Issue 284
March 26, 2004
Articles
v Sniper Trial Took Toll on Attorneys by Josh White
v Jackson Case Going to Grand Jury by William Overend
v Telltale Words on a 1996 Tape Are Recalled in a Police Inquiry by Jim Dwyer and William K. Rashbaum
v Bias in the Jury Box? by Richard Morin
v When Prosecutors Err, Others Pay the Price by Andrea Elliott and Benjamin Weiser
v ‘Life on the Outside’: The Other Lockup by Brent Staples
v Clashing Opinions on Justices’ Recusals by David G. Staples and Richard A. Serrano
v Our duty to free the wrongly convicted by Daniel F. Conley
v Injustice in Afghanistan - Editorial
The following article appeared
on washingtonpost.com on March 21, 2004:
Sniper
Trial Took Toll on Attorneys
Muhammad's
Lawyers Shoulder Own Stress, Depression and Guilt
By Josh
White
Washington
Post Staff Writer
John Allen
Muhammad waited in a small holding cell adjacent to the Virginia Beach
courtroom, a small smile crossing his face. Moments after being condemned to
die, the man who held Washington hostage with a sniper rifle for three
terrifying weeks warmly embraced his attorneys.
Deflated and
worn, their shoulders slumped, Peter D. Greenspun and Jonathan Shapiro appeared
to be the ones who needed comforting, not Muhammad.
"He
hugged both of us," Shapiro recounted recently at his law office in
Alexandria. "He had no concern for himself. He wanted to know how we were
doing, how we were holding up.
"I
don't think we were doing all that well."
For
Greenspun, the man he had come to know so well now faced execution. His efforts
in defending him weren't enough. Elements of the case would haunt him, probably
forever. "It was just sad," Greenspun said, shaking his head.
Over the
past year and a half, Greenspun and Shapiro not only defended Muhammad, 43,
against capital murder charges but also stood up for Public Enemy No. 1. Although neither attorney worked to minimize
the devastation left in the wake of the sniper attacks -- they say they
empathize with the many victims and their families -- their job has been to
argue that Muhammad didn't play a role in them.
Muhammad is
the man who jurors ultimately decided coldly killed as many as 10 people in the
Washington area in October 2002 and should die for it. The two attorneys
battled a barrage of evidence both horrifying and heartbreaking and went up
against a government bent on killing their client, passionately fighting to
save him.
But they
also battled overwhelming stress, the responsibility of having another man's
life on their shoulders, and even vitriolic letters and threats from a stalker.
Later, they faced the depression that comes with wishing one could have done
more.
It's a
journey that every capital defense lawyer takes, one fraught with legal
challenges in a state that is second only to Texas in the number of people it
puts to death -- 90 executions now since 1976. It's a journey that often takes
an unrecognized toll on those who choose to enter the fray.
"It's
an unfair burden," said Richmond lawyer Steve Benjamin, who has defended
almost a dozen capital cases. "That's one of the problems with the death
penalty. No single human being should be given the responsibility for
preventing the deliberate killing of someone else by society. . . . It's
enormous pressure. I can think of no more awful work in the world."
Michele
Brace, a Virginia death penalty expert, said defense lawyers often feel
incredible stress before, during and after capital trials because they get to
know even the most reprehensible clients as human beings.
"It's
an emotionally wrenching experience even when you win," Brace said.
"When a client of mine is executed, I'm a basket case for several days.
When the stakes are as high as they are here, a lawyer can get very depressed
because they feel they've lost a client's life."
For Greenspun,
50, and Shapiro, 54, it was a responsibility they chose in November 2002, when
Prince William Circuit Judge LeRoy F. Millette Jr. called on them.
The
attorneys sat down with their families and had emotional discussions about
taking the case, about defending a man whom millions in the Washington area had
already convicted in their minds. And they talked about the importance of
fighting the death penalty -- which they both vehemently oppose.
Yet now, 17
months later, they don't regret their decision and would do it again. In fact,
they likely will do it again, in Fairfax County, where Muhammad faces a second
capital murder trial. A Chesapeake, Va., jury spared the life of Muhammad's
teenage accomplice, Lee Boyd Malvo, voting instead for a life sentence.
In
interviews at their respective offices last week, Muhammad's attorneys talked
about their struggle to save a man's life and the difficulties -- both personal
and professional -- that go along with it.
Shapiro's
passion for fighting the death penalty arises out of the case of Wilbert Evans,
who was executed in 1990 for killing an Alexandria sheriff's deputy. Shapiro
entered Evans's case on appeal and was present when he was strapped into the
electric chair. But at the last moment, he turned his back, unable to watch
Evans die.
U.S. Supreme
Court Justice Thurgood Marshall had written a blistering dissent on Evans's
case as his execution date approached, arguing that Evans's life should be
spared. Evans asked to be buried with a copy of the dissent.
Today,
Shapiro has a portrait of Evans on the wall of his law office in Old Town. The
Evans file, fading and cracked, sits on the floor next to his desk, nearly 14
years after the execution.
"I said
after that case that I'd never get involved in a capital case again," said
Shapiro, who left his law practice for three years to teach. "It destroyed
me. It's a major motivation now."
That same
motivation led Shapiro to represent an accused child killer in Alexandria just
a few years ago. That man, Gregory Murphy, knocked Shapiro out cold with a
powerful punch at a court hearing. Shapiro pleaded to stay with the capital
murder case even after the assault, but he was removed by the court.
Shapiro's
stance on the death penalty is part of the reason his family didn't balk when
he considered taking on Muhammad's defense. Like much of the Washington region,
the Shapiros and their three daughters had all been scared during those
terrifying weeks of the sniper attacks.
