by Edward Humes
In United States vs. Alzate, the United States Court of Appeals for the Eleventh Circuit overturns a cocaine-smuggling conviction when it is revealed that the prosecution kept secret key information that would have reinforced the defendant’s claims of innocence. The accused smuggler, arrested as he stepped off a plane from Colombia, claimed that he had been forced by death threats into smuggling a kilogram of cocaine, and that he knew little about smuggling himself. At one point in the trial, the defendant testified that a remark he had made about the value of cocaine—which the prosecutor seized upon as evidence of the defendant’s drug expertise—did not concern his own smuggling, but was an innocent reference to another arrest and drug seizure that took place in the Miami International Airport Customs Service office as he sat there in custody. The prosecution derided this claim, labeling it all part of a fabricated excuse. The prosecutor assured jurors that there had been no other seizure that day, which was false. There had been one, just as the defendant described.
In Smith vs. New Mexico Department of Corrections, the United States Court of Appeals for the Tenth Circuit reverses a double-murder conviction because information that would have cast doubt on the testimony of the government’s key witnesses was never turned over to the defense by law-enforcement officials who investigated the crime. The fact that the prosecutor on the case did not possess the information was no excuse, the court ruled: It was the duty of prosecutors to make sure that police turn over all relevant information, particularly when it is as potentially explosive as this evidence, which undermined the entire prosecution theory of the crime.
In Banks vs. Reynolds, the Tenth Circuit Court of Appeals reverses a death sentence and orders a new trial because prosecutors failed to reveal that another person had been initially arrested for the murder in question and that eyewitnesses had identified other suspects. Lower courts had ruled this devastating omission “harmless error.”
Robert Charles Cruz is acquitted of murder in Phoenix, Arizona. His original conviction and death sentence for a 1980 double murder were reversed because prosecutors illegally stripped his jury of Hispanics; later, questions were raised about immunity granted the main witness in the case.
In a case that shows just how difficult winning freedom for convicted innocents can be, an Oregon judge declines to set aside the murder convictions of a man and a woman even though the prosecutors who convicted them said they were innocent—and despite the fact another man confessed to the crime and provided evidence that proved him the true culprit. Sixty-two-year-old Laverne Pavlinac had falsely confessed to the murder of a young woman in Portland and implicated her forty-one-year-old boyfriend, John Sosnovske, in order to escape from their abusive relationship. She later recanted, but both were convicted anyway and sentenced to life in prison. Later, Keith Hunter Jesperson, a serial murderer known as the “Happy Face Killer,” confessed and provided details of the crime that only the killer could know (and that Pavlinac had gotten wrong). In prosecuting Pavlinac and Sosnovske, authorities ignored the fact that Pavlinac had tried a year earlier to implicate Sosnovske in a bank robbery he didn’t commit. When prosecutors realized Jesperson was the true killer and that they had made a terrible mistake, they petitioned the court for a belated acquittal. However, tough new Oregon laws limit the time for presenting new evidence to five days after sentencing, a rule intended to preserve the integrity and finality of jury verdicts, but which implicitly assumes that new evidence of innocence is always bogus. In this case, there was no legal route of appeal, and Pavlinac and Sosnovske languished in prison for another two months after everyone involved agreed they were innocent. Finally, the judge in the case decided that the solution was to declare Sosnovske’s civil rights had been violated by Pavlinac’s false accusations, thereby erasing his conviction on constitutional grounds. Angered by Pavlinac’s lies, the judges refused to erase her conviction, but ordered her released on the grounds that it would be cruel and unusual punishment for her to serve a prison sentence for a crime she did not commit. Whether or not his ruling ultimately met the letter of the law was irrelevant, as the prosecution made clear it had no intention of appealing their release. The case is an example of justice achieved in spite of tough new laws, not because of them.
1996
All charges against Methodist minister Nathaniel Grady and four other men convicted of sexually abusing children at day-care centers in the Bronx, New York, are dismissed, and all are exonerated after a variety of appeals lead to reversal of their 1984 convictions. High-pressure interrogations of children and prosecutorial misconduct, including hiding evidence of innocence, brought about the reversal of these molestation-ring convictions and lengthy sentences. Once new trials are granted, a new prosecutor assigned to the case quickly determines that there is no evidence worth pursuing.
