Unethical Texas Prosecutor

Loses Law License

 By K. W. Locke

     Twenty-one years ago, in Dallas, Texas, two men went to prison for a murder they didn't commit.  To obtain convictions, the prosecutor had withheld evidence of their innocence and elicited false testimony from a "jailhouse informant."

    The prosecutor had made a deal to go easy on the jailhouse informant in return for the informant's testimony that the men had confessed to the crime.  Yet at trial, when questioned by the prosecutor, the informant denied that any such deal existed.

    Of course, the prosecutor knew better but said nothing.  He helped perpetrate a lie.  A very costly lie.

    The prosecutor's misconduct came to light when lawyers from the Innocence Project, the Innocence Project of Texas, and the Dallas County District Attorney's conviction integrity unit worked together to exonerate the men.

    When they opened the old prosecutor's case file, they discovered correspondence from the informant which exposed the lie.  They also found that the prosecutor had known, but failed to disclose, there was an eyewitness whose testimony would have helped the defense.           

    Recently, that now-former prosecutor lost his license to practice law.  Reportedly, the ex-prosecutor, Richard E. Jackson, is driving a tour bus in Alaska.

     That doesn't sound like a very severe punishment, considering the harm he caused.  Each of the innocent men spent 15 years behind bars.   Even after their release, it took 4 more years before a court declared the men "actually innocent."

    The prosecutor could have been arrested and charged with the crime of suborning perjury.  Compared to prison time, taking away his law license merely amounted to a slap on the wrist.  Yet even disbarment of a prosecuting attorney is a rare event. 

    Moreover, a prosecutor cannot be sued for eliciting false testimony from a witness, even if the prosecutor knows that the testimony is untrue.  A prosecutor's conduct in the courtroom enjoys absolutely immunity from civil lawsuits.

    There need to be safeguards to prevent misconduct which puts innocent people in prison.  And when such misconduct does occur, the offending prosecutor should face consequences proportional to the harm he or she caused.

    The assistant chief of a large constable precinct in Texas assigned two female deputies to pose as prostitutes attending parties which were part of an undercover sting operation.  However, the deputies recently sued, alleging that at these "parties," the assistant chief would get drunk and molest them.

    Read more about their lawsuit here, on the Bureau of Stupidity blog.

New Orleans Judge Throws Out Murder Conviction 

Because Previous Prosecutor

Withheld Evidence From The Defense

    (June 2, 2021) The present parish district attorney in New Orleans did the right thing.  He learned that his predecessor had withheld evidence from the defense in a murder case.  So he informed the court.

    The judge vacated the 2007 conviction of Kaliegh Smith, who was serving a life sentence.  At the time of Smith's conviction, Louisiana did not require a guilty verdict to be unanimous, and Smith was convicted by a vote of 10 to 2.

    Today, a verdict must be unanimous to convict.  The prosecutor has not yet decided whether to retry Smith.

    Read more here.

Some Good Deeds By Prosecutors

by K. W. Locke

 Thanks to DNA technology, many of the wrongfully convicted have been able to prove their innocence.  But what if investigators find no DNA to test?

Centurion Ministries, of Princeton, New Jersey, specializes in cases lacking DNA evidence.  Since 1983, this non-profit organization has freed 63 innocent people who had been sentenced to life, or death, in prison.
     
One of them, Larry Walker, walked out of prison on May 21, 2021.  The Philadelphia native had spent 38 years behind bars for a murder he insists he did not commit.

Centurion's investigation did not uncover airtight evidence of Walker's innocence.  It left the district attorney less than totally convinced.

However, the evidence did call into question the fairness of Walker's trial and the correctness of the jury's verdict.  So the DA offered Walker a deal.  

The jury had found Walker guilty of second degree murder, which carried a life sentence.  If Walker would plead "no contest" to third degree murder, he could be released from prison based on time already served.

Walker agreed and was released, even before he entered the plea.  That will come next month.

Other district attorneys might have been reluctant to offer such a deal.  But this DA is Larry Krasner, who ran for office on a reform ticket and who refuses to prosecute certain low-level offenses.  

Both former President Trump and the police union want him voted out of office.  But, with respect to Walker, I believe Krasner did the right thing.

I suspect that the district attorney in Nashville, Tennessee, would not want to be likened to Krasner.  He might prefer not even to be mentioned in the same blog post.

However, Glenn Funk deserves some praise and he's going to get it here whether he wants it or not.  Funk recently filed a pleading seeking the exoneration of Paul Garrett, who remains in prison for the manslaughter of a sex worker two decades ago.

