If you want to understand just how flawed the case against Curtis Flowers is, consider the state’s failed conspiracy to conceal the sad truth about its star witness.
The defense attorneys representing Curtis Flowers have filed a supplemental motion for a new trial. As previously reported on this blog, Patricia Sullivan, the state’s key witness against Mr. Flowers was convicted on eight counts of income tax fraud in early 2011 and sentenced to 36 months in federal prison. But Ms. Sullivan was indicted on February 17, a full four months before Curtis Flowers was convicted in Winona, and therein lies the problem. (more…)
“I understand why people hung people from trees…[I] want to go home and put on my white pointy hat.” Those are the alleged words Denton County felony Prosecutor Cary Piel told his black co-worker Nadiya Williams-Boldware who sued in federal court and was awarded over half million dollars for the discriminatory incident.
After being called a troublemaker by a co-worker, dismissed by her boss—the supervisor happened to be Cary Piel’s wife— and turned away by the Texas Workforce Commission Civil Rights Division, Boldware took her complaints to the U.S. District Court for the Eastern District of Texas. The story can be found here.
After the verdict—on Monday, June 22, 2012—Denton County District Attorney Paul Johnson fired the four prosecutors who cost the county the hefty $510,000 penalty: Susan Peil, Cary Peil, John Renz, and Ryan Calvert. Calvert is Cary Peil’s brother-in-law, and Renza was Peil’s partner in court. Read more about the firings here.
Clarence Walker is a Houston based journalist and investigator with a primary focus on the criminal justice system.
By Clarence Walker
“Prosecutors are arguably the most powerful figures in the American Criminal Justice System,” according to a recent report by The Justice Project. Prosecutors decide which charges to bring, what plea bargains to offer, and what sentences to request. These decisions deeply impact the lives of defendants, victims, their respective families, and the general public.
“Given the special duties of prosecutors and the broad power they exercise in the criminal justice system, it is critical for prosecutors to discharge their duties responsibly and ethically,” writes the Justice Project.
Truth and justice shall always prevail in a court of law. Yet, at times, truth and justice seem shallow.
According to lawyers and criminal justice advocates, the intentional use of false testimony by prosecutors is rampant throughout the U.S. justice system. Law defines perjury as an instance when a person deliberately lies under oath. In drug cases or any other court proceedings, blatant “perjury can easily undermine a defendant’s right to a fair trial,” according to Chicago criminal defense attorney Leonard Goodman.
Goodman should know.
In 2009, Goodman represented Brian Wilbourn in a federal narcotics case in which the prosecutors knowingly allowed an informant to testify that Wilbourn was slinging dope to addicts at a Penthouse Apartment rented by co-defendant Rondell Freeman. In reality, Wilbourn was not anywhere close to the specific location on the dates specified in the indictment.
Goodman had solid proof that his client was elsewhere. “Mr. Wilbourn was safely locked away in prison when the informant testified that Wilbourn was selling drugs at the Penthouse between 2002-2005,” Goodman said.
“Federal cases are based on the word of informants who understand the only way to get a lesser sentence is to help government prosecutors convict others,” Goodman now says after the Federal 7th Circuit overturned Wilbourn’s conviction.
In reversing Wilbourn’s conviction, Judge Daniel A. Manion stated, “When the government obtains a conviction through the knowing use of false testimony, it violates a defendant’s due process rights.”
Even if a person is absolutely guilty of a crime but convicted on perjury, this grave error violates the “Bill of Rights” and thus creates an unconstitutional conviction.
“It’s a result-oriented process today, fairness be damned,” says Robert
Merkle, a former U.S. Attorney in Florida.
“No trial is perfect and sometimes mistakes are made but for a prosecutor to put perjury on the witness stand, that is scary,” says Mark Vinson, a former Harris County (Houston Texas) Chief Prosecutor now in private practice as a criminal defense attorney.
Legal experts say that most prosecutors are dedicated to performing ethically and professionally, but many prosecutors repeatedly commit misconduct because they realize they most likely will never face serious punishment.
