Category Archives: Prosecutorial conduct (good and bad)

Texas Disbars Former Prosecutor

Please see the following article by Jonathan Turley.

Texas State Bar Votes To Disbar Former Prosecutor For Role In Conviction Of Innocent Man

gavel2The Board of Disciplinary Appeals (appointed by the Texas Supreme Court) has upheld a state licensing board’s decision to disbar former prosecutor Charles Sebesta for his role in convicting an innocent man. Anthony Graves spent 18 years on death row for setting a fire that killed six people. Sebesta’s conduct was shocking but remains a relatively rare example of prosecutors being held accountable in such cases of prosecutorial abuse.

Sebesta had convicted Robert Carter for the murders and tried to get Carter to say Graves was an accomplice. However, just a day before the trial, Carter told Sebesta he acted alone and Graves was not involved. Sebesta withheld the information from the defense and presented false testimony implicating Graves. Sebesta also blocked an alibi witness by telling the court that the witness was a suspect in the murders and could be indicted. The witness then refused to testify.

After his conviction was reversed, a special prosecutor found in 2010 that there was no credible evidence that Graves was involved in the murders.

Sebesta now insists that he has been treated unfairly.

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Treated unfairly?! Mr. Sebesta is lucky he himself is not now behind bars.

$16.8 Million Awarded by State of Connecticut to Four Wrongfully Convicted Men

The State of Connecticut has awarded $4.2 million each in compensation to Carlos Ashe, Darcus Henry, Sean Adams, and Johnny Johnson. The four were convicted of murder, assault, and conspiracy resulting from a December 14, 1996, shooting in New Haven, Connecticut. Jason Smith, 23, was killed and brothers Marvin Ogman, 19, and Andre Clark, 22, were injured when allegedly four men utilized semi-automatic weapons in a gang-related retaliation shooting. Including both jail and prison, the four were incarcerated for more than 16 years.

The defendants presented alibi witnesses at trial. The primary evidence presented by the prosecution was inconsistent testimony of the surviving Continue reading

“Conviction Integrity Units” – Foretelling the Future?

We’ve posted previously about our (my) high degree of skepticism regarding the actual integrity of, and motivations for, so-called “conviction integrity units” in prosecutors’ offices. Please see:

A Word About Conviction Integrity Units

Conviction Integrity Units – A Skeptic’s Perspective

In both of these articles we made note of the fact that the New Orleans District Attorney and the Innocence Project – New Orleans had agreed to establish a joint conviction integrity unit. This would be “ground breaking” for a prosecutor to team up with an innocence organization for this, because it would provide absolutely objective oversight of the CIU (which none of them have, because they are totally contained within the prosecutor’s office); and we said this will bear careful watching.

In the second of the above articles, we stated that when the conviction integrity units eventually start to be disbanded (which I believe they will), we will hear one of these reasons, or a combination of the two, as the justification:

1) We’ve fixed everything there was to fix, and we promise to behave ourselves in the future, so the CIU is no longer needed.

2) Budget constraints and the requirements of ongoing prosecutions force us to apply the resource devoted to the CIU to more urgent business.

Please see Mark Godsey’s “Quick Clicks” from Monday, Jan. 11, 2016 here for news that the project between the New Orleans District Attorney’s office and the Innocence Project – New Orleans to form a joint conviction integrity team has been abandoned. And the reason? Budget.

Hmmm. Really?

Final comment. The very existence of “conviction integrity units” begs the question – why? Because they can’t get it right the first time? But given that honest errors leading to a wrongful conviction may occur, leaving it to the prosecutors to correct their own mistakes and misdeeds is not the right way to do it. Having prosecutors oversee prosecutors is like having cops oversee cops, and we know how that works.

 

Prosecutors Oppose New Trial for Melissa Calusinski in SBS Case

We’ve previously posted about the Melissa Calusinski case in Lake County, IL here. It would seem to clearly be a case of a coerced false confession, combined with bad medical “science.”

Lake County State’s Attorney, Michael Nerheim, has already declined to have his so-called “conviction integrity unit” review the case.