Greenspun,
successful in three other death penalty cases, is also devoted to the fight
against state-sponsored death. When he got the call from Millette, he
hesitated. What would his family and his firm think? He was worried that
children at school might pester his 12-year-old son or his 17-year-old daughter;
he consulted his 21-year-old daughter in college. They all said to go forward.
Within 24
hours, Greenspun was talking to Muhammad at the Prince William County jail. It
was the start of hundreds of hours of conversation with Muhammad, a man much of
the world was painting as the epitome of evil.
"Everyone
else sees him as a monster, and I see him as a person," Greenspun said.
"He has a sense of humor, he's charming, he's intellectual. From the
evidence, he fell apart. But the John that we know isn't the John that you
know. He isn't the John that the jury thought they knew."
The trial
itself was the pinnacle of stress for Greenspun and Shapiro, beginning with Day
One, when Muhammad fired his attorneys and briefly defended himself. In
courtroom photographs that ran in newspapers across the nation the next day,
Greenspun was shown wiping his brow and holding his head in his hands. Shapiro
was leaning against a wall, his hands in his pockets, clearly dismayed. He was
devastated, he says now, finding it impossible to watch.
Greenspun
said Muhammad's decision nearly crippled the case, as the defense theory and a
year of careful preparation were tossed out the window: "It was
self-destruction, and it was awful. We knew what to do, and John didn't."
As the trial
unfolded, Greenspun and Shapiro watched jurors cry as they looked at shocking
photos of the dead; they cringed as the 911 tapes echoed throughout Courtroom
10.
"It was
raw, a gaping wound in itself," Greenspun said. They saw the victims and
their families and felt how real the pain was. "Every one of those people
were just upstanding members of the community, regular people, who were
productive.
Their family
members were in obvious pain. It was not easy for us."
Shapiro's
calls home were lethargic. His wife, Jane Harrington, said he had a hard time
mustering words. The six-week trial was the longest they've been apart in their
21-year marriage.
"I
could hear it in his voice," Harrington said. "He didn't have a lot
to say aside from how sad it all was. It wasn't a very healthy kind of
experience."
In the
waning days of the trial, Shapiro faced an unusual situation: A mentally ill
former client began sending scores of letters to his office, sometimes up to a
dozen a day. Then came a black dress and a target with bullet holes in it,
along with a thinly veiled threat to hurt his family. Shapiro moved his wife
and daughters into a hotel while police investigated the incidents.
When the
verdict of death was read, Shapiro said he wanted to jump up and shout to the
jury: "You didn't hear us! This is murder!" Greenspun said he is glad
that he had his fingers resting on the defense table, because he might have
fallen backward. Although they somewhat expected the jury to return a death
sentence, it nonetheless hit like a ton of bricks.
Katherine
Greenspun said her husband went through bouts of disappointment and
frustration, while at home the case spurred tremendous family discussion about
the death penalty. The case put a strain on Greenspun's law practice, she said,
and on him personally.
"I
think he was very tired and more than very disappointed," Katherine
Greenspun said. "He did everything he could for his client, and he sticks
with his convictions. I think this will stay with him forever."
In the days afterward,
both attorneys had a hard time sleeping. They and their wives went on a
vacation that seemed anything but relaxing. Greenspun would wake up in the
middle of the night and think about all the things that went wrong at trial.
Shapiro said a cloud hung over everything.
When they
returned, they had few cases to work on and even less energy to give to them.
Greenspun recently received a letter from someone who used a string of
profanity to berate him for representing Muhammad.
"We
realized we were both fairly depressed," Shapiro said. "Part of it
was the result, part of it was we were engaged in this very overwhelming
circumstance and all of sudden it was over. There was nothing for me here at
the office. I had zero cases, which in a way was good because I couldn't have
done them.
"It has
taken four months for things to start to get back to normal."
Shapiro says
Muhammad's case is in many ways just beginning, with a lengthy appeals process
looming and the possibility of several more trials. Although he argues that
fighting the death penalty in Virginia is an uphill battle, he believes that he
has to try, in every case.
"We
have a lot more to do," Shapiro said, "and a lot more to say."
* * * * *
The following article appeared on latimes.com on March
13, 2004:
by William
Overend, Times Staff Writer
SANTA
BARBARA - Prosecutors in the Michael Jackson child molestation case have
decided to seek a secret grand jury indictment of the entertainer rather than
proceed with a public preliminary hearing, a source close to the case said
Friday.
The decision
by Santa Barbara County Dist. Atty. Tom Sneddon carries some significant legal
risks, but also would allow prosecutors to test the credibility of their key
witnesses out of public view and without questions from defense lawyers.
Sneddon
still could change his mind and decide that a preliminary hearing is the safest
way to obtain a legal determination on whether there is enough evidence to
proceed to trial, the source said. But a criminal grand jury already has been
convened.
Jackson was
charged Dec. 18 with seven felony counts of child molestation and two felony
counts of giving an intoxicant to a minor with the intent of seducing the boy.
The incidents are alleged to have occurred at his Neverland Ranch in Santa
Barbara County early last year.
Citing a gag
order imposed on lawyers in the case by Superior Court Judge Rodney S.
Melville, Susan Tellem, whose Los Angeles public relations firm handles media
inquiries for Sneddon, would confirm only that a Santa Barbara County grand
jury had been convened as part of a "regular process," as is done
every three months.
