Prosecutorial Misconduct: Taking the Justice Out of Criminal Justice
by Christopher Zoukis
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous.... While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.
—Former U.S. Attorney General Robert Jackson
In a recent case before the U.S. Court of Appeals for the Fourth Circuit, veteran judge Henry F. Floyd offered a rare public rebuke of federal prosecutors in North Carolina, who, the court found, had engaged in a pattern of misconduct.
“Mistakes happen,” Floyd wrote. “Flawless trials are desirable but rarely attainable. Nevertheless, the frequency of the ‘flubs’ committed by [the prosecutors] raises questions regarding whether the errors are fairly characterized as unintentional.”
“Yet the United States Attorney’s office in this district seems unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode faith that justice is achievable,” he added. “Something must be done.”
To demonstrate the seriousness of the violations, the appellate court ordered a new trial for federal prisoner ...
Prosecutors Breaking Bad
The following are various cases in which prosecutors have reportedly engaged in misconduct, ethical violations or criminal behavior, which evidence the need for effective solutions to the persistent problem of prosecutorial abuses.
In 2012, the California Supreme Court overturned the death sentence of Miguel Bacigalupo based ...
From the Editor
by Paul Wright
Over the past 24 years PLN has reported extensively on the structural dynamics of the American police state, which have resulted in the imprisonment of over 2.3 million people on any given day. Critical to mass incarceration is a quick assembly-line judicial process with little regard to whatever nominal rights people may have under various constitutions or statutes.
Thus, for mass incarceration to be successful, poor defendants need to be deprived of effective legal counsel; crime labs need to be dedicated to producing evidence that results in convictions and not engaged in independent scientific endeavors; the judiciary must be compliant with and complicit in the goal of obtaining convictions at any cost; and prosecutors have to be allowed to do whatever they feel is necessary to win cases. Which is essentially how the U.S. criminal justice system operates.
As anyone who observes our justice system knows, prosecutorial misconduct is rampant, pervasive and goes relatively unpunished; presumably, if abuses by prosecutors were adequately reported and sanctioned, they would be a rarity. Yet courts continue to find misconduct on a disturbingly regular basis. As this month’s cover story makes clear, this is a systemic ...
Death Sentences Reversed Due to Prosecutorial Misconduct
by Christopher Zoukis
Death sentences imposed on prisoners in Arizona, Virginia and Tennessee have been reversed by federal appellate courts as a result of misconduct by prosecutors – including withholding evidence and making improper closing arguments.
Abuses by Arizona Prosecutors
An Arizona prisoner who spent more than two decades on death row after allegedly confessing to a police detective that she participated in the 1989 murder of her 4-year-old son was released on $250,000 bond on September 6, 2013.
Debra Jean Milke, 50, was freed after the detective who claimed she confessed to him stated he would refuse to testify at Milke’s retrial, citing his Fifth Amendment right against self-incrimination.
Retired Phoenix police detective Armando Saldate, Jr. invoked his Fifth Amendment rights after the U.S. Court of Appeals for the Ninth Circuit vacated Milke’s death sentence in March 2013 and directed the clerk to send copies of the opinion to federal authorities for “possible investigation into whether Detective Saldate’s conduct ... amounts to a pattern of violating the federally protected rights of Arizona residents.”
The appellate court’s ruling came after Milke learned that prosecutors had withheld information about at least eight ...
Wells Fargo Bankrolls Private Prison Companies, Immigrant Detention
While Wells Fargo & Company has sold off much of the stock it once owned in private prison company GEO Group amid a divestment campaign targeting the multi-billion-dollar bank, it has concurrently increased its shares in Corrections Corporation of America (CCA).
After initially selling off around 33% of its holdings in GEO Group stock in 2012, Wells Fargo continued to divest from GEO in the mutual funds it controlled. As of June 30, 2014, the bank owned 7,425 shares of GEO valued at over $272,000; previously, it had owned 4 million shares. However, Wells Fargo has steadily increased its stake in CCA and owned 1.08 million shares in the company valued at $36.6 million as of June 30, 2014.
