“Higher Courts Let Prosecutors Get Away With Murder”: Supreme Courts Bear Responsibility For Conduct They Accept From Attorneys
For anyone studying the bubbling issue of prosecutor misconduct, the LAT states—Louisiana, Arkansas, and Texas—form a good lab. March alone brewed up:
—belated charges against a prosecutor in Texas, where the defendant was executed a decade ago;
—soul-searching in Louisiana, where a prosecutor bemoaned his win that sent an innocent man to prison;
—and absolution in Arkansas, where the state’s Supreme Court informed me that a prosecutor who withheld critical evidence from a man on trial for his life did not violate any rules of professional conduct.
The Texas case centered on Cameron Todd Willingham, who was executed in 2004 for the arson murder of his three young daughters. Now the State Bar of Texas has filed a formal petition accusing the prosecutor of obstructing justice by making false statements and concealing evidence favorable to Willingham’s defense.
“Before, during and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel,” the bar said.
It won’t help Willingham, who protested his innocence to the end. But the move suggests that at least some Texans are paying attention.
Next door in Louisiana, a former prosecuting attorney reflected on a conviction he’d won that kept a man on death row for 30 years—and held himself accountable.
“As a prosecutor and officer of the court, I had the duty to prosecute fairly,” attorney A.M. “Marty” Stroud III wrote to a Shreveport newspaper. “Part of my duty was to disclose promptly any exculpatory evidence relating to trial and penalty issues of which I was made aware. My fault was that I was too passive. I did not consider the rumors about the involvement of other parties…”
Stroud agreed that Louisiana owed significant monetary compensation to the man whom he’d helped convict. Yet, he wrote, “The state does not accept any responsibility for the damage suffered by one of its citizens. The bureaucratic response appears to be that nobody did anything intentionally wrong, thus the state has no responsibility. This is nonsensical.”
Noting that evidence that would have cleared the defendant was available at the time of the trial, Stroud wrote: “The easy and convenient argument is that the prosecutors did not know of such evidence, thus they were absolved of any responsibility for the wrongful conviction.”
Stroud dismissed that argument. And he refused to absolve himself.
Last year, 125 men and women were released from prison because they were wrongfully convicted, according to a report by the National Registry of Exonerations. Two-thirds of those cases were overturned because prosecutors either reopened investigations themselves or cooperated with other investigators to ensure that justice was done.
But supreme courts, who bear the ultimate responsibility for the conduct they will accept from attorneys, have stood by like indulgent parents, tolerating outrageous behavior and even ruling that others must too.
(In the infamous Louisiana case of Connick v. Thompson, the U.S. Supreme Court decided in 2011 that a prosecutor could not be held liable for withholding evidence in a murder case because the defendant, who was a month from execution before the withheld evidence was discovered, had not shown that the prosecutor’s office displayed “deliberate indifference” to its duties.)
Echoes of that protectionism can be heard in the Arkansas case of Tim Howard, who will be retried later this month for a double murder that occurred 18 years ago near where these three states join. As I wrote here before, Howard is being retried because after he was sentenced to death, investigations turned up potentially exculpatory evidence that had been withheld from his attorneys.
I know firsthand how loath state officials have been to hold his prosecutor accountable. Four years ago, when I learned of the withheld evidence, I wrote an article for my newspaper first. Then, as a citizen, I wrote a letter to the state supreme court’s Committee on Professional Conduct, complaining about what the prosecutor, Tom Cooper, had done.
Supreme courts routinely sanction lawyers for offenses as minor as misspelled words in briefs or as serious as defrauding clients or showing up drunk in court. I thought that withholding evidence in a death case constituted a gross violation of the court’s Rules of Professional Conduct.
While I didn’t say as much in my letter, I viewed Cooper’s failure to turn over key evidence as horrific neglect, at best. To my mind, it rose to the same level as that of a surgeon who killed by failing to sterilize an instrument, or a driver who ran over a kid while texting. Given the high stakes of a capital trial, there seemed no kinder way to spin it.
The director of the court’s Office of Professional Conduct promptly notified me that he would wait for a court to rule on whether the misconduct I alleged—and which the state’s attorney general by then had tacitly acknowledged—had actually occurred.
The letter also informed me, in all caps and bold type, that I must not disclose the nature of my complaint to anyone, including, ironically, members of the news media. If I did, the letter warned, I could be held in contempt of court and “punished by fine or jail.”