Prosecutorial misconduct has serious financial consequences. County governments spend “hundreds of millions” in taxpayer dollars to retry cases in which prosecutors contributed to faulty convictions.
Few statistics are available documenting nationwide prosecutorial misconduct,
and there have only been a handful of instances where prosecutors were actually sanctioned for such conduct.
Based on extensive research, the author of this report discovered the following information on prosecutorial misconduct:
(1) A study conducted by the Center of Public Integrity found 11,452 documented appeals alleging prosecutorial misconduct between 1970 and 2002. Approximately 2,012 appeals led to reversals or remanded indictments.
(2) Out of 4,000 cases reviewed in California from 1997-2009, 707 cases of prosecutorial misconduct were found. Only 6 prosecutors were disciplined.
(3) A study of Texas convictions indicated that 91 cases since 2004 illustrate a pattern of prosecutorial misconduct. None of the Texas prosecutors were disciplined.
“This lack of accountability promotes the problematic culture that plagues prosecutors’ offices and can easily contribute to wrongful convictions,” the Justice research concluded.
What it really boils down to is that there are prosecutors with a “win-at-all-costs” mentality.
The following story highlights part one of a two-part “Drug War” series detailing prosecutorial misconduct in U.S. drug trials.
Case File #1: Brian Wilbourn
Location: Chicago, Illinois
Case# 07-CR-00843 & No# 09-4043
Judge: Joan Lefkow
Timeline: December 2007-2009
Defendant Brian Wilbourn was charged along with 16 other defendants with possession and conspiracy to distribute crack cocaine, heroin and marijuana at the Cabrini Green Public Housing Development in Chicago Illinois.
The DEA alleged that Wilbourn was part of the Gangster Disciples drug-dealing street gang. Rondell “Nightfall” Freeman was pegged as the ringleader of this faction of the Gangster Disciples street gang.
Wilbourn and three co-defendants were convicted by a jury on “eight out of nine counts” including a charge of conspiracy that carried 20 years to life in prison.
When the DEA announced federal charges against the defendants in December
2007, an agent said, “they were upending the gang’s flagrant drug dealing at public housing projects and other apartments in the Chicago area.”
Making reference to the upcoming Christmas holiday, Andy Traver, an ATF special agent in charge, cracked, “It’s a season of giving, so our gift to the people is to let them live without constant fear of this drug organization all around them. And our gift to Rondell Freeman and his organization is 20 years to life.”
In a twist of ironic justice, Rondell Freeman and his co-defendants did in fact get a gift. The Illinois 7th Circuit reversed the convictions of Freeman, Wilbourn, Daniel Hill, Adam Sanders, and another defendant — the only five out of 16 to have their cases tried by a jury.
“This was a case where prosecutors allowed an informant to testify falsely against my client Brian Wilbourn,” says Chicago attorney Leonard Goodman.
“Prior to trial I informed the government that my client was in prison from 2002-2005– when the informant said he saw Mr. Wilbourn selling drugs in the company of co-defendant Rondell Freeman.”
Despite Goodman’s alert that Wilbourn was incarcerated during the time period described in the indictment, the government plowed ahead in order to convict Goodman’s client.
Prosecutors conceded that Goodman submitted the certified documents to them in December 2008, two months before the trial started. However, the prosecutors later argued before Judge Lefkow that they could not accurately verify the dates of Wilbourn’s incarceration.
At trial, the prosecutors relied in part on informant Senecca Williams. Williams made a deal with the Feds – he would testify against the defendants in exchange for 5 years off of his sentence.
Attorney Goodman told the Chicago Tribune, “Everybody knows these witnesses will lie, saying whatever the government wants them to say to get a deal. The only difference in this case is we happened to catch one.”
Senecca Williams testified at length about the Penthouse, claiming that Wilbourn discussed sales and bagged up the drugs for distribution with Freeman and other players in the group.
Although two other informants testified for the government, neither informant could tie Wilbourn to the Penthouse Apartment.
