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.

The Duke Lacrosse Case is a multi-phase tale of the good, the bad, and the ugly of the American criminal and civil justice system.

The first phase of the case began in March 2006, when prosecutors charged that several white members of Duke University nationally ranked lacrosse team had sexually assaulted upon an African-American exotic dancer from Durham at an off-campus house party. From the start, the case was loaded with racial, gender, and socio-economic overtones.

In the second phase, the case shifted its focus to the overzealous prosecutors and police who pursued the case, obtaining indictments even as evidence of the players’ innocence mounted.

The third phase of the case began when the North Carolina Attorney General took control of the case and, following an independent investigation, pronounced the three players actually innocent of any wrongdoing.

The fourth phase involved a story of prosecutorial ethics, as the district attorney was disbarred and convicted of criminal contempt for his handling of the case.

Earlier this month, the case entered a fifth phase, which is the subject of this column. The three former players who were charged and then vindicated –David Evans, Collin Finnerty, and Reade Seligmann–filed a federal civil rights action against sixteen defendants, including the City of Durham, the district attorney, and numerous Durham police officers. (A key federal civil rights statute allows the recovery of damages and injunctive relief for injuries caused by violations of constitutional rights.) In 155 pages, 559 paragraphs, and 22 counts, the plaintiffs detail the saga of the case and request compensatory and punitive damages, attorney fees, and far-reaching injunctive relief.

The complaint describes a troubling story of government misconduct. Unfortunately, the story, though compelling, will not necessarily translate into success on the merits of many of the claims alleged in the complaint.

Overview of the Complaint

The primary targets of the complaint are the City of Durham; former Durham County District Attorney Michael Nifong; two Durham police investigators, Mark Gottlieb and Benjamin Himan; and the department spokesperson, David Addison. Other defendants include numerous supervisory police officers and members of a private DNA testing company that allegedly released incomplete results to the defense, apparently at D.A. Nifong’s instructions. The primary claims are brought under the federal civil rights statute mentioned above, alleging violations of unspecified Fourth and Fourteenth Amendment rights, along with federal conspiracy claims and numerous state tort claims.

The facts alleged can be grouped into several categories. First, the complaint charges that various defendants fabricated DNA evidence by manipulating otherwise-exculpatory test results and reports.

Second, it alleges that Nifong and police officials made false statements to the press and the public about the case, misrepresenting the state of the evidence, the results of scientific testing, and the strength of the government’s case, all for the purpose of tainting the jury pool and damaging the players in the court of public opinion.

Third, it alleges that Nifong and investigators willfully disregarded exculpatory evidence — particularly inconsistencies in the alleged victim’s statements, questions about her credibility, and the weight of physical evidence and testimony. Instead, they moved ahead with the investigation, brought the case before a grand jury, and obtained indictments by utilizing manipulated evidence and presenting a one-sided case.

Fourth, it alleges that investigators manipulated evidence. Specifically, it claims they utilized unconstitutionally suggestive procedures for witness photo identifications: Witnesses were shown photos of only white Duke lacrosse players, with no "filler" photos; as a result, if anyone identified, even randomly, it automatically would have been a white Duke lacrosse player. In addition, the complaint allege that police arrested several witnesses on old, unrelated warrants in order to intimidate them into changing their stories.

Fifth, it alleges that Nifong and police failed to disclose exculpatory evidence to the defense, despite repeated requests from counsel and orders from the court. It adds that, even when they did disclose evidence, they did it in a "document dump" of 2000 pages of unfiltered scientific data, without providing the exculpatory scientific conclusions.

Sixth, and finally, it alleges that Nifong made misrepresentations to the court as to the state of the evidence and his overall conduct of the case; these misrepresentations ultimately cost Nifong his law license and landed him in jail for one day.

Overarching all of these separate allegations, moreover, are claims that supervisory and policymaking police officials knew about, encouraged, or enabled this misconduct, permitting liability up the chain of command and to the City of Durham itself.

