Mean Justice

by Edward Humes

  The Commonwealth’s conduct here was not merely unprofessional, it was outrageous. This was not a momentary misstep but a persistent course of conduct designed to prejudice the defendant. This old refrain needs to be repeated: “If prosecutors do not see the light, they must be made to feel the heat.” It is still my hope that ultimately a prosecutor whose misconduct is flagrant will be required personally to reimburse the Commonwealth for the costs of any resultant retrial.

  In a stunning repudiation of the hysteria over satanism and child-molestation rings that began in Bakersfield and spread nationwide in the early and mid-1980s, a federal grand jury in Houston indicts two psychiatrists, a psychologist, a social worker and a hospital administrator for allegedly collecting millions of dollars in fraudulent insurance payments by convincing patients that they had been involved in nonexistent acts of ritual abuse. The false memories allegedly implanted in the patients through brainwashing, hypnosis, solitary confinement and unnecessary restraints at the hospital often led to criminal investigations and child-custody actions against the supposed abusers. One of the patients, who came to realize that her recovered memories were false, successfully sued the hospital and therapists and won nearly $6 million because her false memories of abuse and molestation destroyed her family and her career.

  The last two of seven defendants charged with hundreds of counts of molestation and ritual abuse in the Little Rascals Day Care Center case in Edenton, North Carolina, are freed after prosecutors decline to retry them. Their convictions and life sentences had been overturned for a variety of reasons, including gross prosecutorial misconduct. In the pattern typical in such cases, coercive interrogations of children produced fantastic and disprovable allegations that were conveniently ignored, such as the children’s contention that they were forced to swim with sharks, take trips to outer space, and that babies had been killed in their presence. (The authorities subsequently lost or destroyed documentation and tape recordings of these interviews.) The allegations in the case first arose shortly after Edenton police officers attended a seminar on satanic ritual abuse, another common pattern in such cases. Initial denials by the children that they had been molested were disregarded, but by the time questioners were through, ninety children had accused twenty adults, including the mayor and sheriff (who were never charged). A San Diego County Grand Jury report on false charges of ritual abuse around the nation included this startling information from the Little Rascals case and the hysteria that gripped the entire small town of Edenton:

  Eighty-five percent of the children received therapy with three therapists in the town; all of these children eventually reported satanic abuse. Fifteen percent of the children were treated by different therapists in a neighboring city; none of these children reported abuse of any kind after the same period of time in therapy.

  The California Court of Appeal upholds the felony stalking conviction of George F. Falck, a mentally ill army veteran and MBA from Alameda County, despite finding the case rife with “inexcusable prosecutorial misconduct.” The misconduct included exhorting the jury to convict Falck even if he was innocent, for the sake of the victim and stalking victims everywhere. The appeals court found the misconduct to be “harmless error” because, even without the prosecutor’s wayward arguments, the jury would almost certainly have convicted Falck anyway.

  Operation Lost Trust, a massive federal investigation of corruption among South Carolina legislators, collapses when a federal judge dismisses charges against five former lawmakers because of egregious prosecutorial misconduct. The legislators had been videotaped accepting bundles of cash during a secret sting operation. Prosecutors called these payments bribes, while the defense said they were lawful campaign contributions. The truth will remain unknown because of the government’s misconduct; U.S. District Court Judge Falcon Hawkins wrote in his blistering opinion on the case that federal prosecutors were guilty of hiding evidence, lying in court and allowing perjurious testimony in order to win wrongful convictions. He wrote:

  An investigation and subsequent prosecution of what might have started out with the altruistic motive of ridding the State Legislature of drugs and political corruption became a political bombshell that backfired. Overzealousness and political pressure upon those in positions of authority appear to be the detours that led the government to rush to trial . . . ; to withhold volumes of exculpatory evidence; to allow perjured testimony to stand uncorrected on more than one occasion; to allow its primary cooperating witness . . . to take an unusual amount of control of the sting operation; to go outside of its own regulations to target certain legislators; and to mislead this court to such an extent as to perpetrate a fraud upon the court.