"The
substance of grand jury proceedings is not disclosed to the public in any case;
therefore, there is no information available as to what the grand jury is
hearing," she said. "There is no more available information and, as
you know, there is a protective order in place."
Jackson's
attorney, Mark Geragos, also bound by the gag order, declined to discuss the issue.
Legal experts, however, expressed some surprise that Sneddon would decide to
take his case to a grand jury at this relatively late stage, rather than months
ago.
"If you
are going to go to a grand jury, why now and not long ago?" asked Loyola
Law School professor Laurie Levenson. "There are problems in doing this
now that could wind up hurting the prosecution."
One
disadvantage, Levenson said, is that the prosecution may not have had time yet
to fully grasp the extent of the evidence it has collected. In a grand jury
hearing, prosecutors are obligated to tell the defense about anything they have
that could help the defense. That could become an issue for a defense appeal,
she said.
The
advantages of using a grand jury include keeping secret some evidence that
might be damaging to the defense, giving key prosecution witnesses a
low-pressure opportunity to testify without defense cross-examination and
reducing some of the "political heat" on Sneddon if grand jurors say
the case is too weak to take to trial, Levenson said.
An April 2
hearing has been set by Melville in the north Santa Barbara County city of
Santa Maria, where the Jackson case is being heard, primarily to set a date for
a preliminary hearing. But there has been widespread speculation since
Jackson's arrest that the preliminary hearing might ultimately be discarded.
One of
Sneddon's concerns is avoiding a "media circus" at a public
preliminary hearing, one official said. But others questioned whether that
concern was a valid reason to risk the possible legal repercussions of a
belated move to the secrecy of a grand jury.
Michael C.
McMahon, former president of the California Public Defenders Assn., spent 22
years as a public defender in Santa Barbara County and is now chief deputy
public defender in Ventura County. He said the grand jury route could be a
major gamble.
"One
judge up there has already declared the entire jury selection process in Santa
Barbara County unconstitutional on grounds that it is a kind of volunteer
system that does not produce proportional representation for Latinos and other
minorities," McMahon said. "That issue is now before an appeals
court."
"It
certainly could be extended to grand jury selection," he said, adding that
he was surprised Sneddon "would hand the defense an appeal issue on
this."
McMahon and
Levenson also noted there have been concerns about the health of the alleged
victim, a cancer patient.
Because of a
recent U.S. Supreme Court decision, they said, the prosecution could encounter
serious problems if the boy died before Jackson went to trial, they said.
The court
ruled that grand jury testimony of a witness who subsequently died could not be
introduced as evidence during trial, because the witness had not been subject
to cross-examination. If a witness dies after testifying at a preliminary
hearing, the testimony is allowed during trial.
"I
can't imagine he would risk that if there is any significant risk at all to the
boy's health," McMahon said.
USC law
professor Erwin Chemerinsky said that taking the case to a grand jury would
preserve Sneddon's control and minimize publicity. But he also will miss the
opportunity of testing prosecution witness testimony under fire, Chemerinsky
said.
*
* * * *
The following article appeared on nytimes.com on
March 22, 2004:
Telltale
Words on a 1996 Tape Are Recalled in a Police Inquiry
By Jim Dwyer
and William K. Rashbaum
Except for
one extraordinary twist, the raid on Apartment 10B in March 1996 would have
vanished long ago into the dense annals of New York crime-fighting. A team of
police officers and federal agents, hunting for evidence against a drug gang,
broke into the apartment, on upper Madison Avenue. They pulled open drawers,
looked in closets and upended cushions.
They left
behind their search warrant, on which they noted that they had not found the
very first item they had come looking for: "monies."
Yet a fluke
event - "once in a hundred years," as a lawyer later said - provided
a candid glimpse of the search and raised troublesome questions.
During the
commotion, someone turned on a telephone answering machine's recorder,
apparently without realizing it. For the next 30 minutes, the machine captured
the clamor and chatter of the search: an exclamation, "My God, that's a
lot of money;" a wisecrack about the Constitution; a crude racial remark
about the apartment's residents, who were not home.
Seven
minutes into the tape, a man can be heard quietly counting. "Six
hundred," he says. "Eight hundred. Nine hundred." Twenty-nine
seconds later, the sound of a zipper is heard.
Annette
Brown, who lived in the apartment and played a minor role in her son's drug
business, later told authorities that $900 in cash had disappeared from a
zippered portfolio. The police and federal agents all denied seeing money. At
least three official investigations of Ms. Brown's claim and tape led to no
charges.
Now, eight
years later, as the New York Police Department faces allegations of corruption
on a much grander scale, Carlos Rodriguez, the detective who was in charge of
tallying evidence from the Brown apartment, has again come under scrutiny, for
an entirely separate episode. This time, a retired detective claims to have
shared money taken from a drug dealer with Detective Rodriguez, according to a person
who has been
briefed on
the inquiry.
Detective
Rodriguez is among 10 current or former police officers who worked drug cases
in upper Manhattan and are now under investigation for their conduct over the
last decade, based on claims of corruption from the retired detective and his
partner, according to law enforcement officials and people with knowledge of
the case. So far, the retired detective, Thomas Rachko, and his partner, Julio
C. Vasquez, are the only current or former officers who have been charged in
the case, indicted on narcotics conspiracy, money laundering and other charges.
Both men, along with Detective Rodriguez and at least one former officer also
under scrutiny, have had discussions with prosecutors, people with knowledge of
the investigation have said.
Roslynn R.
Mauskopf, the United States attorney for the Eastern District of New York,
whose office, along with the Police Department's Internal Affairs Bureau, is
investigating the case, would not comment. Neither would a lawyer for Detective
Rodriguez.
