The 2011 Worst Prosecutor of the Year Award
Monday, January 2nd, 2012
Once again, remember that the misdeeds can be cumulative. They need not have all happened in 2011. This year’s winner will be added to the annals of ignominy, along with prior winners Forrest Allgood, Mary Beth Buchanan, and Tanya Treadway.
Durham, North Carolina, District Attorney Tracey Cline
Mike Nifong’s successor is doing all she can to live up to her predecessor’s infamy. In September, the Raleigh News & Observer published a series on Cline’s conduct as a prosecutor, going back to when she worked in Nifong’s office as an ADA. The series hitched off the case of Frankie Washington, convicted of home invasion, kidnapping, assault, and sexual assault in 2007. An appeals court overturned the convictions, finding that Cline had withheld biological evidence for several years, then claimed she had sent it to the beleaguered state crime lab, which she said was responsible for the delay. The News and Observer series found a pattern with Cline:
In her quest to convict those accused of serious crimes, Cline has misstated facts to judges in other cases, a News & Observer investigation shows. She has not provided evidence favorable to defendants, as is required under the U.S. Constitution, state law and ethics rules that govern lawyers.
Cline’s conduct is under scrutiny for similar behavior in at least five cases other than Washington’s that are in various stages of the courts, according to documents and interviews.
Last month, Superior Court Judge Orlando Hudson, the senior resident judge in Durham, dismissed a murder charge against Michael C. Dorman II of Mebane after ruling that the prosecution by Cline violated the man’s rights. The evidence in the case, a partial skeleton, had been destroyed before the defense could examine it.
Amusingly, Cline responded by calling the newspaper’s series a “terrible injustice” to her.
Then, last month, it got surreal. Michael Peterson, a former newspaper columnist who was convicted eight years ago of killing his wife, was seeking a new trial based on the allegations of corruption and sloppiness at the state’s crime lab. Cline was the prosecutor handling Peterson’s hearing, Hudson the judge. Cline then asked that Hudson be removed from the case, oddly alleging that Hudson had orchestrated a vast conspiracy to destroy her, one that also involved several defense attorneys and the News & Observer. She filed other motions accusing Hudson of “moral turpitude,” and asking he be barred from hearing other criminal cases. She subpoenaed more than 50 people for the Peterson hearing, including Hudson, court clerks, defense attorneys, other active and retired judges, staff from the News & Oberserver, and, as the paper put it, “a considerable part of Durham’s legal community.”
Judge Carl Fox, brought in from another county especially for the hearing, gave Cline unlimited time to make her arguments. According to the News & Observer account of the hearing, presented stacks and stacks of evidence that had nothing to do with the Peterson case. She was making her case for a broad conspiracy. At one point, she mention an appeals court decision she realized she hadn’t yet read. So she asked for time to read it. The News & Observer reports a scene that would be downright comical were it not for what was at stake.
“The packed courtroom sat in silence while Cline sat alone at her table, flipping through documents. After 14 minutes, Fox broke the silence: “Are you still reading the case?” Cline said she hadn’t located the correct citation.”
When it was clear that Fox wasn’t going to rule in her favor, Cline withdrew the motion. Once defense attorney told the paper:
“She tied up almost the entire defense bar of Durham trying to defend her own reputation, and that’s pitiful and a waste of resources,” Holmes said. “She had detectives out serving subpoenas all weekend when they could have been out solving crimes.”
Catherine Voelker, supervisor of the Narcotics and Misdemeanors division, Ventura County, California, DA’s Office
Actually, the entire office apparently turns winning convictions into a competition. (Hey, games make work more fun!) Prosecutors who bring in the most convictions in Ventura County get their name engraved on a plaque that hangs in the office. One former DA told the Ventura County Star that “management would sometimes ‘turn up the heat’ and push prosecutors to take cases to trial regardless of whether there was proof beyond a reasonable doubt. Another added, “They still want you to take a swing at it even though the defendant is probably innocent.”
But Voelker took it all a step farther, circulating an email in late 2010 in which she formalized the competition, offering specific rewards for case volume, and encouraging prosecutors to get inspiration from the viral “Honey Badger” video.