Peter Cervantes-Gautschi, executive director of Enlace, a non-profit organization that has convened a National Private Prison Divestment Campaign, congratulated the bank on “its well-advised decision to dump the private prison stock” in GEO Group. He called on the financial industry giant to “rid itself of the rest of its private prison holdings and to cease financing private prison companies.”
A divestment campaign protest outside a Wells Fargo branch ...
Prison Systems Increasingly Provide Email – For a Price
by Derek Gilna
Prison officials and corrections experts have long recognized that helping prisoners maintain contact with the outside world decreases the stress, isolation and loneliness that are part of the inherent nature of incarceration. Further, regular communication with those outside of prison can help prisoners successfully reenter society following their release, resulting in lower recidivism rates. [See: PLN, April 2014, p.24].
In addition to the usual methods of communication such as phone calls, in-
person visits and postal mail, a growing number of states have joined the federal Bureau of Prisons in providing email services for prisoners. [See: PLN, Dec. 2009, p.24].
For example, the Minnesota Department of Corrections established a modified email system in 2012 that allows prisoners to receive emails from approved outside parties. The emails are received on computers in prison mailrooms, printed and then delivered to prisoners with their regular mail. There is no direct access to the Internet.
Iowa-based Advanced Technologies Group (ATG) signed a contract with Minnesota to provide the prison-based email service after operating a six-month pilot program. The company also supplies secure email services to the Bureau of Prisons through ...
Repackaging Mass Incarceration
by James Kilgore
Since my CounterPunch article in November 2013, which assessed the state of the movement against mass incarceration, the rumblings of change in the criminal justice system have steadily grown louder. Attorney General Eric Holder has continued to stream his mild-mannered critique by raising the issue of felony disenfranchisement;* the President has stepped forward with a proposal for clemency for people with drug offenses that could free hundreds. In the media, we’ve seen a scathing attack on America’s addiction to punishment in The New York Times and the American Academy of Sciences has released perhaps the most comprehensive critique of mass incarceration to date, the 464-page The Growth of Incarceration in the United States: Exploring Causes and Consequences.
In late May 2014, several dozen conservatives including Newt Gingrich, Grover Norquist and former NRA president David Keene pulled together the first Right on Crime (ROC) Leadership Summit in Washington, D.C. The ROC, an organization which boasts a coterie of members with impeccable right-wing credentials, reiterated the need for conservatives to drive the process of prison reform. The conference’s “call to action” argued: “In our earnest desire to have safer neighborhoods, policy responses to crime have too ...
In July 2013, Armor Correctional Health Services agreed to settle a wrongful death suit by paying $800,000 to the family of Allen Daniel Hicks, Sr., who died after being denied medical care while incarcerated at a jail in Hillsborough County, Florida. The county paid another $200,000 to Hicks’ ...
Habeas Hints: Supreme Court Habeas Review 2014
by Kent Russell
This column provides “habeas hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas corpus law which now governs habeas corpus practice in courts throughout the United States.
How Far Right Has the Supreme Court Drifted on Habeas Corpus?
As the 2014 term proceeds in the U.S. Supreme Court (SCOTUS), the Court’s docket contains very few habeas corpus cases – a situation similar to the 2013 term. This relatively quiet interlude comes in the wake of recent terms yielding blockbuster decisions which are major roadblocks to relief on federal habeas corpus – as described in my previous Habeas Hints columns, “Staring Down the Two-Headed Monster: Richter and Pinholster.” [See: PLN, Dec. 2013, p.28; Nov. 2013, p.12].
This provides an opportunity to step back and assess the degree to which the Court may have drifted so far to the “right” – that is, to the ultra-conservative “right-wing” extreme – that habeas corpus no longer serves a valuable function in holding ...
Inspection Finds Improvements at CCA-Owned Ohio Facility Following Rocky Start
A September 2013 re-inspection report cited improvements in conditions at a privately-owned prison near Cleveland, Ohio compared to an inspection performed a year earlier, when state auditors identified numerous areas of non-compliance with state standards and conditions so bad that prisoners were living in mold-infested housing units without running water or working toilets.