While Howard’s case wound its way back to court for a ruling, I reflected on the Arkansas Supreme Court’s threat. I concluded that it was unlawful, a violation of First Amendment.
I wrote to the committee explaining my concern, but after receiving no response I filed a federal civil rights lawsuit against the state Supreme Court’s Committee on Professional Conduct. That was in 2011.
Arkansas’s attorney general represented the committee. My attorney, Jeff Rosenzweig, argued that the boiler-plate letter I’d received, which went to all persons filing complaints about attorneys, constituted prior restraint and struck at the heart of free-speech protections—protections that were voted into the Bill of Rights particularly so that citizens could discuss their elected officials.
The state never did admit error. But in January 2013, we settled. I withdrew my lawsuit and the court ordered that henceforth the content of complaints could be discussed.
The following November, the judge hearing Howard’s claim about the withheld evidence concluded that misconduct had indeed occurred, though he softened his ruling by opining that the misconduct had been “inadvertent.” Nevertheless, he vacated Howard’s conviction, opening the way for the new trial that will take place this month.
As soon as the judge announced his finding of misconduct, I wrote again to the Office of Professional Conduct. Pointing out that a court had now made a finding of misconduct, I would renew my complaint against Cooper.
Sixteen months passed without a response. During that time I learned that, of the hundreds of attorneys the committee has sanctioned during the past 25 years, not one has been a prosecutor.
I began to think that my letter about Cooper, like my earlier ones about the First Amendment, would be totally ignored. But in the middle of March, just three days after my article about Howard’s upcoming trial appeared here, a letter from the director of the Office of Professional Conduct arrived at my office.
Could it be? A judge had found misconduct serious enough to warrant a new trial for a man who’d spent 16 years on death row, and would the state Supreme Court’s Committee on Professional Conduct finally break with its long tradition and actually punish a prosecutor instead of threatening those who dared to complain about one?
Nope.
This latest letter advised me that, though my complaint against Cooper was “carefully reviewed,” “sufficient evidence” had not been found that Cooper—the former prosecutor who is now a judge—had violated even one tiny rule of professional conduct.
No doubt most defendants facing a judge would love to murmur the word “inadvertent” and be graciously forgiven. But that doesn’t work in America’s courts—unless you’re a prosecuting attorney.
By: Mara Leveritt, The Daily Beast, April 6, 2015
“Hispanic Jeb vs Identity Politics”: The Most Damaging Gaffes Are The Ones That Reinforce A Preexisting Narrative
In case you haven’t heard, the New York Times is reporting that, ”In a 2009 voter-registration application, obtained from the Miami-Dade County Elections Department, Mr. Bush marked Hispanic in the field labeled ‘race/ethnicity.’”
Native American Elizabeth Warren, meet Hispanic ¡Jeb!
What with all the serous news in Iran and Indiana, this might seem like a silly thing to talk about. Team Bush has responded to the story, and – based on this Tweet from Jeb Bush, Jr. (which his dad Re-Tweeted) – the strategy appears to be to try to downplay the story by poking fun at it.
That might be there best hope, because there is potential this could turn into a big deal, electorally speaking. That’s because this kind of symbolic thing is easy to mock (see Elizabeth Warren) — and easier to understand — than some policy proposal.
The most damaging gaffes are the ones that reinforce a preexisting narrative about someone. A very vocal and activist segment of the Republican primary base is vehemently opposed to anything that looks like “amnesty,” and Jeb’s support for immigration reform already has him in hot water with this contingent of the GOP. This latest revelation is amnesty on steroids. It personalizes what was, heretofore, a policy story. Bush can now be portrayed as someone who has “gone native” with the amnesty gang, and is no longer “one of us.”
When Sen. Marco Rubio was pushing immigration reform, buttons started popping up branding him a “RINO” who wants “AMNISTIA.” The fact that these buttons looked similar to a Mexican flag, and featured Rubio wearing a sombrero, only added to the subtlety. Already, the New York Times and The Week (where I also write) have associated photos with stories about this topic showing Bush surrounded by mariachi bands and/or men wearing sombreros. Those are the mainstream outlets. Wait till the blogs get hold of this. (And don’t get me started on talk radio…)
Unless this gets fixed, the conservative base (which is decidedly and passionately opposed to immigration reform, and already hostile to Bush) will use this as a cudgel to relentlessly mock and attack Bush.