Funk's action stands in sharp contrast to that of his predecessor.  According to the Nashville Scene newspaper, the previous district attorney had learned in 2011 that a police detective had testified, falsely, that Garrett had confessed to the murder.

The Nashville Scene reported that the previous district attorney also knew that a crime scene DNA sample did not match Garrett's DNA but did match that of another man identified through a national DNA database.  An assistant district attorney reported to her boss that "Garrett deserves to be released immediately with no conditions and to have his record clear."

However, the previous district attorney did not follow that recommendation.  He just wrote the parole board recommending an immediate release, at the same time stating that he could not say that Garrett was "utterly blameless."

That was in 2011.  A decade later, the new district attorney notified the court that "this office knows of clear and convincing  evidence establishing Mr. Garrett was convicted of a crime he did  not commit. . ."   

Bravo, Glenn Funk!

Meanwhile, 200 miles to the west, the district attorney in Memphis, Tennessee, has established a Conduct Review Unit to investigate allegations of police brutality.  DA Amy Weirich already has brought charges against two Memphis officers.                    

   

(June 3, 2021)  The Missouri Supreme Court has declined to consider a petition filed on behalf of Kevin Strickland, who has served 42 years in prison for murders he did not commit.  The court did not give a reason for its decision.

    Prosecuting Attorney Jean Peters Baker, convinced of Strickland's innocence, had joined with lawyers from the Midwest Innocence Project and from a large international law firm, in seeking Strickland's release.  This team has not given up.  Baker said that "we are pursuing all avenues of exoneration for Mr. Strickland."

    The governor knows about the case and might pardon him, but it hasn't happened yet.  Recently, Missouri Governor Mike Parson pardoned 36 people pardoned 36 people, but Strickland's name wasn't on that list.

    However, there is another possibility.  The Missouri legislature has passed a bill to give circuit courts - the trial-level courts of general jurisdiction - authority to free the wrongfully-convicted.

    If the governor signs the legislation, it will take effect this August 28.  Prosecutor Baker said that, if it is still necessary, she will be ready that morning to file a petition seeking Strickland's release.

 

    ORIGINAL ARTICLE

A Role Model for Prosecutors

By K. W. Locke

 (May 16, 2021)  No one likes to admit an error, but prosecutors can be especially hardheaded.  Even when clear and convincing evidence proves that a convict is really innocent, many prosecutors reflexively oppose his  release from prison.  And even after an innocent person is released from prison and asks a court to clear his record, some prosecutors will fight that effort tooth and nail.

    So, Jean Peters Baker, the prosecuting attorney in Jackson County, Missouri, deserves applause.  She is seeking the release of a man who has spent 42 years in prison for murders he did not commit.

    Actually, many people deserve credit.   Three attorneys from a prestigious international law firm, working without pay, teamed up with the Midwest Innocence Project to assemble and present evidence that Kevin Strickland was not part of the gang that killed three people and injured a fourth in 1978.

     Strickland's first trial ended with a hung jury.  During the second trial, a survivor mistakenly identified him as one of the four attackers.  However, she later recanted that testimony.

    Additionally, just months after Strickland's conviction, one of the actual perpetrators entered a guilty plea.  This guilty plea went much further than just saying "I did it."  The perpetrator gave a detailed description of the crime which made clear that Strickland had not been present.

    Other perpetrators gave sworn statements exonerating Strickland and identifying the true murderer.  Nonetheless, Strickland remains in prison today.

     That may soon change.  In November 2020, the Midwest Innocence Project and the attorneys from Bryan Cave Leighton Paisner presented evidence of Strickland's innocence to the Jackson County Prosecutor's Office.

Recently, Prosecutor Jean Peters Baker joined in their petition to the Missouri Supreme Court to free Strickland.

   Legally, the prosecutor didn't have to do that.  That's because the ethical rules binding lawyers in Missouri differ from the Model Rules of Professional Conduct adopted by the American Bar Association.

    The ABA's Model Rules are not binding, but provide an example which many state supreme courts copy in promulgating the ethical standards for that state's lawyers.  In fact, almost all of the Missouri rule governing prosecutorial conduct does closely follow the ABA's Model Rule, but the Missouri Rule leaves out the last two sections of the Model Rule.

Those last two sections – (g) and (h) – concern what a prosecutor must do upon discovering that a person already convicted of a crime is innocent.  They state:

          (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

          (1) promptly disclose that evidence to an appropriate court or authority, and

          (2) if the conviction was obtained in the prosecutor’s jurisdiction,

          (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and

          (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

          (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

    Because the Missouri rules do not include these provisions, the prosecutor would not have been subject to discipline if she had simply declined to join in the petition.  She did the right thing anyway.