James Ellison, the second-in-command at the office, said Voelker’s competition was ended quickly, and denies the office rewards prosecutors for taking on more cases, or punishes them for taking on too few.
Prince William County, Virginia, State’s Attorney Paul Ebert
This Paul Ebert’s third nomination. Ebert, you may remember, made the list several years ago for refusing to investigate the massive corruption among public officials in Manassas Park, Virginia in their efforts to shut down David Ruttenberg’s Rack & Roll pool hall. In 2008 and 2009, Ebert was the special prosecutor in the Ryan Frederick case. Frederick shot and killed Chesapeake, Virginia Det. Jarrod Shivers during a drug raid on Frederick’s home. Frederick had no prior criminal record, and says he thought he was being robbed. Which is credible, given that police informants had broken into Frederick’s home days earlier to obtain probable cause for the raid, part of a possible pattern of illegality among police informants Ebert found unimportant.
Ebert tried Frederick for capital murder. He attempted to change the venue, arguing that bloggers and Internet writers had made it difficult for the state to get a fair trial. He told jurors Frederick was a pot-crazed killer, then sought to exclude video of Frederick’s post-raid interviews at the police station, where a clearly despondent Frederick bursts into tears and vomits upon being told that he had killed a cop. Best of all, Ebert put on the stand a perfectly-named jailhouse snitch named Jamal Skeeter who claimed that during their one hour per day of rec time at the jail, Frederick repeatedly boasted about killing Shivers and mocked Shivers’ widow. Skeeter was so utterly devoid of credibility, fellow Virginia State’s Attorney Earle Mobley made the admirable and rare move of speaking up in mid-trial to say that he and other area prosecutors had determined Skeeter was a professional liar, and had stopped using him years ago. You’d think that’s something a prosecutor might look into before using a witness to help put a man in prison for the rest of his life.
Ebert makes the list again this year after getting reprimanded by a federal judge in a death penalty case. In August, U.S. District Judge Raymond A. Jackson vacated all charges against Justin Wolfe, whom Ebert convicted in a 2002 murder-for-hire case. The hit man who testified that Wolfe had hired him recanted in 2005, claiming police told him he’d get the death penalty unless he implicated Wolfe. Even though the state’s entire case hinged on the hit-man’s testimony, Ebert fought another six years to protect his conviction. From Slate’s Dahlia Lithwick:
Jackson’s 57-page memorandum opinion is scathing in its findings of prosecutorial misbehavior by Ebert and his assistant, Richard A. Conway. Conduct evidently included choreographing and coordinating witness testimony, withholding tapes of witness interviews from the defense, and knowingly allowing false testimony to be introduced at trial. Jackson finds that prosecutors failed to turn over a report showing that it was police detectives who first introduced the idea to Barber that Wolfe had masterminded the killing, and who gave him the option of implicating Wolfe or receiving the death penalty. He finds that they suppressed evidence that Barber confessed to his roommate that he’d acted alone.
Ebert’s incredible justification for withholding exculpatory evidence: He feared that it would have allowed Wolfe’s attorneys to “fabricate a defense around what is provided.” Ebert is the longest serving prosecutor in Virginia. He also leads the state in capital convictions, with 13.
Grant County, Wisconsin, District Attorney Lisa Riniker
You charge a 6-year-old boy with first-degree sexual assault for playing doctor with a neighbor girl, then yeah, you’re gonna’ make this list. When asked why the hell she’d charge a 6-year-old with a sex crime, Riniker responded, “the Legislature could have put an age restriction in the statute … the legislature did no such thing.” You know, I’d be willing to bet the legislature didn’t also specifically exempt breastfeeding from . . . well, let’s not give Lisa Riniker any ideas.
Bonus mendacity points: Riniker generously offered the boy’s parents a “deal” in which the kid would still have to register as a sex offender for the rest of his life.