Inspectors with the Correctional Institution Inspection Committee (CIIC), Ohio’s independent prison watchdog agency, said not all of the problems previously identified had been fixed at the 1,800-bed Lake Erie Correctional Institution (LECI), operated by Corrections Corporation of America (CCA) – but their September 2013 report indicated the prison was “heading in a positive direction.”
CCA had purchased LECI from the state in 2011 for $72.7 million, and Ohio pays the company an annual fee and per diem rate to house prisoners at the facility under a 20-year contract with a guaranteed 90% occupancy. [See: PLN, Nov. 2012, p.16].
“The CIIC inspection team’s overall sense is that conditions have improved,” the report stated. “CCA has poured significant resources into the prison, including removing or changing staff, hiring on former (Ohio Department of Rehabilitation ...
Norris Henderson: A Profile of Commitment to Criminal Justice Reform
by Gary Hunter
In 1977, Norris Henderson arrived at the Louisiana State Penitentiary in Angola, more commonly known, then and now, as just Angola. With the weight of a life sentence on his shoulders, he had to confront the prison’s legendary legacy of violence.
In 1930 it was estimated that one in every ten prisoners at Angola had been stabbed. In 1952, 31 prisoners known as the Heel String Gang severed their own Achilles’ tendons to protest deplorable conditions at the facility. The last member of the group died in 2010, still locked away in Angola. Two prisoners were shot in 1999, one fatally, during a failed escape attempt in which a guard was killed.
But amid this violent history, during Norris Henderson’s 27-year tenure at Angola other historic events were taking place – with Norris squarely at the center.
In 1987, violence was erupting in prisons across the country, including riots at federal facilities in Atlanta, Georgia and Oakdale, Louisiana. Guards were on edge as rebellious prisoners at Angola conspired to show the world once again how the facility got its violent reputation. Norris had a different idea. Using ...
The Double-Edged Sword of Video Visitation: Claiming to Keep Families Together while Furthering the Aims of the Prison Industrial Complex
by Prof. Patrice A. Fulcher
At first glance, jail/prison video visitation schemes may seem beneficial to incarcerated persons and their families, as well as correctional departments. Jail/prison video visitation systems claim to afford greater opportunities to stay connected with loved ones, help to alleviate correctional safety concerns and generate institutional revenues, which offset incarceration costs. Thus the implementation of video visitation in U.S. prisons and jails appears to be a viable, mutually beneficial solution to correctional visitation concerns.
However, by scratching the surface, the double-edged sword of video visitation is revealed. The reality of video visitation presents several issues: 1) the elimination of face-to-face visits removes essential human contact that is critical to the survival of incarcerated individuals; 2) almost all of the in-home video visitation services charge excessive fees, which in turn exploit family and friends of incarcerated individuals; and 3) the economic success of video visitation is contingent upon the number of incarcerated individuals – a decrease in prison population has a direct effect on revenue and profits, and therefore further incentivizes incarceration.
Video visitation ...
Former Kansas Attorney General has Law License Suspended Indefinitely
by Christopher Zoukis
On October 18, 2013, the Kansas Supreme Court indefinitely suspended the law license of former State Attorney General Phillip D. “Phill” Kline, who became nationally known for his repeated prosecutions of Planned Parenthood and Dr. George Tiller, an abortion provider later murdered by an anti-abortion activist.
In a 154-page decision that detailed Kline’s violations of the Kansas Rules of Professional Conduct, the unanimous state Supreme Court held there was “clear and convincing evidence” that he had demonstrated “overzealous advocacy” and failed to operate “within the bounds of the law.” The Court concluded he had “violated his duties to the public, the legal system, and the legal profession.”
Kline, who served as Attorney General from 2003 to 2007, is now an assistant law professor at Liberty University in Virginia – a Christian-oriented school founded by evangelist pastor Jerry Falwell. He will be able to apply for reinstatement of his law license every three years.