The Weaknesses in the Complaint: A Compelling Story, But Not a Slam-Dunk Lawsuit

The facts, as the plaintiffs describe them, certainly sound egregious. But it is a very different, and more difficult, question whether these facts establish civil liability. Difficult legal questions follow, such as which defendants may be liable for what conduct and what remedy will be available. Several of the claims as to several parties present immediate and obvious difficulties for the plaintiffs.

First, the court must separate Nifong’s prosecutorial functions from his non-prosecutorial conduct, with Nifong likely enjoying absolute prosecutorial immunity -protection against any liability – for the former. The phrase "prosecutorial functions" refers to conduct prosecutors perform as advocates for the state. This means those acts "intimately associated with the judicial phase of the criminal process." The judicial phase begins, at the latest, at the point that a prosecutor has enough (or believes he has enough) to go to the grand jury for indictment. Thus, Nifong almost certainly will be immune from civil liability for much of his most serious alleged misconduct in prosecuting the players: deciding to bring charges, even when faced with contradictory evidence and evidence that the alleged victim was not credible; presenting the case to the grand jury and obtaining indictments; appearing and making arguments (and even misrepresentations) to the grand jury and to the court; and disclosing (or not disclosing) evidence to the defendants during the pre-trial discovery process.

Importantly, even improper motive, bad faith, or intent to do constitutional harm does not abrogate prosecutorial immunity. Thus, it does not matter, for purposes of immunity, whether, as plaintiffs allege, Nifong pursued the prosecution despite knowing how weak the case was or whether evidence pointed strongly against the players’ guilt even before Nifong went to the grand jury. It does not matter whether he pursued the case to win a close primary election for DA by currying favor with the county’s African-American population. It does not matter whether Nifong’s misrepresentations to the court were clearly inappropriate or that they formed the basis for his later disbarment and contempt conviction. Civil liability for individual prosecutors cannot be grounded on plainly prosecutorial functions. Prosecutorial immunity is intended to leave prosecutors free to wield their discretion without fear of reprisal. It also may mean that a "bad apple" prosecutor can avoid civil liability despite causing substantial harm.

Second, as to the claims against the police detectives and as the claims not relating to Nifong’s prosecutorial functions–namely the allegations of fabricating evidence, intimidating witnesses, and making false public statements–there may be a defense of qualified, as opposed to absolute, immunity. Qualified immunity means that, even if the officers did violate the plaintiffs’ rights, they can be held liable only if the right at issue was "clearly established," such that a reasonable officer would have known that his conduct, defined in the factual context and circumstances at hand, violated that right.

Consider, for example, the suggestive photo identification procedures. Assume a procedure that does not use "filler" photos is unconstitutional. Even so, the officers can be liable for damages only if a reasonable officer would have known that this particular procedure was unconstitutional. Similarly, a reasonable officer would have to know that making public statements about the state of the evidence, particularly false ones, amounts to a constitutional violation (as opposed to simple defamation), in order to be held liable for a civil rights violation. For a right to be "clearly established" requires either case law holding that procedures or actions, considered in factual context, violate the federal constitution, or specific departmental or state guidelines declaring particular acts constitutionally inappropriate.

Third, the plaintiffs allege a conspiracy to obstruct the due course of justice and to deprive them of the equal protection of the laws. But the conspiracy counts are brought under provisions of the Ku Klux Klan Act of 1871, an enactment designed to counter the new social and political power of the KKK in the post-bellum South; those claims require that the conspiracy be motivated by some racial or other class-based animus.

Here, it is not clear what class the plaintiffs belong to–White males? Duke students? Student-athletes? Lacrosse players? Nor is it clear if, and why, the defendants held animus against that class. There is an allegation that Detective Gottlieb disliked Duke students, an animus that allegedly affected his police work in the past. But the complaint gives no explanation why any of his alleged co-conspirators shared that animus or acted on it.

