Mean Justice (79 page)

Gregory R. Wilhoit is acquitted of murdering his estranged wife as she slept. He had been sent to Oklahoma’s death row because
the prosecution presented expert testimony falsely linking him to a bite mark on his wife’s body; afterwards, eleven forensic experts swore the bite mark was not his, leading to a new trial. Jurors found him innocent the second time around.

In
People vs. Todd A. Brecht,
the United States Supreme Court establishes a new rule that makes it far harder for defendants—even potentially innocent ones—to win new trials because of prosecutorial misconduct. The ruling puts previously unacceptable forms of misconduct by prosecutors into the category of “harmless error.” In this particular case, Brecht lived in Alma, Wisconsin, where he was most unpopular, known to be a drunk and a paroled thief, and where he eventually was arrested for murdering his brother-in-law. At trial, Brecht said the fatal shooting had been an accident, but the prosecutor derided this claim, suggesting to the jury that Brecht’s decision to remain silent after he was arrested and read his rights proved he was lying. An innocent man would have spoken up immediately, the prosecutor argued. The jury agreed, and Brecht got a life sentence. It was misconduct for the prosecutor to suggest that Brecht’s exercising his constitutional right to remain silent proved guilt, since many innocents exercise this same right out of distrust of the police. The legal test approved by the Supreme Court for examining prosecutorial misconduct of such constitutional dimensions at the time Brecht was arrested required that his conviction be overturned unless the misconduct could be said to be “harmless beyond a reasonable doubt”—a standard that favored granting new trials in close cases where the misconduct might have influenced the verdict. But in Brecht’s case, the high court decided to scrap that test in favor of a new standard: New trials would be granted in the future only if the misconduct could be said to have had a “substantial and injurious effect” on the jury’s verdict. This new standard results in far fewer overturned convictions, even in cases of serious misconduct. Brecht remains in prison for life.

The execution of Leonel Herrera, convicted of killing a police officer, takes place in Texas as scheduled, despite new witnesses,
including an eyewitness and a former Texas state judge, who implicated someone else in the crime. Additionally, another suspect confessed, and Herrera passed a polygraph test attesting to his own innocence. But the United States Supreme Court ruled that Herrera was not entitled to a federal hearing on the case, not because the evidence was lacking or disprovable, but because of the strictly technical limits Texas places on the introduction of new evidence in an effort to speed up executions. The high court suggested Herrera seek a commutation from the governor of Texas, George W. Bush; Bush denied the plea, as he has done with every condemned prisoner who has sought a pardon. In dissent, Justice Harry Blackmun wrote of the Herrera case: “Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.”

Federal prosecutors in Chicago are accused of massive and long-standing misconduct in their legal assault on the infamous El Rukn drug-trafficking, terrorist and murder-for-hire organization. Pending cases against sixty-five members of the El Rukn gang are threatened because of the scandal and at least fifteen convictions of El Rukn “generals” are thrown out when federal judges find that prosecutors suppressed evidence and may have provided bizarre and criminal forms of payment to prosecution informants. Key witnesses were allegedly allowed to use cocaine and heroin regularly inside government facilities, while others were permitted to conduct sexual liaisons inside prosecutors’ offices. Furthermore, drug-test results on several witnesses were withheld from defense attorneys. One federal paralegal allegedly smuggled contraband into jail for one witness and engaged in sexually explicit phone calls with others. In this case, justice was ultimately achieved despite the allegations of official misconduct: The fifteen were later retried and convicted—there being little question about their guilt—and a total of fifty-seven El Rukn members were sent to jail over the course of several years. The lead prosecutor was fired after a lengthy Justice Department investigation, but later
ordered reinstated when an arbitrator determined that the informants exaggerated or fabricated their tales of favors and misconduct, and that there was no evidence the lead prosecutor knew about the withheld drug-test results.

