Prosecutor’s Remorse

A Texas prosecutor has a change of heart about the death penalty she argued for and won 20 years ago against a man who did not kill anyone. In a letter to the prison parole board asking for clemency, Lucy Wilke said that “the penalty now appears to be excessive.”  The defendant in the case, Jeff Wood, was convicted and sentenced to death in a 1996 convenience store murder — he was sitting outside in the truck when his friend, Daniel Reneau, pulled the trigger that killed clerk Kriss Keeran. As an accomplice, he was sentenced under Texas’ felony murder statute, which holds that anyone involved in a crime resulting in death is equally responsible, even if they weren’t directly involved in the killing.

Part of Wilke’s change of heart stems from psychiatric testimony she presented at trial to prove that Wood posed a future danger. To obtain a death penalty verdict under Texas law a jury has to unanimously agree that he or she would present such a danger. At the trial in 1998 Wilke put on the stand a psychiatrist, Dr. James Grigson, who was known as “Dr. Death” and almost always found defendants would be a future danger. The Texas Court of Criminal Appeals had previously stopped Wood’s execution last year and sent the case back to the trial court in Kerr County to review Wood’s claim that a jury was improperly persuaded to hand down a death sentence because of Grigson’s testimony. Wilke now says  she was unaware at the time of the trial that Grigson had been expelled from the American Psychiatric Association and Texas Society of Psychiatric Physicians: “Had I known about Dr. Grigson’s issues with said organizations, I would not have used him as the State’s expert witness in this case on the issue of future dangerousness,” she wrote.

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Crime Rates in LA in the “Justice Reform Era”

The Center on Juvenile and Criminal Justice has published an interesting report on crime trends in Los Angeles County during what they call the “justice reform era,”  from 2010 to 2016, with major changes – Public Safety Realignment, Proposition 47, and Proposition 57 – in California’s justice system. The main findings:

 

  • From 2010 to 2016, roughly half of LA County’s 89 jurisdictions showed an increase in crime (53%) and half showed a decrease (47%). Most jurisdictions elsewhere in California (259 of 422) showed decreases in their crime rates.
  • The City of Los Angeles, which encompasses over 40 percent of the county’s population and over half its reported crimes, strongly impacts LA County crime rates. While Los Angeles County showed a modest increase in total crime (5%) from 2010 to 2016, this was made up of extreme variation among its 89 jurisdictions.
  • The jurisdictions showing decreased crime from 2010 to 2016 had higher average crime rates at the beginning of the reform period than jurisdictions showing increased crime. This suggests that some jurisdictions, especially those that began with elevated crime, have developed successful policies and practices to improve public safety on a local level.

The overall conclusion: crime patterns in Los Angeles County, as well as the rest of the state, result from local policies and practices rather than statewide reform.

 

Prosecutor in NY charged for withholding evidence

NY State AG Schneiderman has filed criminal charges against a county district attorney over his handling of a grand jury investigation into the fatal police shooting of an unarmed motorist last year. According to the NY Times, Joel Abelove, the district attorney in Rensselaer County, was charged with a single felony count of perjury in the first degree and two counts of official misconduct, a class A misdemeanor.

The case against the prosecutor stems from the death of a driver who was shot after a car chase involving a traffic stop on suspicion of drunken driving. The chase ended with a Troy police sergeant, Randall French, shooting the driver eight times, killing him, after the officer was pinned between his cruiser and the driver’s vehicle.

Shortly after the shooting, the NY Attorney General sent in a “Special Investigations and Prosecutions Unit” to look into the driver’s death. Rather than cooperating with state investigators, Mr. Abelove is alleged to have “quickly and surreptitiously presented the case to a grand jury,” according to Mr. Schneiderman’s office. Mr. Abelove then is accused of having withheld evidence from the grand jury, leading to no charges being brought against the police officer. The district attorney had also conferred immunity upon Sergeant French before the grand jury voted, effectively protecting the officer from any potential future prosecution in the killing. Finally, in October, Mr. Abelove lied about another immunity case in testimony to a separate grand jury, according to the indictment filed in Rensselaer County Supreme Court.

“Unchecked power that is, quite frankly, frightening.”

That is a judge’s description, as reported by the NY Times, of Justice Department’s actions in holding an American citizen in military custody in Iraq for 11 weeks without allowing him to talk to an attorney. According to the Times, the detainee refused to talk to F.B.I. interrogators without a lawyer after he was warned of his Miranda rights to remain silent and have a lawyer present,

“The individual stated he understood his rights, and said he was willing to talk to the agents but also stated that since he was in a new phase, he felt he should have an attorney present,” the department said in a court filing Thursday afternoon. “The agents explained that due to his current situation, it was unknown when he would be able to have an attorney, and the individual stated that it was O.K. and that he is a patient man.”

