by Edward Humes
In United States vs. Yizar, the U.S. Court of Appeals for the Eleventh Circuit in Atlanta overturns an arson conviction because the prosecutor failed to reveal that an accomplice in the case said the defendant was innocent.
In the case of Jacobs vs. Singletary, a convicted murderer receives a new trial from the U.S. Court of Appeals for the Eleventh Circuit when it is learned prosecutors kept secret a key witness’s original statement that he did not know who fired the fatal shot—exactly the opposite of his testimony at trial.
A series of major federal drug convictions in New York City are reversed because prosecutors concealed the highly pertinent fact that the group of drug agents involved in the cases had developed a pattern of committing perjury and were themselves under criminal investigation.
In Walker vs. City of New York, a convicted murderer won his freedom after two decades when it was finally proven that prosecutors had pursued the defendant’s conviction and continued imprisonment even though they were aware of his probable innocence, and lied and concealed evidence in the process. The U.S. Court of Appeals for the Second Circuit, in New York, in freeing the man, criticized the entire chain of command at the local district attorney’s office, finding the agency had failed to train trial attorneys “in such basic norms of human conduct as the duty not to lie or persecute the innocent.”
Coal miner Roger Keith Coleman is executed in Virginia despite substantial new evidence of innocence in the murder of a young woman. His appeal failed not because the new evidence was lacking, but because his lawyers were three days late in filing it. Coleman produced uncontroverted evidence that police and prosecutors had favorable information and witnesses while concealing the existence of another suspect. The U.S. Supreme Court declined to intervene, however, calling Virginia’s decision to deny Coleman a new hearing because of the three-day filing delay a matter of “states’ rights.”
Sonia Jacobs is freed from death row in Florida, where she had been sentenced for the 1976 murders of two policemen at a highway rest stop. Prosecutors kept secret the fact that their star witness in the case—an alleged accomplice in the crime—had failed a lie-detector test. After being granted a new trial, Jacobs pleaded no contest in exchange for a sentence of time served. Her codefendant, Jesse Tafero, did not fare so well: his execution had already been carried out in 1990, before evidence of prosecutorial misconduct surfaced.
John Henry Knapp is freed from further prosecution after coming within three days of execution for the 1973 arson death of his baby in Arizona. Shortly after the fatal fire, Knapp confessed to the crime, but then recanted within minutes, saying he was only trying to protect his wife, who had fled the state. He maintained his innocence from then on, but was convicted anyway. At trial, the gas can that started the fire was introduced, and Maricopa County prosecutors presented evidence that the prints on it were smudged and unidentifiable. But the prosecution knew this to be a lie: there were usable prints, none of them Knapp’s. When the state attorney general took over the case on appeal, it learned that the prints on the can belonged to Knapp’s wife, who had been given immunity but was never called to testify. The prosecution had also kept hidden a secret tape recording of Knapp’s phone call to his wife moments after his confession—in which he confided in her he was innocent but had confessed in order to protect her. When Knapp asked her to come home, she responded, “They’ll have to come and get me.” Knapp’s defense would eventually allege that the prosecution ignored and kept secret more than a hundred witness interviews that would have helped prove his innocence. When he was finally granted a new trial, Knapp agreed to plead no contest to a lesser charge in exchange for his immediate freedom.
1993
A thirty-six-year-old developmentally disabled Navy supply worker and church volunteer named Dale Akiki is freed after spending thirty months in jail on charges of molestation and satanic ritual abuse. After a seven-month trial, Akiki’s jury acquitted him in just a few hours, then harshly criticized the San Diego County District Attorney for filing the case at all. The investigation mirrored many of the discredited molestation-ring cases in Bakersfield and elsewhere, like them featuring extremely suggestive interviews of children, no physical evidence and increasingly wild and disprovable allegations by young children that included the ritual sacrifice of elephants, giraffes and the hanging of children upside down during molestation, all of which supposedly occurred during a series of ninety-minute Sunday-school classes where Akiki was a volunteer baby-sitter. The case was handled by therapists, investigators and prosecutors who had become convinced that San Diego was a hotbed of satanic child abusers, and their questioning of the children reflected that bias, a subsequent county grand-jury investigation concluded. There was no evidence to support that belief beyond simple hysteria, the grand jury reported after consulting with experts from the FBI. The grand-jury report detailed an entire series of such false prosecutions in the San Diego area and chastised the gullibility, bias and hysteria of a local task force—since disbanded—linked to most of the problems. The district attorney in office at the time, who had been reelected more often than any other prosecutor in the state, lost his subsequent bid to serve another term in office.