A series of extortion convictions out of Chicago’s Chinatown are thrown out when it is revealed that federal prosecutors withheld evidence that a key informant lied, and that they knowingly used his perjured testimony at trial. On the eve of a hearing in which two assistant U.S. attorneys were to testify about their conduct in the case, their office dismissed charges against Thomas Woo and Chen Li. A third defendant in the case was acquitted.

In the case of
People vs. Kojayan,
the United States Court of Appeals for the Ninth Circuit uses a rather ordinary drug case to restate the burdens and responsibilities of prosecutors—foremost of which is to put “doing justice” over winning convictions. The court overturns the convictions of a Lebanese man and woman accused of selling $100,000 worth of heroin to an undercover drug agent in a deal that had been set up by a paid government informant. In a scathing opinion aimed at the U.S. Attorney’s Office in Los Angeles, one of the premier prosecutorial agencies in the nation, three conservative appeals judges, led by Reagan appointee Alex Kozinski, found that the federal prosecutor on the case committed misconduct, and that his supervisors made matters worse by minimizing and denying the transgression until forced to admit it during oral arguments before the appellate court. The misconduct occurred when the prosecutor told jurors not to worry about the fact that a crucial informant had not appeared on the witness stand to clear up some grave questions in the case, because the man had the right to remain silent anyway, and would not have said anything if called. (The defense had suggested the informant would have hurt the prosecution’s case.) In fact, the prosecutor knew that the informant had struck a secret agreement with the government in which he promised to testify—the prosecutor’s statement to the jury was completely false. “What we find most troubling about this case,” Kozinski wrote, “is not [the prosecutor’s]
initial transgression, but that he seemed to be totally unaware he’d done anything at all wrong, and that there was no one in the United States Attorney’s Office to set him straight.” According to Kozinski’s opinion, the prosecutor and his office continued to misrepresent the facts of the case, even during appeals, and seemed more concerned about sparing the prosecutor embarrassment than doing justice:

As Justice Douglas once warned, “The function of the prosecutor under the Federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial.” The government has strayed from this responsibility. . . . Much of what the U.S. Attorney’s Office does isn’t open to public scrutiny or judicial review. . . . It is therefore particularly important that the government discharge its responsibilities fairly, consistent with due process. The overwhelming majority of prosecutors are decent, ethical, honorable lawyers who understand the awesome power they wield, and the responsibility that goes with it. But the temptation is always there: It’s the easiest thing in the world for people trained in the adversarial ethic to think a prosecutor’s job is simply to win.

After initially denying any wrongdoing, the response of the U.S. Attorney was to admit a mistake had been made, and to ask the court of appeals to remove the prosecutor’s name from the published opinion to spare him further embarrassment. The appeals court did so.

The United States Court of Appeals for the Sixth Circuit concludes that the Justice Department’s vaunted Office of Special Investigations “acted with reckless disregard for the truth,” and committed “fraud on the court,” and is guilty of prosecutorial misconduct in the prosecution and deportation of John
Demjanjuk, accused of being the Nazi war criminal “Ivan the Terrible.” After being charged with capital crimes in Israel, where he was sent by American authorities, the Israeli Supreme Court ordered Demjanjuk released when it was revealed that U.S. prosecutors had withheld substantial evidence of his innocence.

In
United States vs. Udechukwu,
a new trial is granted to a woman convicted of smuggling heroin at the San Juan, Puerto Rico, airport. Upon her arrest, the woman begged to cooperate with authorities and said she had been forced to smuggle by a sinister drug merchant based in Aruba. Federal investigators confirmed the existence of this Aruban drug trafficker and discovered that he was the target of an investigation himself. Yet this information was never given to Udechukwu’s defense, and when she came to trial and told her story of coercion, the federal prosecutor falsely suggested to jurors that the Aruba drug dealer was a mere concoction created by the defendant to bolster a phony story.