Now, despite the fact that the Lake County Coroner officially changed the cause of death from homicide to undetermined, and despite the fact that newly discovered X-ray evidence shows that the child had experienced previous head trauma, the prosecution is opposing a request for new trial by Calusinski’s attorney.

Why are we not surprised? See the Lake County Daily Herald story here.

Courtney Bisbee Granted Evidentiary Hearing !

Courtney Bisbee was a responsible, law-abiding, hard-working single mother working in the Scottsdale, AZ school system in 2004 when she was sucked into the criminal justice system by false allegations of “improper touching” of a minor.

For background, please see our previous post about this case: A Broken Justice System – Cases in Point – Part 2 – The Case of Courtney Bisbee.

There is recent significant news. Federal District Court Magistrate Judge David Duncan has granted Courtney not just a hearing, but an evidentiary hearing. The two day evidentiary hearing is scheduled for March 14 and 15, 2016.

As we have mentioned before, Courtney filed an absolutely compelling habeas petition with the court 3 1/2 years ago. At the time, former Federal District Chief Judge Roselyn O. Silver, who is now on the 9th Circuit Court of Appeals, reviewed Courtney’s initial petition for Writ of Habeas which was filed April 2012. Silver responded within one business day stating Courtney had 13 viable claims. To date, there has been no further action on Courtney’s habeas petition. Hopefully, the exculpatory evidence cited in Courtney’s habeas petition will be allowed and considered before the court during the hearing.

It comes as no surprise that the prosecution has been fighting ‘tooth & nail’ to keep the hearing from happening. They immediately filed with the court a Motion for Reconsideration to vacate Courtney’s evidentiary hearing, which Judge Duncan rejected. They continue to work furiously to scuttle Courtney’s chance to finally, after more than 10 years, receive justice. For example, the state writes, “Indeed, to proceed with an evidentiary hearing, when any new evidence presented cannot be considered by the federal courts pursuant to Pinholster, would be a waste of state, federal, and judicial resources”. Excuse me? This statement is an insult to the justice system. The state will spend any amount of “resource” when pursuing a conviction. Why now, with actual justice in sight, are they suddenly worried about the dollars and cents?

We can only hope that actual truth and justice will prevail.

Clarence Moses-EL Conviction Vacated After 28 Years.

 

cmel

If there were ever a classic example of the lengths to which a prosecutor will go to preserve the “sanctity” of what they have to know is a wrongful conviction, this case is one of those examples.

See details of that case here from the Colorado Independent. There’s even an itemized list of the scummy, less-than-ethical things the police and the prosecution did to preserve this wrongful conviction for 28 years.

 

Friday’s Quick Clicks…

Monday’s Quick Clicks…

Politics and Justice – A Very Bad Combination

I’ve said it before, and I’ll say it again, and again, and again. The justice system has been putrified by politics. I’ve stressed this point numerous times in the past with regard to the pernicious effect politics has on the actions of prosecutors. And of course, it’s not limited to just prosecutors. Elected judges are effected by politics as well. See Judicial Independence – How Do We Get There?

The fact that judges are influenced by politics, particularly big money politics, is supported and amplified by this recent article in The Atlantic: Big Money Propping Up Harsh Sentences.

And by the way, state attorneys general, sheriffs, and coroners are also powerful players in the justice system who are elected political officials.

Thursday’s Quick Clicks…

“Automatic” Justice? Is Technology Eliminating the Presumption of Innocence?

A recent legal research paper from the School of Law at Queen Mary University of London has raised the issue of technology’s impact upon the criminal justice system, and how its effect may be replacing presumption of innocence with presumption of guilt. A truly frightening prospect. You can download the paper here: Automatic justice? Technology, Crime and Social Control.

The nature of evidence in the justice system has steadily been evolving to be ever more founded in technology, be it legitimate and proven technology … or not. And the tendency is for the prosecution (and police) to say, “We have ‘scientific’ evidence of your guilt; therefore, you are guilty.”