Margaret Kelly Michaels, in prison since 1988, is freed from her conviction on 115 counts of child abuse stemming from allegations that she had sexually assaulted twenty young students at the Wee Care Day Nursery in Maplewood, New Jersey, where she worked part-time while saving up for acting school. The twenty-five-year-old woman was accused of forcing the children to have sex with her, lick peanut butter off her genitals, and insert objects into her anus. She was also accused of sodomizing them with knives and forks, and forcing them to eat feces and urine. Moreover, the children spoke of Michaels being able to levitate cars and trees, assaulting them with swords, and amputating little boys’ penises. All of the abuse allegedly took place in the day-care center when other teachers, as well as parents and children, were present in the building. No medical evidence confirmed the abuse. During Michaels’ appeal, forty-five psychologists and child-development experts filed a brief attesting to the fact that the children had been subjected to a veritable brainwashing by police and prosecution, in which adult interrogators convinced children that they knew Michaels had done bad things and that the authorities needed the help of the children to keep her locked up. Kids who gave the “right” answers were rewarded with police badges and other gifts; those who gave the “wrong” answers about abuse at Wee Care were denied food or humiliated. The appeals court that granted Michaels a new trial deplored the prosecution’s interrogation of the children, saying it denied Michaels a fair trial. The following tape-recorded exchange between interrogator and child was typical:
SOCIAL WORKER:
Do you think that Kelly was not good when she was hurting you all?
CHILD:
Wasn’t hurting me. I like her.
SOCIAL WORKER:
I can’t hear you, you got to look at me when you talk to me. Now when Kelly was bothering kids in the music room . . .
CHILD:
I got socks off.
SOCIAL WORKER:
Did she make anybody else take their clothes off in the music room?
CHILD:
No.
SOCIAL WORKER:
Yes.
CHILD:
No.
(After the conviction was reversed and she was freed, another year and a half passed before prosecutors in New Jersey finally decided not to retry Michaels, and she was fully exonerated.)
Sixty-five-year-old Columbus, Ohio, businessman Bill Garland, who had been convicted of interstate fraud in federal court, has his conviction overturned on appeal because prosecutors had charged him without fully investigating the case, and in so doing, prosecuted a fraud where the victim said there was no crime (Garland had paid him back) and ignored evidence of his innocence. Prosecutors told the jury that Garland was involved with a gold-trading fraud, though there was no evidence to support
this allegation.
Walter “Johnny D” McMillian of Monroeville, Alabama, is freed from his 1986 death sentence and declared innocent. The three main witnesses against him later revealed how they were coerced and pressured by police into incriminating McMillian (a tape of one such session, long kept secret by the police, was inadvertently handed over to one of McMillian’s defense attorneys, corroborating the witnesses’ claims). The pressure to convict McMillian was so great that he was actually held on death row before he went to trial. Though he had many alibi witnesses, no criminal record, and there was no physical evidence linking him to the murder of a young employee of a dry-cleaning shop, McMillian did not see his case reopened until 60 Minutes did a report on his pending execution. Prosecutors eventually admitted to mishandling the case, and McMillian went on to testify before Congress about the plight of an innocent man on death row: “I was wrenched from my family, from my children, from my grandchildren, from my friends, from my work that I loved, and was placed in an isolation cell, the size of a shoe box, with no sunlight, no companionship, and no work for nearly six years. Every minute of every day, I knew I was innocent.”
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.