Attorney Goodman cross-examined Senecca Williams on March 4, 2009. Goodman confronted Williams with the fact that his client was in prison from 2002-2005 and could not have been at the Penthouse Apartment discussing drug business like Williams said.
“Now Mr. Williams, isn’t it true that Brian Wilbourn was in jail from April 23rd of 2002 until September 2005?” Goodman asked. “I don’t know it to be true,” Williams replied.
Suddenly, U.S. Attorney Kruti Trivedi, objected and said, “That’s not true.” Defense Goodman appealed to the judge. “It is true, your honor.”
Judge Lefkow overruled the prosecutor.
Under intense questioning by Goodman, Williams confessed other misdeeds. Williams admitted that he once lied under oath in State Court around 2005 or 2006 to help Rondell Freeman beat a drug case.
Goodman questioned Williams:
(Q) “You would lie at Rondell Freeman’s trial in State Court because if he got convicted you might not get to live at the car wash, correct?”
(Q) “But you wouldn’t lie to save yourself 15 years of your life?”
The government made no attempt to correct Williams’ false testimony. Instead, the government bolstered Williams’ glaringly inaccurate testimony:
(Q) “Have you been truthful and tried the best of your ability to give approximate dates as you remember them?”
Attorney Goodman informed Judge Lefkow that he filed a motion to dismiss the counts against Wilbourn due to Senecca Williams’ false testimony.
“The government had an obligation under Napue vs Illinois (360 U.S. 264, 269, 79) to correct the record,” Goodman told the judge.
U.S. Attorney Rachel Cannon stated, “the government stipulated as to the dates of Wilbourn’s incarceration and if Mr. Goodman wants to argue to the jury that Senecca Williams perjured himself, he’s absolutely free to do that. Our argument will be Williams was wrong about the dates, but the facts remain true.”
Judge Lefkow responded to Cannon’s argument, “You know, you as the representative of the United States have an obligation to make sure the evidence you are presenting is truthful and accurate.”
Surprisingly, Cannon replied, “We stand by everything that’s been presented, your honor.”
Judge Lefkow denied Goodman’s motion to dismiss the charges against
During closing, Assistant U.S.Attorney Rachel Cannon asked the jury
to find Brian Wilbourn and the other defendants guility: “Williams did not lie,” Cannon explained, “Don’t think what he testified to about Brian Wilbourn’s involvement with drugs never happened.”
Goodman implored the jury to find his client not guility: “They put a liar on the stand and he got caught and the government still [has] the nerve to ask you to rely on Senecca Williams’ testimony to convict. You should be offended.”
Unfortunately the jury sided with the government and convicted all four defendants including Wilbourn.
On appeal, the government argued they did not knowingly use false testimony to convict the defendants. In reversing the convictions, Judge Lefkow made a finding that when Assistant U.S. Attorney Rachel Cannon “bolstered William’s false testimony it constituted prosecutorial misconduct.”
“Under Napue vs Illinois, the government had a duty to correct false testimony,” Lefkow opined.
All four defendants still remain in custody at the Metropolitan Correctional Center in Illinois pending a court date to resolve the related lesser drug charges.
Attorney Goodman felt rejoiced that his client no longer faced a life sentence.
“It is an important opinion because it stands for the principle that federal prosecutors are not above the law and that telling the truth is more important than winning.”
Next installment: How a bulldog lawyer exposed the entire court as a liar in a major cocaine case with connections to a Mexican Drug Cartel.
Investigative journalist Clarence Walker can be reached by email, firstname.lastname@example.org.
This is a story about the limits of free speech on the internet, but it is goes much deeper than that. This is also about what happens when a small town defense attorney challenges the local power structure.
Vergil Richardson, a basketball coach in nearby Texarkana, lost his job the moment charges were filed. He hired Mark Lesher, a local attorney with a reputation for independent judgment, to represent him.
The following year, Robert Bridges, the man responsible for arresting the Richardsons, made a run for sheriff. Mark and Rhonda Lesher supported Bridges’ opponent, Royce Abbot, and used the Richardson raid as an example of the cowboy tactics routinely employed by Bridges and the rest of the local law enforcement establishment.