The conspiracy and fraud conviction of a Washington, D.C., aerospace engineer and retired Marine lieutenant is overturned because of “severe” prosecutorial misconduct and the “troubling” bias of the federal judge on the case. Prosecutors had attempted to excuse it, but the misconduct and bias is clearly demonstrated in the trial transcripts, the U.S. Court of Appeals for the District of Columbia Circuit decides. In the case, Patricia Donato was accused of arranging the theft of her leased sports car so she could rid herself of the burdensome vehicle payments and collect the insurance. Just before trial, prosecutors plea-bargained an arrangement with the man who physically stole the car, who then claimed to have been hired by Donato. During closing arguments, the prosecutor provided jurors with a false motive for the crime—that returning the car she had come to hate before the lease expired would cost Donato a fortune, leaving fraud as her only way out. In fact, turning the car in early would have posed a break-even proposition for Donato and imposed no out-of-pocket costs, while the fraud would have earned her very little in return for the enormous risk of being discovered. The truth was that there was no reasonable motive for Donato to have entered into this conspiracy. Compouding this prosecutorial misconduct, the judge presiding over the trial—who severely reprimanded and derided both Donato and her defense lawyer throughout the case while helping the prosecutor at every possible turn—refused to correct the misstatement of the evidence. The appeals court found the conduct of both prosecutor and judge inexcusable and ordered the case returned to a different courtroom for retrial.
Gary Gauger is freed from his Illinois death sentence for killing his parents after it is determined that the authorities had no evidence or cause to arrest him, and therefore no reason to subject him to twenty-one hours of intensive interrogation, which supposedly produced incriminating statements.
A massive bank fraud case initially touted by the government as a blow against white-collar crime is thrown out by a federal judge because of prosecutorial misconduct. Ten Houston, Texas, investment bankers are exonerated. The judge said there was a complete lack of evidence that any laws had been broken by anyone except two federal prosecutors on the case. In acquitting the ten men, U.S. District Court Judge Kenneth Hoyt accused the prosecutors of hiding evidence that suggested the defendants’ innocence, and found that the prospect of a fair trial had been “snared on the branches of strange and subverted truth” because of the government’s misconduct. The prosecution had sought to prove that the bank owners had hidden the financial problems of their troubled banks from federal regulators so that they would not be shut down, but the defense presented evidence that the ten men had actually come up with an innovative and legal plan for keeping the banks afloat.
A biker named Joseph Spaziano is released from death row in Florida after twenty years because his conviction for the murder of a young woman was based solely on the testimony of a drug-addicted teenager who, after hypnosis (known to lead to false memories) thought he recalled Spaziano implicating himself in the murder. The witness later recanted his testimony as unreliable and false, a revelation made public by Miami Herald reporter Laurie Rozsa, at which time the case was reopened.
A developmentally disabled man named Donald Gunsby is released from his seven-year-old death sentence and granted a new trial after it is learned that the prosecution withheld crucial evidence in the case, while, in addition, his defense lawyer had been out of law school but one year before being assigned to try the capital case.
The death sentence (but not the actual conviction) of robber-murderer Kevin Shelby Malone is reversed by the California Supreme Court because the chief informant in the case had gotten leniency in exchange for his testimony, though this fact was never disclosed. On the witness stand, the informant denied receiving any deal from the prosecution, which was not true. Prosecutors allowed this perjured testimony to stand. The high court reasoned that because another culprit got lenient treatment, the jury might have reconsidered imposing the death penalty on Malone.
