Prosecutorial Misconduct in Southern California
Southern California ranks high in reversals per capita in which prosecutorial misconduct was involved, according to a new study by the Fair Punishment Project at Harvard Law School. The study notes that the Orange County DA’s Office has the worst reversal record per capita in California.
This finding, coupled with the recent “snitch crisis” revelations concerning the repeated misuse of jailhouse informants, offers further evidence to support a critical review of the leadership and ethical practices of the Orange County DA’s office.
The full story in the Orange County Register can be found here:
Dr. Jeffrey MacDonald, the former Green Beret surgeon who was first cleared in the murders of his pregnant wife and two daughters and then convicted in 1970, will have what may be his final chance at overturning his conviction after spending the past 36 years in prison for a crime that many experts now believe he did not commit. Oral arguments before a federal appeals court will commence on January 26. The crime took place prior to the use of DNA analysis and new DNA evidence and a lot of other evidence, including evidence of prosecutorial misconduct, flawed forensic testimony, and botched crime scene analysis, provides powerful support for his story that intruders killed his family in what was in some ways similar to the “Manson family” murders in that same era. People Magazine investigative reports will culminate in its major cover story, available on newsstands on Friday, January 20. Here is a link to the People Magazine digital story today that precedes the cover story:
Former Green Beret Surgeon Jeffrey MacDonald Says There’s Evidence He Didn’t Kill His Family: ‘I Am Innocent’
Francisco Carrillo Jr. was exonerated after serving 20 years in prison for a homicide he did not commit. The case involved eyewitness testimony that resulted from unethical police influence on the witness. A re-enactment of the scene showed that it was highly unlikely that the eyewitnesses could have seen the shooting. Mr. Carrillo was awarded $10.1 million for the 20 years he served in prison. This compensation is the highest amount awarded in the State of California on a per year basis – – about $500,000 per year served in prison for a crime he did not commit. Link to LA Times article: http://www.latimes.com/local/lanow/la-me-ln-francisco-carrillo-settlement-20160719-snap-story.html
Prosecutors who intentionally withhold evidence from defense attorneys or the court could face tougher punishment and greater scrutiny under a new state law prompted by the misuse of jailhouse informants by Orange County prosecutors.
The legislation, signed by Gov. Jerry Brown, strengthens the ability of judges to remove individual prosecutors and, if warranted, their offices, from cases if prosecutors are found willfully withholding evidence.
The new law also requires judges to report offending prosecutors to the state bar, which licenses attorneys.
From the Orange County (CA) Register:
Link to full article:
C. Ronald Huff
An Orange County (California) Superior Court judge ruled on Monday that prosecutors committed serious misconduct in a case involving Orange County’s deadliest mass shooting. And although the judge denied defense motion to bar the death penalty and remove the DA’s Office from the case, he did find multiple examples of prosecutorial misconduct in this and other cases. Today’s report in the Orange County Register details these allegations and others against both the prosecutors and jail staff including withholding evidence from the defense, misusing jailhouse informants, etc. The judge also said in his report that he believed many witnesses, including prosecutors and law enforcement officers were “credibility challenged” and said that “Some perhaps suffered from a failure of recollection; others undoubtedly lied.”
The full story is at http://www.ocregister.com/articles/dekraai-630582-judge-prosecutors.html
This new survey marks an important and historic shift for all of us concerned about justice and wrongful convictions. The death penalty alone can serve as a powerful incentive to plead guilty when confronted by strong circumstantial evidence, in the hope that one can at least live and hope that the truth will emerge, rather than being put to death. And replacing the death penalty can help us avoid putting innocent persons to death, of course.
The growing public awareness of wrongful convictions, the highly publicized cases involving exonerations of those serving long terms in prison, the publicity surrounding the use of DNA, and the continuing efforts of innocence projects around the nation, as well as the Wrongful Convictions Blog, have all helped contribute to the changing public perceptions and opinions.
Here is a summary of the survey, along with a link to the full story:
A slight majority of Americans favor life imprisonment without parole over the death penalty for convicted murderers, a first in ABC News/Washington Post polls. Given a choice between the two options, 52 percent pick life in prison as the preferred punishment, while 42 percent favor the death penalty, the fewest in polls during the last 15 years. The result comes after a botched execution by lethal injection in Oklahoma in April.
Without an alternative offered, 61 percent continue to support the death penalty, matching 2007 as the lowest in polls back to the early 1980s. That’s down sharply from 80 percent in 1994, during the period of the highest crime totals reported nationally. Support for the death penalty is higher in the 32 states that have it, 64 percent, vs. 54 percent elsewhere. This survey, produced for ABC by Langer Research Associates, measures views on the death penalty in general. Previous polling has shown that attitudes on capital punishment can vary widely depending on the nature and circumstances of the crime.
Just wanted to share this sad information I received today from Rob Warden, our colleague who directs the Center on Wrongful Convictions at Northwestern University:
Everyone at the CWC was deeply saddened to learn of the death yesterday of Anthony “Tony” McKinney, a CWC client for the past eight years.
Anthony died in prison. He was 53 years old. We have not yet learned the cause of death.