  Criminal cases against five defendants are dismissed, with more to come, when it is alleged that two Boston detectives had used their badges and positions to launch a five-year crime spree that included extortion, conspiracy, theft of a quarter million dollars’ worth of cash, drugs and guns, the dropping of charges in exchange for money, and the framing of other people for the detectives’ fifty-six separate alleged crimes. The pair was also said to have carried out hundreds of illegal searches of people’s homes with bogus warrants. The detectives were found out and indicted only after a federal probe that was triggered by an investigation by the Boston Globe.

  Twenty highly publicized organized-crime convictions are brought under review because the FBI failed to disclose the existence of mob informers to defense attorneys, while also keeping in the dark judges who were issuing wiretap orders—placing the constitutionality of the convictions in grave question. The FBI went so far as to protect from arrest and identification one informer, James “Whitey” Bulger, even while he ran a loanshark and drug business in league with men who murdered four people.

  Susie Mowbray is released after nine years in Texas state prison when she proves—thanks to her son’s dogged amateur investigation—that evidence used to convict her of her husband’s shotgun murder was invalid. Prosecutors covered up a moredetailed forensic report that found the victim, a prominent Brownsville, Texas, car dealer, probably killed himself while in bed—something Mowbray had claimed all along. (There had been a previous suicide attempt, and the victim was deeply depressed because his Cadillac dealership was under investigation by the IRS.) The prosecution had won a life sentence against Mowbray with bogus evidence of microscopic blood spatters on her nightgown; a report showing that there were no such blood spatters was kept hidden. Mowbray was eventually fully exonerated.

  Thomas Thompson, convicted of the 1983 rape and murder of a Laguna Beach, California, woman, is spared thirty-six hours before execution by a divided Ninth Circuit Court of Appeals, which finds that the prosecution withheld evidence in the case and argued inconsistent versions of the crime at a codefendant’s trial. The U.S. Supreme Court later restored Thompson’s sentence in a strictly procedural ruling, finding that the appeals court had no standing to act in the case.

  Tennessee Judge David W. Lanier flees to Mexico after being freed by an appeals court that ruled his federal conviction for civil rights offenses for raping five women in his chambers had to be overturned because there was “no general constitutional right to be free of sexual assaults.” Justices on the Sixth Circuit Court of Appeals who decided the case joked about it during oral arguments, wondering aloud if they, too, could be charged with crimes for doing various things while wearing their judicial robes. The ruling was a veritable endorsement of prosecutorial and judicial misconduct, as the Tennessee authorities who would normally be responsible for prosecuting the sexual-assault charges had refused to rein in the serial-rapist judge—he was the brother of the local district attorney, who unsurprisingly declined to prosecute. In desperation, a little-used Civil War-era civil rights law had been employed to launch a federal prosecution, but the appeals court decided that being raped did not amount to a civil rights violation, even when done in chambers by a judge in the midst of litigating the victims’ cases, and when local authorities
knew about the judge’s conduct and tolerated it. Apparently shocked by the appeals court’s ruling, a unanimous U.S. Supreme Court reinstated the conviction and Lanier was eventually found hiding out in Mexico. He was returned to serve a twenty-five-year prison sentence.

  Robert Lee Miller, sentenced to death in Oklahoma for the rape and murder of two elderly women in 1988, has charges against him dismissed by a judge who finds no evidence to justify Miller’s incarceration. DNA evidence exonerated Miller and implicated another defendant already imprisoned for a similar crime—yet prosecutors sought to keep him in prison anyway and appealed the judge’s ruling. (After another year of incarceration, prosecutors finally gave up and Miller was freed.)