The Police
Department believes that no money was taken in the 1996 incident, Deputy
Commissioner Paul J. Browne said, so the case could not represent a missed
opportunity to stop the sort of misconduct now under investigation. The
department contends that the tape is a kind of audio illusion, with the
provocative-sounding section actually best understood as jokes, sarcastic
remarks or, in the case of the racial slur, simply inappropriate language.
Even so, the
accidental taping of the raid, and the investigation that followed, offer a
rare view of the perilous intersections of police, drug dealers and cash. At
times, drug dealers have been able to use false allegations of wrongdoing as a
weapon against aggressive police work. It is also true that corrupt police
officers have been able to steal from drug dealers, assured that any accusation
could come only from criminals whose stories of wrongdoing would be viewed with
the utmost skepticism.
In the Brown
case, department officials said last week that they did not think the tape by
itself established that money was in the apartment, and that Ms. Brown's
credibility was weak. Her lawyer, Peter J. Neufeld, said that Ms. Brown gave a
straightforward account of petty theft, and did not embroider her story with
the more garish sums often mentioned in such cases.
Mr. Neufeld
provided a copy of the tape from Ms. Brown's answering machine that was
returned to him by federal prosecutors after the investigation. An account of the search of her apartment,
as well as subsequent events in 1996, has been pieced together from the tape,
from records that were disclosed as part of an unrelated court proceeding, and
from interviews with Ms. Brown and law-enforcement officials.
The intrigue
began shortly after the raid, when Ms. Brown returned home on March 22, 1996,
to find her apartment, at 1735 Madison Avenue, near 115th Street, in disarray.
A grown son, Garrick, was involved in dealing P.C.P., and though he lived in
the Bronx, he was an occasional visitor to Ms. Brown's apartment. Ms. Brown
would eventually plead guilty to abetting his operation, in exchange for a
sentence of probation. Her son, who also pleaded guilty, is serving a 15-year
term in federal prison.
In an interview
at her home on Friday evening, Ms. Brown said she recalled seeing the answering
machine dangling by its cord from the dresser, but it was not her first worry.
"That was my bedroom, and it was so messed up," she said. "I
said, `Where's my money?' It was in, like a binder that closed along the sides
with a zipper. The money was stuck down in it. The binder was in the bottom
drawer in my dresser. I think it was about a
thousand
dollars. The binder was gone. Nothing else personal was taken - my jewelry was
still there, my coats."
As she and
her sister began to straighten the apartment, the answering machine was beeping
or making some sort of noise, she said. "Evidently, they knocked it over
and they didn't know it was running," she said.
The next day,
she met with Mr. Neufeld, who spoke directly with Mary Jo White, the United
States attorney for the Southern District of New York. Ms. White assigned the case to an assistant
in charge of public corruption. A grand jury began hearing evidence. Ms. Brown
gave the prosecutors her PhoneMate 3700 answering machine and the original
tape. Mr. Neufeld arranged for her to take a polygraph test at the New York Lie
Detection Laboratories. The examiner said she truthfully answered all the
questions about the missing money, a report from May 9, 1996, shows. The
prosecutors later repeated the polygraph; the results of that test were not
disclosed, but Mr. Neufeld said he thought that the prosecutors would have
notified him if Ms. Brown had failed.
The police
inquiry into Ms. Brown's statement was handled by its Internal Affairs Bureau,
according to Deputy Commissioner Browne, the department's chief spokesman.
On Sept. 4,
1996, nearly six months after the apartment was searched, Detective Rodriguez
met with Internal Affairs investigators and the federal prosecutor. They asked
about the zippered portfolio. "He does not specifically remember the black
organizer, but asserts that if it was in the dresser he probably removed and
searched it," an Internal Affairs report says. "Rodriguez claims to
have only vouchered receipts (beepers,
rent and cars) and only one list."
The
answering machine tape was played for Detective Rodriguez, and the
investigators questioned him about the man heard saying, "Six hundred. Eight
hundred. Nine hundred."
"When
asked to explain the counting he stated that it was not his voice but that of
Agent Fred DiRenzo," the report states, referring to an agent from the
federal Drug Enforcement Administration who had taken part in the raid.
"He believes that DiRenzo could have been counting `chump change' or
receipts."
Agent
DiRenzo said he could not discuss the incident, but did not dispute any of
Detective Rodriguez's account. The agent is not under investigation, according
to Anthony P. Placido, the head of the drug agency's office in New York. An
internal agency investigation brought no charges of theft. Detective Rodriguez
was also asked about the statement made by a female voice: "Oh my God,
that's a lot of money." He said they had gone to the apartment in search
of a strongbox, which they found. The officer, he said, apparently
"observed the fairly large box and in anticipation of finding the money,
made the comment, `that's a lot of money.' " The box turned out to be
empty, the detective said.
On that
point, his version is consistent with what Ms. Brown says about money in the
apartment - that there simply was not much on hand. The detective, however,
denied that there was any cash. "Rodriguez firmly asserts that at no time
did he see money in the bedroom," the report states.
Ms. Brown
went before the grand jury, and she said that most questions were aimed at
linking her to the drug ring. Little attention, she says, was paid to the small
amount of cash she said had been taken.
As an
example, she cited investment documents taken from the apartment during the
search. These papers concerned money held for a granddaughter who was living
with her, she said. The child's aunt was the custodian of the account, Ms.
Brown said. "They were trying to say that was proceeds from drugs, because
the documents were coming here under the aunt's name," she said.