That’s when the nasty emails began to appear on Red River County’s Topix site. The Leshers were accused of every low down, nasty deed imaginable. The message was simple: Do you want to vote for Royce Abbott, the man who pals around with drug-dealing rapists?
The tactic was as successful as it was vicious; Bridges won the election.
The Richardsons were vindicated almost exactly three years after their ordeal began. The delay was created when Judge John Miller, a close friend of County Attorney Val Varley, refused to recuse himself from the case. Only when the Texas Attorney General’s Office took over the prosecution from Mr. Varley was Miller forced to step aside. Eventually, an obvious injustice was belatedly averted. (more…)
In a recent 60 Minutes segment, you see footage of Morton being released from prison and stepping out into the warm Texas sunshine for the first time in 25 years. “The sun felt so good on my face, on my skin,” Morton recalls, “I felt like I was just drinking in the sunshine.”
In 1987, Morton was convicted of brutally murdering his wife, Christine. He was sentenced to life in prison.
But he was innocent.
Morton’s case gained national media attention last year when he was exonerated based on DNA evidence — a bandana found near the scene of the crime had traces of Christine’s blood and the DNA of another man. That same man’s DNA matched that found at the crime scene of another murder that happened in 1988 near where Christine was killed. Morton was in prison when the second murder occurred.
An investigation by the Innocence Project revealed prosecutorial misconduct in Morton’s case. Key pieces of evidence were withheld by the prosecution — pieces of evidence that would have cleared Morton’s name. The District Attorney at the time of Morton’s trial, Ken Anderson, is now under investigation.
“I don’t have a lotta things really driving me,” Morton says to the 60 Minutes reporter, “But one of the things is, I don’t want this to happen to anybody else. Revenge isn’t the issue here. Revenge, I know, doesn’t work. But accountability works. It’s what balances out. It’s the equilibrium.”
Richard Miles served 14 years in prison for the murder of one man and the attempted murder of another.
Miles’ guilt rested on the testimony of one eyewitness who claimed that he saw Miles shoot two men in a Texaco parking lot. Similar to the Curtis Flowers case, detectives pinpointed Miles and decided that he was guilty within a few hours of the shootings. Miles had an alibi and several individuals who corroborated his story, but that was irrelevant.
Despite little evidence, Miles was found guilty and sentenced to 60 years in prison.
As of yesterday, however, the Texas Court of Criminal Appeals ruled that Richard Miles is officially exonerated.
Unlike most of the exonerations thus far, there was no DNA to test. After it was discovered that prosecutors withheld exculpatory evidence from the defense, Miles was released in 2009 (but not officially exonerated). In 2010, the original eyewitness recanted his testimony, claiming that prosecutors coerced him into identifying Miles as the perpetrator.
Free for two years, Richard Miles has nevertheless waited and waited for today — the official acknowledgement that he did not commit the murder and attempted murder at a Texaco near Bachman Lake in 1994 for which he was sent to prison. The detailed 52-page opinion handed down from the Texas Court of Criminal Appeals reads like the outline of a Hitchcock film, detailing two police reports that weren’t disclosed at the time of Miles’s conviction, a 2010 recantation from the only uninvolved eyewitness and the determination that the small amount of gunshot residue on Miles’ hand was inconclusive. All of which amounted to the decision that the wrong man spent 14 years behind bars.
“When we balance the newly available evidence … with other exculpatory evidence and the evidence of guilt presented at trial, we are satisfied that Applicant has shown by clear and convincing evidence that no rational jury would convict him in light of the new evidence,” reads the court’s opinion released today.
The Dallas County District Attorney’s office recommended Miles’s release in 2009 after they determined that flaws in his trial violated his constitutional rights. Since his release more than two years ago, he’s been working, piecing his life back together and finding support in other exonerees as he waited for a decision from the state court, which must rule on all exoneration cases. But finally, as of today Miles can file for state compensation for his years spent locked up.