  Paris Carriger, after nineteen years on Arizona’s death row for allegedly beating a man with a skillet and strangling him with a necktie during a jewelry-store robbery, is granted a new trial after evidence of prosecutorial misconduct and probable innocence arises. The prosecution kept secret extremely damaging information to their case, namely that their star witness was a habitual felon who had in the past tried to pin his crimes on others and who had been caught in numerous lies to the police. Prosecutors also hid the fact that this witness had boasted about framing Carriger and gloated over his ability to frame others, and that he told his stepson how gruesome it was to see someone’s head crushed with a skillet—revealing details of the crime that only the killer could have known. During arguments at trial, the prosecutor vouched for the witness’s credibility and nonviolent nature, though the government knew him to be both a liar and an extremely violent individual. (This same witness eventually confessed to the murder himself.) Carriger remained imprisoned while the State of Arizona appealed this ruling to the U.S. Supreme Court, arguing that it should still be able to execute Carriger and that any misconduct in the case was “harmless error.” (In 1999, Carriger accepted a plea offer from prosecutors that set him free in exchange for pleading guilty to second-degree murder.)

  In a case that drew national attention, Lisa Michelle Lambert is declared innocent by a federal judge after being sentenced in state court to life in prison for the throat-slashing murder of a sixteen-year-old romantic rival in Lancaster County, Pennsylvania. U.S. District Court Judge Stewart Dalzell, a Bush appointee known as a conservative, law-and-order jurist, proclaimed that Lambert was “the victim of wholesale prosecutorial misconduct,” with all the key evidence against her either perjured, altered or fabricated. Dalzell, who looked into the case after Lambert’s handwritten appeal landed on his desk, wrote that the misconduct that led to her conviction included “obstruction of justice, perjured police testimony, the wholesale suppression of exculpatory evidence and the fabrication of inculpatory evidence.” Key to Lambert’s conviction was testimony that the victim said “Michelle did it” as she died—which experts later said was impossible because of the damage to the victim’s throat, nerves and arteries. Dalzell found that a detective on the case, who went on to become a local judge, fabricated evidence, witnesses’ statements and a statement by Lambert, and that the county’s senior prosecutor sought to have Lambert executed while he “knowingly used perjured testimony and presided over dozens of violations, may have committed perjury, and unquestionably violated the rules of professional conduct before our very eyes.” (The reaction to the ruling was outrage—but against Dalzell, not the authorities in Lancaster County. Legislation was introduced in Washington to bar federal judges from dismissing cases like Lambert’s in the future, an impeachment campaign was launched against Dalzell, a conservative group in Washington published a video falsely labeling Dalzell as a liberal activist appointee of President Clinton, and Lancaster County successfully appealed the ruling on a legal technicality—citing a law stating that a state court, rather than Dalzell, should have heard the allegations of misconduct. Lambert was returned to prison and forced to replead her evidence of misconduct before a lower court.)

  A veteran gang prosecutor in San Diego is fired for acting unethically in handling confidential informants in a murder case and a conspiracy case, both of which had been reversed because of prosecutorial misconduct. Jemal Kasim had been convicted of hiring two men to injure a rival gang member, but was freed after it was learned that the prosecutor had secretly worked for leniency on behalf of a key witness while telling jurors that he planned to prosecute. A judge holding hearings on the matter concluded that the prosecutor had not been truthful on the witness stand about his actions in the case, and even the prosecutor’s own boss accused him of withholding evidence from the defense. Another man, Jerauld Harrell, convicted of stabbing a rival gang member to death, was granted a new trial when it was revealed that, during a closed hearing with the judge on the case, the prosecutor proposed that witnesses deny under oath that one of them was an informant. A subsequent San Diego County Grand Jury report criticized the entire gang-prosecution unit for mishandling informants and thereby jeopardizing a host of criminal cases and convictions.

  After nearly fourteen years in Alabama state prison, two brothers, Dale and Ronnie Mahan, are released and granted new trials after DNA tests show they had been wrongfully convicted of a 1983 rape and kidnapping. The prosecution’s main witness—the rape victim—had lied about the source of semen found on her clothing after the rape. It belonged to a boyfriend she had never mentioned because she was married to another man at the time. The boyfriend, who defense attorneys now believe was the rapist, was subsequently killed in an unrelated confrontation with police in Mississippi. Despite the DNA tests and the victim’s lies, prosecutors in Alabama announced that they intended to prosecute the Mahan brothers again in an attempt to return them to prison.

