by Edward Humes
The headline-grabbing corruption prosecution and conviction of former San Diego Mayor Roger Hedgecock is thrown out when it is revealed that the bailiff in the 1985 trial had assured jurors Hedgecock was guilty, plied them with liquor during deliberations, talked over the evidence with them, partied with them during and after deliberations, and told them that a previous hung jury had failed to do its job by focusing on meaningless details raised by the defense. The bailiff and jurors admitted this gross misconduct to state law-enforcement officials shortly after Hedgecock’s conviction. There is no question this misbehavior tainted the case and automatically entitled Hedgecock to a new trial, but prosecutors in San Diego kept this information secret for five years. When the improprieties finally came to light—only after the California Supreme Court compelled prosecutors to divulge the information they had guarded so long—Hedgecock was exonerated. In exchange for his plea to a single misdemeanor, numerous felonies were dismissed. He is now a radio talk-show host.
Dale Johnston, sentenced to death for the murder of his stepdaughter and her fiancé in Ohio, is freed after six years because prosecutors hid evidence that tended to show his innocence. Once he was released, the state dropped charges against him rather than bring him to trial a second time.
The Staff of the Breezy Point Day Care Center in Bucks County, Pennsylvania, was cleared of a massive number of molestation and ritual-abuse allegations because the district attorney for the area, Alan Rubenstein, took the unusual step of reinvestigating the case brought to him for prosecution by a local police department. (Most prosecutorial agencies involved with molestation “ring” cases never conducted an independent investigation.) The insular, suburban community had been consumed by hysteria over the case, which, in startling parallel to Kern County’s Witch Hunt, included allegations that three-and four-year-old children had been beaten, locked in cages, forced to eat feces and urine and watch animals being slaughtered while the teacher held the animals’ beating hearts. Investigators claimed the children were forced to have sex, cut and stabbed by their abusers, and photographed naked. The original purpose of the district attorney’s reinvestigation was to find corroborating evidence for the case, which initially was based entirely on the testimony of children. The children had been subjected to a repeated barrage of suggestive interviews, during which a single allegation from one parent blossomed into hundreds more—a familiar pattern of misconduct in the many molestation-ring cases that have been discredited since they first appeared in the early 1980s. However, rather than finding evidence to support a prosecution, the DA found just the opposite: no evidence of cages (the children, it turned out, were referring to a metal jungle gym in which they played “zoo”); no secret room at Breezy Point, where the children said the ritual abuse had occurred; no remains of sacrificed animals where they were supposed to have been buried; no scars from cuts or stabs on any children; no child pornography; and no medical evidence of molestation. Finally, the expert who in the initial police investigation confirmed that the children had been abused by a pedophile turned out to have no expertise in this field: He was an unemployed plumber. After a year, Rubenstein announced that the charges were baseless and would not be prosecuted further. “We proved that none of this ever happened,” he later said. “This wasn’t a question of maybe it happened and we just can’t prove it. This was conjured up by the hysteria of the parents who bought into this. It never happened.”
The infamous McMartin Preschool molestation case against three Manhattan Beach, California, day-care operators ended with the dismissal of all remaining charges, drawing to a close a case that caused a national sensation, panicked hundreds of parents, and ruined the lives of seven men and women who would ultimately be found innocent. The saga began in 1983, when the mentally ill mother of one child at the day-care center leveled accusations of molestation against the son of the center’s owner, and the local police department followed up with a “confidential” letter to two hundred parents accusing McMartin of being a hotbed of sex abuse. The letter created predictable hysteria. Coercive and suggestive interviews and counseling sessions with hundreds of children who had attended the day-care center followed, the goal of which was not to find out what happened, but to persuade the children to say they had been molested. Children were rewarded if they agreed there had been abuse, chided for denying it. Pressured and prodded for weeks, the children eventually spoke of torture, child pornography, the mutilation and killing of animals, satanic rituals that included murdering infants and drinking their blood, being buried alive, jumping out of airplanes, digging up bodies at cemeteries and being taken into tunnels and underground rooms at the center to be abused. The children also claimed the owner’s son was a witch who could fly and disappear. No evidence to support any of this could ever be found. Though medical evidence of molestation was absent, a doctor hired by the prosecution still concluded 120 kids had been sexually abused. The center was razed in an effort to find the tunnels—there were none. Of the original seven people charged, five had all counts dismissed before trial. Then, after a thirty-three-month, $15 million trial—the longest and costliest in U.S. history—the owner, Peggy McMartin Buckey, was acquitted on all counts, and her son, Ray Buckey, was acquitted on most, with the jury hanging on the rest (all were ultimately dismissed, after Buckey had spent five years in jail). The case was rife with evidence of prosecutorial and investigative misconduct and, though preceded by the Bakersfield ring cases, was the first to come to widespread national attention, stoking hysteria over organized rings of child-abusing devil worshipers. After the trial, jurors said they believed that some of the children might have been molested by someone at the center, but that the suggestive interviews of the victims made it impossible to determine what really happened. Later, a wrongful-arrest lawsuit filed by the Buckeys and others charged in the case was dismissed, not because their allegations of official wrongdoing were disproved, but because California law gives prosecutors, child-protective workers and others involved with the case absolute immunity, even if they are negligent.