And here’s the problem: much of this “technology” has not been verified and statistically validated. It just gets presented in court as “science,” and judges, lawyers, and juries don’t have a clue as to whether or not it’s actually accurate or relevant. How do you know the latest “computer app” is actually true and accurate? You don’t. We’ve seen frequent examples of so-called forensic “science” being proven wrong. Just three of these would be compositional analysis of bullet lead (CABL), microscopic hair comparison, and bite marks. There are currently thousands of cases under re-investigation as a result of scientifically flawed FBI hair comparison work and testimony. There are some infamous cases of fingerprint identifications being wrong; one of these being the case of Brandon Mayfield. Most people, (including lawyers) don’t understand that there is huge margin for error in locating a cell phone through cell towers.

The agents of the justice system – lawyers, judges, police, and especially juries – have been notoriously ignorant regarding the scientific, technological, and mathematical issues of evidence. This is why so much of the justice system depends upon so-called  “experts” to try to understand and explain what all the technology means; but, these experts, often self-styled, may be legitimate — or they may not be. Unfortunately the lawyers, judges, and juries have no way to tell. Defense attorneys will most commonly not technically question (cross examine) prosecution “experts.” This is too bad, because, in my opinion, a technically knowledgable and logically-penetrating defense attorney could just “take apart” many prosecution “experts” – even medical doctors. The typical legal defense strategy is to present “your own” expert, which puts the poor jury in the position of having to decide which of the dueling experts to believe. All this, unfortunately, leaves the justice system, and the defendant, at the mercy of “experts,” and there is no scientific way built into the justice system to sort through which “science” is true and correct, and which is junk – and which experts are truly expert, and which are charlatans.

From the conclusion of the paper: “Our deepest concern is the emergence of a potentially unfettered move towards a technologically driven process of ‘automatic criminal justice.’”

We – all of us – have a problem. The justice system was never conceived or designed to comprehend the explosion of technology. And the lawyers and judges are not trained or prepared to deal with it. It’s a problem.

 

Why is a Man Serving Life for a Murder that Feds Say Someone Else Committed?

From the Marshall Project:

The case of Lamont McKoy.

Lamont’s case is currently being handled by the Duke Law Wrongful Convictions Clinic at Duke University. I am very familiar with this case, as I have substantial time in on it, and I can tell you there is even more exculpatory evidence than what is cited in the above article.

 

Wednesday’s Quick Click…

When Prosecutors Can’t be Bothered With Innocence

An insightful article by Radley Balko, writing for the Washington Post.

From the article:

“That they (the two prosecutors cited in the article) have yet to be sanctioned or disciplined by a court or state bar speaks volumes about the legal profession’s ability to police itself. That they continue to be reelected is more evidence that the criminal justice reform movement should get more directly involved in electoral politics.”

Friday’s Quick Clicks…

The Cure for the Cynical Prosecutors’ Syndrome: Rethinking a Prosecutor’s Role in Post-Conviction Cases

“The Cure for the Cynical Prosecutors’ Syndrome: Rethinking a Prosecutor’s Role in Post-Conviction Cases” by Laurie L. Levenson  of the Loyola Law School in Los Angeles was recently published by the Berkeley Journal of Criminal Law. The abstract reads:

One of the biggest challenges facing the criminal justice system is dealing with the growing tide of post-conviction petitions claiming wrongful conviction. Each year, the number of exonerees grows. In 2014, an unprecedented 125 exonerations were recorded in the United States. In analyzing how post-conviction matters are handled, it becomes apparent that one of the key roadblocks to remedying these injustices is not, as some have suggested, the attitude of young prosecutors. Rather, senior prosecutors also suffer from a type of “Cynical Prosecutors’ Syndrome” that impairs their ability to play a constructive role in the exoneration process. This article discusses the role of prosecutors in the post-conviction process, analyzes current studies of prosecutorial attitudes, and proposes reforms to ensure that meritorious post-conviction challenges are handled properly.

You can download the full article here.

A Broken Justice System – Cases in Point – Part 2 – The Case of Courtney Bisbee

Courtney

From time to time, I become aware of cases that are particularly good examples of the flaws, the problems, the shortcomings, the failures, and the actual injustices of our so-called justice system (that I have been writing about here for the last 3 1/2 years). This is Part 2 of what is intended to be a continuing series highlighting these cases. These cases have been selected as representative and demonstrative examples, but be aware they are just the “tip of the iceberg.” This kind of stuff is happening every day in every state. You can see Part 1 here.