The Supreme Court found Kline had engaged in misconduct when he had staffers attach sealed records to a public brief in violation of a court order, then ordered them to provide “misleading” information ...
Missouri DOC Must Provide Notice of Censorship
A federal district court in Missouri has approved a settlement agreement that requires Missouri Department of Corrections (MODOC) officials to provide notice when books and publications sent to state prisoners are censored and withheld.
The settlement resolves a class-action suit filed by Bobbie Y. Lane, owner of a publishing company called Caged Potential. In November 2010 and January 2011, the company mailed nine copies of a book titled So Far From Paradise to prisoners at the Crossroads Correctional Center. The book was written by Lane’s cousin, Sultan K. Lane, who was incarcerated at the facility – a maximum-security lock-up in Cameron, Missouri.
The books were withheld under the MODOC’s censorship policy, which did not require that publishers or other senders receive notice when publications were rejected. Alleging that the policy violated the company’s right to due process under the 14th Amendment, Caged Potential sought an injunction requiring the MODOC to notify senders when publications are censored and grant them the right to appeal.
U.S. District Court Judge Nanette Laughrey entered a preliminary injunction on November 15, 2012, requiring the MODOC to provide notice and an opportunity for senders of censored publications to ...
Philadelphia Prosecutor Busted for Filing False Police Report Against Ex-Boyfriend
by Christopher Zoukis
Assistant District Attorney Lynn M. Nichols, 47, assigned to the homicide unit in Philadelphia, was arrested on October 4, 2013 for filing a false police report as part of a scheme to seek revenge against an ex-boyfriend.
Nichols, a 22-year veteran of the District Attorney’s office, resigned following her suspension for ethical violations related to the scheme.
Her troubles involved a pickup truck driven by her ex-boyfriend that was owned by another woman, who had reported it stolen. In October 2012, to protect her boyfriend, Nichols convinced a Philadelphia police officer to remove the truck from the National Crime Information Center’s database of stolen vehicles.
A year later, months after breaking up with her boyfriend, Nichols went to the home of the truck’s owner and told her she knew where it had been stored for the last year. The two conspired to get revenge against
Nichols’ ex. Nichols called 911 from the woman’s home phone, pretended to be the woman’s sister and filed a false police report claiming the vehicle had been stolen that day.
When the officers who took the report left, Nichols called a police ...
Alaska Supreme Court Suspends Former Deputy Attorney General
by Christopher Zoukis
Former Alaska Deputy Attorney General and prosecutor Patrick Gullufsen, 66, was suspended from the practice of law for 18 months in July 2013 after a Superior Court found he had “blatantly lied” about forensic analysis of DNA evidence during the 2010 trial of Jimmy Eacker, who was found guilty of murder.
Eacker’s conviction was tossed out in early 2011 when Superior Court Judge Anna Moran determined that Gullufsen’s conduct amounted to a “flagrant, regardless or negligent disregard of the State’s obligation under the Alaska Constitution.”
Eacker later pleaded guilty to a lesser charge of manslaughter and was sentenced to 20 years in prison.
According to court records, Eacker was identified as the chief suspect by a “cold case” squad investigating a 1982 murder. While he was a key suspect in the 1980s, it was not until 2006 that an evidence custodian came across DNA evidence from the case and had it tested. Gullufsen used the DNA evidence to suggest to the jury that blood and semen at the crime scene proved Eacker’s guilt.
However, he failed to tell the jury – or the defense – that a state ...
Prosecutorial Misconduct Results in New Trial in Connecticut Murder Case
by Christopher Zoukis
In a rare public rebuke of a prosecutor found to have engaged in a “deliberate pattern of misconduct,” the Connecticut Appellate Court vacated a defendant’s murder conviction based on the prosecutor’s improper remarks during closing arguments.
Senior Assistant State’s Attorney Terence D. Mariani, Jr. was chided in an opinion by Judge Michael R. Sheldon, writing for a three-judge panel in the direct appeal of Victor Santiago, who was found guilty of killing a Waterbury bar owner during a 1998 robbery. Santiago was not arrested in the case until 2010, when his estranged wife implicated him and his two brothers in the murder.
