Lara Bazelon in Slate this month describes the unique role of the prosecutor in the criminal justice system – “is not that [they] shall win a case, but that justice shall be done.” (Berger v. United States) She then calls out those prosecutors who don’t accept that role, who are “innocence deniers”:

“These prosecutors do not “do justice” as the Supreme Court defines it. Instead, they delay justice and in some cases actively work against it. When a prisoner is exonerated by a lower court, these prosecutors double and triple down, filing appeal after appeal. Or they indict and prosecute the exoneree all over again, sometimes under a wildly different theory at the expense of time and resources that should be used to pursue the crime’s actual perpetrator. They may also threaten endless legal challenges to wring “no contest” pleas from innocent prisoners in exchange for time-served sentences. The prisoners, desperate to be free, accept these Faustian bargains, which brand them convicts for life and allow prosecutors to proclaim their guilt and the state to deny them compensation. Some prosecutors are so committed to adhering to the original mistake that they fail to prosecute the actual perpetrators, even when there is evidence to convict them.”

In addition to listing a number of prominent examples of this phenomenon, Bazelon goes on to point out a little-discussed problem with innocence denying:  the real criminals go unpunished, posing a threat to public safety. According to the Innocence Project, 353 people have been exonerated by DNA evidence since 1989. The group has identified 152 actual perpetrators in those cases who went on to commit “150 additional violent crimes,” including rape and murder.

Yesterday the Texas Supreme Court overturned two murder convictions based on evidence that their constitutional rights were violated as a result of repeated misconduct on the part of the former prosecutor who handled both trials. Dennis Lee Allen and Stanley Mozeewere convicted in 2000 of murdering Jesse Borns, Jr., a local store owner and lay minister and sentenced to life in prison. They were freed from prison in a Dallas County district courtroom more than three years ago based on new evidence uncovered as the result of a joint re-investigation of the case by the Innocence Project, the Innocence Project of Texas and the Dallas County District Attorney’s Office.

In March 2017,  A District Judge found that prosecutor in the case had withheld numerous items of exculpatory evidence relating to informants and eyewitnesses from both defendants and had also presented false testimony from these witnesses at both Mozee’s and Allen’s trials.  The findings were entered with the support and agreement of Dallas County District Attorney Faith Johnson and her Conviction Integrity Unit. Yesterday the Texas Court of Criminal Appeals agreed with the district court’s findings and vacated both murder convictions on due process grounds.

So, what happened to the prosecutor who put two innocent men in prison for a decade? According to the Innocence Project, the ADA, Rick Jackson, “is no longer with that office.”

Two Fourth Amendment cases in the Supreme Court today:

1. Byrd v. United States:

Byrd was driving a rental car that was stopped and searched without a warrant. Byrd is arguing that drivers of rental vehicles have a reasonable expectation of privacy even if they are not authorized drivers on the rental agreement but have the renter’s permission to drive it. The U.S. Court of Appeals for the Third Circuit said that because Byrd was not on the rental agreement, he had no property interest in the car, no reasonable expectation of privacy in the locked trunk—which contained body armor and 49 bricks of heroin—and no Fourth Amendment protection from a suspicionless search. The case has significant implications beyond the technical “rental agreement” surface; as one  amicus brief points out, “the connected car is a computer on wheels.” And if you look under the hood, “you will see that the warrantless search of a modern vehicle implicates far more privacy interests than the physical search of a ’66 Buick LeSabre.” What’s needed is a clear Fourth Amendment rule to limit police access to personal data stored in the vehicle.

2. Collins v. Virginia

Ryan Collins had a covered motorcycle in the driveway of his home that the police searched without a warrant.  The Virginia Supreme Court held that the Fourth Amendment’s vehicle exception applied: no warrant needed when police have probable cause to believe a vehicle was engaged in illegality. Groups supporting Collins warn that the Virginia Supreme Court’s decision threatens the Fourth Amendment’s foundational protection of the privacy of the home. If that decision is endorsed, they say, the warrantless invasion of a home will be excused as long as the purpose of the invasion was to search an automobile parked on the property.

The Supreme Court has now decided not to grant review in either of the two prosecutorial accountability cases discussed in my post of Oct. 16,  Woods v. Smith and Stein v. US. Its worth contemplating again for a moment what that means. In Stein the Eleventh Circuit held that defendants must show not only that the prosecution knowingly presented perjury, but also suppressed evidence of the falsity of the witness’s testimony from the defense team. The Solicitor General argued that “there is no violation of due process resulting from prosecutorial non-disclosure of false testimony if defense counsel is aware of it and fails to object.” In short, the U.S. Government has argued that it can effectively shift the burden to the defendant to call out perjured testimony; the prosecution is free to knowingly elicit untrue statements, or at the very least, sit quietly if one of its own witnesses testifies falsely, and there is no ethical issue in that unless the defense objects. Remarkably, this view — a far cry from the the Supreme Court’s former lofty vision that a prosecutor is “not at liberty to strike foul [blows]”  and that prosecutors have a duty to seek justice, not convictions — is described in the Solicitor General’s Stein brief as a  “common-sense proposition.”

The Washington Post reports on an additional 8,000 Massachusetts criminal convictions to be dismissed because they were based on analysis by lab chemist Sonja Farak, who was both testing and consuming drugs seized by the police for eight years. This follows  21,500 drug convictions erased earlier in 2017 because of the actions of lab chemist Annie Dookhan, who admitted contaminating, falsifying or not testing drugs in her Boston-area lab over eight years. Two prosecutors handling those cases, Anne Kaczmarek and Kris Foster, were found to have withheld evidence that showed that Farak’s drug-fueled escapades, including cooking and smoking drugs in the state lab in Amherst, Mass., had lasted for eight years, not six months as they initially claimed. The attorney general’s office prosecuted Farak after she was arrested in January 2013 — and Farak pleaded guilty in January 2014 — but Kaczmarek and Foster repeatedly refused to provide either prosecutors or defense attorneys with Farak’s own notes and records showing she had been in drug treatment for years.

The judge in the Farak case concluded earlier this year that the two prosecutors committed “intentional, repeated, prolonged and deceptive withholding of evidence from the defendants” and that “their misconduct evinces a depth of deceptiveness that constitutes a fraud upon the court.” Their punishment: “The two prosecutors, former assistant attorneys general Anne Kaczmarek and Kris Foster, have since moved on to higher-paying jobs elsewhere in the state government.”

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.