“This is going to be great for him because now he can do some of the things he wanted to do” like help his mother, said Charles Chatman, an exoneree who was released in 2008. Chatman and the other exonerees, including Miles, meet monthly, and Chatman tells Unfair Park that he and the other guys have given Miles a helping had since his release.
“We have helped him,” Chatman says, quickly adding that Miles isn’t “the kind of person who just depends on nobody.” Miles has been getting by working at a hotel, Chatman said, but even finding a job was difficult without a declaration of “actual innocence.” (more…)
The New York Times editorial below explores the relationship between race and the selection of death penalty juries. The editorial mentions a 2011 study conducted at Michigan State University that found a significant racial bias in the selection of jurors. In the 166 cases reviewed by researchers, “prosecutors dismissed more than twice as many blacks from the jury (56%) as others (25%).” Moreover, the disparity was even greater when the defendants were black.
The Curtis Flowers case is a prime example of this type of racial bias. Curtis, an innocent man, has been tried six times for the same crime. His first two convictions were overturned due to prosecutorial misconduct. Discrimination in jury selection led the Supreme Court to overturn Flowers’ conviction after his third trial. Trials four and five ended with hung juries. At the end of the sixth trial, Curtis was convicted and sentenced to death. Although Mr. Flowers has spent over 15 years in prison for a crime he did not commit, we can only hope that the growing awareness of racial bias in jury selection will help bring justice for Curtis and others facing similar situations. MW
North Carolina courageously passed the Racial Justice Act in 2009, making it the first state in the country to give death row inmates a chance to have their sentences changed to life without parole based on proof that race played a significant role in determining punishment.
A state court is now hearing the first challenge to a death sentence under that law. Marcus Robinson, who has been on death row since 1994, must prove that state prosecutors discriminated against blacks in selecting juries, affecting the outcomes of cases, including his. His lawyers presented a notable study by researchers at Michigan State University showing this kind of bias. (more…)
Grits recently named the Michael Morton exoneration out of Williamson County the biggest Texas criminal justice story of 2011. Morton spent a quarter-century in prison for allegedly murdering his wife before he was exonerated by DNA and a team of won’t-quit attorneys who fought Williamson County DA John Bradley over testing the evidence for six long years (prevailing only after the Legislature changed the law to remove Bradley’s grounds for objection). It turned out prosecutors 25 years ago had failed to release exculpatory evidence to the defense, and the man who apparently did so, then-elected DA Ken Anderson, is today a sitting Williamson County District Judge. You really can’t make this stuff up!
John Bradley is currently locked in a tight election race that will tell us how the good people of Williamson County (reputedly the most tuff-on-crime county in one of America’s most tuff-on-crime states) feel about the gross injustice perpetrated in their name.
But, as the NYT editorial below correctly observes, this isn’t just a story about a single county or a single state; the Michael Morton case is an egregious example of business as usual in our legal system. It isn’t that all prosecutors routinely withhold exculpatory evidence from defense counsel (most do not); but if they do, the crime is rarely uncovered, and even when the truth is exposed there is little anyone can, or will, do about it.
In a few weeks I will be telling you how the DEA and the DOJ conspired to convict Ramsey Muniz of a crime he could not possibly have committed. It all began with an investigative report riddled with baldfaced lies. A DEA agent reported that her attention was drawn to Muniz by Ramada Inn employees who called to report suspicious behavior. This report became the foundation for a widely circulated Houston Chronicle story (Muniz once ran for governor, so his legal woes attracted considerable attention) and the basis of the government’s case.
This story was accepted as bedrock truth until attorney Dick DeGuerin decided to chat with the employees at the Ramada Inn. They hadn’t been suspicious of Muniz at all, they told the Houston attorney, in fact, the polite businessman had been a model guest. Furthermore, the Ramada Inn hadn’t contacted the DEA, the DEA contacted the motel.
When it became clear that a DEA agent had repeatedly perjured herself, the government simply adjusted its story on the fly as the presiding Judge pretended not to notice.