Why the Broad Injunctive Relief Sought in the Complaint Will Likely Prove Unavailable

The complaint’s weaknesses also extend to the remedies sought. The plaintiffs seek substantial compensatory damages, particularly to recover legal costs the three incurred in defending themselves against the criminal charges, as well as with value of harm to their reputations, their privacy, and their educational and professional opportunities, along with punitive damages. These harms seem real and substantial. Thus, if the underlying allegations prove true, and the relevant immunities do not cover all defendants for all the bad acts alleged, the plaintiffs likely will be able to recover significant damages..

However, the plaintiffs also seek broad injunctive relief, which they are unlikely to obtain. In particular, they ask for a judicial order establishing oversight and restructuring of the Durham Police Department, the appointment of a monitor to control the department, and the establishment of a host of policies relating to (among other things) press releases and public statements, disclosure of exculpatory evidence, the issuance of arrest warrants, and witness identification procedures. The plaintiffs’ goal is "to protect all persons and to prevent such misconduct from ever happening again."

These plaintiffs, however, almost certainly lack standing to seek this injunctive relief and they are unlikely to obtain any type of injunction. Federal courts only can impose remedies that benefit the parties before the court; they cannot reach out to impose injunctive relief, absent an appropriate plaintiff or in an action by the federal government. Suffering past constitutional harm entitles injured plaintiffs to a retrospective remedy–damages for past injuries. It does not entitle them to a prospective – that is, forward-looking relief to prevent injury in the future – remedy, such as judicial decrees compelling the department to alter its policies. Plaintiffs can obtain an injunction only when there is some evidence of a genuine risk that these plaintiffs will be subject to the same misconduct by these defendants in the future, such that these plaintiffs will benefit from any departmental changes. Moreover, in cases in which the unconstitutional conduct involves the criminal justice system, courts generally are reluctant to presume that individual plaintiffs again will be accused of crimes, or otherwise come into contact with police or prosecutors in a way that likely risks a repeat of the unconstitutional conduct. This is especially true here, since none of the plaintiffs still attends Duke University, resides in Durham, or spends any time in Durham.

The plaintiffs bring this case as "private attorneys general," seeking to enforce the Constitution and to fundamentally alter the functioning of the Durham Police Department, in order to ensure that no one will be subject to similar unlawful treatment in the future. But they can fulfill that role even without broad injunctive relief. The purpose of a civil rights action for damages is both to compensate the plaintiff and to deter the defendant; the theory is that, after being hit with a substantial damages judgment, the government will take it upon itself to restructure its rules and policies to avoid similar future misconduct and future damage awards. Whether that presumption proves accurate in this case turns on what, if anything, the City of Durham, if ordered to pay a substantial judgment, actually does to remedy its problems.

Why Settlement Is Likely and May Well Include Some Departmental Changes

My prediction is that the case settles, as do most large-scale civil rights claims with strong facts. The defendants, particularly the city, may view settlement as a best option in light of the dramatic and disturbing allegations in the complaint, many of which already have been substantiated by the ethics investigation into Nifong’s misconduct.

A settlement may include, in addition to substantial damages, some of the departmental restructuring that the plaintiffs request: Even if they could not achieve that result from the court, nothing bars the city from voluntarily restructuring or changing its policies as part of a settlement.

Given the realities of constitutional and civil rights litigation, particularly individual immunities, the case is not entirely a slam-dunk for the plaintiffs and many of their factual allegations, as egregious as they sound, will not form the basis for a legal remedy. Settlement is likely, but it may not accurately reflect the full damages the plaintiffs suffered, because it may be reduced by the expectation of many litigation hurdles down the road.

That reality reflects not just the situation in this case, but also the limits on civil rights litigation as a corrective for government’s constitutional misconduct, particularly misconduct within the criminal justice system.

The lawsuit calls the criminal case against Reade Seligmann, Collin Finnerty and Dave Evans "one of the most chilling episodes of premeditated police, prosecutorial and scientific misconduct in modern American history."

It seeks unspecified damages and numerous reforms to the way the Durham Police Department handles criminal investigations — including the appointment of a monitor who would have the power to hire, fire and promote department employees, including the chief, for 10 years.

