FORMER PROSECUTORS DEMAND THAT DOJ STOP "HIDING THE BALL" - IMMEDIATE RELEASE - J. FLANNERY

THE DOJ TEAM THAT WRONGLY PROSECUTED STEVENS

After the lying and withholding of exculpatory evidence in many federal prosecutions, the Stevens prosecution being just one recent illustration of this unfortunate truth, we have enlisted a spectrum of former prosecutors, white house counsel, noted authors, and members of congress from across the political spectrum to demand federal legislation to put an end to this misconduct.

More than 125 lawyers signed a letter urging Congress to take up criminal discovery reform and do something about it. 

The signatories included former Deputy Attorney General Larry Thompson, author and SNR Denton partner Scott Turow, lead Stevens defense counsel Brendan Sullivan Jr. of Williams & Connolly, former US Attorney and Congressman Bob Barr, former White House Counsel Gregory B. Craig, former DEA Administrator Asa Hutchinson, ATR President Grover Norquist, former Appellate Judge H. Lee Sarokin, and former federal prosecutor and Capitol Hill Judiciary Committee Special Counsel John P. Flannery.

"Our experience leads us to believe that the vast majority of prosecutors act in good faith to fulfill their constitutional and legal obligations," the joint letter said.

"However, federal courts, the DOJ and other entities have for years articulated inconsistent, shifting, and sometimes contradictory standards for criminal discovery, leaving it up to individual prosecutors to navigate this legal maze and determine the scope of their obligations to disclose information."

Yesterday, Hank Schuelke, who Judge Emmet Sullivan appointed to investigate allegations of prosecutorial misconduct in Senator Stevens’s case, testified before the U.S. Senate Judiciary Committee.  

Much of the initial questioning concerned Mr. Schuelke’s findings about what occurred in the case and how the improperly withheld information could have affected the case’s outcome. 

However, the issue of legislative reform did arise, as well. 

Asked whether Congress should intervene to reform federal criminal discovery, Schuelke replied that the Congress should eliminate the materiality requirement so that in a pretrial setting, prosecutors would be required to disclose any information that is favorable to the accused, regardless of materiality. 

Schuelke acknowledged that the bill introduced on March 15th by Senator Murkowski (R-AK), the fairness in disclosure act, includes such a requirement; the text of that bill is found at the enclosed link - http://sdfla.blogspot.com/2012/03/fairness-in-disclosure-of-evidence-act.html .  

It closely mirrors the legislative reforms that our statement endorses.

The DOJ did submit a statement prior to the hearing expressing their opposition to any legislation reforming criminal discovery practices.  

This is a good example of how you can't teach an old dog new tricks - like fundamental fairness.  The DOJ can't really say they are doing the right thing now - or we wouldn't have these disclosures of misconduct and the clean up afterwards of dismissals and punished assistants.

When asked about the DOJ’s objections, Schuelke stated, “If the Department believes that there should be no pretrial materiality standard -- because that’s what they’re telling their prosecutors now to do --what is the principled reason for opposing legislation that does just that?”

Here is a link to the full hearing if you are interested: http://www.c-spanvideo.org/program/StevensP .

GAZETTE COLUMN: HIP SHOOTING PROSECUTORS CONVICT THE INNOCENT by John P. Flannery

Author John Grisham & John Flannery

(photo: Holly S. Flannery)

Best-selling crime-writer John Grisham’s recent thriller, “Confession,” discloses how an over-reaching prosecution can coerce an 18 year old black sports hero in Texas into making a false confession corroborated by a lying trial witness.  In Grisham’s story, just before the execution, the true murdering rapist comes forward to confess, the lying trial witness recants, but the Texas Governor, State AG and the federal and state courts allow this innocent man to die.

If only this couldn’t happen in the real world.

But right here in Virginia in February 1984, an 18-year old black high school drop-out with no criminal record was arrested when he went to the grocery to buy sweet potatoes and bread for his family’s Sunday dinner. 

He had not raped anyone.  But the police collected five witnesses who claimed he had. 

Thomas spent 27 years in prison until two weeks ago when DNA proved he told the truth – that he was innocent all along.

But even innocence isn’t enough. 

Raul Herrera pleaded with the U.S. Supreme Court in 1992 to allow him to prove he was innocent, charging it was cruel and unusual to execute an innocent man in Texas or anywhere else.  Raul had four affidavits proving his brother confessed to committing the murders.  But the Supreme Court said they did not have to allow “every conceivable step … to eliminate the possibility of convicting an innocent person;” there was no constitutional right, they said, to allow a condemned man to prove his innocence. Strapped tight to a gurney, Herrera shouted afterwards, “I am an innocent man, and something very wrong is taking place tonight.”  It was the lethal injection that immediately followed.

Our so-called system is broke because of the license that we grant prosecutors.

Jail house snitches sent Steve Barnes to prison in New York for 20 years for a murder he didn’t commit; snitches are wholly unreliable and should be barred if they cannot be corroborated, and by something stronger than another jail house snitch.

Investigators coerce confessions with shouts, threats and lies; in the Central Park jogger case in New York in 1989, the cops harassed five teens into confessing on video to raping a jogger that they had not raped.

Prosecutors sit on evidence of innocence before trial, conceal lying witnesses, hold back details of the charges that they file, all so they may ambush the Accused. 

Not all defendants are equal, particularly persons of color or the poor.  But even those who begin with resources to fight when they are charged, watch those resources evaporate with damaging media coverage prompted by the government, that often costs the Accused his job, and the trust he once enjoyed in the community.  The government may seize assets needed by the Accused to fight the charges, and often demand high or no bail that further shrinks his resources and ability to defend himself from behind bars.

If we don’t fix this system, we will continue to have innocents in custody and even executed – we just won’t know who they are.