LETTING PROSECUTORIAL MISCONDUCT SLIDE
Federal judge Alex Kozinski railed against unchecked prosecutorial misconduct in California’s court system while hearing oral arguments for a habeas petition last month.
Lower courts had upheld a murder-for-hire conviction despite having established that both a jail informant and prosecutor had provided false testimony—both saying that the informant had not been given a deal (he had). The prosecutor was not sanctioned, nor did the state bar revoke his license.
Kozinski, along with judges Kim Wardlaw and William Fletcher, accused California judges of continuously overlooking prosecutorial misdeeds and choosing not to overturn flawed verdicts. (This is not the first time Kozinski has zeroed in on this issue.) Kozinski said the panel would rule on the issue themselves, threatening to name names, if the California Attorney General’s Office—which had tried to keep transcripts away from the Ninth Circuit Court—did not stop fighting to uphold the conviction.
Kozinski directed Supervising Deputy Attorney General Kevin Vienna to notify California Attorney General Kamala Harris of the controversial particulars of the case, saying, “Get ahold of the Attorney General, get ahold of your supervisor, and see whether they really want to stick by a conviction that was obtained by lying prosecutors and that was maintained in the Court of Appeal after the Attorney General’s office fought tooth and nail to keep out a transcript that would have shown the perfidy of the prosecutors…” The AG’s office chose to discontinue its defense of the conviction.
The LA Times’ Maura Dolan has the story. Here’s a clip:
The January hearing in Pasadena, posted online under new 9th Circuit policies, provided a rare and critical examination of a murder case in which prosecutors presented false evidence but were never investigated or disciplined.
The low-profile case probably would have gone unnoticed if not for the video, which attorneys emailed to other attorneys and debated on blogs.
In a series of searing questions, the three judges expressed frustration and anger that California state judges were not cracking down on prosecutorial misconduct. By law, federal judges are supposed to defer to the decisions of state court judges.
Prosecutors “got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way,” Kozinski said.
Santa Clara University law professor Gerald Uelmen said the judges’ questions and tone showed they had lost patience with California courts. State judges are supposed to refer errant lawyers, including prosecutors, to the state bar for discipline, but they rarely do, Uelmen said.
“It is a cumulative type thing,” Uelmen said. “The 9th Circuit keeps seeing this misconduct over and over again. This is one way they can really call attention to it.”
A 2010 report by the Northern California Innocence Project cited 707 cases in which state courts found prosecutorial misconduct over 11 years. Only six of the prosecutors were disciplined, and the courts upheld 80% of the convictions in spite of the improprieties, the study found.
TWO TEENS ON OPPOSITE SIDES OF A TRAGIC CRIME
In late 2013, 16-year-old Richard Thomas, egged on by friends, set 18-year-old Sasha Fleischman’s skirt on fire on an Oakland city bus. Sasha, who identifies as agender, was burned so badly in the incident that they had to undergo several surgeries and spent weeks in the hospital.
Richard, who is black, was charged as an adult with aggravated mayhem and assault with intent to cause great bodily injury, with hate-crime sentence enhancements.
Richard was a well-liked kid who grew up in a turbulent East Oakland neighborhood, with his mom, siblings, and cousins. In his 16 years, Richard experienced an extraordinary amount of trauma. In 2008, Richard’s aunt was murdered. In 2013, Richard’s best friend, his “twin,” was gunned down while sitting in a car. When Richard, reeling from the loss, started doing poorly in school and skipping class, he asked for help from the school’s attendance compliance officer.
After the fire, Richard told investigating officers he was homophobic. He told them he never thought the skirt would catch on fire like it did, that he only thought it would singe a little and go out quickly, and meant it as a prank. Richard was forced to take a plea deal of seven years behind bars with removal of the hate-crime enhancements and mayhem charge. His only alternative was to go to trial and risk receiving a maximum of life imprisonment, a sentence severely disproportionate to the crime, and one he would not have faced if he had been tried as a juvenile.
Dashka Slater’s phenomenal New York Times Magazine story illuminates both sides of Sasha and Richard’s double tragedy. Here are a couple of clips, but you really must read it in its entirety:
It was close to 5 o’clock on the afternoon of Nov. 4, 2013, and Sasha Fleischman was riding the 57 bus home from school. An 18-year-old senior at a small private high school, Sasha wore a T-shirt, a black fleece jacket, a gray newsboy cap and a gauzy white skirt. For much of the long bus ride through Oakland, Calif., Sasha — who identifies as agender, neither male nor female — had been reading a paperback copy of “Anna Karenina,” but eventually the teenager drifted into sleep, skirt draped over the edge of the bus seat.
As Sasha slept, three teenage boys laughed and joked nearby. Then one surreptitiously flicked a lighter. The skirt went up in a ball of flame. Sasha leapt up, screaming, “I’m on fire!” Two other passengers threw Sasha to the ground and extinguished the flames, but Sasha’s legs were left charred and peeling. Taken by ambulance to a San Francisco burn unit, Sasha would spend the next three and a half weeks undergoing multiple operations to treat the second- and third-degree burns that ran from thigh to calf.
Richard Thomas, the 16-year-old boy who lit the skirt on fire, was arrested the following day. Citing the severity of the crime, the Alameda County district attorney, Nancy O’Malley, charged Thomas as an adult, stripping him of the protections — including anonymity — customarily afforded to juveniles. Charged with two felonies, each with a hate-crime clause that increased the time he would serve if convicted, Thomas faced the possibility of life imprisonment.
On Nov. 8, four days after lighting Sasha’s skirt on fire, Richard wrote the teenager a letter.