In ordering a new trial for Santiago, who had received a life sentence, the Appellate Court held that Mariani deliberately “flouted” a trial court’s ruling that limited references to Santiago’s alleged involvement in the Latin Kings gang to establish a basis for Santiago’s wife’s fear of him. The court noted that Mariani repeatedly referred to Santiago’s connection with the Latin Kings during his closing arguments.
Santiago’s lawyer had complained that Mariani called her client a “gang banger” and made other references to the Latin ...
Missouri Prisoner Exonerated in 1983 Prison Murder; Brady Violations Cited
by Christopher Zoukis
Reginald “Reggie” Griffin, 53, was sentenced to death for the July 12, 1983 stabbing of James Bausley in a yard at the Moberly Correctional Center (then known as the Missouri Training Center for Men). In August 2011, the Missouri Supreme Court vacated Griffin’s conviction after finding the state had withheld evidence related to another prisoner who was likely involved in the murder.
That prisoner, Jeffrey Smith, was found with a sharpened screwdriver while attempting to leave the yard shortly after Bausley was killed; Smith was convicted of unlawful use of a weapon. The state Supreme Court found the prosecution had violated its Brady obligations by failing to disclose that information to Griffin, which would have bolstered his “alternate perpetrator” defense at trial. See: State ex rel. Griffin v. Denney, 347 S.W.3d 73 (Mo. 2011), cert. denied.
The 2011 vacatur of Griffin’s conviction was not the first time the Missouri Supreme Court had ruled in the case; it had previously vacated Griffin’s death sentence after finding the state wrongly relied on the criminal record of another prisoner with the same name as Griffin during the penalty ...
Florida Prosecutor Suspended for Ex Parte Contact with Judge During Murder Trial
by Christopher Zoukis
A Florida prosecutor who engaged in text messages, cell phone calls and dinner dates with the judge presiding over a capital murder trial has been suspended for two years by the Florida Supreme Court. The judge who engaged in the ex parte communications resigned and was later disbarred.
Former Broward County Assistant State Attorney Howard M. Scheinberg received the two-year suspension in June 2013 after appealing from the Florida Bar’s recommendation of a one-year penalty for his inappropriate contact with the judge, which violated Florida’s Rules of Professional Conduct. In imposing the harsher sanction, the Supreme Court cited “the serious nature of his misconduct, and the harm it caused to the administration of justice.” See: Fla. Bar v. Scheinberg, 129 So.3d 315 (Fla. 2013).
Scheinberg had exchanged some 471 text messages and 949 cell phone calls with Broward Circuit Court Judge Ana I. Gardiner, 52, during lengthy proceedings in the 2007 capital murder trial of Omar Loureiro, whom Gardiner sentenced to death.
The state’s first female Hispanic judge, Gardiner was disciplined by the Florida Judicial Qualifications Commission (JQC), which regulates, investigates and prosecutes ...
News in Brief
Alabama: A March 2, 2014 fight at the Elmore Correctional Facility resulted in eight prisoners being transported to Jackson Hospital, where three were admitted for further treatment. Details on the extent of the prisoners’ injuries and the circumstances of the fight were not released.
Argentina: Raunchy photos depicting female jail guards and superintendents in various stages of undress surfaced in February 2014, several days after a female warden, Yamile Gomez, was stabbed to death by a prisoner already serving time for murder. The prisoner, Cesar de la Concepcion, was later found dead in his cell. Argentina is no stranger to prison scandals; recently, videos were posted online that showed guards and police torturing and abusing prisoners.
Arizona: AZFamily.com reported on February 13, 2014 that Maricopa County Sheriff Joe Arpaio’s new, all-vegetarian menu sparked a hunger strike at the Estrella Jail. Prisoners complained that their meals were similar to dirt, dog food and dog excrement. Arpaio, in his usual elegant form, stated, “They ought to shut up and eat what they have.” He claimed the new soy-based meals save the county a half-million dollars a year.
Arizona: Terry Wheeler, a probationary guard at Maricopa County’s Fourth ...