  In Philadelphia, where nearly three hundred felony convictions were overturned because of police corruption, a new revelation threatens to overturn even more cases: a training video for young district attorneys, instructing them how to lie and how to keep minorities off juries. The tape was made by a prosecutor running for the post of district attorney. “You don’t want those people on your jury,” prosecutor Jack McMahon says on the video, describing his belief that young blacks are less likely to convict criminals. “The only way you’re going to do your best is to get jurors that are unfair and more likely to convict than anybody else in that room.” (McMahon lost the election.)

  Because of misconduct by the Los Angeles County District Attorney’s Office, former Black Panther Party leader Elmer “Geronimo” Pratt is released after spending twenty-five years in prison for a wrongful murder conviction. Prosecutors had concealed the fact that the key witness in the case was a government informant who was given money and allowed to carry guns even though he was a convicted felon. Prosecutors then let their witness lie about his role as an informant while testifying against Pratt. Other evidence surfaced, through the testimony of a retired FBI agent, that the FBI knew Pratt was in another city at the time of the murder, but kept silent because they were “at war” with the Black Panthers. The Los Angeles County District Attorney decided not to retry Pratt.

  Texas Governor George W. Bush refuses to grant a pardon to Kevin James Byrd of Houston, who spent twelve years in prison for a rape that DNA testing later proved he could not have committed. Bush, who aspires to the presidency and relishes his tough-on-crime reputation, rejected the unanimous recommendation of the state board of pardons, as well as pleas from the judge who presided over Byrd’s case and the prosecutors who convicted him, all of whom now say that Byrd is innocent. The victim in the case, who was raped while eight months pregnant, had originally told police that her assailant was white, but though Byrd is black, he was still convicted. Texas law does not allow new evidence to overturn convictions after more than thirty days, leaving a governor’s pardon as Byrd’s only way out. (Bush eventually relented and pardoned Byrd.)

  The practice of police officers perjuring themselves in order to secure wrongful convictions in criminal cases—“testilying”—becomes so rampant in Boston that the chief judge for the Superior Court of Suff
olk County creates a reporting system to refer all such cases for prosecution as they arise. The judge’s move came after an embarrassing series of stories appeared in the Boston Globe that demonstrated the sometimes impossible testimony by police officers used to win convictions, often with prosecutors’ acquiescence or active participation, along with the burying of evidence that could prove innocence. Even when caught testilying, officers were not disciplined or prosecuted in the past; one was even promoted. One man who spent six years in prison for attempting to murder a police officer, Christopher Harding, receives a new trial after his case is publicized in the Globe series; the judge hearing the case finds the Boston police “perpetrated a fraud on the court” by concealing the whereabouts of a police officer who could have exonerated Harding.

  1998

  After nearly a decade on death row, Shawn Hill of Los Angeles is freed from his conviction and death sentence, because of the gross misconduct of Los Angeles Deputy District Attorney Rosalie Morton, a seventy-four-year-old career prosecutor with a storied history punctuated with repeated allegations of prosecutorial misconduct. The California Supreme Court took the unusual step of naming Morton in its published opinion, accused her of conducting a “pervasive campaign to mislead the jury” during Hill’s trial in a 1986 drug-robbery-and-murder case and of perpetrating “a mountain of deceit” in order to win. “Morton’s actions, at times childish and unprofessional and at other times outrageous and unethical, betrayed her trust as a public prosecutor,” the court wrote. “Her methods were deceptive and reprehensible.” Morton was said to have misstated and mischaracterized evidence, told the jury information that was not in evidence, misstated the law and told “outright falsehoods.” The court found that Morton’s misconduct helped win Hill’s conviction despite the testimony by two of three eyewitnesses who said Hill had not committed the murder. Morton had been cited for misconduct in three other criminal cases in the seventies and eighties, and a federal magistrate in 1989 had recommended she be disbarred for unethical conduct, though a judge rejected the recommendation. In addition, a 1977 opinion cited her for twenty transgressions during a robbery trial, including threatening to kick the defense lawyer in the ankle and hit him in the face. That conviction was upheld, however, and Morton was reported to have bragged about her performance in the case. Despite this history, Morton was not removed from prosecuting cases for her office until after the Hill decision was made public.