 

    Bravo!

 

Cop Shouted "Point Your Fucking Gun at Him"

By K. W. Locke

     After a Huntsville, Alabama police officer shot and killed a suicidal man, city officials reacted in a now–familiar way:  An internal police review cleared the cop.   

    Two other officers witnessed the shooting.  They later left the department after being reassigned to "remedial training."

    But city government squarely backed the officer who pulled the trigger.  After the district attorney charged him with murder, the city council voted to pay for the cop's lawyer, up to $125,000.

    The mayor said he disagreed with the decision to prosecute the officer and maintained that the cop's actions were consistent with official policy.  The city council passed a resolution stating that the shooting was "within the line and scope of his duty."

    It sounds like the district attorney took on a tough challenge when he decided to prosecute the officer, William Ben Darby.  But when the murder trial concluded last week, it took the jury only a few hours to return a guilty verdict.

    The shooting occurred on April 3, 2018, after a man called 911 and said he had a gun and was going to use it on himself.  When the first two officers went inside the house, they found the man sitting on a couch, holding the gun to his head.

    One of the officers, Genisha Pegues, started talking to the man, trying to calm hi m down.  But then Darby arrived, grabbed his shotgun and ran into the house.

    Although Pegues had been on the police force longer, Darby tried to take charge.  A bodycam recorded Darby shouting at Pegues, "Point your fucking gun at him."

    Eleven seconds after entering the house, Darby fired.

    When the mayor and city council decided to take Darby's side, they had not watched the bodycam video.  The jury did.

    A previous post on this blog discussed how television dramas like "Dragnet" had fostered the image of police as tireless heroes, always in the right.  But in this instance, I wish the mayor and city council had watched the reruns.

    Dragnet's fictional Sergeant Joe Friday could have taught the mayor and city council an important lesson.  When making a decision, such as whether to back an officer charged with murder, they should put aside their feelings and consider, as Sgt. Friday would say, "Just the facts, ma'am."                                

Cops Who Retaliated Against

Facebook Poster Sued

by K. W. Locke

In 2009, The Rites released an album, “Pissing On Your Grave.”  The cover showed two men, with backs to the camera, urinating on a tombstone.

Joshua Garton, of Lyle, Tennessee (shown in the banner above) superimposed on the tombstone a picture of a Dickson, Tennessee police officer who had been killed on duty.  He posted the doctored photo on Facebook.

The local district attorney took offense and asked the Tennessee Bureau of Investigation to get involved.  Agents arrested Garton and the DA charged him with harassment.  Garton spent about two weeks in jail before a judge dismissed the charge.

Recently, Garton’s lawyer filed a lawsuit against District Attorney General Ray Crouch, Tennessee Bureau of Investigation Director David Rausch, a number of law enforcement officers, and the city of Dickson, Tennessee.  The lawsuit alleges that the defendants conspired to retaliate against Garton for exercising his clearly established First Amendment rights and that they did retaliate.  It seeks at least $1,000,000 in damages.

Now here’s the scary thing: These defendants weren’t ignorant yokels.  The DA, of course, had studied law.  TBI Director Rausch has a master’s degree in criminal justice.  You will find his very impressive pedigree on the TBI website.  It concludes by describing his desire to be a person who “has a keen foresight as a systems thinker who leads with moral authority.”

Moral authority?  What kind of morality endorses petty retaliation which puts someone in jail for no reason other than a rude facebook post?

But, for now, let's leave aside morality.  We'll come back to it later.

Whatever its morality, arresting someone for a Facebook post which, although distasteful, threatened no harm, clearly violates the Constitution.  How can either a lawyer or someone with a master’s degree in criminal justice not know that?

It seems more plausible that they did know, but didn’t care.  But that makes it even worse.  It means that officers sworn to uphold the law deliberately disobeyed the nation’s highest law, the Constitution.

As I mentioned, Rausch's page on the TBI website says he wants to be a person who  “has a keen foresight as a systems thinker who leads with moral authority.”   Keen foresight?  Rausch should have known, even before he sent his agents out to investigate, that Garton had a First Amendment right to make the Facebook post and that it would be unlawful to arrest him for it.

Foresight would have told Rausch he was wasting taxpayer dollars having government agents investigate lawful conduct.  Foresight would have told Rausch that he and his agents could wind up as defendants in a federal lawsuit.  

