Category Archives: Prosecutorial conduct (good and bad)

First-of-its-kind Exoneration Expected in Dallas

Michael Phillips, an African American man falsely convicted of sexual assault, told everyone he was innocent, but after his attorney advised that he would be better off pleading guilty than risking conviction at trial, and after he then served out his 12-year prison term, he never thought his name would be cleared. However, on July 25, 2014, at 9 a.m. Mr. Phillips, 57, in a wheel chair due to sickle cell anemia, is expected to be exonerated in Criminal District Court 3 at the Frank Crowley Courts Building in Dallas, Texas.

Dallas County District Attorney Craig Watkins’ ongoing initiative to review untested rape kits revealed that Michael Phillips was innocent. According to the National Registry of Exonerations, this is the first time in the United States an exoneration of this nature has occurred…as a result of a district attorney’s systematic testing without active request by a defendant. Continue reading

Tuesday’s Quick Clicks…

17, on Death Row …. and Innocent

Shareef Cousin was once the youngest person in the US on death row.

His case is yet another example of how mistaken (or false) eyewitness testimony can override an airtight alibi.  And this one was also compounded by a Brady violation regarding the eyesight of the witness, a lying detective, and coerced snitch testimony.

Cousin has recently authored a CNN article decrying the death penalty.

This quote from the article:  “It is hard to argue that the death penalty is applied fairly. Take it from me, someone who lived alongside guys on death row: The system does not identify and sentence “the worst of the worst” to death — just the most powerless.”

You can read the CNN article here.

Center for Prosecutorial Integrity Launches “Bring a Prosecutor to Justice” Campaign…

From an email press release:

How many times have you heard about a rogue prosecutor who was let off the hook after a wrongful conviction caused by prosecutorial misconduct? How often have you heard about a win-at-all-costs prosecutor who was later feted as “Prosecutor of the Year,” elevated to the bench, or even elected to high political office?

According to the CPI report, “An Epidemic of Prosecutor Misconduct,” prosecutors who engage in misconduct are punished in fewer than 2% of cases. But now, there’s a way to bring a measure of justice to these cases – the Registry of Prosecutorial Misconduct:

Every prosecutor who is added to the Registry now finds himself or herself subject to public accountability. In fact we’ve been told that prosecutors in some states have already begun to think twice before withholding exculpatory evidence,knowing that they may end up being listed in our Registry!

There have been an estimated 16,000 cases of prosecutorial misconduct since 1970. Right now, the great majority of these cases are buried in appellate court opinions and dusty bar disciplinary records. We need to change that deplorable state of affairs.

Beginning this Monday, the Center for Prosecutor Integrity will be launching a two-week campaign called “Bring a Prosecutor to Justice.” We plan to add 400 new cases to the Registry. Each case costs $50 to locate, research, and enter the appropriate information into the database. So we need to raise $20,000 to accomplish the goal of 400 new cases.

While most malfeasant prosecutors will never face official sanctions, now we can shine the light of accountability on their behavior. And that will help turn the tide.

Your tax-deductible gift, large or small, will make a difference in the lives of millions of innocent

Thank you.

E. Everett Bartlett, PhD, Director

Center for Prosecutor Integrity

P.O. Box 1221

Rockville, MD 20849

Office: 301-801-0608

Cell: 301-670-1964




Working to end wrongful convictions through the enhancement of prosecutor ethics.


New research shows how race influences decisions in Manhattan DA Office

A new research study shows that prosecutors in Manhattan’s DA office treat blacks and Latinos more harshly than they do whites or Asians. Read more here.

Research documents are found here.

The research summary states on p. 3 (here):

“1. Blacks and Latinos charged with misdemeanor drug offenses were more likely to have their cases dismissed.
2. Blacks and Latinos charged with misdemeanor person offenses or misdemeanor drug offenses were more likely to be detained at arraignment.
3. Blacks and Latinos charged with drug offenses were more likely to receive more punitive plea offers and custodial sentences.
4. Asian defendants had the most favorable outcomes across all discretionary points, as they were less likely to be detained, receive custodial offers, and be incarcerated. Asian defendants received particularly favorable outcomes for misdemeanor property offenses (such as larceny and criminal trespass).”