Texas 31st Judicial District Attorney Lynn Switzer
Since Gov. Rick Perry appointed her in 2005, Switzer has done her damndest to make sure Hank Skinner is executed before he ever gets the chance to have DNA testing on key pieces of evidence from his trial. Switzer didn’t even convict Skinner, which makes her stubbornness all the more troubling. Skinner was once less than an hour away from execution before the U.S Supreme Court intervened. Then, earlier this year, he was days away before the Texas Court of Criminal Appeals stepped in.
It’s bad enough that Switzer wants a man executed when there is still key DNA to be tested, including a rape kit taken from one of the victims, scrapings from under the same victim’s fingernails, and the presumed murder weapon itself. But after the Supreme Court stepped in last year to stay Skinner’s execution, the Texas legislature passed a bill allowing defendants like Skinner to obtain post-conviction DNA testing even if they didn’t requested it at trial. (Skinner maintains he did request it, but his court-appointed attorney—a disgraced former prosecutor and friend of the judge—thought Skinner was guilty, so didn’t ask for the testing.) The sponsor of that bill explicitly said that Skinner was the inspiration for the bill.
Nevertheless, within hours of the bill becoming law, Switzer’s office hurried to Skinner’s trial judge to request an execution date. She was trying to have Skinner killed before he could take advantage of the new law passed explicitly in response to his case. And the trial judge agreed.
Fortunately, the Texas Court of Criminal Appeals intervened, and postponed Skinner’s execution to get this all settled. Despite the new law, here has still been no order for DNA testing. But at least they aren’t going to kill the guy before they even have the discussion. That’s what Lynn Switzer wanted to happen.
Cook County, Illinois, State’s Attorney Anita Alvarez
After her election in 2008, Alvarez first distinguished herself by defending Illinois’ asset forfeiture law—one of the most onerous in the country—all the way to the U.S. Supreme Court. The Court dismissed the case because the defendant and county had already settled the matter. So the law is still in effect.
The Medill Innocence Project at Northwestern’s journalism school has freed 11 wrongly convicted men from death row in Cook County. So in 2009, as Cook County’s chief law enforcement officer, Alvarez naturally took aim at the school—she subpoenaed the student participants’ grades, class syllabus, and personal e-mails.
In the Dixmoor cases, Alvarez fought the DNA tests that eventually cleared five teens accused of raping a 14-year-old girl. Even after the tests, Alvarez’s office tried to play down the significance of the results. Three of the men had served over a decade in prison when they were finally exonerated in March. In the Englewood cases, Alvarez is still fighting the exonerations of four teens convicted of raping and killing a 30-year-old woman in 1994, despite DNA tests conducted in May that found the semen of a man known rapist/murderer at the time in her body. A judge overturned the convictions in November, but Alvarez has yet to dismiss the charges.
But Alvarez most distinguished herself for this award this year in the case of Tiawanda Moore. In July 2010, Moore says a police officer called to her home on a domestic complaint asked to speak to her in her bedroom, then grabbed her breast and slipped her his phone number. Moore says that when she went to a Chicago PD station to file a complaint, the Internal Affairs officers threatened her, and attempted to dissuade her from completing the report. That’s when she switched on her cell phone to record the conversation. She was promptly arrested for violating the state’s wiretapping law, a felony punishable by up to 15 years in prison.
Normally in these cases, prosecutors negotiate a plea or drop the charges, mostly because just about everyone realizes the law is insane. Or, if you’re more cynical, the charges never make it trial because police and prosecutors know that if anyone is ever convicted and sentenced (to my knowledge, no one yet has), the law will be challenged, likely overturned, and police will no longer be able to use it to harass citizens who record them on the job.
Yet with a jaw-dropping lapse in prosecutorial discretion, Alvarez moved ahead with the felony charge against Moore. Never mind the alleged harassment. Never mind the allegations that Chicago IA cops were attempting to talk a citizen out of filing a complaint. Given Chicago PD’s dismal record investigating complaints against officers, and that at the very time all this was happening, a federal lawsuit against the department alleged a pattern of ignoring and covering up sexual misconduct by Chicago cops, Alvarez’s pursuit of Moore sent a troubling message to any woman legitimately harassed by Chicago cop. No one is going to help you. Not internal affairs. Not her office. No one. And if you try to create an independent record of your attempts to report the harassment, Anita Alvarez will send you prison.