To a certain extent, they have a point: Bush’s cultural experience is far different from that of most Americans. I have no idea why he checked that box, but it is reasonable to say he’s married to a Latina, his kids are Hispanic, and he lives in an area where he can probably go till lunch before speaking anything other than Spanish. This is not to say he’s un-American, but it is to say he’s international and cosmopolitan, and really, to a lot of folks, that’s pretty much a distinction without a difference.
In reality, though, the difference is huge. As noted earlier, there will be comparisons to Sen. Warren. But Elizabeth Warren presumably benefited from her bogus Native American status. Bush had nothing to gain (and as it turns out, a lot to lose) by identifying as Hispanic.
Jeb’s political ideology is such that he doesn’t think anyone should benefit from identity politics — that merit, not ethnicity, is what should matter. Liberals like Warren believe that certain minority groups should get preferential treatment; Jeb, as a conservative, does not, and as such it doesn’t really matter what ethnicity he chooses to identify as. Heck, as Florida governor, Bush even went so far as to end affirmative action in the state.
As the New York Times reported in 2000:
“There is widespread support among whites for Mr. Bush’s program, which would end preferences for businesses owned by women and minorities in bidding for state contracts. And it would end college admissions preferences based on race, substituting a program guaranteeing admission to at least 1 of the 10 state universities for high school students who graduate in the top 20 percent of their class.”
Bush is wise to try and diffuse this with humor, but only time will tell if that works. This could still be politically damaging. But that doesn’t mean it should be. Jeb’s WASPy family background only makes this story more delicious, but practically speaking, he probably is culturally Hispanic, and of course there’s nothing wrong with that. What we should be interested in is the fact that, as governor, he supported conservative policies, and has a long history of rejecting identity politics. For that, at least, we should be saying ¡Viva Jeb!
By: Matt Lewis, The Daily Beast, April 6, 2015
“Why Is The GOP So Angry At Everything These Days?”: Fevered Lunatics Whose Principal Policy Option Is To Fight Rather Than Talk
At the end of a week when many paused to reflect during Passover and Easter ceremonies, a question with no real answer seemed to crash into our culture with all the subtlety of a marching band in a funeral parlor: Why do so many Republicans seem so angry all the time at so much around us?
The fury of some like Ted Cruz is understandable. It’s fueled by his massive ego and outsized ambition along with his personal belief that he is so smart and the rest of us are so pedestrian that he can manipulate opinion to win the Republican nomination for president with the support of the mentally ill wing of his party.
“A real president,” Cruz the bombardier said last week, “would stand up and say on the world stage: Under no circumstances will Iran be allowed to acquire nuclear weapons. Iran will either stop or we will stop them.”
Then there is the minor league Cruz, the tough talking, totally in-over-his-head governor of Wisconsin, Scott Walker, who is running to crack down on the salaries of teachers, cops and firefighters everywhere. Oh, he’ll also teach Iran a good lesson by throwing any deal out the window no matter what other countries might think. Imagine Scotty informing Angela Merkel of his decision while he wears his Cheese-Head Hat.
There are so many others too. There’s the kid who started the pen pal club with the ayatollah, Tom Cotton. There’s the mental midget from Illinois, Mark Kirk, who went right to the basement for his best thought on Iran, claiming that England got a better deal from Hitler than the U.S. got from Teheran. Kirk, not a history major.
But my personal favorite? In this corner, from Baltimore, wearing the costume of a true warrior, locked and loaded and ready to roll, the former Ambassador to the United Nations, John “Bombs Away” Bolton. He took to the Op-Ed page of The New York Times to declare war on Iran. After all, why waste time!
“The inconvenient truth is that only military action…” Field Marshall Bolton wrote, “can accomplish what is required. Time is terribly short, but a strike can still succeed.”
Bolton, of course, is one of the Mensa members who told George W. Bush that it would be swell to go to war in Iraq. Twelve years later things are really going well there.
At least Bolton knows war on a firsthand basis. At age 18 he was in South Vietnam where…OH, I’M SORRY…MY MISTAKE…that was another Bolton. That was Dennis Bolton from Bedford, Indiana, born two weeks before John Bolton was born in Baltimore in November 1948. Two different young men with two different tales to tell.
Dennis Bolton went to Vietnam. John Bolton who went to Yale. Dennis Bolton was killed near DaNang on April 19, 1967 where he served with the Marines while John Bolton finished his freshman year at New Haven.
In 1967, Bedford had a population of about 13,000. It’s a nice small town where Gene Hackman could have filmed Hoosiers, one of the great sports films ever. Ten young men from Bedford were killed in Vietnam.