Monday’s Quick Clicks…

New Scholarship Spotlight: A Systems Approach to Error Reduction in Criminal Justice

John Hollway, for the Quattrone Center for the Fair Administration of Justice, has posted the above-titled article on SSRN.  Download here.  The abstract states:

The “systems approach” has been used, improved, and refined over time to improve safety and reduce errors in a variety of complex, high-risk industries, including health care, aviation, and manufacturing, among others. Such an approach targets the system for improvement rather than specific individuals within the system, and seeks to provide an environment that maximizes each participant’s ability to act safely and in a way that achieves the goals of the system. It prizes a non-punitive culture of disclosure to identify errors, gathers and applies data to understand the causes of the error, and tests systems changes to prevent future errors. This focus on system improvement, rather than on individual punishment or blame, unites all participants around objective criteria and allows each participant to do his or her job more efficiently, accurately and safely.

While the challenge of preventing errors in well-meaning complex systems is neither new nor unique to criminal law, the need for error reduction in the criminal justice system is clear. This document advocates for the application of a systems approach to reducing errors in the criminal justice system, generating reform in a fashion that will unify well-intentioned but professionally adversarial participants around an objective shared by all: the integrity of investigations, prosecutions, and adjudications, and the elimination of known and currently unknown errors that undermine the fair administration of justice. It then sets forth requirements for the successful application of a systems approach, and a model for interaction among researchers, reformers, and practitioners in the criminal justice system – including prosecutors, defense attorneys, judges, and law enforcement officials – that will allow for more rigorous analyses of the criminal justice system and the design, testing, dissemination and implementation of successful best practices that will improve the fair administration of justice.

Thursday’s Quick Clicks…

Women’s Criminal Justice Network

I just became aware of the Women’s Criminal justice network.

Check it out.  Here’s a link WCJN.

The home page features an article on the Tammy Traxtle case.  It’s a glaring example of how plea deals are used by prosectors to make their cases, and the crushing punishment you can receive if you don’t “take the deal.”

This quote from the article:   “The district attorney offered Tammy a deal. “Just say you saw Jeff shoot Carlos, and you’ll get 18 months. Take the plea, do the time, and soon you will be back to work and reunited with your children. It is a short sentence for a horrible crime. Cross us, go to court, and you will face the consequences. We will ask for life, you will do 25, and that is years, not months!””


Another $40 Million Settlement for Wrongfully Convicted

As reported this morning in the Chigago Tribune (here), the Illinois State Police has agreed to pay the state’s highest wrongful conviction compensation to date to five men wrongfully convicted of the 1991 rape and murder of Cateresa Matthews in Dixmoor, Illinois.

The five men — Robert Veal, Robert Taylor, James Hardin, Jonathan Barr, and Shainnie Sharp, who became known as “The Dixmoor Five”— were teens when arrested for the crime and were exonerated when DNA testing linked to another known felon. Two of the five had served sentences of ten years and three served nearly two decades before their release.

The federal lawsuit alleged that both State and Dixmore police ignored evidence of another perpetrator and coerced a confession that implicated the four others from 15-year-old Robert Veal, who “had an IQ of 56 and developmental disabilities.” The lawsuit alleged that the police “threatened and abused” some of the other teens, including beating 15-year-old Robert Taylor into confessing. Continue reading

Open Disclosure by Federal Prosecutors is Goal of Proposed Bill

The Center for Prosecutor Integrity (CPI), a non-profit organization which seeks “to preserve the presumption of innocence, assure equal treatment under the law, and end wrongful convictions” today released a proposed bill that would require federal prosecutors to implement an open-file policy. The bill addresses a weakness in the implementation of the Brady requirement to disclose all exculpatory evidence to the defense: Prosecutors currently determine what evidence is “material” (would likely impact the outcome of the case) and therefore subject to disclosure.

CPI’s Registry of Prosecutorial Misconduct has revealed that Brady violations —prosecutorial failure of the constitutional requirement to disclose exculpatory evidence relevant to the guilt or innocence and to the punishment of the defendant — as the leading type of misconduct by federal prosecutors.