“Dear Victum,” it began. “I apoligize for my actions, for the pain that I brought to you and your family. I was wrong for what I did. I was wrong. I had no reason to do that to you I don’t know what was going through my head at that time. Im not a monster, I have a big heart I never even thought of hurting anyone like the way I hurt you. I just wanted you to know that im deeply sorry for my actions. I think about what happened every second, I pray that you heal correctly and that you recover and live a happy life. Please forgive me thats all I want. I take responsibility for all my actions, I’ll take all the consiquences,” he wrote. “I’m not just saying this because im incarcerated I honestly mean every word.” He signed it, “Love, Richard Thomas.”
A few days later, he wrote a second letter, this one addressed to “Mr. Fleischman.” It was nearly three pages long, written in neat cursive.
“I had a nightmare last night and I woke up sweating and apoligizing,” he wrote. “I really hope you get back to the way you were. I went to court yesterday and there still making me seem like a monster, but im not. I’m a good kid if you get to know me. I’m sure you would have been a nice person to,” he continued. “I was hoping that I can meet you face to face so I can apoligize to you.”
He went on to detail the charges against him, explaining that he was willing to accept the assault charges but that he rejected the hate-crime enhancements. “I don’t have a problem with homosexual’s,” he explained. “I have friends thats homosexuals and we never had problems so I don’t look at you wrong because of your sexualitie. Honestly I could care less if you like men you weren’t trying to talk to me in that way.”
As for himself, he said: “I am not a thug, gangster, hoodlum, nor monster. Im a young African American male who’s made a terrible mistake.” Perhaps, he suggested, he and Fleischman had things in common. “I’ve also been hurt alot for no reason, not like I hurt you but Ive been hurt physically and metally so I know how it feels, the pain and confusion of why me I’ve felt it before plenty of times.”
ALL CONFESSIONS, EVEN FALSE ONES, HAVE AN IMPACT ON JURY MEMBERS’ PERCEPTIONS AND BELIEFS
According to 2013 data from the National Registry of Exoneration, 38% of exonerations of kids and 11% of exonerations of adults involved false confessions. Whether or not confessions are true, they have considerable power over juries, more than character testimony, and even more than eyewitness testimony.
ProPublica’s Joe Sexton uses the upcoming trial for the 1979 murder of 6-year-old Etan Patz, and a videotaped confession from Pedro Hernandez to explore the issue. Here’s how it opens:
Over the next several months, defense lawyers for Pedro Hernandez will seek to undercut the central evidence against him: his videotaped confession to having killed 6-year-old Etan Patz.
They will depict the confession as inaccurate when set against the known facts of the infamous 1979 missing child case. They will portray Hernandez, a onetime bodega clerk in the Manhattan neighborhood where Patz lived, as mentally ill. They will paint the detectives who gained the confession as manipulative and coercive.
It’s a daunting assignment, but here’s what may well be scaring the lawyers the most: They could succeed in every aspect of their attack on the reliability of the confession and still not win an acquittal.
Such is the power of confessions, true or false, for American juries. A nascent body of scholarship, driven in part by an escalating number of wrongful convictions in cases with false confessions, has begun to document just how persuasive confessions can be.
Of course, the power of confessions owes in part to the fact that they very often are true. Certainly, that is the argument Manhattan prosecutors will make as they seek to hold Hernandez responsible for a case that has haunted the city, and parents nationwide, for decades. Prosecutors say Hernandez’s claims that he strangled the young boy after luring him from his school bus stop are credible, and that any mental health issues he suffers from are not serious. They also argue that the confession is supported by the accounts of others who maintain Hernandez told similar stories of killing a child over the years.
But false confessions – including those questioned at trial by effective defense lawyers – also have proven to carry extraordinary weight with juries. Several studies, using mock jurors and sophisticated analysis, have demonstrated that confessions outweigh the value of eyewitness and character testimony. And in at least one case, according to a 2010 study, prosecutors chose to believe a confession even when the accused seemed categorically cleared by DNA evidence.
HOLDING STATES ACCOUNTABLE FOR NONCOMPLIANCE WITH FEDERAL LAWS THAT PROTECT FOSTER KIDS
In a new report, two California advocacy groups: the Children’s Advocacy Institute and First Star are calling for the feds to monitor states compliance with federal child welfare laws and to deny funding to states who do not adequately protect their most vulnerable kids.
The Chronicle of Social Change’s John Kelly has a good rundown of the report’s main points. Here are clips from the first two:
Child and Family Services Reviews (CFSR)
The CFSR has been conducted twice in each state by the Department of Health and Human Services (HHS), and gauges the state’s performance on seven outcomes and seven systemic factors. The report takes the view that the CFSR process is a general assessment indicating adherence to federal law, done instead of a full compliance check on individual laws.
“Although the efficacy of the CFSR process is highly questionable in terms of ensuring state conformity with federal child welfare laws and standards, it at least provided some modicum of external oversight and monitoring of at least a few aspects of federal child welfare law,” the report says.
Not once in those two rounds has one state been found in “substantial conformity” with the review. States enter into a Program Improvement Plan (PIP) upon failure on the CFSR, and face withholding of federal IV-E funds if they fail to meet the goals in the plan.
Yet report authors could only identify two instances in which states were assessed penalties, according to the report….
Adoption and Foster Care Analysis and Reporting System
The Department of Health and Human Services is not actively penalizing states that declare themselves out of compliance with the data collection standards put in place with the creation of AFCARS.
“By refusing to impose financial penalties on states that fail to comply with federal data reporting requirements, ACF has ignored one of the most incentivizing tools it has to ensure states’ submission of reliable, consistent, and complete data — information that could have meaningfully contributed to the improvement of the adoption and foster care processes,” the report says.