"They were not concerned about my money in the drawer. They were concerned
about drug money. How did I get to a thousand dollars? I told them I would save
some every month. My son received S.S.I. I was on public assistance. I knitted it together. They
were giving the impression that they didn't believe it was my personal money,
that it was some other money."
Mr. Browne
said Internal Affairs investigators felt she was vague about the source for the
$900 she claimed to have lost, and they could not confirm that she had cashed
the government checks in certain locations. He also said that that she had
changed her story "about where the money was in the apartment."
Ms. Brown
insisted that was simply not true. She said she told the authorities her story
only once, to the grand jury, and was certain about the location. "That
was my life savings. I chose to put it down there, in the bottom drawer,"
said Ms Brown, who now works in a nursing home.
The police
investigation also looked at the personal bank accounts of the officers who had
taken part in the raid. Asked if it were likely that anyone would deposit a sum
of $900 into a bank account, Mr. Browne agreed that it was not, but said the
efforts showed the vigor of the Internal Affairs inquiry. "They went to
great lengths to see if there was any movement of money," he said.
The one area
where the investigation found fault was with Detective Rodriguez's language.
While Mr. Browne said that the reference to the Constitution having gone
"out the door," was made in jest, a later remark was deemed
offensive. On the tape, Detective Rodriguez is heard discussing the contents of
a closet or medicine chest. "You're talking about nigger people," he
said. The detective told investigators that he was speaking to
Agent
DiRenzo, a white man, and that the remark was not offensive in context. Later,
Detective Rodriguez changed that account to say he made the remark not to Agent
DiRenzo, but to another agent, who is black. The detective was docked six days'
pay, Mr. Browne said.
"Everybody
who's looked at it feels that neither Rodriguez nor anyone else did anything
wrong, with the exception of the use of the racial slur," Mr. Browne said
last week. "The consensus is that there was no cash and nobody stole
anything."
In the end,
neither the grand jury, the police nor the Drug Enforcement Administration
brought criminal or administrative charges for theft. The federal authorities
were not nearly as emphatic or sweeping as the Police Department, at least in
their only known public statement on the results of the inquiry. More than a
year after Ms. Brown turned over her telephone answering machine, an assistant
United States attorney, I. Bennett Capers, told a federal judge that his
office's "determination of the evidence" of stealing "remains inconclusive," according to a transcript
of an April 7, 1997, court hearing. Mr. Neufeld, the lawyer for Ms. Brown, said
that he was told by federal prosecutors handling the case at the time that they
thought money had been stolen, but could not determine who had taken it. A
spokesman for the United States attorney's office in Manhattan would not
comment.
* * * * *
The
following article appeared on washingtonpost.com on March 21, 2004:
Bias
in the Jury Box?
By Richard
Morin
Racially
prejudiced people are more likely to end up as jurors in death penalty cases
and also more likely to say they would feel worse about letting a murderer go
free than they would about convicting an innocent defendant -- two reasons why
blacks are overrepresented on Death Row, claims sociologist Robert L. Young of
the University of Texas at Arlington.
"By
allowing juries in capital cases to be stacked in favor of conviction, the
courts have created a system in which certain defendants -- especially those of
African American descent -- in essence must prove their innocence beyond a
reasonable doubt," Young contends in the latest issue of the journal
Deviant Behavior. "Unfortunately, because most death-penalty defendants
are indigent, poorly educated and poorly represented, the chances of that are
typically quite slim."
Young
analyzed data from the 1990 and 1996 General Social Survey, the leading
barometer of social trends in the nation. The annual poll is conducted by the
National Opinion Research Center at the University of Chicago. The survey asks
people whether they support or oppose the death penalty, a question similar to
one that prosecutors use to screen prospective jurors in capital punishment
cases. If you say you're opposed, prosecutors typically send you on your way,
leaving a pool of jurors who support capital punishment or aren't opposed to
it, Young says.
Young
wondered if people who favored the death penalty were more predisposed toward
conviction than others or more likely to hold prejudiced views of blacks, who
comprise the majority of defendants in murder cases. The GSS allowed him to
address both issues. One series of questions sought to measure racial prejudice
by asking respondents whether they believed blacks were "lazy" or
"hard-working," and how respondents would feel if a close relative
married a black person. Another question asked whether it was a bigger mistake
to convict an innocent person or to free someone who was guilty, one way of
measuring what social scientists call a "conviction mentality."
Young found
that death penalty supporters were more likely to have prejudiced views of
blacks -- about a third more likely, he estimates.
He also
found that death penalty supporters were nearly twice as likely to say it was
worse to let the guilty go than to convict an innocent defendant. Based on
other GSS data, Young suggests that this attitude is motivated by a view of
human nature that sees people generally as untrustworthy and out to take
advantage of others. Those characteristics reinforce each other, he argues,
making death penalty juries more conviction-prone, particularly when the defendant
is black.
Researchers
have provided evidence for years that the criminal justice system isn't
infallible. A 1996 study estimated there are about 10,000 "erroneous"
convictions a year involving serious crimes listed in the FBI index -- less
than a 1 percent overall error rate, but in absolute numbers, a lot of cases.
Another researcher found that between 1973 and 1997, one-third of the 6,139
individuals sentenced to death had their convictions overturned later. And
exonerations of 13 death row inmates in Illinois between 1977 and 2000 prompted
that state's governor, George Ryan (R), to declare a moratorium on executions.
So what does
Young think should be done? He says we might want to leave sentencing decisions
to judges or create more balanced juries, either by excluding people who are
strongly for or against the death penalty, or by allowing foes of capital
punishment to serve, too.