The Federal Prosecutor Integrity Act would mandate that federal prosecutors, beginning at the time of arraignment, disclose all documents, scientific tests, witness statements, and other relevant evidence to the defense. Any additional information and evidence would need to be disclosed as the case progresses. Continue reading

More Mike Nifong Prosecutor Misconduct Exposed

Surely you remember Mike Nifong.  He’s the (former) Durham County North Carolina District Attorney who prosecuted the Duke lacrosse team rape case.  What a fiasco that was.  Nifong was ultimately disbarred and did jail time for his blatant misconduct as a prosecutor.  See previous WCB post here.

Well, to quote a recent Washington Post article by Radley Balko, “… prosecutorial misconduct is rarely a one-off phenomenon.”  And indeed, yet more egregious misconduct by Nifong has just been exposed as a result of the 1995 murder conviction of Darryl Howard being overturned for Nifong’s prosecutorial misconduct.

You can read Radley Balko’s Washington Post Story about it here.

(Thanks to Camille Tilley for passing this story along in a recent WCB comment.)

Friday’s Quick Clicks…

DOJ Reverses No-Record Policy for Interrogations….

When I was a federal prosecutor, on one of my first days a lawyer came in with his client to proffer as a possible cooperator.  The lawyer asked if the interview could be recorded.  Since I was new, I asked my supervisor, who said, “No, we never record.” I asked why and was told, “The public wouldn’t understand how complex this is, and the things we have to do sometimes to get the truth.”  Anyway, that policy has now thankfully been reversed.

From the USA Today:

Since the FBI began under President Theodore Roosevelt in 1908, agents have not only shunned the use of tape recorders, they’ve beenprohibited by policy from making audio and video records of statements by criminal suspects without special approval.

Now, after more than a century, the U.S. Department of Justice has quietly reversed that directive by issuing orders May 12 that video recording is presumptively required for interrogations of suspects in custody, with some exceptions.

There was no news release or press conference to announce the radical shift. But a DOJ memorandum — obtained by The Arizona Republic — spells out the changes to begin July 11.

“This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA) the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody,” says the memo to all federal prosecutors and criminal chiefs from James M. Cole, deputy attorney general.

“This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,” such as in the questioning of witnesses.

An accompanying message from Monty Wilkinson, director of the Executive Office for United States Attorneys, says the change resulted from lengthy collaborative efforts among DOJ and law enforcement personnel. Media representatives at the Justice Department and FBI did not immediately respond to requests for a more detailed explanation.

Paul Charlton, the former U.S. Attorney for Arizona who was fired by President George W. Bush in part because he challenged the Justice Department’s no-taping policy, welcomed the turnaround.

“It’s a great day,” Charlton said. “Really extraordinary. It’s a step in the right direction for law enforcement.”

“Hallelujah!” agreed Steve Drizin, a clinical professor of law at the Northwestern University School of Law who focuses on false convictions and false confessions. “It’s been a long time coming.”

Nancy Savage, executive director at the Society of former Special Agents of the FBI, said there’s probably no unilateral view from field agents. Although tape recorders sometimes intimidate suspects, she added, the change was probably inevitable because juries have come to expect audio and video evidence.

“This is a radical departure,” Savage said. “They want to see it in living color. … I think it’s probably just a move forward.”

Attorneys, researchers and longtime critics of the old policy say reform brings federal agencies up to modern policing standards, and removes a stigma that has damaged the credibility of America’s criminal justice system. Put simply, in the absence of recorded interviews, defense lawyers have been able to undermine honest testimony by some FBI agents while, in other cases, agents incorrectly remembered, distorted or lied about suspect statements.

The failure to maintain electronic records of interrogations also created gaps in FBI intelligence-gathering, especially terrorism cases. Instead of maintaining an accurate and largely indisputable record, agents on the witness stand for decades have relied on their memories, interpretations and handwritten notes transcribed into a form known as the 302.

Critics have said that flawed system results in botched investigations, lost evidence, unprofessional conduct and false convictions. They noted that the historic DOJ practice was problematic in trials of suspects ranging from terrorist Osama bin Laden to TV star Martha Stewart to Oklahoma City bombing defendant Terry Nichols, and thousands of defendants with no public exposure.