Anthony was arrested in 1978, at the age of 18, for a crime he did not commit: the robbery and shotgun murder of a private security guard in Harvey, Illinois. Anthony was convicted in 1981 and remained imprisoned for the rest of his life. (The State had sought the death penalty, but the judge sentenced him to life imprisonment without the possibility of parole.) Anthony’s younger brother Michael began reinvestigating the case in 1999 and eventually took it to Northwestern University’s Medill Innocence Project (since renamed the Medill Justice Project), which in turn referred it to the CWC in 2005 for legal representation. By that time, the two alleged eyewitnesses to the murder had recanted their testimony that they saw Anthony shoot the victim. Post-conviction investigation further revealed that Anthony’s false confession to the crime resulted from a pattern of physical abuse by the Harvey police detectives who interrogated him, and further that there were alternative suspects in the case, one of whom admitted guilt several times during the years following the murder.
In late 2008, we filed a post-conviction petition on Anthony’s behalf. It was assigned to Cook County Circuit Court Judge Diane Gordon Cannon. Although the State’s Attorney’s Office immediately agreed to a hearing on Anthony’s actual innocence claim, for various reasons – none of which were Anthony’s fault – the hearing had not yet taken place by the time of his death. Notably, the case was delayed for two years while the State’s Attorney’s Office litigated its efforts to subpoena the journals of Medill Innocence Project students who had investigated the case between 2003 and 2006. Judge Cannon eventually ruled that the journals were subject to subpoena, although after they were finally disclosed, the State’s Attorney’s Office indicated that they were not particularly helpful.
“The criminal justice system failed Anthony,” said Karen Daniel, Anthony’s lead attorney at the CWC. “First he was convicted as a teenager for a crime of which he was innocent, then delays in the post-conviction process prevented him from presenting evidence in court that might have exonerated him. Although Anthony battled mental illness after his arrest and throughout his imprisonment, he was unwavering in his assertion of innocence and always looked forward to being present in court for a hearing on his innocence claim.”
Anthony loved boxing (his hero was Muhammad Ali), music (particularly Motown and R&B), and the Kennedy brothers (John, Bobby, and Ted). Indeed, his alibi for the night of the murder was that he was at home watching a televised championship bout between Muhammad Ali and Leon Spinks.
Steve Drizin, another of Anthony’s CWC attorneys, recalled, “Part of the reason that I knew he was innocent was because he knew that no matter how bad a fight was, when the heavyweights fought, a knockout was only one punch away. He would never have left this fight after the ninth round (it was a 15-round championship) to go out and rob and kill someone, especially because his beloved Ali was trying to make history by winning the title for a third time.”
Anthony is survived by numerous loving family members. His brother Michael vows to continue his efforts to clear Anthony’s name.
Rob Warden, Executive Director
Andre Davis, convicted of rape and murder in Illinois, has been exonerated but once again, a prosecutor could not bring herself to apologize despite clearcut DNA evidence. This was just brought to my attention by Rob Warden, who provided the following link to the news story:
Two informative and interesting recent articles discuss the erosion of the Brady rule via the “due diligence” standard (could the defense have obtained the exculpatory evidence on its own?) and how discovery could be improved if the due diligence rule could be reconsidered and both prosecution and defense could, at least in the discovery phase, adopt one aspect of the continental/inquisitorial system: collaborate in a search for the truth with respect to discovery. Such collaboration is not without challenges for both prosecution and defense. These two articles, taken together, do an excellent job of examining the issues. Here are the citations: “Discovery from the Trenches: The Future of Brady” (UCLA Law Review Discourse 74 (2013) by noted scholar and commentator Laurie Levinson and “Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule (UCLA Law Review 138 (2012) by Kate Weisburd.
According to today’s issue of The Crime Report, the International Assn. of Chiefs of Police is sponsoring a conference where police chiefs will discuss their concerns about wrongful conviction. One of the keynote speakers will be Jennifer Cotton, who mistakenly identified Ronald Cotton as her rapist and who has subsequently co-authored a terrific book (Picking Cotton) about that case. Here is a link to The Crime Report‘s story about the conference:
All of us who care deeply about wrongful convictions and who oppose the death penalty lost an icon of both the innocence movement and the anti-death penalty movement last week, with the death of Hugo Adam Bedau. Bedau was widely regarded as the most articulate opponent of the death penalty and, along with his co-author, Michael Radelet, published a highly influential Stanford Law Review article, later expanded into a book (In Spite of Innocence, Northeastern University Press), focusing on wrongful convictions and the death penalty. That work was instrumental in causing the American public and its officials to give greater scrutiny to the death penalty, later resulting in the well-known moratorium on the death penalty in Illinois and moratoria and studies in other states. Here is the internet location of the New York Times obituary, written by William Yardley: http://www.nytimes.com/2012/08/17/us/hugo-bedau-philosopher-who-opposed-death-penalty-dies-at-85.html?_r=1&ref=williamyardley
Recently, the Albany Law Review published a special issue of the journal dedicated to articles focusing on the aftermath of wrongful convictions. As we all know, walking out of the prison gates after spending years being denied freedom does not necessarily result in immediate freedom. Freedom from what? In most cases, certainly, not freedom from financial needs; not freedom from housing needs; not freedom from employment needs; not freedom from psychological and social needs. The articles in this journal address many of those issues. I recommend it. Here is a link to that issue that will allow you to review each of the articles:
Just a heads up: A new book will be published later this year by Rutgers University Press. Title: Life after Death Row. Authors: Saundra Westervelt and Kimberly Cook. (Pre-order here) It is based on very detailed interviews and case histories of 18 exonerees who were wrongfully convicted of capital crimes and lived on death row. I had the pleasure of reviewing it for Rutgers Press prior to publication. It provides valuable insights into the challenges facing these exonerees following their release from prison. This book adds important information about a subject that has seldom been addressed, and I highly recommend it.