* * * * *
The
following article appeared on nytimes.com on March 21, 2004:
When
Prosecutors Err, Others Pay the Price
by Andrea
Elliott and BenjaminWeiser
Milton
Lantigua, a 20-year-old Dominican immigrant who helped his grandfather sell
clothing from a van, insisted he was innocent when the police charged him with
fatally shooting a man on a Bronx street in 1990. He was still insisting a year
later, when the jury could not reach a verdict, and a year after that, when he
was tried again, convicted and later sentenced to 20 years to life.
It was not
until 1996, after Mr. Lantigua had served about five years in prison, that the
criminal justice system came around to his view. A state appeals court reversed
his conviction, saying that prosecutors in the Bronx had allowed their chief
witness to perjure herself, and had failed to disclose the existence of a
potential second witness who might have helped the defense.
New York
State paid Mr. Lantigua $300,000 to settle a lawsuit over his wrongful
conviction, but no prosecutors paid a professional price.
The Lantigua
case is one of a handful of Bronx cases in the last 15 years in which serious
misconduct or error by prosecutors has led to wrongful convictions and people
sent to prison. District Attorney Robert T. Johnson and his aides say that none
of their prosecutors have engaged in deliberate misconduct, and that the
reversals - which they say are often made on minor, technical points -
represent less than 1 percent of the
hundreds of
felony convictions won by the office each year.
Yet in all
but one of the handful of cases, in which the misconduct and mistakes ranged
from inappropriate closing arguments to the failure to disclose critical
evidence, prosecutors escaped discipline. They were neither punished by their
superiors nor publicly sanctioned by the State Supreme Court committee that
investigates wrongdoing by lawyers. Many continued to receive merit raises and
rise through the ranks.
In one
heralded case, a day care teacher, Alberto Ramos, was convicted of raping a
young girl and served seven years in prison before it was revealed that
prosecutors had failed to disclose information that cast serious doubt on the
girl's accusations. After Mr. Ramos's conviction was vacated, the city paid him
a $5 million settlement in December, and his
lawyer
sharply questioned the Bronx's record in disciplining prosecutors. The lawyer, Joel B. Rudin, recently provided
The New York Times with the internal personnel records of more than 70 Bronx
prosecutors in cases in which courts cited errors, misjudgments and other forms
of prosecutorial misconduct.
An examination
of those records, and interviews with prosecutors, defense lawyers and
defendants, offer a rare look at prosecutorial wrongdoing: how it happens, the
costs that are paid - both human and financial - and what, if anything, is ever
done to those responsible.
"Most
of the time, when prosecutors withhold evidence, no one finds out about
it," said Mr. Rudin, who took the Ramos case after a private investigator
for the city discovered documents that pointed to Mr. Ramos's innocence.
"It took a freak accident to expose it."
Misconduct
by prosecutors has become a national concern in recent years, highlighted last
month in a United States Supreme Court decision to throw out a Texas inmate's
death sentence because prosecutors had deliberately withheld critical evidence.
In a study last year, the Center for Public Integrity, a group that monitors
government ethics issues, reported that from 1970, there had been more than
2,000 cases of prosecutorial
misconduct
in the United States that resulted in dismissed charges, reversed convictions
or reduced sentences.
In the
Bronx, Mr. Johnson and his staff said, prosecutors are constantly striving to
ensure fairness for defendants, citing hundreds of cases they dismiss each year
because of problems with evidence or other factors. "In thousands of
cases, some mistakes are inevitable," Mr. Johnson said in a statement.
"Where
there is an allegation or finding of prosecutorial misconduct," he added,
"we deal with it on an individual basis with the assistant involved."
In some cases, his aides said, a lecture to the offending prosecutor was
considered sufficient. In others, prosecutors resigned or left the office for
private practice before the reversals were handed
down.
"Not
one of them involves a finding of deliberate or intentional shielding or
concealment of evidence," Mr. Johnson's deputy, Barry Kluger, said of the
reversals. "They were technical rulings or a slip of the tongue." The
aides emphasized that several of the cases involving reversals because of prosecutors'
errors were tried before Mr. Johnson was elected in 1989.
It is not
known whether the performance of Bronx prosecutors is any worse than that of
others. The Times reviewed dozens of Bronx cases since 1989 in which a
conviction was reversed at least in part because of prosecutorial misconduct or
error. What follows is an examination of cases that reveal the human dimensions
of a problem that seldom receives a public airing.
A Key
Witness Withheld
It was after
midnight on June 27, 1990, when Felix Ayala was found bleeding on a Bronx
street from a fatal shot to the head, after what the police said was an
argument among several men. About a month later, a woman who said she had
witnessed the killing from a bedroom window was being driven around the
neighborhood by the police when she pointed out Milton Lantigua as the man who
had fired the gun. Mr. Lantigua was charged
and jailed
in the shooting.
The woman,
Frances Rosario, became the chief witness against him, even though an appeals
court would later say that her trial testimony was "confusing,
inarticulate, vague, frequently inaudible and extremely hesitant."
One
curiosity was that she repeatedly spoke as if she had been with someone else at
the time of the killing, using "we" rather than "I" in
recalling what she had seen. But when asked about the discrepancy during
cross-examination, she told the jury: "I was probably nervous and I said
'we.' I was by myself."
After Mr.
Lantigua's first trial ended in a hung jury, prosecutors offered him a deal, he
recalled: plead guilty to a lesser charge of weapons possession, and be
sentenced only to time served - an extraordinary outcome for a man who had been
accused of murder. "They would let me go," he said. He refused the offer, he said, because he
was not guilty of anything. He was retried, convicted of second-degree murder
and sentenced to 20 years to life in prison.