The FBI, considered one of the most advanced investigative agencies in the world, helped pioneer the use of fingerprints, ballistics, electronic wiretaps, psychological profiling and other advanced techniques. Yet, while local police have audio- or video-recorded suspects for decades, some FBI agents and administrators doggedly resisted the use of a device more accurate than the pen.

As recently as 2005, the FBI declined to give The Arizona Republic a copy of its written policy requiring special authorization for recordings, or even to say when and why the rule was created. Bureau assertions that taping of suspects is a logistical problem, or inhibits honest interviews, are generally disputed by street cops, detectives and professors of criminology. In fact, taping of criminal suspects is now mandatory in at least eight states, either by statute or court decrees.

In 2006, The New York Times uncovered another explanation for the DOJ policy, spelled out in an internal FBI memorandum. Basically, it argued that jurors might be offended, possibly to the point of acquitting defendants, if they observed the deceit and psychological trickery legally employed by agents to obtain information and confessions.

Drizin said the FBI has obtained a number of false convictions in homicide cases, particularly on Indian reservations, because suspect interviews were not recorded. Drizin also noted that, in some recent trials, jurors have acquitted defendants because they mistrusted FBI testimony about interrogations that could have been recorded.

Fred Whitehurst, an attorney and ex-FBI agent who turned whistle-blower, said the new policy is “delightful,” adding, “What have we got to hide?”

Mel McDonald, a former U.S. Attorney for Arizona who now does criminal defense work, said FBI interrogations involve one agent taking notes while a second conducts the interview. While 302 records and agent memories may be inaccurate, he said, their testimony trumps a suspect’s recollection. In fact, a defendant who disputes the FBI statements could be charged additionally with lying to federal authorities.

“I’ve had more clients who told me, ‘That’s not what I said.’ ” McDonald noted. “But you’ve got two agents supporting each other. It’s your word against theirs. Who are they (jurors) going to believe?”

McDonald hailed the close of “an insane policy” at DOJ, declaring, “Bravo! It’s about time. It uses science to establish the truth … That’s a no-brainer.”

The DOJ no-taping rule had been partially lifted during recent years for criminal investigations in India.

As an example of the justice benefits, Hammond pointed to the case of Tymond Preston, an 18-year-old Navajo with severe intellectual disabilities who was convicted of child rape. Preston was found guilty, but this month 11 judges on the 9th U.S. Circuit Court of Appeals threw out his confession — which agents had videotaped — and ordered a new trial.

Based on video evidence, the justices unanimously agreed that the confession was involuntary because agents “fed him the details of the crime” and used numerous other coercive tactics.

The new policy contains an exception for public safety situations where a suspect must be questioned instantly to avert an imminent life-threatening danger — the so-called ticking bomb scenario. There also is an exemption for national security intelligence-gathering interviews.



Brooklyn DA Asks City Council for $1 million in Budget to Correct “Epic” Number of Questionable Convictions

From the Associated Press:

NEW YORK — Brooklyn’s district attorney says he plans to spend more than $1 million to review questionable convictions over the next budget year.

District Attorney Kenneth Thompson told a City Council budget hearing Tuesday that his office is dealing with an “epic” number of questionable convictions.

He said his Conviction Review Unit has overturned the convictions of six men.

According to the Wall Street Journal ( ), he said “With every case that’s publicized, additional cases are sent to my office for review.”

Thompson says 10 of his office’s 153 prosecutors have been assigned to the unit, in addition to three investigators and other staff.

He came into office this year promising to make addressing allegations of wrongful convictions a priority.


Delaware Supreme Court Grants New Trial to Death Row Inmate

Jermaine Wright, who has resided on death row following his conviction of the 1991 murder of Phillip Seifert at a liquor store just outside of Wilmington, Delaware, was granted a new trial yesterday. The Supreme Court of Delaware unanimously agreed with Wright’s contention that undisclosed exculpatory and impeachment evidence cumulatively amounted to a reversible Brady violation.

“Wright is not entitled to a perfect trial, but he is entitled to a fair one where material exculpatory and impeachment evidence is disclosed and not suppressed,” wrote Justice Ridgely.