The suit was filed about a month after city officials met with lawyers for the families seeking a $30 million settlement and several legal reforms, two people close to the case have told The Associated Press.

Apparently unable, or unwilling, to reach a deal with the families, the city pledged Friday to defend itself and its employees, but not Nifong — who held a state office — or the private DNA testing lab he hired.

City spokeswoman Beverly B. Thompson said the players’ complaint "asserts claims against the city and its employees that appear to be based on untested and unproven legal theories."

Should the case go to trial, it would extend a legal debacle that began in March 2006, when a woman hired to perform as a stripper at a lacrosse team party told police she had been raped.

The criminal side of the case largely ended in April, when North Carolina Attorney General Roy Cooper declared the three players innocent victims of Nifong’s "tragic rush to accuse." In dropping the charges, Cooper said the state’s investigation found nothing to corroborate the accuser’s story, leading his staff to "the conclusion that no attack occurred."

In the months that followed, the state bar stripped Nifong of his law license, concluding he relentlessly pursued a flawed case for political gain. He resigned as Durham County’s district attorney and spent a night in jail last month after a judge held him in criminal contempt of court for lying about DNA evidence. He did not immediately return a message Friday seeking comment.

Along with Nifong, the lawsuit names 13 other individual defendants, including former Police Chief Steven Chalmers, police investigators Benjamin Himan and Mark Gottlieb, and Brian Meehan, the director of DNA Security Inc., the private lab that conducted the DNA testing that helped unravel the case. Nifong withheld that evidence from defense attorneys for months.

The lawsuit also names Meehan’s lab as a defendant, but it does not name the accuser.

Paul Dickinson Jr., a Charlotte attorney who represents the lab, Meehan and company President Richard Clark, who is also a defendant, said the allegations were false.

The case seeks damages to punish the defendants "for outrageous conduct pursued out of actual malice" that violated the players’ civil rights. It also seeks the creation of an independent committee to publicly review complaints of police misconduct, the improvement of police training procedures and an injunction prohibiting Meehan and his laboratory from providing reports or expert testimony in court for 10 years.

"They really do feel like they need to be vindicated and money won’t do it," said Carl Tobias, a law professor at the University of Richmond. "They had to spend a year vindicating themselves. I can understand how they would want to have full relief, especially reforming the system if possible."

In June, the players reached an undisclosed financial settlement with Duke University. Richard D. Emery, a New York-based civil rights attorney representing Seligmann, said the players were "committed to making this case about stopping Durham and any other city from falsely accusing and convicting innocent people."

"This is not about money for the boys, though obviously they deserve compensation," Emery said. "This is about sending a message to public officials who only get the message when they have to pay the money."

     While the Attorney General of the United States is not a field prosecutor, he sits on top of the federal law enforcement pyramid and as such affects, either directly or indirectly, every law enforcement decision and is certainly in charge of all federal law enforcement actions. He is “the” lawyer for the United States; he has the last say.

     It is not an easy choice to determine who is the worst prosecutor in the country –given the choices in front of us this year. Of course, the easy selection would be Michael Nifong, the former District Attorney for Durham, North Carolina who was motivated by his own re-election and engaged in unethical, and probably criminal, conduct in the prosecution of three Duke University Lacrosse players.

      But then how not to chose Louisiana Attorney General Charles Foti, Jr. who decided to prosecute a medical “Good Samaritan,” Dr. Anna M. Pou, who had stayed behind as Hurricane Katrina was destroying New Orleans. The former District Attorney of Dallas was allegedly proud of saying that any prosecutor could convict a guilty man, but that it took a real pro to convict an innocent man. Foti moved prosecution to a new level by having a doctor arrested who was trying to save lives. The rest of our top ten could easily be in the number one position but while seven of the nominees affected single digit numbers, Alberto Gonzales has almost destroyed an entire governmental department with thousands of employees and attorneys.