Denying an appeal from the Justice Department, the U.S. Court of Appeals for the Ninth Circuit upholds a lower-court finding of an “extraordinary pattern of misconduct” in the wrongful prosecution of Wang Zong Xiao. Wang was a witness brought to San Francisco from China in 1989 to testify in the “Goldfish Conspiracy,” an international heroin-trafficking case. During the trial, Wang revealed that he had been brutally tortured by Chinese authorities until he implicated—falsely—the three Goldfish conspirators targeted for prosecution in the United States. Once tortured into submission, he had been handed over to the U.S. authorities. In San Francisco, federal prosecutors responded to his story of torture by threatening to deport him back to China unless he testified as they wished against the three suspects, even though Wang would face certain torture and execution there (whereas he had been promised leniency by Chinese authorities if he falsely implicated the Goldfish defendants). When Wang still refused to testify falsely in the case and made his plight known to the court, an ensuing investigation revealed that the prosecution had kept secret a memorandum from Hong Kong authorities documenting their belief that Wang had been tortured—which is why the Hong Kong government refused to prosecute the case there. The judge on the case in San Francisco then enjoined the government from deporting Wang and later excoriated the Justice Department for “outrageous lies,” prosecutorial misconduct and a “policy of willful ignorance” when it came to substantive allegations of torture by Chinese authorities.
Verneal Jimerson, sentenced to death for a 1978 double murder and rape in Cook County, Illinois, is freed when a group of journalism students on a class assignment reinvestigate his case and learn that police pressured a key witness, prosecutors allowed the same witness to perjure herself, and authorities failed to investigate more likely suspects in the case. Jimerson was one of four defendants—a group dubbed the “Ford Heights Four” in the press—singled out by this witness, a developmentally disabled woman who named none of the four in her initial police interviews. Later, she fingered them, only to recant her identifications, saying that she had been pressured by police into lying. The charges were dismissed, but the case was refiled seven years later when the witness changed her story yet again to implicate the four—after which her own fifty-year prison sentence was reduced to two years’ probation. The witness then was allowed to perjure herself about this deal during the Ford Heights Four trial. Thanks to the college students’ investigation of misconduct in the case, DNA tests were ordered by the court. The tests proved conclusively that Jimerson and the rest of the Ford Heights Four were innocent. Other suspects have since been charged, and the Cook County State’s Attorney publicly apologized to all four men, who spent nearly half their lives behind bars.
Dennis Williams, another member of the Ford Heights Four, is released from a death sentence won through official misconduct, his innocence proven by DNA testing. He had been incarcerated for eighteen years for crimes that he did not commit.
Willie Rainge, the third member of the Ford Heights Four, is exonerated and released from a wrongful life sentence.
Kenneth Adams, the last member of the Ford Heights Four, is exonerated and released from a seventy-five-year sentence.
The City of Philadelphia pays $1.9 million to Neil Ferber, who had been sentenced to death for a double murder based on the perjured testimony of a prosecution informant. The judge overseeing his ensuing civil suit described Ferber’s experience as “a Kafkaesque nightmare . . . a malevolent charade . . . the so-called justice system of a totalitarian state.”
George Franklin Sr. is set free after six years behind bars in a notorious “recovered memory” case. Franklin’s daughter claimed to recall him murdering a childhood friend twenty-one years after the fact, a memory she supposedly had long suppressed. The case fell apart when it was learned that a key prosecution witness had been hypnotized to enhance her recollections. Use of hypnosis in prosecutions is illegal in California, because of the danger that it may implant false memories. Also, the daughter, Eileen Franklin-Lipsker, had told investigators about other crimes committed by her father and another man that she had suddenly recalled after many years. These recovered “memories” were later proven to be false, raising questions of credibility. Finally, the prosecution used improper evidence against Franklin, sending his daughter as their agent into a jail visit to elicit his confession, then attempting to suggest his ensuing silence was tantamount to a confession. One of many “recovered memory” cases in the late 1980s and early 1990s, this case, like the others, has been challenged as evidence has surfaced that certain therapists were inadvertently leading psychologically vulnerable individuals to mistake fantasies and therapists’ own suggestive questions for actual memories. The sensational Franklin case led to two books and a TV movie long before the verdict was overturned.