Kirk Bloodworth is released from prison in Maryland after DNA testing proves that he had nothing to do with the rape and murder of a nine-year-old girl. Tried twice in the case, Bloodworth was initially sentenced to death in 1984, but the conviction was overturned because the prosecution withheld evidence of his possible innocence and the involvement of another suspect. At a second trial, he was convicted again, but sentenced to life. Years later, the DNA test proved his claims of innocence had been true all along. Maryland state bars the introduction of new evidence of innocence after one year, which could have kept Bloodworth in prison, but the prosecutor on his case, aghast at the injustice, joined a petition calling for Bloodworth’s pardon, which he finally received.

Clarence Chance and Benny Powell are freed after seventeen years in prison for a murder they did not commit. Reverend Jim McCloskey of Centurion Ministries, a Princeton, New Jersey-based organization that specializes in revealing unjust convictions, uncovered misconduct by Los Angeles police and
prosecutors that had effectively framed Powell and Chance. The city later paid the men $7 million to settle their wrongful-imprisonment lawsuits.

Muneer Deeb is acquitted of murder in Texas. Deeb had been sentenced to death in 1985 for allegedly hiring three hit men to kill his girlfriend, but his conviction was reversed and a new trial granted by the state court of criminal appeals because prosecutors relied upon improper evidence. The chief informant in the case was revealed to have lied repeatedly, and Deeb had been ruled out as a suspect by one police department before the detective on his case transferred to another department and targeted Deeb once again. One alleged accomplice pleaded guilty in exchange for mercy and testified against Deeb, but his testimony was riddled with lies and mistakes. The alleged shooter, David Wayne Spence, convicted on the same evidence originally used against Deeb, was executed in April 1997, even as Deeb was acquitted of hiring him.

In a case with macabre connections to Muneer Deeb’s and David Wayne Spence’s, Sidney Williams is released from a life sentence for the rape and murder in Waco, Texas, of Juanita White, Spence’s mother, because the prosecution and investigator on the case—the same as in Deeb’s and Spence’s—relied upon questionable informant testimony to win convictions. Before her death, White had received a letter from an inmate who had testified against her son; in it, the inmate confessed to perjury and begged for forgiveness. Forty-eight hours after a police memo about the letter was issued, White was murdered—though investigators never checked out a possible connection between the letter and White’s death. At Williams’ trial, fifteen Waco police officers testified for the
defense,
saying the informants in the case could not be trusted. One of those officers had been threatened with indictment when she tried to get the county grand jury to investigate official conduct in the case. Once he was released, prosecutors declined to attempt a retrial of Williams. His alleged accomplice, Calvin Washington, convicted on exactly the same evidence, remains in prison for life.
Andrew Lee Mitchell is released from a 1981 death sentence after it is revealed that the sheriff who arrested him suppressed statements of police officers who saw the murder victim alive two hours after the murder supposedly took place—at a time when Mitchell had an alibi. A key witness also recanted in the case, and even the prosecutor filed an affidavit saying Mitchell had not received a fair trial. He came within two days of being executed.

Kerry Max Cook, sentenced to death for a 1977 mutilation-murder in Tyler, Texas, has his sentence overturned because of systematic government misconduct and the hiding of evidence in his favor. The same Smith County District Attorney’s Office that prosecuted Andrew Mitchell also prosecuted Cook. (Cook was tried and convicted again, but, in 1996, he was granted yet another new trial, again because the appeals courts found “prosecutorial and police misconduct has tainted this entire matter from the outset.” Cook was subsequently released on bail while authorities decide whether to try him yet again, after spending twenty of his forty-one years on death row.)

Andrew L. Golden, a high school teacher in Florida, had his 1991 murder conviction and death sentence for allegedly killing his wife reversed by the Florida Supreme Court, which found that prosecutors won their case without ever proving the death was anything other than an accident. (Golden was fully exonerated and released from further charges a year later.)

Mark Bravo, a Los Angeles mental-hospital worker sentenced to eight years for the 1990 rape of a patient, is released after DNA testing proves his innocence. Misconduct had infected this case, ensuring his wrongful conviction: The victim had recanted and accused others in the rape during interviews with police, though this information was kept secret, and the government refused to investigate what was later shown to be Bravo’s ironclad alibi.