The filing is part of a habeas corpus action filed by the ACLU asking for access to the detainee and a ruling that his continued indefinite detention without charges is illegal. The Justice Department has argued in part that the group has no standing to bring the petition because it has no relationship with the prisoner nor permission from his relatives to represent his interests in court. The judge in the case rejected this argument, saying it was  “circular reasoning” since the government’s own actions prevented him or his relatives from having contact with the lawyers.

The judge then made the comment about frighteningly unchecked power, describing the government’s position as saying it could “snatch any U.S. citizen off the street and hold him as an enemy combatant in another country” indefinitely without letting him or her talk to a lawyer.

Brady Violations, Explained

A recent decision in the 4th Circuit, Juniper v. Zooksheds some light on how Brady violations can occur. In that case, a capital murder prosecution, prosecutors failed to disclose to the defense evidence from an eyewitness that potentially identified another suspect other than the defendant. The reason?

“Deputy Commonwealth’s Attorney Evans’s affidavit also described the prosecution’s rationale for not disclosing the Roberts materials to Petitioner’s trial counsel before trial. According to Deputy Commonwealth’s Attorney Evans, a 911 chronology— which, according to Petitioner, the prosecution also did not disclose to Petitioner’s trial counsel—coupled with Mings’s trial testimony that Petitioner committed the murders before Mings first called 911, “clearly proved that the murders of the four victims occurred prior to the first Norfolk Police Department response initiated at 12:44 p.m. on January 16, 2004.” Id. at 1156. Deputy Commonwealth’s Attorney Evans’s affidavit further maintained that the Roberts materials were not “material[ly]” exculpatory—and thus not subject to disclosure under Brady—because (1) “Wendy Roberts’ statements on January 16, 2004 were factually inconsistent with the documented event chronology of the Norfolk Police Department response and activities in and around [Keshia’s apartment] on January 16, 2004…..” (emphasis added).

Tha’s right, per the prosecution, evidence that contradicts their theory of the case they consider not material.

As the Court of Appeal rather dryly observes in granting the defendant’s habeas corpus request, “But the “factual inconsisten[cy]” between the Roberts materials and the statements of the first 911 caller and Mings is precisely what renders the Roberts materials exculpatory and impeaching for purposes of Brady.”

 

“Order of Actual Innocence” + 5 years….

ProPublica reports that the Nevada Board of Pardons Commissioners has pardoned Fred Steese, 26 years (21 in prison) after his conviction on a murder charge in which the prosecutors had proof of his alibi hidden in their files, five years after an Order of Actual Innocence from a district court, and five years after the same Clark County prosecutor’s office required an Alford plea from Steese as a prerequisite for release after the order.

Steese was convicted in 1995 and sentenced to two life sentences for the murder of Gerard Soules, a Las Vegas performer with a costumed poodle act at the Circus Circus casino. At the time of Soules’ death, Steese was several states away. But prosecutors didn’t reveal that they had evidence that Steese was telling the truth, instead telling jurors that Steese had fabricated his alibi with the help of his look-alike brother. During the trial, the prosecutors also concealed the nature of several photo lineups pointing to Steese’s innocence and accused the defense of manufacturing evidence.

The men who prosecuted him, Bill Kephart and Doug Herndon, are now district court judges in Las Vegas.

Read the whole sordid story here.

And, 46 Years….

From the Baton Rouge Advocate:  A state district court judge has overturned Wilbert Jones’ 1974 conviction in the abduction and rape of a Baton Rouge nurse, saying “highly favorable” evidence was withheld from the defense.

Jones, now 64, was found guilty in the Oct. 2, 1971, rape of a young Baton Rouge General Medical Center nurse who was abducted from the hospital parking lot. As the appellate judge noted, the case against Jones was “weak, at best.” The state’s entire case rested entirely on the nurse’s testimony, and questionable identification of Jones that came more than three months after her rape. The victim “admittedly was not certain about her identification of Jones, and she even expressed doubts to officers regarding the identification,” Anderson said.

At the same time, in 1971, police and prosecutors were aware of another young woman kidnapped a few days later, Oct. 29, 1971, from the parking lot of another nearby medical facility, Our Lady of the Lake Regional Medical, and also raped. The court said that the “strong similarities” between the two rapes are “almost too numerous to list.” He also stated that the nurse’s physical description of her attacker is “an almost identical match” to Arnold Ray O’Conner, who was convicted of armed robbery in a September 1973 home-invasion rape near Baton Rouge General. O’Conner’s fingerprints were found on the car of the woman kidnapped from the Our Lady of the Lake parking lot and raped, but Anderson said he was arrested but never charged in that incident. The prosecution was clearly obligated to turn over information about the second rape to Jones’ trial attorneys but failed to do so, and the court found that “there is a reasonable probability that, had the information been disclosed to competent counsel, the result of the proceeding would have been different.”

 

Is 46 years in prison on this record enough for the prosecution? Apparently not. The East Baton Rouge Parish District Attorney’s Office said they will ask the Louisiana Supreme Court to review the ruling in Jones’ case.