     Out of a desire for fairness, each prosecutor on our list was contacted to solicit rejoinder to being named on the “Ten Worst” list. Most did not respond or provide any information that should change their listing. Attorney General Foti tried to hide behind the ruse that he was not really a “prosecutor.” This is like Attorney General Gonzales trying to say that he really does not know who runs the Department of Justice.

     Each nominee will receive a certificate from the “Bad Prosecutor Blog” website commemorating their selection as one of the worst prosecutors in the nation in 2007. The certificate will probably not be hung in their office. Let’s then start with the worst and work our way down.

NUMBER ONE WORST PROSECUTOR IN THE COUNTRY:
THE WINNER IS U.S. ATTORNEY GENERAL ALBERTO GONZALES

     Alberto Gonzales – The Attorney General (AG) of the United States, in Washington D.C., Alberto Gonzales, earns the first place on our list of ten worst prosecutors in the United States for being what many have called the worst AG in our nation’s history. His involvement in the firings of nine United States Attorneys and the politicization of the Justice Department form the basis for which he was selected as the worst prosecutor in the United States in 2007. When he testified in front of the U.S. Congress, he allegedly committed perjury by his false statements, inconsistent statements, and all of his “I don’t knows.” Members of his own Department of Justice and the Head of the FBI, Robert Mueller, have contradicted his testimony. Even Arlen Specter, the ranking Republican on the Senate Judiciary Committee considers Gonzales to be a liar. The United States Department of Justice has recently appointed a grand jury to investigate criminal accusations that have arisen out of the dismissal of the nine U.S. Attorneys and Gonzales may be the target of a major investigation by a Special Prosecutor; he continues to be the subject of Congressional investigations, and should be investigated by the State Bar of Texas Office of the Chief Disciplinary Counsel for his unethical actions while White House Counsel and Attorney General. Maybe Gonzales also earns this top spot by how United States Senator Charles Schumer sums up listening to the testimony of Gonzales under oath: "He tells the half-truth, the partial truth and anything but the truth." Other than that, he has been a model government lawyer.

NUMBER TWO WORST PROSECUTOR IN THE COUNTRY:
THE WINNER IS FORMER TEXAS PROSECUTOR TERRY D. MCEACHERN
    
     Terry D. McEachern – Gonzales has set a course of deception to destroy an entire Government Department. McEachern engaged in destroying an entire town. This ex-prosecutor is best known for seeking unlawful, cocaine possession charges against the African American community of Tulia, Texas; he now resides in Plainview, Texas. In Tulia, Texas, in July of 1999, 46 people (40 were African American), were jailed during a drug sting. This case was built on shabby evidence which was given by an undercover officer who was later indicted and now jailed. After several years in prison, 38 of the 46 people jailed were eventually freed after prosecution’s conduct came to light. The prosecution engaged in dishonesty, fraud, deceit or misrepresentation, and obstruction of justice. As reported in the September 25, 2005 Texas Bar Journal, the 242nd Texas District Court found that McEachern made a false statement of material fact or law to a tribunal.

     McEachern engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation and engaged in conduct constituting obstruction of justice. He failed to disclose a fact to a tribunal when disclosure was necessary to avoid assisting a criminal or fraudulent act. McEachern offered or used false evidence that he knew to be false and falsified evidence or counseled or assisted a witness to testify falsely. He failed to refrain from prosecuting or threatening to prosecute a charge that he knew was not supported by probable cause or make timely disclosure to the defense of all evidence or information known to him that tended to negate the guilt of the accused or mitigate the offense. In connection with sentencing, he failed to disclose to the tribunal all unprivileged, mitigating information known to him. McEachern’s misconduct violated Texas Disciplinary Rules of Professional Conduct Rules 3.03(a) (1), (a) (2), and (a) (5) and (d) and 8.04 (a) (3) and (a) (4). He also had to pay $6,225 in attorneys’ fees to the Office of Chief Disciplinary Counsel for the State Bar of Texas.