Now, about Rausch's other personal goal, leading with “moral authority.”   Does a moral person hurt other people needlessly?

Certainly, a moral person might well take offense at Garton’s post and sympathize with the deceased officer's family.   But would that family even have known about Garton’s post, and therefore been hurt by it, if the TBI had not arrested Garton and issued a press release?

By the way, when Rausch said he wanted to lead with "moral authority," what moral standard did he have in mind?  As a moral standard, “turn the other cheek” would set a very high bar.

Instead, let's apply here the older standard which "turn the other cheek" replaced.  This standard, lex talionis, specifies “an eye for an eye and a tooth for a tooth.”

In other words, the punishment must be in proportion to the offense.  So ask: If a person hurts someone else’s feelings, is it moral to throw him in jail and attempt to brand him with a criminal record?  The question answers itself.

The problem with law enforcement today is not that we have too few people trying to "lead with moral authority."  It's that we have too many self-righteous bullies.

   Lawsuit Alleges 4 Decades of Police Violence in Rochester, New York

By K. W. Locke

    Ten individuals and two organizations have filed a class action lawsuit against the City of Rochester, New York, Monroe County, New York, and a number of government officials.  The 96-page complaint alleges a pattern of civil rights violations.  It describes a 40–year struggle to make the police department accountable.

    In 1975, a white police officer killed an 18-year-old black women.  Public protests prompted the creation of a “Citizens Committee on Police Affairs,” which recommended reforms.

    But the next victim was the 21-year-old daughter of a member of the citizens committee.   During a domestic dispute, she told her young son to go to a cousin’s home and ask the cousin to call the police.  The police came.  The young mother died.

    The complaint alleges that by 1990 three more people had died and that one of them “was shot five times at close range while cowering, unarmed, in a crawl space in his own apartment.”

    In 1991, a local newspaper ran a multipart series detailing, in the complaint’s words, “the disproportionate use of force against Black and Hispanic people.”  The newspaper reported that during the previous year, 852 people had been injured during encounters with the police.

    The next year, a federal grand jury indicted Rochester’s former police chief and five subordinates for “wide-ranging brutality and corruption” by members of the police “Highway Interdiction Team” or “HIT squad.”   Although the former chief entered a guilty plea, other officers did not and were acquitted.

    But after the police chief’s guilty plea, city leaders should have known that there was a serious problem.  They also had other clues.

    For instance, the city paid $625,000 to settle a lawsuit filed by a man framed by HIT squad officers.  He had spent 2 years in prison for a crime he didn’t commit.

    The city also “paid over $200,000 in settlements,” the class action complaint alleges, “for at least ten civil rights suits brought by victims of the HIT squad’s brutality.”

    In 1992, the Rochester city council did create a civilian review board, but gave it no authority to subpoena witnesses, conduct investigations, or impose discipline.   Nothing changed.

    An incident 10 years later involved a mentally ill man running around a parking lot in his underwear.  He wasn’t armed.  He was black.

    Rochester officers tackled, pepper sprayed him, clubbed him, and one cop stood on his neck.   They also pepper sprayed a bystander filming the incident with a cellphone.  The man died.

    The class action complaints list other instances when people - people of color - died from encounters with the police.  The NAACP organized protests.  Demonstrators marched on city hall.  Nothing changed.  Some of the officers received promotions.

    It would take up too much space to describe all the instances of police misconduct alleged in the 96-page complaint.  So fast forward to March 23,  2020.   A young black man was suffering a mental health crisis and his family called the police for help.

    The man was Daniel Prude, one of the named plaintiffs in the class action lawsuit.   The complaint stated that his family’s call for help ended “with Daniel naked and handcuffed with his face covered by a ‘spit hood,’ as an RPD officer pushed his head into the freezing asphalt. . .RPD officers on the scene mocked Daniel and chatted with each other while he asphyxiated. Daniel was declared brain dead that night; he was taken off life support and died on March 30.”

    The police did not release video of the incident until September 2, 2020.  The release prompted large demonstrations on that night and the next.

    According to the complaint officers acted violently towards peaceful protesters.   It describes instances in which police shot pepper balls at “photojournalists, legal observers and people who were recording officers.”   The complaint includes photographs showing injuries inflicted by pepper balls or by a tear gas cannister.   It also incorporates by reference a video shot by one individual who was hit.  
 

    Notwithstanding the demonstrations, it appears that little has changed in the Rochester police department.  As this blog recently reported, earlier this year Rochester police officers handcuffed and pepper-sprayed a 9-year-old girl.