[Note: To the best of my knowledge, everything in this article is a matter of public record. If it can be shown that there are any misstatements, I will immediately post a retraction and an apology. This article has been reviewed and approved for posting by both Courtney Bisbee and her family.]

 

“Part 2” is the case of Courtney Bisbee in Arizona. Courtney Bisbee is a clearly innocent woman who was wrongfully convicted of improperly “touching” a male adolescent. There is compelling, documented evidence of Courtney’s innocence, but she continues to be incarcerated in Perryville prison in Arizona, where she has been for the last ten years. I’ve been studying this case for two years, and it is a “perfect storm” of what is broken and wrong with the justice system. At the end of the article, I’ll enumerate at least some reasons for this, and the list is long. Let me also comment that this is an overview of the case. The more deeply one digs into the details of this case, the murkier, the dirtier, and the more putrid it gets. We just don’t have the time or the space to cover all of that here., but I can say that, in general, it relates to the state of the justice system in both Arizona and Maricopa County. This is the kind of horror story that the average citizen would say “can’t happen here,” but it does.

Stephen Lemons, writing for the Phoenix New Times in 2008, wrote a comprehensive and detailed summary of Courtney’s case. See that story by Stephen Lemons here. If you have even a casual interest in the case, I suggest you read the article. Here’s an “abbreviated” version of the case:

Courtney Bisbee was raised in Michigan in a traditional family that worked hard, played by the rules, and was living the American dream; and had never had any exposure to the justice system. In 2004, she was a successful single mom of a 4 1/2 year old daughter, living and working in Scottsdale, AZ, and life was grand. She had begun a new job as a high school nurse, while completing the final weeks of her master’s degree. A compassionate and caring person, she was even tutoring some troubled teens, and therein begin the problems, because two of these troubled teens had an even more troubled non-custodial mother, with a prior criminal record.

To understand the details of the alleged incident, I refer you to the Lemons article. But basically what happened was that the non-custodial mother of two of the teens Courtney had been mentoring learned, by accident, that the boys were secretly living with another family while their custodial father was completing work-furlough for DUI. She was irate about this, and after learning that Courtney had been at this family’s house with her two sons and several other teens, cooked up a plot to sue for money based upon Courtney’s allegedly “touching” her 13-year-old son inappropriately. She even consulted several attorneys prior to ever taking her son to talk to the police.

After the accusation was made, Courtney was arrested at her home by a SWAT team, without a warrant, and in front of her 4 1/2-year-old daughter. This was after the detective on the case, just prior to her warrantless arrest, had illegally searched Courtney’s home, also without a warrant, confiscating her computer and her camcorder. And because that same detective later lied to the Grand Jury about the case, Courtney was held non-bondable for 66 days, until a second Grand Jury could be convened, which was forced by her initial attorney. Only then was she able to be released on $100,000 bond in this “he said – she said” case.

The only detective on Courtney’s case clearly went into it with the presumption that she was guilty, failing to thoroughly investigate, and concocting his own information to support his preconceived belief. This included not following established rules and protocols for interviewing children (Multidisciplinary Protocol.2003), badgering and coercing Courtney during her lengthy interrogation, lying to the Grand Jury, and lying in court. He also did not investigate one critical, verifiable fact that would have disproved the “victim’s” story (see the Lemons article), and would have, most likely, resulted in Courtney’s acquittal.

From the onset, the prosecution employed a “win at all cost” strategy to obtain a a conviction in Courtney’s “high profile” case. At that time, the Maricopa County Attorney had been conducting a five year “witch hunt” reign of terror, even investigating and charging sitting judges and county supervisors who he believed had “crossed him.” Please see the very revealing American Bar Association Journal article about this prosecutor here. He openly boasted about his 200,000 felony convictions. Also at that time, there was a nationwide moral panic going on about the safety of children in schools, and this was a hot-button political issue for the prosecutor; resulting in a rush to judgement based upon false allegations with no presumption of innocence. Courtney was clearly a victim of all this, and her family has documented multiple instances of prosecutorial misconduct during the course of the investigation and trial in the prosecution’s drive to rack up another politically advantageous conviction.