That’s the real problem with prosecutorial misconduct–nobody cares–at least nobody with the power to do anything about it. If you don’t believe me, read on. (more…)
According to Scott Henson at Grits for Breakfast, a bill designed to qualify the absolute immunity currently enjoyed by Texas prosecutors was introduced by Rep. Lon Burnam in the most recent legislative session. It didn’t make it to the floor. District attorneys and state legislators have traditionally marched in lock step. Politicians shore up their tough-on-crime credentials by passing more and more laws and stiff sentences. Prosecutors use these laws to leverage plea bargains. It’s a win-win.
Unless you are an innocent defendant.
The Dallas Morning News op-ed referenced below offers some solid suggestions for reining in prosecutorial power and Henson adds some additional suggestions of his own. But at the root of the problem lies a stubborn fact: we don’t have enough prosecutors in the system to handle the work load.
The explosive growth of the nation’s prison population after 1970 did not coincide with an explosion in the numbers of police officers, prosecutors, and defense attorneys. On the contrary: while prison budgets shot up, spending on police, lawyers, and courts rose more slowly, and the number of personnel rose less still. The number of local officers increased roughly 20 percent in the 1970s and 1980s, the same percentage rise as in the general population; the number of local prosecutors grew by a similar amount.
. . . Spending on lawyers for indigent defendants fell by more than half from the late 1970s to the early 1990s. While these trends took hold, the number of felony prosecutions rose at least two-and-a-half times . . . The justice system became, more and more, an assembly line in which cases are processed, not adjudicated.
. . .The greater the ratio of cases to personnel, the smaller the opportunity to examine carefully the evidence on which the government’s case rests. And that opportunity was already small: even before the huge run-up in felony prosecutions, the tendency was for plea bargains to be struck early in the process, before either side had a chance to do much investigating. That tendency is even stronger in today’s justice system because pleading cases out quickly is a necessity, not a convenience. The upshot is that noninvestigation is the norm in American criminal litigation, careful gathering of evidence the exception.
As the Curtis Flowers case demonstrates, under-investigation and noninvestigation are the primary reasons for wrongful conviction. Prosecutors are desperate to settle cases quickly and cheaply. If we’re serious about curbing prosecutorial misconduct, we need more prosecutors, more police officers, more judges, more courtrooms and more defense attorneys. I know this is unwelcome news given the prevailing mania for belt-tightening, but it’s true.
Five weeks ago, Michael Morton was released to the free world after DNA evidence made it clear that he hadn’t killed his wife, Christine, twenty-five years ago. Now Williamson County police have arrested Mark Alan Norwood, a man linked to the killing by the same DNA evidence that cleared Morton.
Tests in 1986 could only confirm the presence of human blood on the bandanna. But forensic testing in June identified the blood and an attached hair as Christine Morton’s.
The lab also found cells that were soon matched to Norwood because his DNA profile was listed in a national felony database after his 2008 arrest in California for possessing narcotics, resisting arrest and possessing a dangerous weapon.
Mark Osler’s excellent op-ed on the Hank Skinner case could easily be applied to the injustice perpetrated against Michael Morton. Prosecutors live in an echo chamber. Surrounded by people who share their zeal for justice and sealed off from meaningful contact with the defendant, district attorneys and AUSAs have their view of the world reinforced at every turn. The thought that they may have everything wrong never occurs to them.
It doesn’t help that the powers of the prosecutor have been growing steadily over the past thirty years while judicial discretion and the influence of jurors has receded. DAs are widely seen as representatives of the people, and so they are. But when the people are blinded by fear and ignorance, prosecutor must keep their wits about them. Do these men and women who wield such incredible power understand the dynamics of tunnel vision well enough to safeguard themselves against it? I have my doubts.
GEORGETOWN — A former carpet layer now working as a dishwasher in Bastrop was arrested Wednesday in the brutal 1986 beating death of Christine Morton, a Williamson County mother whose husband was wrongly convicted of her murder.
Mark Alan Norwood, 57, was arrested without incident at his Bastrop duplex, Williamson County Sheriff James Wilson said. Charged with capital murder, Norwood was being held at the Williamson County Jail on $750,000 bail. (more…)