In what appears to be a laudable act of jury nullification, Moore was acquitted in August. Alvarez is still pushing on with another felony wiretapping charge against Chicago artist Christopher Drew.
Williamson County, Texas District Attorney John Bradley
John Bradley isn’t the prosecutor who wrongly convicted Michael Morton of beating his wife to death in 1987. His mentor and predecessor Ken Anderson did. Anderson is now a state district judge. But Bradley fought like hell to deny Bradley the DNA testing that exonerated him after 24 years in prison. Anderson withheld reams of exculpatory evidence from Morton’s attorneys over the years. Once he left office, Bradley kept up the tradition. From the Texas Tribune:
Beginning in 2005, [Morton] pleaded with the court to test DNA on a blue bandanna found near his home shortly after the murder, along with other evidence.
For six years, the Williamson County district attorney, John Bradley, fought the request for DNA testing, based on advice from Anderson, his predecessor and friend. In 2010, however, a Texas court ordered the DNA testing, and the results showed that Christine Morton’s blood on the bandanna was mixed with the DNA of another man: Mark A. Norwood, a felon with a long criminal history who lived about 12 miles from the Mortons at the time of the murder. By then, Morton had spent nearly 25 years in prison.
Norwood has been arrested and charged in Christine Morton’s death and is a suspect in a similar murder from 1988.
Which means that had they not fixated on Morton, they may have found the right guy, possibly preventing another killing.
In 2007, the Grits for Breakfast noted that Bradley gave some unusual advice to a fellow prosecutor on an Internet discussion board. The other prosecutor was asking about how to construct a plea agreement in a way that would forfeit any future right to DNA testing. Bradley lamented, “Innocence, though, has proven to trump most anything.” He then added:
A better approach might be to get a written agreement that all the evidence can be destroyed after the conviction and sentence. Then, there is nothing to test or retest. Harris County regularly seeks such agreements.
Got that? Let’s be sure those innocents never get the chance to prove us wrong.
Finally, showing once again that when it comes to the criminal justice system there’s no level of incompetence too revolting to be rewarded, you may remember that in 2008, just as it was about to launch an investigation into the Cameron Todd Willingham case, Rick Perry replaced several members of the Texas Forensic Science Commission with more prosecution-friendly appointees. He appointed John Bradley to replace chairman and defense attorney Sam Basset. Bradley immediately suspended the Willingham investigation, then restructured the commission in a way that allowed him to skirt Texas open meeting laws.
Mississippi Attorney General Jim Hood
Hood is another repeat nominee. Rather than add a couple dozen paragraphs to an already-long post, I’ll just direct you to my write-ups for his 2008 and 2010 nominations. Read those, then read here, here, here, and here to see how Hood further distinguish himself over the last year.
Then sit in sad contemplation of the fact that in November, Mississippi voters elected Hood to another term. And by a considerable margin.
Colorado District Attorney Carol Chambers
Another repeat nominee. Last time Chambers made this list, it was for a single case in which DNA testing showed that the biological evidence found in an eight-year-old victim of sexual assault didn’t match the guy Chambers wanted to charge. Chambers dismissed the tests on the interesting theory that young girls dress really slutty these days, so anyone’s DNA could, completely by happenstance, drop into their pants. I didn’t realize it at the time, but Chambers has made a name for herself in a number of other cases. To begin, she’s Colorado’s death-happiest prosecutor, seeking the ultimate punishment against six defendants over a span in which there was only one other capital case in the entire state. She has also issued a veiled threat against a judge who ruled against her, and allegedly threatened an attorney with a grand jury investigation for seeking to collect a debt against a powerful figure in Chambers’ Republican party. A memo leaked to the Denver Post in March detailed how Chambers offered conviction bonuses to her assistant DAs.