At trial, Courtney was represented by an expensive but inadequate attorney from a well known Phoenix law firm who presented a lackluster defense. This attorney had coerced Courtney into opting for a bench trial. He even failed to call a key defense witness who was there waiting in the court house to testify during the trial, and who had exculpatory testimony to give.  This witness had been present when two of the state’s key witnesses had discussed the fact that the accuser was lying, and that nothing ever happened between Courtney and the alleged victim. In my opinion, this very well could have changed the outcome of the trial. Also in my opinion, this was just boneheaded legal incompetence. (Either that, or it was intentional. I’m sure we’ll never know. Why would he not call this witness?)

In 2006, the bench trial judge, who had been under investigation by the Maricopa County Attorney, ultimately found Courtney guilty, and imposed the mandatory minimum sentence plus one year – 11 years.

In 2007, the state’s key trial witness, the “victim’s” older brother, who was present at the time of the alleged incident, came forward with a sworn affidavit stating that he had lied in court during Courtney’s trial, that his brother had lied in court, and that the whole case was a scam for money perpetrated by their mother. Additionally, the “victim’s” (accuser’s) best friend was deposed by Courtney’s civil attorney, and stated under oath that the victim had confessed to her several times that nothing ever happened between Courtney and him, and that his mother was making him do it for the money. I have read the transcript of the deposition, and it is unequivocal; and what’s particularly striking about this is that the prosecutor was present for the deposition, and has failed to take any action as a result of it. This just makes my brain explode. This affidavit and the deposition have yet to be acknowledged or considered by a court. The Maricopa County Attorney’s Office has steadfastly ignored all this new evidence. Phoenix Fox News 10 did a story about the older brother’s affidavit recanting his testimony, saying that nothing ever happened, that his brother (the alleged victim) was also lying, and that their mother made them do it so she could sue for money. See that video here. In the video you’ll see Courtney sobbing as she declares her innocence and begs the judge not to separate her from her daughter; and maybe it’s my imagination, but I could swear the judge is actually smirking.

When Courtney was tried, convicted, and sent to prison in 2006, her parents lived in Atlanta. They moved to Phoenix with the idea that it would take them a year or two to get Courtney out of prison. They would ultimately have to sell Courtney’s and their homes, close their successful businesses, and cash in many of their assets to pay for Courtney’s failed defense. Ten years later, they are still in Phoenix, and Courtney is still in prison. Over this time period, they have dealt with a veritable parade of attorneys, none of whom have actually accomplished anything – except for collecting their fees. This was up until the point that her New York City attorneys were retained and filed her Writ of Habeas. Courtney has had an absolutely compelling habeas petition pending before the court for the last 2 1/2 years, but it is yet to be heard. I’ve read the petition, and it’s very well done, and anybody who reads it has to say, “Wait a minute. There’s something very wrong with this conviction.”

And here’s the real kicker. The people in this case who actually committed crimes – false accusation, perjury – get off scot-free. And the prosecutors, the judge, and the lawyers all suffer no consequences whatsoever. And they were all, all, complicit in sending an innocent mother to prison. And on top of all that, Courtney has been separated and alienated from her daughter by an antagonistic ex-husband, and has neither seen nor heard from her daughter in over 10 years.

What I believe this case exemplifies and demonstrates is ….

Continue reading

Wednesday’s Quick Clicks…

Friday’s Quick Clicks…

Prosecutor Can be Sued for Presenting False Information to Grand Jury

The US Second Circuit has ruled that a prosecutor can be held to a standard above “qualified immunity,” and thus can be sued, for knowingly presenting false information to a Grand Jury.

This quote from the court: “It ought not to be difficult, even for the most single‐minded of prosecutors, to avoid misconduct of the scope and seriousness of that in which the defendants engaged:

Creat[ing] false or fraudulently altered documents in the course of their performance of “investigatory functions,” knowing that such information was false or fraudulent; where “false” is defined as “untrue when made and . . . known to be untrue when made by the person making it or causing it to be made” and “fraudulent” as “falsely made with intent to deceive“.

It does not seem to us to be a danger to effective law enforcement to require prosecutors and their aides to abide by these rules even when pursuing the most complicated of cases with the utmost determination.”

See the story on the “Above the Law” website here.