Indiana, of course, is the state where Mike Pence and Republicans in the state legislature spent the week clowning it up over their lost fight to make it harder for some Americans simply to be happy. Make no mistake about it, their war was against same-sex marriage and they suffered a TKO when the country turned against them in the snap of a finger, an overnight knockout delivered with stunning speed. But I digress.
In 1967, Baltimore had a population of about 930,000. It’s a tough town with a lot of different neighborhoods, some dangerous, many working class, where Barry Levinson hadn’t made Diner yet and HBO hadn’t given us the gift that is The Wire. Four hundred and seventeen residents of Baltimore were killed in Vietnam.
Dennis Bolton’s name is on the wall of the Vietnam Memorial in Washington. John Bolton’s name was on the Op-Ed page of The New York Times as well as on the lips of some angry, fevered lunatics whose principal policy option is to fight rather than talk.
Obviously, Bolton never made it to Vietnam. He joined the Maryland National Guard to avoid going to Vietnam and, hey, good for him. At least he served.
Of course, he blamed his absence from combat on the politics of the time. On liberals like Ted Kennedy and others, claiming they had already lost the war by the time he was ready to take on the North Vietnamese Army. I guess that explains the itch, the unfulfilled need, the frustration that guys like Bolton have lived with across the decades.
And today, “Bombs Away” Bolton still has a strong desire to light it up. And according to some pundits he’s even considering a run for president. Obviously his platform will remain as unchanged as his thinking: Different time, different dangers, different countries but same selfish solution: Send someone else’s kids to fight and die while Bolton and others play with a lit fuse in a world more dangerous than dynamite.
By: Mike Barnicle, The Daily Beast, April 5, 2015
“Rand Paul Consistently Defends Discrimination”: And Opposes The Government’s Right To Protect People From Discrimination
In the past, when Senator Rand Paul has been asked about enforcement of the Civil Rights Act of 1964 or other civil rights bills, he’s fallen back on the idea that you can better assure, for example, desegregated lunch counters by denying that particular Woolworth’s your business than by enacting federal legislation. When it came to housing, he said this, “Decisions concerning private property and associations should in a free society be unhindered. As a consequence, some associations will discriminate.”
Using this rough logic, if you can call it that, people who seek to order lunch or buy a home are behaving a certain way. And people who deny patrons a meal or won’t sell them a house are also behaving a certain way. And people should be free to behave pretty much however they want. In a free society, some people will exhibit racist behaviors: “some associations will discriminate.” Other people will try to do certain things and find that they can’t accomplish them because of their race, gender, religion, or sexual orientation. But no one told them that they couldn’t try.
For Rand Paul, the best way to change someone’s behaviors is to behave some way yourself. Like Indiana Governor Mike Pence, who said he wouldn’t continue to eat at a restaurant that turned away gay couples, Rand Paul thinks that businesses can best be persuaded to serve all people by the threat of lost business from customers whose patronage they actually want.
So, pretty much across the board, Senator Rand Paul thinks about civil rights as a matter of how people behave rather than a matter well-suited for legal solutions or protections.
But, then, look at this:
“I don’t think I’ve ever used the word gay rights, because I don’t really believe in rights based on your behavior.” –Senator Rand Paul
The logic of that statement appears straightforward. Being black or a woman, how old you are, are not things you can change through behavioral modifications, but who you are physically attracted to is purely a matter of choice. Someone can deny you a sandwich or a wedding cake based on their perception of your sexual orientation because the presumption is that you behave a certain way, not that you are a certain way.
So, suddenly, the gay couple seeking dinner is distinct from the black gentleman seeking lunch, even though their behaviors are nearly identical.
If you’re seeking some consistency here, it’s not that hard to find. Rand Paul, in all circumstances, defends the right to discriminate and opposes the government’s right to protect people from discrimination.
He’ll shift around how he justifies these positions, but the positions remain the same.
There’s a certain appeal to the Paulista philosophy that has the potential to attract a lot of people in the younger generations, but here we see him running afoul of a core value of our youth, which is that gays should not be denied the same rights as everyone else.
It’s not just that he seems to be insisting that sexual orientation is a choice, but also that he wants to defend people’s right to behave any way they want, even in an openly discriminatory manner, unless their behavior involves sex.
This is not a winning position and it will hurt Paul badly with the very generations that might otherwise flock to his campaign.
By: Martin Longman, Ten Miles Square, The Washington Monthly, [Cross-posted at Progress Pond], March 31, 2015
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