But in the
meantime, new questions about the reliability of the prosecution's key witness,
Ms. Rosario, had emerged. A new defense lawyer, Joel S. Cohen, obtained an
affidavit in which she recanted her testimony that Mr. Lantigua had been
involved in the shooting. In a hearing, a prosecutor revealed that Ms. Rosario
had told the prosecution that she had
in fact been
with a man, identified only as Jo-Jo, on the night of shooting. And as an
appeals court would later rule, the prosecution let Ms. Rosario testify falsely
that she had been alone.
That ruling,
handed down in 1996 by the Appellate Division of State Supreme Court, threw out
Mr. Lantigua's conviction, saying he had been denied a fair trial because of
errors, and conduct by prosecutors that it called "especially
egregious."
In strong
language, the court said the prosecution's failure to disclose the existence of
the potential new witness had denied the defense the opportunity to investigate
what that witness might have observed, or to meaningfully cross-examine Ms.
Rosario on "her whereabouts, her view of the unfolding events, any
distractions caused by the presence of another person, and her general
credibility."
The ruling
cited the failure of the trial prosecutor, Sophia Yozawitz, to correct Ms.
Rosario's testimony that she had been alone during the shooting. "The
prosecutor permitted the statement to remain on the record without informing
the court that it was perjured," the court said, adding that a prosecutor
"is charged with the duty not only to seek convictions but also to see
that justice is done." The court also found that Ms.
Yozawitz had
distorted evidence during her summation to the jury, which also warranted
reversal.
Irving
Cohen, the lawyer for Mr. Lantigua who negotiated a $300,000 settlement with
New York State and is representing him in a civil-rights lawsuit against New
York City, said the ruling revealed a lack of oversight and discipline in the
district attorney's office. "I think the case was given to an assistant
district attorney who, because of her lack of training and supervision in that
office, was dedicated to getting a conviction without looking at the case in a
critical way," he said.
Ms. Yozawitz
left the district attorney's office before the conviction was reversed. Reached
by telephone, she said she had been unfairly portrayed in the ruling, but could
not comment because of Mr. Lantigua's pending lawsuit. "Otherwise,"
she said, "I wouldn't stop speaking."
In an
earlier proceeding, she contended that Ms. Rosario had been credible, and that
the potential new witness, Jo-Jo, would have corroborated the identification. His
existence, she said, was not the kind of exculpatory information that
prosecutors are obliged to turn over to the defense.
Senior aides
to the district attorney offered a broad defense of their office's actions,
noting that a judge had found Ms. Rosario's recantation not credible. Ms.
Yozawitz's failure to correct Ms. Rosario's testimony that she had been alone
was an honest mistake, they said.
Mr.
Lantigua, who is now 33, suggests he has paid too great a price for the
prosecution's errors. "They don't want to say they made a mistake,"
he said.
Evidence
Left in a File
Alberto
Ramos was 21 and had no criminal record when he took a part-time job in January
1984 as a teacher in the city-financed Concourse Day Care Center on East Mount
Eden Avenue in the Bronx. A month later, a 5-year-old girl whose class he
supervised during a 15-minute nap period accused him of raping her in a
bathroom.
Mr. Ramos
was actually one of five men charged, over three months, of raping or sexually
abusing children at city day care centers in the Bronx. In the midst of a
national fervor to aggressively prosecute sex abuse of children, he was
convicted of first-degree rape and sentenced to 8 1/3 to 25 years in prison.
Even before
the sentencing, he started a campaign to overturn his conviction, bringing
numerous motions and appeals in state and federal courts, but to no avail.
Diana
Farrell was a fast-rising 29-year-old prosecutor when she landed the Ramos case
a month before the trial. She presented powerful testimony to jurors: the girl
took the stand and re-enacted the rape, using dolls. A classmate testified that
she had seen Mr. Ramos go into the bathroom with the 5-year-old. Medical
records showed that the girl, who was first examined two days after the alleged
incident, had vaginal bruising. Perhaps the strongest testimony came from a
doctor who had examined the girl and concluded that she had been abused because
she could provide "such an accurate description of everything that
happened."
It took the
jury less than a day to convict. But it took much longer for the remarkable
turn of events that would eventually free Mr. Ramos. Four years after Mr. Ramos went to prison, the city hired a
private investigator, Anthony Judge, to help defend it against a civil suit
brought by the girl's mother. He asked to see the case file of the Human Resources Administration, which had
investigated the incident before Mr. Ramos was indicted.
"I was
astounded to read what I read," Mr. Judge said in a recent interview.
In the file
were documents that the agency had sent Ms. Farrell in a manila envelope at the
end of the trial. The documents showed inconsistencies in the girl's story: she
had told social workers that Mr. Ramos did nothing but tape her mouth. Teachers
had noted that before the alleged abuse, the girl showed extensive knowledge
about sexual acts, was
seen placing
dolls "in an intercourse position" and masturbated frequently in
class, according to the documents.
Neither the
jury nor the defense in Mr. Ramos's trial ever saw those documents, because the
prosecution never turned them over, a judge later ruled. All but two of the
documents were later discovered in Ms. Farrell's file. But in an interview, Ms.
Farrell said she never saw them and did not know how they got there. She said
she had seen a statement from a day care teacher and a document that mentioned
the girl's masturbating and sexual
knowledge. She did not turn these over to the defense, she said, because
she did not think they qualified as exculpatory evidence.