In the courtroom? Last January, Chambers charged a 10-year-old with felony arson for a fire he and a friend accidentally set while playing with matches. She’s known to enforce the state’s habitual criminal statute to an extreme, seeking lengthy sentences for petty crimes. In 2009, a judge found that her office had withheld a large cache of exculpatory documents in the murder trial of David Bueno that were consistent with Bueno’s defense. In fact, by the time her office fully complied with the judge’s order, Chambers’ office had released more documents to Bueno’s attorneys a year after conviction than they had released before his trial. Bueno’s conviction was vacated last year.
Chambers was the first DA in Colorado to bring criminal charges against a doctor for writing a marijuana prescription that her office deemed medically unnecessary (she lost).
Mitigating factors: Chambers has been known to take on bad cops. She has also set up a juvenile diversion program that has won praise from the sorts of activists who normally oppose tough-minded prosecutors. She also declined to bring charges in one high-profile rape case, and even fought a judge’s order to appoint a special prosecutor to pursue the case. Whether this is a plus or a minus I guess depends on how strong one might have found the evidence in that case.
Philadelphia District Attorney R. Seth Williams
In February, Pennsylvania resident Mark Fiorino walked through the city of Philadelphia openly carrying a gun, as he is permitted to do under Pennsylvania law. Fiorino was stopped by Philadelphia police, who repeatedly threatened to kill him. Once the police looked up the law they found that, as Fiorino had by then told them repeatedly, he had done nothing illegal.
We know all of this because Fiorino recorded his conversation with the cops, which he then posted YouTube. This also is perfectly legal in Pennsylvania. The state’s courts have repeatedly found that the wiretapping laws do not bar the recording of on-duty cops, even without their consent, because on-duty cops have no expectation of privacy.
Yet DA Williams decided to charge Fiorino with “reckless endangerment and disorderly conduct.” Fiorino’s real crime was embarrassing the city’s cops, who threatened to kill a man because they were ignorant of state law. I’ll just repost a bit of what I wrote at the time:
What Williams has done . . . is premeditated. Much more than the cops, Williams should know the law. Moreover, even if he didn’t know the law at the time, he has since had plenty of time to research it. By now, Williams does know the law. (If he doesn’t, he is incompetent.) And he knows that even if Fiorino did deliberately provoke the cops to test their knowledge of Philadelphia’s gun laws, that also is not a crime.
Yet he’s charging Fiorino anyway . . . A spokesperson for Williams said Fiorino was “”belligerent and hostile” to police who were investigating a possible crime. Read the transcript of the audio in the linked article above and tell me who is “belligerent and hostile.” Read it knowing who was breaking the law, who was following it, and while remaining cognizant of which party was threatening to put a bullet in the head of the other.
Note that nothing Fiorino did was on its own illegal. Willliams is attempting a striking, blatantly dishonest bit of legal chicanery. His theory goes like this: If you undertake a series of actions that are perfectly legal and well within your rights, but that cause government agents to react in irrational ways that jeopardize public safety, you are guilty of endangering the public . . .
It’s a blatant abuse of office. Williams is using the state’s awesome power to arrest and incarcerate to intimidate a man who exposed and embarrassed law enforcement officials who, because of their own ignorance, nearly killed him. Exposing that sort of government incompetence cannot be illegal. And it isn’t illegal.
Fiorino was acquitted in October, and is expected to file a civil rights claim. This is just one offense. But it’s so egregious, and the message it sends is so dangerous, that I think it merits a nomination.
Possibly also worth mentioning: Williams’ office defended one of the few prosecutors in the country to be stripped of qualified immunity. Over the summer, the 3rd U.S. Circuit Court of Appeals denied immunity for Philadelphia ADA Gina Smith, who had arrested and jailed a material witness in a rape case, then left the witness (who had done nothing wrong) in jail for nearly two months while the trial was delayed. The city settled with the witness in October. (Williams’ office was also able to rope in the city’s public defenders system to pay part of the damages.)
In fairness to Williams, Smith’s transgression occurred well before Williams took office, and Smith no longer works for the DA. I’m not familiar with how Pennsylvania law works in these sorts of cases, so it could well be that Williams was obligated to defend the former employee, particularly since the city would ultimately be paying the damages.
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