lawyers in robes to decide people's fates by opining about what jurors would have done?)

Misconduct = reversal.

That's justice.

Anything else is not.

[BoSoxGal]

A USA TODAY investigation last year documented 201 cases since 1997 in which courts found that federal prosecutors had violated laws or ethics rules. Although the abuses represent a small fraction of the tens of thousands of cases filed in federal court every year, each was so serious that judges overturned convictions or rebuked prosecutors for misconduct.

http://projects.usatoday.com/news/2010/justice/

Good in-depth investigation of the problem as it exists at the Federal level.

[Andrew D]

A USA TODAY investigation last year documented 201 cases since 1997 in which courts found that federal prosecutors had violated laws or ethics rules.

So what about the thousands of other cases in which it happened?

[BoSoxGal]

After serving 17 years behind bars for the brutal murder of three children in eastern Arkansas, Damien Echols, Jessie Misskelley Jr. and Jason Baldwin -- dubbed the "West Memphis Three" -- have been released from prison.

"They will be free men ... on suspended sentence,” prosecuting Attorney Scott Ellington told reporters during a Friday press conference.

"Only time will tell as to whether this was the right decision."

All three men had been imprisoned since 1994, when they were convicted of killing three 8-year-old boys: Stevie Branch, Michael Moore and Christopher Byers.

Prosecutors alleged the trio killed the children in Robin Hood Hills on the morning of May 6, 1993, as part of a satanic ritual. According to police, the boys' bodies were mutilated and left in a ditch. Each had been hogtied with his own shoelaces.

At the time of their arrests, Baldwin was 16. Misskelley was 17, and Echols was 18.

Echols was sentenced to death, Misskelley was sentenced to life imprisonment plus 40 years, and Baldwin was sentenced to life.

DNA testing was not available at the time of the defendants' trials. In 2007, it was found that DNA collected at the crime scene did not match that belonging to any of the three men. In November 2010, the state Supreme Court ruled that all three could present new evidence in court.

A new court date had been set for December, but on Thursday Judge David Laser ordered all three men transported to Jonesboro for today's surprise hearing. In a brief statement released to the press, Laser only said that the hearing was to "take up certain matters pertaining to the cases" of the three defendants.

Experts believe both sides have entered into a complex legal agreement, in which the three men have entered into so-called Alford pleas.

"The plea means that you maintain your innocence but you believe there is a substantial likelihood that a jury will find you guilty so you are pleading guilty per State v. Alford," Anne Bremner, a Seattle attorney and legal analyst, told The Huffington Post. "The effect of the corresponding finding of guilt by the court is the same as with a straight guilty plea."

Such pleas could make it more difficult for the men to sue the state over their imprisonment.

"It's not perfect," Echols said in a press conference following the hearing. "It's not perfect by any means but at least it brings closure to some areas and some aspects."

Echols added that he was "still very much in shock [and] still overwhelmed."

"We can still bring up new evidence; we can still continue the investigations we [have] been doing," said Echols. "We can still try to clear our names. The only difference is now we can do it from the outside instead of having to sit in prison and do it."

After fighting for so many years, Echols said it wasn’t difficult for him to come to the decision to agree to the plea deal.

But Baldwin said he only took the deal to rescue Echols from death row.

"This was not justice," Baldwin said. "In the beginning we told nothing but the truth -- that we were innocent and they sent us to prison for the rest of our lives for it. We had to come here and the only thing the state would do for us is say, 'Hey we will let you go only if you admit guilt,' and that is not justice anyway you look it. They’re not out there trying to find who really murdered those boys, and I did not want to take the deal from the get-go. However, they are trying to kill Damien, and sometimes you just got to bite the gun to save somebody."

When sharing his opinion on the pleas with reporters outside the courtroom this morning. John Mark Byers, the father of one of the children killed in 1993, said he believes Echols, Baldwin and Misskelley are innocent, adding that he is angry with the way the pleas are being handled.

"This is not right, and the people of Arkansas need to stand up and raise hell. ... Just because they admit to this today, it's not over," Byers said.

Since their incarceration, the trio has been the subject of three documentaries, one of which is scheduled to be released in November. The men have also had a long list of celebrity supporters, including the Dixie Chicks, Eddie Vedder, Johnny Depp and Metallica.

It's not the total vindication they deserve, but at least they are out of prison. Injustice, partially redressed.

[Gob]

Ok,

Life + 40 years = ?

"The plea means that you maintain your innocence but you believe there is a substantial likelihood that a jury will find you guilty so you are pleading guilty per State v. Alford,"

If jury finds you guilty, that's it, so how does this work?