The case history in the opinion explains that no physical or forensic evidence connected Wright to the crime. The State presented no “murder weapon, shell casings, the getaway car, or eyewitness to identify Wright.” Continue reading

Chicago DA Anita Alvarez and the Office of Self Promotion and Protection

From the Chicago Daily Observer:

She hasn’t had any suspects murdered in their beds yet, so that would make Anita Alvarez only the second worst state’s attorney in the modern history of Cook County. (The top of this dubious list goes, of course, to the late Edward Vincent Hanrahan whose police squad slaughtered Black Panthers Fred Hampton and Mark Clark in a notorious predawn raid of their apartment in December 1969.)


However, she matches Hanrahan for bull-headedness and, for want of a better word, sadism.  She fights like a tiger to keep prisoners locked up even though courts and appeals have exonerated them of the crimes for which they have been imprisoned; she also appears to have been involved in cover-ups of miscues by her office and is given at times to ludicrous over-charging.

     She fought for years to keep Daniel Taylor imprisoned for a murder to which he confessed but couldn’t have committed—he was in police custody when it happened. Yet now she’s investigating whether Alstory Simon’s confession—to a murder for which Anthony Porter came within two days of execution—may be false.

    Unlike Taylor’s confession, Simon’s was corroborated by other credible evidence. The primary difference between the two confessions is that Taylor’s was obtained by police and Simon’s by a defense investigator.

As Rob Warden the retiring head of Northwestern University’s Center on Wrongful Convictions puts it, “Her Conviction Integrity Unit reminds me of Orwell’s Ministry of Truth.”

Alvarez also fought hard but unsuccessfully against the appointment of a special investigator in the case of David  Koschman who was killed by a punch from R.J. Vanecko, a nephew of then-Mayor Richard M. Daley. There’s strong evidence that the police and state’s attorney’s office spent years covering for Vanecko, who only recently confessed and served jail time.

It was she who decided to charge the “NATO 3” with official “terrorism.” They were trio of drunks and stoners who made crackpot threats about attacking Barack Obama’s headquarters with slingshots and other such idiocies. A couple of undercover Keystone Kops helped them assemble primitive Molotov cocktails, which were never used nor did the stoners take any action during the NATO meetings here.

Terrorists? The charge was so laughable the jury immediately tossed it, though it convicted them of possessing the weapons the undercover cops helped them make.

Her latest gambit is seeking perjury charges against witnesses who have recanted previous testimony that have put people into jail and even onto death row. What this would do, of course, is discourage people from eventually coming forward, recanting and admitting their errors. This would keep more innocent people in jail. Wonderful.

A host of former judges, US attorneys, law school deans and professors of all political persuasions recently wrote her asking in the name of justice not to go through with the perjury charges. But, as I have noted before, Alvarez appears uninterested in justice—rather in self-aggrandizement and protection of her office even if the innocent suffer.

The real crime here was committed by the citizens of Cook County who re-elected her.



Tuesday’s Quick Clicks…

Breaking News: Exoneration Today in New Orleans…

by the IP of New Orleans with assistance from the local DA (who admitted intentionally prosecutorial misconduct)…

From the New Orleans Advocate:

A man serving life in prison for a 1979 murder was set free Monday after Orleans Parish District Attorney Leon Cannizzaro acknowledged “intentional prosecutorial misconduct” in his case and false testimony from a New Orleans police detective who helped convict him.

Cannizzaro and attorneys with Innocence Project New Orleans, the nonprofit law firm, are scheduled to announce Reginald Adams’ release at an 11:30 a.m. news conference. Defense attorneys and prosecutors filed a joint motion asking Judge Laurie White to vacate his conviction, which she granted Monday morning. “You’re free to go,” White told Adams, who has been behind bars for 34 years.

“I will not tolerate intentional misconduct on the part of police or prosecutors,” Cannizzaro said in a statement, apologizing to Adams on behalf of the District Attorney’s Office for depriving him of a fair trial. “Their handling of this case was shameful. Not only did their intentional acts harm Reginald Adams, who was wrongfully incarcerated for more than three decades, but also it denied this community any opportunity to hold the real perpetrator criminally responsible for this violent crime.”

Adams was indicted in October 1980 for the first-degree murder of Cathy Ulfers, the wife of policeman Ronald P. Ulfers Sr., who was shot and killed at her Downman Road home in October 1979. Adams was tried and convicted of the killing in 1983 and sentenced to life in prison, but the Louisiana Supreme Court reversed that conviction in 1989, according to court records. He was retried for the same murder in 1990.