The private
investigator shared the documents with Mr. Ramos's mother in 1991, after the
city settled with the girl's mother. Mr. Ramos hired Mr. Rudin, who was
representing three of the other men accused of sex abuse in the day care
centers. And in June 1992, Mr. Ramos's conviction was vacated in a State
Supreme Court ruling that found that the prosecutor had failed to turn over
evidence during his trial that could have led to his
acquittal.
"The
greatest crime of all is an unjust conviction," Judge John P. Collins
said. "It is truly a scandal which reflects unfavorably on all
participants in the criminal justice system."
Shortly
after the ruling, the State Supreme Court's Departmental Disciplinary
Committee, which looks into complaints of wrongdoing by lawyers, opened an
investigation into Ms. Farrell's conduct during the trial. The Bronx district
attorney asked the committee to hold off its investigation pending an appeal of
the reversal. In 1993, Ms. Farrell resigned because of personal reasons, she
said.
In 1994, an
appeals court panel affirmed the decision vacating the conviction, and the
disciplinary committee proceeded with its investigation.
The
committee's procedures and findings are usually kept secret unless a decision
is made to take public action, like censuring, suspending or disbarring a
lawyer. The panel questioned Ms. Farrell several times, then dropped the
investigation, said Ms. Farrell and officials in the district attorney's office.
"If
they thought I had done something improper, there would have been a letter, a
censure," said Ms. Farrell, who is retired. "I know I've done nothing
wrong."
Mr. Rudin
questioned why the committee did not allow him to present evidence about the
case, aside from a transcript of the appeals hearing.
All four of
the other Bronx sex-abuse cases were eventually overturned. Mr. Ramos's $5 million check arrived at his
lawyer's office in the mail on Dec. 5, but he is angry that prosecutors were never
seriously disciplined.
"They
had in their possession a lot of favorable evidence that would have helped me
greatly," said Mr. Ramos, who is now 41, "and they just chose to keep
it under the table."
Crossing a
Fine Line
Not all
examples of prosecutorial misconduct involve failing to turn over critical
evidence or allowing jurors to hear false testimony. But the consequences of
even lesser violations can be serious: convictions may be reversed, even some
that may be supported by the evidence.
Three times
over the career of William E. Racolin, another Bronx prosecutor, he was cited
by appeals courts for violations. Two of the cases were reversed in the
mid-1980's, and the third in 1992. In each ruling, judges found problems with
his cross-examination tactics, his summation, or both. In the third case,
People v. Butler, a judge cited errors by Mr. Racolin in his summation.
The decision
cited, for example, inflammatory comments by Mr. Racolin during his summation,
including, "It's a tragedy for good people to have to listen to
defendant's contentions." After the defense objected, he continued,
"And it is pure, unadulterated hogwash."
The
defendant, Kevin Butler, who was convicted of fatally shooting Ismael Quiles in
1988, later pleaded guilty to manslaughter and is still serving his prison
sentence, said Martin Lucente, the lawyer who represented Mr. Butler in his
appeal.
"There
are many, many fine lines that a prosecutor has to face," said Mr.
Racolin, 59, who is retired. "If you're going to try to impeach the
evidence that is presented by the defense, it is almost impossible not to make
a mistake." An official in the prosecutor's office said that after the
reversal in the Butler case, the only one of the three involving Mr. Racolin to
occur during Mr. Johnson's tenure as district attorney, "Mr. Racolin was
reprimanded by his supervisor, and based on the totality of his performance,
including this case, he received no pay increases for the next two years."
Mr. Racolin
recalled in an interview that he was spoken to after the reversal, although he
said he did not remember being denied pay increases. Regardless, he said, he always strove to respect the rights of
defendants, and did not think his mistakes were significant enough to warrant
reversal.
Whoever is
right, it is clear that prosecutors in Mr. Johnson's office feel perceptions of
prosecutorial abuses are exaggerated. "The term 'prosecutorial misconduct'
is very broad," Mr. Johnson said, "and could run the gamut from an inadvertent
error to an intentional abuse, and rarely have we seen a flagrant abuse which
would be subject to appropriate administrative action."
But critics
question whether prosecutors' offices in the Bronx and around the country are
understating the seriousness of the problem and the need for more discipline.
"It's so infrequent," said Bennett L. Gershman, a Pace Law School
professor and former assistant Manhattan district attorney, "that you have
to say that these offices have an ethos or
culture where
they don't want to deter their lawyers from being aggressive, being champions
of the victims."
* * * * *
The
following article appeared on nytimes.com on March 21, 2004:
'Life on the
Outside': The Other Lockup
By Brent
Staples
The United
States is transforming itself into a nation of ex-convicts. This country
imprisons people at 14 times the rate of Japan, eight times the rate of France
and six times the rate of Canada. The American prison system disgorges 600,000
angry, unskilled people each year -- more than the populations of Boston,
Milwaukee or Washington. ''Thirteen million people have been convicted of a
felony and spent some time locked up,''
Jennifer
Gonnerman writes in ''Life on the Outside.'' ''That's almost 7 percent of U.S.
adult residents. If all of these people were placed on an island together, that
island would have a population larger than many countries, including Sweden,
Bolivia, Senegal, Greece or Somalia.''
Ex-cons are marooned in the poor inner-city neighborhoods where legitimate jobs do not exist and the enterprises that led them to prison in the first place are ever present. These men and women are further cut off from the mainstream by sanctions that are largely invisible to those of us who have never been to prison. They are commonly denied the right to vote, parental rights, drivers' licenses, student loans and residency in public housing -- the only housing that marginal, jobless people can afford. Th