And They’re Off!

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2009 has barely gotten under way and already several bad prosecutors are out there vying for a spot on our end of year top ten list. If cases of prosecutorial misconduct continue piling up at this rate throughout the year, we’re going to have a very difficult time choosing the ten worst come next December. We may have to expand the number.

The first act of prosecutor wrongdoing this year comes out of Broward County Florida where Circuit Judge Susan Lebow has booted the entire state attorney’s office from a first-degree murder case and halted the trial for two months so that outside prosecutors can be brought in. Assistant state attorneys Brad Weisman and Julie Vogel engaged in prosecutorial misconduct by listening to taped jailhouse phone conversations between murder defendant Luis Martinez and his attorney Chris Grillo. During the trial, neither prosecutor disclosed having heard the conversations which were later discovered by Grillo after the judge ordered prosecutors to hand over a CD containing the recordings of all Martinez’s inmate phone calls. The state plans to appeal the decision, claiming that the attorney-client privilege was properly waived and a status conference is scheduled for January 26^th to determine how to proceed with this case. If Judge Lebow’s decision holds, Governor Charlie Crist will be asked to appoint a new prosecutor.

Another case we’re following began when Delma Banks, Jr. was convicted of murder and sentenced to death in Texas state court in 1980. When it was discovered sixteen years later that harmful testimony was given by informants who were paid and coached into lying by the prosecution, the U.S. Supreme Court remanded Banks v. Dretke back to the district court, overturning the death sentence and ordering a full examination of the facts to determine if Banks should get a new trial. United States District Judge David Folsom then ruled that Banks must either be retried or freed but now Texas Assistant Attorney General Katherine Hayes has asked the Fifth Circuit Court of Appeals to overturn Folsom this week, based on a technicality. The state is claiming that Banks’ attorneys didn’t give proper notice that they were using the coaching transcript in their case, despite the fact that both a federal magistrate and Judge Folsom ruled that proper notice was given- not to mention the fact that the transcript in question was the one the prosecution lied about and concealed for sixteen years. It will be interesting to watch this one unfold in the coming months, especially after Justice Ruth Bader Ginsburg asked in regards to this case: “Wasn’t it the obligation of the prosecution, having deceived the jury and the court, to come clean?”

We’re waiting to see what the next move will be for Jeffrey Skilling after a federal appeals court upheld his conviction last Tuesday on fraud charges stemming from the 2001 Enron collapse, but left open the possibility of earning a new trial. The United States Court of Appeals for the Fifth Circuit ruled that Skilling received a fair trial but ordered Judge Simeon T. Lake III to reconsider the 24 year sentence imposed on Skilling due to a misinterpretation of part of the voluntary sentencing guidelines. The district court also noted the possibility of prosecutorial misconduct in the form of an omission of evidence not disclosed to Skilling, concerning a statement made to government investigators by former Enron CFO, Andrew Fastow, who testified against Skilling at trial. The F.B.I. report provided to the defense didn’t mention the statement and when the judge asked to see all of the interview notes, that page was mysteriously left out. The omission in question was Fastow telling the F.B.I. that he “doesn’t think [he] discussed list with Jeff Skilling.” Though it’s not clear what list Fastow is referring to, he testified to discussing a list of talking points on an Enron deal with Skilling, who contends this is the list being referred to in the F.B.I. interview. The government claims that Mr. Fastow was discussing another Enron transaction that was not part of the case against Skilling. Fifth Circuit Judge Edward C. Prado ruled that while they found the omission of the statement to be “troubling”, the appeals court could not consider the issue because Judge Lake never saw the interview notes, and therefore never concluded whether they needed to be disclosed to the defense. It is now up to Skilling to convince the trial judge that prosecutors intentionally omitted Fastow’s statements and bring his claim back to the district court for review.

Finally, the prosecutors in the case against Senator Ted Stevens of Alaska were heavily criticized by U.S. District Judge Emmet Sullivan on Wednesday for failing to reveal that an F.B.I. agent was denied whistle-blower status after alleging misconduct by his fellow investigators. The judge demanded an explanation and a signed declaration by Attorney General Michael Mukasey stating exactly what their office knew and when they knew it. This prosecution was also chastised in October for failing to turn over evidence to the defense, but government attorney Brenda Morris denies any wrongdoing, alleging that the F.B.I. wasn’t properly communicating with their office. Morris then “accidentally” named Agent Chad Joy of the Anchorage, Alaska’s F.B.I. office in an explanation to Judge Sullivan during open court on Wednesday, a revelation that was not intended to be made public. Agent Joy is the investigator who filed the complaint in December describing misconduct by the Stevens prosecution in dealing with witnesses and handling evidence, though only a heavily redacted statement was released to the court at that time. In light of the new evidence and questionable prosecuting tactics, Judge Sullivan has allowed Stevens’ attorneys until January 26^th to file a new motion to have the case dismissed or granted a new trial.

We’ll be watching these cases and more as we continue our quest to find The Top Ten Worst Prosecutors of 2009. Please join us by submitting your nominations and bringing to our attention any overt acts of prosecutorial misconduct we may have overlooked so that we can publicly blow the whistle on bad prosecutors and help bring justice back into the courtroom.

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