U.S. District Court Judge Saundra Brown Armstrong, in San Jose, California, dismisses charges and bars further prosecution of four men accused of plotting an escape from the Dublin Federal Detention Center in Northern California. The plot, which allegedly included murdering guards, blasting through a window and using a helicopter to rendezvous with a ship at sea, was never carried out. The key witness was an informant named Joseph Calabrese, an ex-Las Vegas cop who was in jail for stealing $7 million in a phony investment scheme. Facing a lengthy prison term, Calabrese came forward with his story of a planned jailbreak in exchange for leniency. During the trial of the four men, Calabrese took the stand and denied cutting a deal with prosecutors, and, though it was his duty to do so, the federal prosecutor on the case did not correct this lie. The prosecutor also prodded his informant to give inadmissible evidence to the jury, and then suggested that one defendant’s decision not to testify showed his guilt, two more instances of prosecutorial misconduct that Armstrong found intolerable. While agreeing that the case had unraveled with the star witness’s lies and that it should be dismissed, the U.S. Attorney for the region, Michael J. Yamaguchi, responded chiefly to the judge’s findings by begging her to remove the prosecutor’s name from her written opinion so as to spare him embarrassment.
1997
A massive racketeering and corruption case against a former governor of Rhode Island and his son—the most sensational case in the state in years—is dismissed because of outrageous prosecutorial misconduct and concealment of evidence that reached the highest levels of the state attorney general’s office. The Providence judge who threw out all charges against former governor Edward DiPrete and his son, Dennis, accused of soliciting $294,000 in kickbacks on state contracts, said he was compelled to do so because prosecutors had attempted to deceive the defense and the court, and that top officials in the attorney general’s office knew that evidence that would help the defense was being kept secret. The judge opined that such misconduct, if allowed to stand, would erode the public’s confidence in the justice system. Prosecutors, angry at the ruling, said it was the judge’s decision that would have that effect. (The lead prosecutor accused of misconduct in the governor’s case committed suicide after the controvery erupted, while the same prosecutors also came under investigation for improperly using informants in drug cases.) In May 1998, the
Rhode Island Supreme Court reinstated the DiPrete case. In a bitterly divided 3-2 ruling, the court agreed that the state attorney general’s office had committed egregious misconduct in hiding evidence and misrepresenting it to the trial court. But the majority ruled that trial court judges lack the power to punish wayward prosecutors by dismissing their cases. The high court imposed no sanctions; the two dissenters suggested the attorney general had committed a fraud on the court that could be considered criminal.
A federal prosecutor in Fort Myers, Florida, accused of misconduct, burglary and criminal trespass, is removed from the multimillion-dollar fraud case she had been prosecuting, the highest-profile case in the region. The prosecutor admitted to ordering an IRS agent to break into a locked storage unit belonging to Richard P. Hamric, accused of a massive mortgage-fraud scheme, and to take and copy confidential documents belonging to Hamric’s defense attorney. The prosecutor, under investigation by the Justice Department for her misconduct, died of heart problems before the investigation could be completed. Hamric was allowed to plead guilty to reduced charges and was sentenced to seven years in prison.
The rape conviction of Charles Demars of Hampden County, Massachusetts, is overturned because of a pattern of severe prosecutorial misconduct. Demars, sixty-three, was accused of raping and photographing in the nude a fifteen-year-old girl who had agreed to go home with him to be photographed so she could earn money for college tuition. Demars, while denying the rape, admitted to the photos, but said he believed the girl to be eighteen at the time. Absent any physical evidence or eyewitnesses, the case came down to the credibility of the victim and Demars. A Massachusetts appeals court decided that the prosecutor had tipped the scales in the victim’s favor by repeatedly asking improper questions, insinuating that damning evidence existed when it did not, and introducing inadmissible evidence to the jury. On appeal, the government agreed that the prosecutor had acted improperly, but insisted the errors were harmless. The appeals court felt otherwise, reasoning, “The prosecutor’s conduct of this case was a wholesale violation. . . . She sought to cause the jury to loathe the defendant. That she may have succeeded was the substantial risk of a miscarriage of justice.” In a concurring opinion, one justice went further still, suggesting that wayward prosecutors should be penalized financially for such misconduct: