Entries categorized "Prosecutorial Misconduct"

Unethical Lawyering is Not a Crime

A man who chained someone to his basement wall would be viewed as a monster, and threatened with the death penalty. When that man is a prosecutor who frames an innocent citizen, however, we don't care:

I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won against them and the district attorney who oversaw my case, ruling that they were not liable for the failure to turn over that evidence — which included proof that blood at the robbery scene wasn’t mine.

Police and prosecutors framed the man. You say this is shocking, but why? Prosecutors and police - just like you and me - have deadlines. They have dockets. Police and prosecutors are not Sherlock Holmes, who always searches for the truth - which means only convicting the right man. No, like all petty bureaucrats, prosecutors care about only one thing - clearing their dockets. "Just get this case closed," is their first marching order. "Let the jury figure it out," is how they rationalize their evilness. 

And there's no doubt that prosecutors knew they were chaining an innocent man to prison walls:

The same day that my lawyers visited, an investigator they had hired to look through the evidence one last time found, on some forgotten microfiche, a report sent to the prosecutors on the blood type of the perpetrator of the armed robbery. It didn’t match mine; the report, hidden for 15 years, had never been turned over to my lawyers. The investigator later found the names of witnesses and police reports from the murder case that hadn’t been turned over either.

All along, the prosecutors knew they were sending an innocent man to death row. Why isn't that a crime? Not only have prosecutors avoiding criminal charges, they have also avoided civil liability and professional punishment.

The prosecutors involved in my two cases, from the office of the Orleans Parish district attorney, Harry Connick Sr., helped to cover up 10 separate pieces of evidence. And most of them are still able to practice law today.

A friend of mine called the New York Times column "shocking." Yet it's not shocking - not even a little. I blog less about prosecutorial misconduct than before because it's banal

In Kalina v. Fletcher, 522 U.S. 188 (1997), a Washington state prosecutor, Lynne Kalina, under oath, misstated material facts in a probable cause hearing. Both the National District Attorneys' Association and United States Department of Justice filed an amicus briefs on her behalf. Lynne Kalina, the scumbag prosecutor, was never punished for lying under oath.

In Pottawattamie County v. McGhee, two Iowa prosecutors framed an innocent man. Rather than prosecutor the prosecutors, the United States Department of Justice filed an amicus brief supporting them. The National District Attorneys' Association - the "conscience of the community" - also filed a brief on their behalf.

When a courageous California lawyer, Scott Drexel, was appointed as Chief Disciplinary Counsel to the California State Bar, he tried to change the system. He went after unethical prosecutors. What happened to Drexel? The California State Bar - the body charged with regulating lawyers - refused to reappoint him:

SAN FRANCISCO - The State Bar Board of Governors decided this week not to reappoint Scott Drexel, the head of the bar's prosecution unit who had sparked controversy by tightening rules governing attorneys.

Drexel also raised hackles in the law enforcement community by going after several well-known prosecutors for misconduct, including Santa Clara County prosecutor Benjamin Field. Accused of offenses including withholding exculpatory evidence, which Field's supporters were quick to point out involved cases more than a decade old, Field ended up having his license suspended for four years.

Every day prosecutors frame people. Every day prosecutors get away with it. Every day someone innocent will go to prison. Anyone who tries changing the system will lose his job.

The only thing preventing you from being framed is luck and a lack of powerful enemies.

Karma Catches Up to Unethical Prosecutors

There may not be a Lord, but vengeance is often the universe's.  This week has been a bad one for unethical prosecutors.  All of these prosecutors have graced the pages of Crime & Federalism.  Correlation does not prove causation, but it's damned strong evidence of it.

Case 1: The prosecutor who sexually harassed a domestic violence victim has resigned:

A Wisconsin prosecutor facing removal from office over accusations that he abused his position in seeking relationships with vulnerable women will resign instead, his attorney said Monday.

Attorney Robert Craanen said Calumet County District Attorney Ken Kratz will step down before Oct. 8, the date set for a hearing to hear testimony on his possible removal from office.

Case 2: One of the unethical prosecutors in the Ted Stevens case has killed himself:

A Justice Department prosecutor who played a lead role in the corruption case against former U.S. Sen. Ted Stevens, R-Alaska, has committed suicide.

Nicholas Marsh, who was transferred from the Public Integrity Section amid a criminal investigation of the government's handling of the case against Stevens, killed himself over the weekend. Marsh had been working in the Office of International Affairs. NPR first reported the suicide Monday morning.

I'm supposed to feel bad for him and his family.  Whatever.  People die every day, and if you really believed that every death was a tragedy, you'd be paralyzed with grief.

Marsh was a narcissist who was exposed as a criminal.  Why should I feel bad when someone who tormented innocent men died?  I'm not going to pretend to care.

If he had done the right thing by quitting his job, I might feel sorry for his family.  Instead, he refused to accept personal responsibility for his crimes.  He continued working as a prosecutor.  Did he indict more innocent men as a prosecutor?  Well, he won't be able to anymore.  He refused to the right thing, and so the universe forced his hand.

Case 3: Sean Cronin has been accused of a sex offense against a child.  This is great news.  Cronin, who is unethical and has prosecuted innocent men, has been falsely-and-justly (never thought I'd see those two words together!) accused of a crime:

A Miami federal prosecutor was arrested Sunday afternoon at a local bar after a young girl and her mother accused him of being indecent when he went swimming in his boxers at the establishment's pool overlooking the Miami River and downtown.

Sean Cronin, 35, was charged with a felony, lewd and lascivious exhibition, and a misdemeanor, resisting a police officer without violence, as he left Finnegan's River, 401 SW Third Ave., according to an arrest affidavit.

Hahahahaha.   Yes, the charges are bunk.  Yes, this prosecution is part of a broader theme at Crime & Federalism - the War Against Men.  A man who walks out of a pool is now a sex offender?  That's all it takes?  Yep, men, there is a war being waged against you.

Whatever.  I am going to rejoice in his suffering.  He's a bad person, and has earned every negative headline he'll receive.  Sure, the charges will be dropped - as they must under Florida law.  Let's hope more bad things happen to the wicked.  

In the meantime, we shall continue showcasing unethical prosecutors.  In my more motivated days, I've started a business plan for the Prosecutorial Misconduct Project - a non-profit devoted to holding unethical prosecutors accountable.  The problem is that I am suspicious of anyone who runs a non-profit - and I trust myself no more than I trust you - and so am having trouble in good conscience creating it.

There is currently a market failure.  I blog about prosecutorial misconduct more than anyone else.  People are too busy creating Twitter norms.  Because criminal lawyers should be more worried about whether some moron is duping lawyers into signing marketing contracts.  (!)

Anyhow, State Bars refuse to punish prosecutors.  A non-profit would write letters to state bars, demanding action.  It would file freedom of information act requests.  It would issue press releases when prosecutorial misconduct is uncovered.  It would be like Judicial Watch - but for prosecutors.

Someone should start this.  Maybe the guys at the Cato Institute could hire a person to do this full-time?  I don't know.  I do know that something other than my blog postings should be done to combat prosecutorial misconduct.

And I do know that I should start the thing myself, and thus proposing this idea is something of a cop-out.

Is Federal Prosecutor, Sean Cronin, a Child Molester?

Last year, Sean Cronin was was identified as an unethical prosecutor.  This year, he was charged with Lewd and Lascivious Assault on a Child.  Some criminal defense lawyers are giving him the benefit of the doubt, blaming his arrest on overzealous soccer mom.  

I haven't read the arrest report, so I can only speculate about whether he's a child molester, or whether he will be forced to register as a lifetime sex offender.  One can hope that a man who sought to destroy innocent men will himself find his life ruined.  

Perverted Prosecutor's Text Messages

Wisconsin District Attorney Kenneth R. Kratz sexually harassed a domestic violence crime victim.  Via Mark Bennett comes his text messages.  It's clear from the text messages that the woman is not interested in him.  Here's a sampling: 

Kratz: Still wondering if I'm worth it?

Kratz: Can I help you answer any questions?

Kratz: You don't say much, do you?

Kratz: How are you feeling today. You stopped talking yesterday.

Ya think?  Gee, I wonder why.

Yet the male ego is deluded:

Kratz: Hey..Miss Communication, what's with the sticking point? Your low self-esteem and you fear you can't successfully play in my big sandbox? Or???

A six-foot tall, blond with a cute body is too insecure to date a 56-year-old man.  Here's the tart:  Van Groll

He really believes it:

Kratz: I'm serious! Im the atty. I have the $350,000 house. I have the 6-figure career. You may have the tall, young, hot nymph, but I am the prize! Start convincing



Behold the Prize:  The Prize

Calumet County District Attorney Ken Kratz: Perverted Justice

What happens when prosecutors commit misconduct?  What happens when a prosecutor seeks to have sex with a crime victim half his age?  We're about to find out:

A prosecutor who sent sexually suggestive text messages to a domestic abuse victim downplayed the seriousness of their content and urged state officials to keep them from the public, his peers and state regulators, e-mails show.

The texts sent by Calumet County District Attorney Ken Kratz could have jeopardized the prosecution of the victim's ex-boyfriend on charges he nearly choked her to death, a state Department of Justice official told Kratz last year.

Kratz, 50, on Wednesday acknowledged sending 30 text messages, which had been obtained by The Associated Press, to the 26-year-old woman while he was the prosecutor on her case last October. He asked in one whether she's "the kind of girl that likes secret contact with an older married elected DA." In others he called her "a hot, young nymph" and tried to spark a relationship.

How did the prosecutor know this girl?  Her boyfriend had beat the shit out of her, and he was supposed to prosecute the boyfriend for domestic battery.

Instead of focusing his attention on the criminal, he sent over three dozen perverted text messages to the crime victim.  The victim was disturbed, and she reported Kratz to police.  

The Wisconsin State Bar conducted an investigation:

The state Office of Lawyer Regulation concluded in March that Kratz's behavior was inappropriate but did not amount to misconduct ....

Perving on a crime victim won't even get a prosecutor a slap on the wrist.  And people wonder why there is so much disrespect for lawyers?  When lawyers clear other lawyers of misconduct, how is the public supposed to feel about lawyers?

UPDATE: Some of these texts are gold:

Im serious! Im the atty. I have the $350,000 house. I have the 6-figure career. You may be the tall, young, hot nymph, but I am the prize!

I would not expect you to be the other woman. I would want you to be so hot and treat me so well that you'd be THE woman! R U that good?

The delusion of the male ego has no bounds.

Jesse Friedman's Moral Victory is a Defeat

Ted Frank has passed along happy news for Jesse Friedman, who was wrongfully convicted of child molestation.  (Watch Capturing the Friedmans.)  There's no question that Jessee Friedman was innocent, that he was wrongfully prosecuted, and that the trial court conspired with the prosecution to convict him.

Many will will praise the appellate court's opinion.  We'll all toast the system.  We'll also ignore some important facts:

  1. There is nothing preventing what happened to Jesse Friedman from happening today.
  2. It's more likely that a man will be falsely convicted of child molestation.
  3. The prosecutor who falsely prosecuted him will never be punished.
  4. The judge who conspired with the prosecutor will never be punished.
  5. Nothing will change.

The criminal justice system is demoralizing, and some would say that I should lighten up.  Enjoy the "victories" when you can.  Toast this decision.  Have a nice glass of wine.  Forget that nothing will change, and that the climate for false convictions has gotten worse.

I'd love to not sound "cynical," and yet everything I've said is true.  Read these posts about White v. McKinley.  The detective and prosecutor who framed an innocent man kept their jobs.

The system could be changed to prevent wrongful convictions.  Prosecutors, for example, could actually be held accountable for misconduct. Courts usually don't even identify unethical prosecutors by name in the judicial opinion - lest someone Googling the prosecutor learn about the misconduct.  Here is a list of honest-to-god unethical prosecutors.  None of them have received any discipline.

I'd rather be cynical than live in a fool's paradise.  The Friedman opinion changes nothing.  Until judges commit to stopping the next Friedman, there is nothing to celebrate.

Billionaire Bribes Prosecutors to Avoid Prosecution?

What is this?

Billionaire sex offender Jeffery Epstein has settled a dispute over legal fees that threatened a deal he made to avoid federal prosecution over alleged assaults of multiple young women and girls.

Court papers filed Monday in Miami indicated Epstein had reached a settlement with lawyers appointed to represent some of his alleged victims. The lawyers said Epstein owed them $2 million but terms of the settlement were not disclosed.

The lawyers claimed Epstein's failure to pay violated his agreement to avoid federal charges. Epstein said there was no violation and disputed the $2 million figure.

A registered sex offender, Epstein is serving house arrest in Palm Beach, Fla., as part of his 2008 guilty plea to two state prostitution counts.

I'll need to look into this issue more, but it wouldn't surprise me to learn that the billionaire rapist was able to avoid prison by paying off his alleged victims.  There are at least two problems with this.

The first is a tired-but-true complaint: The rich have a separate system of justice.  There's nothing novel for me to say about that.

The second complaint about involves the "privatization" of our criminal justice system.  Here is a trend I've noticed for the past half-decade, but that doesn't get enough attention.

A civil lawsuit is a private suit.  You hire your own lawyer.  You file a lawsuit to vindicate your private interests.  If someone breaches a contract with me, what's it to you, dear readers?  Nothing.  It's strictly an issue between me and the person who breached his contract with me.  It's private, not public.  When I sue, the case will read: Mike v. Contract Breacher.  

When I file my lawsuit seeking money, I don't get to rely on prosecutors to enforce my rights.  They won't act as my bullies or bodyguards.  Instead, it's mean against the person who violated my private rights.

A rape is said to be a crime against the State.  Thus, a criminal case reads: People of the State of California v. Rapist.  A rape against a fellow citizen is said to injure all of us.  

If this billionaire raped these women, then it was a crime against the State.  Whether the women want the State to file suit or not should be irrelevant.  It's not up to the victims: It's up to the State.  The State, again, is the victim.

Instead, victims get the best of all words.  They get the full power of the State - which means me and you, as taxpayers - while also enriching themselves.  

If prosecutions are to remain public matters, then settlements like that described in the article must be abolished.  Otherwise, let's return to the Roman system of private prosecutions.  An alleged victim should not be able to use the power of the State to extort millions from a rapist.

Moreover, if this billionaire is a rapist, why is he free?  Will he rape you, your daughter, wife, or friends?  He remains free because his alleged victims were able to get paid. 

The alleged victims played both sides.  They used the state to make millions.  Meanwhile, they ensured that a rapist remained free.

Oklahoma Lawyers Robert Macy and Brad Miller, Added to Unethical Prosecutor List

Today the Tenth Circuit Court of Appeals (Lucero, Murphy, and O'Brien) brought tears to the eyes of people who care about a more just criminal system. In granting habease relief to a prisoner, the Court identified - by name - the prosecutors who violated their oath of office, and their duties under the Rules of Professional Conduct.

There is a lengthy discussion of their misconduct. See page 32-36; 51-57.  Among other things: 

The prosecutors, Miller and Macy, then immediately proceeded to mislead the jury as to its role in sentencing by informing jurors (1) the jury’s work would be wasted if it failed to reach a unanimous verdict, (2) defense counsel’s argument that it took the vote of only one juror to prevent imposition of the death penalty constituted a request for “jury nullification,” and (3) failure to deliberate in a manner leading to a unanimous verdict would amount to operating outside the law.  Thus, immediately following the jury instructions, which spoke only of unanimity, the prosecutors engaged in intentional misconduct designed to misinform the jurors that it is improper for individual jurors to holdout against a majority vote and thereby prevent a unanimous verdict.

Many of you may not appreciate my gratitudes, so let me explain.

If you are charged with a crime, prosecutors will put your name in the newspapers.  Prosecutors often issue press releases very publicly identifying those who have been charged with a crime.  If you are acquitted at trial or the charges against you are dismiss, no matter: Your name will forever be connected to your alleged crimes. 

For the rest of your life, you'll be asked about the case you no doubt won "on a technicality" - that's assuming people bother calling you in for an interview.  

Nevertheless, prosecutors who commit gross misconduct are almost never identified in court opinions by name.  A typical judicial opinion reads:

People v. Crime & Federalism:

Detective Joe Smith and the prosecutor conspired to convict an innocent man.  The prosecutor suborned perjury.  The prosecutor committing professional malfeasance at a lever never seen by the court.  He is a discredit to the legal profession generally, and prosecutors specifically.

Who is "the prosecutor"?  Courts won't tell us.  I'm the guy who got framed, and my name is public record.  The prosecutor who framed me escapes any public censure or scrutiny.  How is that fair?

Moreover, unethical prosecutors should be identified to deter future misconduct.  Shame is a powerful sanction.  Most of us behave better when we know we are being watched.  Who will watch the prosecutors?  It should be judges.

Identifying unethical prosecutors matters.  I read an Ninth Circuit opinion that identified an unethical prosecutor by name.  That opinion was later withdrawn after the local United States Attorney wrote a motion taking responsibility for failing to train the young prosecutor, and begging that the young Assistant United State's Attorney's name be stricken from the Federal Reporter.  

Clearly, then, identifying prosecutors matters to prosecutors.  They do not want to be identified for committing misconduct.  Thus, identifying unethical prosecutors is an effective sanction against prosecutorial misconduct.

Moreover, prosecutors who commit misconduct will appear before different judges.  Don't those judges have a right to know that the prosecutor appearing before them lied in other cases?  The Federal Rules of Evidence allow a misdemeanor conviction involving dishonesty as impeachment evidence - as prior dishonesty is probative of future dishonesty.  If a prosecutor lied to a different judge, maybe he'll lie to this judge?

A judge - and defense lawyer - know to triple-check the assertions of a prosecutor who had committed prior misconduct.  Due diligence requires trust-but-verify.  Prosecutors who have committed misconduct in the past must be verified-and-verified.  Judge need to know whom to trust.