Ray Girdler of Prescott, Arizona, wins a new trial in the arson deaths of his wife and child in a home fire. He originally was convicted with false scientific evidence provided by a prosecution expert who found indications of a flammable liquid as the catalyst for the fire at the Girdler home. These indicators were later shown to have been caused by a natural physical effect called “flashover” that has nothing to do with flammable liquids or deliberate arson. In recent years, many other arson convictions have been reopened and overturned because flashover had been erroneously labeled arson by prosecution experts.
The Los Angeles County Grand Jury details a jailhouse “snitch” scandal, in which dozens of criminal convictions are called into question because prosecutors at the Los Angeles County District Attorney’s Office relied for years on perjured testimony from informants who fabricated testimony in order to elude their own criminal charges.
A Los Angeles County deputy district attorney resigns rather than face firing for destroying evidence that might have made jurors in a murder case more sympathetic to the defendant. Prosecutor Christine Gosney, while trying to imprison college student Edward Vasquez in the fatal shooting of a security guard, found a photo of a young child inside a critical piece of evidence in the case—the jacket Vasquez said he was wearing at the time of the murder. Gosney later admitted destroying the picture, inscribed “to my cousin Eddie,” because “I did not want the jury to be swayed by sentiment because of some little boy that obviously loved his cousin.” Vasquez was acquitted nevertheless because another piece of critical evidence was found stuffed in another pocket of the jacket as jurors were about to deliberate: a moldering burrito. Vasquez claimed all along that, at the time of the 1988 shooting, he was standing some distance away, buying a burrito, a claim that Gosney had disputed.
1991
Jeffrey Jenkins’ conviction and prison sentence for possessing an illegal sawed-off shotgun is overturned because p
rosecutors knowingly used against him a confession that had been obtained through death threats and beatings by police.
Jimmy Lee Horton, sentenced to death for a burglary-murder, receives a new trial because a Georgia prosecutor had systematically kept blacks off the jury (in Horton’s and numerous other since-overturned murder cases) and had gone so far as to issue a memo instructing clerks on how to keep blacks and women off juries without getting caught. (Such misconduct is not unique: hundreds of cases around the country have been reversed in recent years because of racially biased jury selection. In 1997, for example, the district attorney’s office in Philadelphia was struck by a similar scandal with the public release of a training video instructing prosecutors on how to keep minorities, women and other “undesirables” off juries.)
The conviction of Edward Westerdahl for armed bank robbery is overturned because, an appeals court ruled, prosecutors “distorted the fact-finding process.” Federal prosecutors promised immunity to two of Westerdahl’s accomplices if they would implicate Westerdahl, but they threatened to prosecute another accomplice in the robbery who told them that Westerdahl was innocent. Fearing for his own liberty, the man then refused to testify on Westerdahl’s behalf.
In a highly publicized, high-pressure case, four young men from Tucson, Arizona, are interrogated virtually nonstop for three days by Phoenix authorities until they confess—falsely—to nine murders at a local Buddhist temple. Later, two teenagers unrelated to the four suspects are found in possession of the murder weapons and confess (with little prompting) to carrying out the killings on their own. Although this second pair of confessions is consistent with the facts of the case, while the four initial coerced confessions were not, the Phoenix authorities continue to try to prosecute their original four suspects. Months pass before charges against the “Tucson Four” are finally thrown out. At around the same time, several studies are published that suggest current psychological-warfare techniques used by police interrogators may have increased the frequency of false confessions by innocent men and women.
Gary Nelson is freed after eleven years on death row for the 1978 rape and murder of a six-year-old in Chatham County, Georgia, after it is revealed that his conviction was based on official lies, knowing use of false testimony, the suppression of evidence supporting his claims of innocence, and the hiding of information implicating another man in the crime. There had been no eyewitness or fingerprints linking Nelson to the crime, and a search of his home turned up nothing. To combat these shortcomings, the prosecution manufactured phony scientific evidence linking Nelson to a hair found on the victim’s body. The director of the Savannah crime lab said the hair came from Nelson when, in fact, his lab never examined it. Additionally, a police detective swore falsely that Nelson’s brother had linked the suspect to the murder weapon. The jury based its conviction largely on this information. Years later, the defense discovered an FBI report finding no link between Nelson and the hair, along with a tape recording of the brother being interviewed by police in which he consistently denied knowing anything about the murder weapon. It was also shown that police covered up an alibi that could have exonerated Nelson. Despite all this, Nelson lost his first two appeals—the misconduct was deemed “harmless error.” The Georgia Supreme Court finally granted him a new trial, and a newly elected Chatham County District Attorney refused to prosecute Nelson a second time, saying, “There is no material element of the state’s case in the original trial which has not subsequently been determined to be impeached or contradicted.”