“The evidence against Mr. Adams at both trials consisted exclusively of a confession to the murder, made to Detectives Martin Venezia and Frank Ruiz while Mr. Adams was in the custody of the Orleans Parish Criminal Sheriff’s Office,” the joint motion states, adding the confession was “in many ways inaccurate and inconsistent with the known facts of Cathy Ulfers’ murder.”

Ronald Ulfers, who retired from the New Orleans Police Department in 1989, had been a suspect in Cathy Ulfers’ slaying but was never charged, according to news accounts. He was later convicted of murder in the death of his second wife and sentenced to life in prison.

The joint motion says detectives “misrepresented that no evidence or other suspects had been found in the case until Mr. Adams confessed.” It also blames then-prosecutors Ronald Bodenheimer and Harold J. Gilbert Jr. for making “materially false” responses to discovery requests made by Adams’ defense attorney.

Christopher Bowman, a spokesman for Cannizzaro, said in a news release that Bodenhemier and Gilbert failed to turn over a supplemental police report that “fully aware of the additional suspects as well as the recovery of the murder weapon and other physical evidence and that their handling of this case amounts to intentional prosecutorial misconduct.”

Detectives and prosecutors had claimed at Adams’ trial that neither the murder weapon nor any property taken from Ulfers’ home had been recovered by the authorities. Detectives even testified no other suspects had been investigated in the slaying.

Adams’ attorneys, Emily Maw of the Innocence Project and Michael Magner, a former federal prosecutor, reviewed public records related to the case and discovered “a supplemental police report detailing the first several months of the murder investigation in 1979,” Bowman said. He said the report revealed that detectives had been notified “that a weapon similar to the weapon used in the Ulfers murder had been recovered in an arrest,” and that a ballistics expert later determined it was the murder weapon.

“In one of the sad ironies of this case, the detectives, based on this discovery, performed a thorough follow up investigation that traced the weapon back to two individuals,” Bowman added. “The detectives questioned and searched one of the two individuals, and they discovered that he was in possession of a piece of jewelry that had been taken from the Ulfers’ home in the burglary.

Bodenheimer, who later became a judge in the 24th Judicial District in Jefferson Parish, was sentenced to 46 months in federal prison after pleading guilty in 2003 to an array of charges related to corruption at the Jefferson Parish Courthouse. Bodenhemier could not immediately be reached for comment.

In his statement, Cannizzaro said that Adams’ release did not “tell a story about how bad the criminal justice system in New Orleans was.”

“I believe that this is a story about a new day in the New Orleans criminal justice system,” he said. “It is a story about a bright future for every citizen of New Orleans.”


Even a “Disney World” Defense Can’t Overcome a (False) Eyewitness

Jonathan Fleming was convicted of murder in New York in 1990.  He was just recently exonerated and released after spending 24 years in prison for the murder he did not commit.  The story has recently been reported on this blog with the Fox News story here.  You can also read the CNN story here and the AOL story here.

Fleming had an alibi for the time of the crime.  He was at Disney World with his family.  The hotel staff remembered him, his family vouched for him, and he had a hotel receipt for a collect phone call from the hotel on August 14, 1989 9:27 p.m., which was just 4 1/2 hours before the shooting in New York.  But despite all that, because he was identified by an “eyewitness,” he was convicted.  Quoting the CNN story, “The prosecution … produced a witness who said she saw Fleming commit the crime.”

The reason that I wanted to highlight this particular case is because it’s yet another example of how eyewitness testimony, even though false or mistaken, will trump a solid alibi.

This is not a rare occurrence. Data from the National Registry of Exonerations shows that false or mistaken eyewitness identification is a contributing factor in 43% of wrongful convictions.

And to top it off, in this particular case, the phone call receipt was found in the prosecution’s case file, but was never produced – can you spell “Brady violation?”   And — the “eyewitness” was offered a deal for her testimony, and then recanted 2 weeks after the trial; but of course, her recantation was not allowed by the court.

Does this stink, or what?!  I’m tempted to launch into a much broader exposition on the failings of the justice system, but will save that for a future post on “the nature of innocence work.”