Thus, every time a judge publishes an opinion identifying prosecutors by name, I am going to brown nose.  I am 100% certain that no judge cares what I write.  It doesn't matter: If we're going to complain insulating prosecutors from their misconduct, then intellectual integrity demands that we praise opinions identifying unethical prosecutors.

And so, to Judges Lucero, Murphy, and O'Brien: Thank you.

Another Day in the Life of an Unethical Prosecutor: Jenifer Yois Hernandez-Vega

On August 12, 2009, an innocent man was arrested.  After several months of hotly-disputed litigation, the innocent man was finally free.  The police, prosecutors, and experts who were all lined up to send this innocent man to prison will face no consequences.  And so we have another story about the mundaneness of prosecutorial evil.

Before returning home to New York from Venezuela, Carlos Alfredo Simon-Timmerman stopped in Puerto Rico.  He was arrested for possession of child pornography - and he almost went to prison for it - even though a reasonable person could have discovered that the pornography was not illegal.

The man had in his possession: "Little Lupe the Innocent; Don’t Be Fooled By Her Baby Face."  The movie stared noted film actress Lupe Fuentes - who is also know as Wikipedia.  Since 2007, Lupe Fuentes has had a Wikipedia entry.  It's right here for anyone to see.  Anyone could have Googled the name of the alleged child pornography; found Little Lupe; and verified Fuentes' age.

Under 18 U.S.C. Section 2257, all porn producers are required to verify the age of a porn actress.  Every porn production company is required to have a custodian of records.  Under the law, these records must be made available for law enforcement to inspect.

Two months before the innocent man was arrested, Teravision signed Fuentes.  An article that appeared on AVN on June 10, 2009:

VAN NUYS, Calif. — Teravision today announced the signing of Spanish internet sensation Lupe Fuentes to an exclusive performing contract.

Previously known as "Little Lupe," Fuentes made herself a teen model sensation and gained international stardom online. Now, she is ready to parlay that into an even brighter career in the adult video arena.

(Link NSFW.)  Thus, there is no doubt than an American company would have conducted a Section 2257 verification of Fuentes.  No one can claim that there wasn't a way to determine her true age.

Rather than contact the custodian of records, the prosecutor solicited two experts to give her the perjurious testimony she needed for a conviction.

Alek Pacheco, who works for U.S. Customs, claimed that he was an expert on child pornography.  According to Special Agent Alek Pacheco, Lupe Fuentes was between 13-14 years of age.  (See Affidavit.)

AUSA Jenifer Yois Hernandez-Vega also enlisted the help of Dr. Pedro R. Jaunarena:

Based on his numerous years of experience andtraining in treating children, Dr. Jaunarena will provide expert testimony regarding, but notlimited to, the age of the minors depicted in the images in the labels of the DVDs and in thevideo images found in the DVDs seized in relation to this case.

(Notice of Intent to Use Expert Witness at Trial.)  

Had Jenifer Yois Hernandez-Vega had her way, an innocent man would have been sent to prison for possession of child pornography.  This man would have been raped in prison, and for the rest of his life, he would have been a registered sex offender.  

Unlike Jenifer Yois Hernandez-Vega, the innocent man's defense lawyer exercised some diligence.  He researched the movie, finding the porn actress's MySpace page.  The lawyer contacted Ms. Lupes, who verified that she was over 18.

Full stop.

Rather than issuing a subpoena to verify the age of Ms. Lupes, AUSA Jenifer Yois Hernandez-Vega demanded that the adult porn actress personally appear in court.  Ms. Lupes had to fly from Venezula to testify in Puerto Rico.  

After hearing testimony and examining her passport, the trial court ordered the prosecutor to dismiss the charges.  

Monday morning will be business as usual for Jenifer Yois Hernandez-Vega.  She'll pat herself on the back.  "The system worked," she'll brag to colleagues.  After all, the innocent man did not actually go to prison.  That a prosecutor has an ethical duty to actually investigate cases and not indict innocent man will escape her.  In The System, prosecutors file charges and raise hell.  If your defense lawyer cannot protect you, what's it to them?

Yet the innocent man would have gone to prison had he not had an excellent criminal defense lawyer.  The innocent man would have gone to prison because the experts are not indeed experts; and because Jenifer Yois Hernandez-Vega and her team of federal investigators refused to actually investigate the alleged crime.

Although the innocent man spent two months in jail before being able to make bail, Jenifer Yois Hernandez-Vega will not even be given a reprimand.  She'll continue in her unethical ways, and there's nothing anyone will do to stop her.

No one, that is, expect defense lawyers.

The next time someone asks you, "How can you defend those people," ask them: "What if Jenifer Yois Hernandez-Vega had been prosecuting you?"