[BoSoxGal]

from Wiki: http://en.wikipedia.org/wiki/Alford_plea

The Alford guilty plea originated in the United States Supreme Court case of North Carolina v. Alford (1970).[10][12] Henry Alford had been indicted on a charge of first-degree murder in 1963.[18] Evidence in the case included testimony from witnesses that Alford had said after the death of the victim that he had killed the individual.[18] Court testimony showed Alford and the victim argued at the victim's house.[18] Alford left the house, and afterwards the victim received a fatal gunshot wound when he opened the door responding to a knock.[18]

Alford was faced with the possibility of capital punishment if convicted by a jury trial.[19] The death penalty was the automatic sentence by North Carolina law at the time, if two requisites in the case were satisfied.[18] The defendant had to have pleaded not guilty, and the jury did not instead recommend a life sentence.[18] Had he pled guilty to first-degree murder, Alford would have had the possibility of a life sentence, but avoided the death penalty.[18] The defendant did not want to admit guilt, and instead gave a plea of nolo contendere while simultaneously saying that key points given by the prosecution were factual.[12] Alford pled guilty to second-degree murder, and said he was doing so to avoid a death sentence if he had been convicted of first-degree murder after attempting to contest that charge.[18][20] Alford was sentenced to thirty years in prison, after the trial judge in the case accepted the plea bargain and ruled that the defendant had been adequately apprised by his lawyer, Doris Bray.[18]


Supreme Court Justice Byron White wrote the decision for the majorityAlford appealed and requested a new trial, arguing he was forced into a guilty plea because he was afraid of receiving a death sentence.[18] The Supreme Court of North Carolina ruled that the defendant had voluntarily entered the guilty plea, with knowledge of what that meant.[18] Following this ruling, Alford petitioned for a writ of habeas corpus in the United States District Court for the Middle District of North Carolina, and subsequently to the United States Court of Appeals for the Fourth Circuit.[18] In both cases, the courts upheld the initial state court ruling, and denied Alford's petition for a writ.[18] Next, Alford petitioned again for a writ of habeas corpus in United States federal court, and this was again denied.[18] "I just pleaded guilty because they said if I didn't, they would gas me for it," wrote Alford in one of his appeals.[21] The Court of Appeals for the Fourth Circuit ruled that Alford's plea was not voluntary, because it was made under fear of the death penalty.[21]

Supreme Court Justice Byron White wrote the decision for the majority.[22] The Supreme Court held that for the plea to be accepted, the defendant must have been advised by a competent lawyer who was able to inform the individual that his best decision in the case would be to enter a guilty plea.[19] The Court ruled that the defendant can enter such a plea "when he concludes that his interests require a guilty plea and the record strongly indicates guilt."[21] The Court only allowed the guilty plea with a simultaneous protestation of innocence as there was enough evidence to show that the prosecution had a strong case for a conviction, and the defendant was entering such a plea to avoid this possible sentencing.[19] The Court went on to note that even if the defendant could have shown that he would not have entered a guilty plea "but for" the rationale of receiving a lesser sentence, the plea itself would not have been ruled invalid.[19] As evidence existed that could have supported Alford's conviction, the Supreme Court held that his guilty plea was allowable while the defendant himself still maintained that he was not guilty.[20]

[BoSoxGal]

Oh, to clarify, because now I'm not sure I had your question clear:

It's my understanding that the West Memphis Three had earned a new trial based on their appeals. They were set for court in December. These Alford pleas came about because the State recognized the likelihood that they may be acquitted at a new trial, and wanted to preserve the convictions - because the State, sadly (IMHO), still considers them guilty, and also wanted to minimize the likelihood that they would prevail in any civil suit against the State for wrongful prosecution.

As the article establishes, one of the three was very reluctant to enter into this deal for Alford pleas, but did so because Echols had been sentenced to death and would have faced that sentence again if convicted again.

I really encourage anybody interested, who can stomach a tale about justice perverted, to view the documentaries about this case. One of the things I grapple with in my work is that we just cannot know in many cases who actually did it or what actually happened - but the reasonable doubt that these three men, then teenagers, committed the horrific child murders of which they were accused and convicted is very substantial. There was a very faulty confession and no physical evidence pointing to the teens. DNA later tested was inconsistent with any of them. The community was horrified by the murders and the State was pressed to solve the crime. It's a terribly sad case.

[Gob]

That is just really weird. I'm not saying he doesn't deserve it, but it goes against every principle of the "trial by jury". I wonder if the UK or Aus has a similar plea?

[Rick]

If ya watch the old HBO documentary there is a bald headed fart that has a gun in his hands just about every time ya see him.

I always figgered it was him...