Titus Lee Brown is freed from his 1984 murder conviction and life prison sentence when it is revealed that the Los Angeles assistant district attorney on his case knowingly introduced false evidence linking Brown to a murder-robbery. Contrary to what she told the defense, judge and jury, the prosecutor knew that the property allegedly stolen by Brown actually had been found on the victim’s body by the coroner, who returned it to the victim’s family. The case shows just how hard it can be to win a new trial, even when such prosecutorial misconduct occurs: The California Court of Appeal upheld the conviction, though it condemned the prosecutor’s actions; the state supreme court not only refused to take Brown’s side, it ordered the lower court’s opinion “depublished,” so as to spare the prosecutor any embarrassment. The case had to go all the way up to the U.S. Ninth Circuit Court of Appeals—one rung below the Supreme Court—before Brown received a new trial. The appeals court wrote: “The prosecutor’s actions in this case are intolerable. Possessed of knowledge that destroyed her theory of the case, the prosecutor had a duty not to mislead the jury. Instead, she kept the facts secret . . . and then presented testimony in such a way as to suggest the opposite of what she alone knew to be true. . . . Such conduct perverts the adversarial system and endangers its ability to produce just results.”
The conviction of Thomas R. Merrill for a double murder committed during a coin-shop robbery in Orange County, California, is thrown out because a prosecutor hid a witness statement that exonerated Merrill.
1992
Kerry Kotler is freed after eleven years in prison for rape, burglary and robbery in Suffolk County, New York. Long before his release, Kotler had proved that he was the victim of prosecutorial misconduct, police perjury, and concealment of evidence (the victim in the case originally failed to identify Kotler as the rapist). But this was deemed harmless error, and Kotler lost all his appeals. In 1990, however, DNA testing showed conclusively that Kotler could not have committed the crime. The Suffolk County District Attorney continued to fight the case for two more years before Kotler finally was declared innocent and released.
Sabrina Butler walks off death row after her 1990 conviction for murdering her nine-month-old child is overturned. The Mississippi Supreme Court finds that prosecutors insisted the young mother had killed her baby when the evidence suggested that Sudden Infant Death Syndrome was actually the cause.
High school principal Jay Smith, sentenced to death for three killings in Upper Merion, Pennsylvania, is released by the state supreme court because of egregious prosecutorial misconduct and the withholding of evidence that would have helped Smith’s defense. The case was the subject of a television miniseries and a book.
Citing prosecutorial misconduct, a federal appeals court in San Diego throws out the convictions of four Mexicans and three Bolivians who supposedly ran a massive cocaine importation ring called the “Corporation.” Federal prosecutors hid from the defense a memo that detailed their chief witness’s many lies, his lack of credibility and the false allegations he had made in the past. Federal authorities also kept secret the fact that this informant was given free run of government offices, telephones, undercover sports cars, undercover houses and other perks in exchange for testimony favorable to the prosecution. By keeping this information secret, prosecutors were able to suggest to the jury their witness was a trustworthy fellow with no incentive to lie.
In the case of the “Prime Time Rapist” in Tucson, Arizona, in which an innocent man was wrongfully arrested, kept incommunicado, relentlessly interrogated by police, then publicly named even as investigators realized they had the wrong man, the U.S. Ninth Circuit Court of Appeals decides that the normal immunity from liability that protects law-enforcement officials does not apply. The court decides that Michael Cooper, falsely accused of being the culprit, should be allowed to sue officials for their misconduct, as the violations of his constitutional rights were simply too premeditated, systematic and egregious. Tucson had been beset by a serial rapist from 1984 to 1986, one who struck in the early evening by brazenly striding into the homes of his victims as they watched television—thus, “Prime Time Rapist.” Police and sheriff’s officials created an arrest plan that they put into motion when Cooper was picked up after his fingerprints were mistakenly matched to one of the rape scenes. According to the plan, they ignored Cooper’s pleas to see a lawyer, refused to allow him to remain silent, and pushed him to confess for hours on end. In essence, the plan c
alled for violating every one of his constitutional rights, lying to him about evidence and witnesses, and subjecting him to as much stress and pressure as possible, so he would “crack.” Later, when the fingerprint error was discovered, Cooper was released, but it took two months for the police to publicly clear him. (The real rapist eventually was caught.) The appeals court was so outraged by the conduct of officials in Tucson that they began their opinion with the following statement: “It is an abiding truth that nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard for the charter of its own existence.”
Jay Kerr, a former Disney movie actor, is freed from his drug-conspiracy conviction because of prosecutorial misconduct, after an appeals court concludes that a federal prosecutor in Montana improperly vouched for the reliability of an informant in the case.
Federico M. Macias is freed from his death sentence in Texas after coming within two days of execution. An appeals court found that Macias had received a grossly incompetent, government-paid defense attorney who did virtually nothing in the case, while the prosecution ignored substantial evidence of Macias’s innocence in order to secure his conviction. Once the conviction was overturned, the grand jury refused to indict him a second time—normally a rubber-stamp process for the prosecution—because there literally was no legitimate evidence of his guilt.