     Gonzales and McEachern are both members of the State Bar of Texas. For all the pain and destruction McEachern caused, the State Bar of Texas Office of Chief Disciplinary Counsel (that is supposed to discipline attorneys who do wrong) negotiated a two-year fully probated sentence that meant that McEachern could continue to practice law without missing a beat. His website boasts: “23 Years as Prosecuting Attorney. Experienced in all areas of Criminal & Family Law. Our Goal is to provide the highest quality services to you and your business in a timely fashion.” There is nothing on his website about the Tulia cases or his numerous violations of the Professional Conduct Rules. If one goes to the State Bar website on attorneys, McEachern is listed as having a “Fully Probated Suspension,” but no information is given about what he did. On the attorney rating website, AVVO, it does provide a “strong caution” warning about McEachern, and gives him a low rating of 2.0.

NUMBER THREE WORST PROSECUTOR IN THE COUNTRY:
THE WINNER IS FORMER N.C. DISTRICT ATTORNEY MICHAEL NIFONG

     Michael Nifong – It was a hard choice between a Chief Law Enforcement Office of the Federal Government who has paralyzed the Department of Justice and maybe committed perjury and a Texas ex-prosecutor who, with very questionable evidence, targeted the black population in an entire town in comparison to Michael Nifong, the former Durham, North Carolina District Attorney for the Duke Lacrosse case, who has now been disbarred and faces criminal contempt charges. Gonzales earns the award since he had nearly destroyed an entire department of government and Nifong comes in third place because he only destroyed the lives of three college students and their families and made an entire university look bad. After withholding key exculpatory evidence in a highly publicized case, Nifong continued to prosecute the innocent Duke Lacrosse players.

     It has now been shown that Nifong engaged in dishonesty, fraud, and withheld exculpatory information which he was duty-bound to disclose. Nifong also acknowledged that DNA evidence connecting the defendants to his plaintiff did not exist when he first accused defendants on charges of rape, sexual offense, and kidnapping. Nothing stinks like a prosecutor jumping the gun in order to ruin someone’s life except going forward with a case when you know you don’t have the evidence. Nifong had his law license taken away unlike McEachern who is still practicing law showing that North Carolina certainly cares a bit more about holding bad prosecutors responsible for being lawlessness. Lastly, we can thank Michael Nifong for the addition of another word to the American pop culture lexicon: to “Nifong,” meaning to blunder on a grand scale and lie your pants off in an effort to justify it or cover it up. For this accomplishment alone, he is deserving of a spot in the top 3 of our list of worst prosecutors in the United States in 2007.

NUMBER FOUR WORST PROSECUTOR IN THE COUNTRY:
THE WINNER IS LOUISIANA ATTORNEY GENERAL CHARLES C. FOTI

     Charles C. Foti, Jr. – It may be unfair as some have said that AG Foti as a representative of the Louisiana State Government should have been indicted for the neglect and dereliction of duty by the state government that followed Hurricane Katrina. But AG Foti surely cemented-in a position as one of the ten worst prosecutors in the country by announcing on July 18, 2006, that Dr. Anna M. Pou and nurses Lori Budo and Cheri Landry had been arrested and charged with four counts of second degree murder. Not only were the arrests made in grand stand fashion by AG Foti, but he also felt the need to issues a press release in which he stated (as if he were the judge and jury of the case) that intentional killings had taken place and that the medical professionals were: “guilty of murder; its not euthanasia (malpractice).” He continued to make extrajudicial statements about the allegations in the press and on the CBS show “60 Minutes” in a Nifong-manner. Even after a New Orleans grand jury recently refused to indict Dr. Pou (the cases against the nurses had been dropped), Foti Nifong-ed again by going public with his criticism of District Attorney Eddie Jordan for not calling the right witnesses and blaming the media for creating sympathy for Dr. Pou.

     Of course, AG Foti has never addressed the basic issue as to why a highly regarded physician with a spotless record and faced with the horrific conditions of the aftermath of Hurricane Katrina at Memorial Medical Center (MMC) in New Orleans, Louisiana would suddenly decide to start killing patients. Foti’s state government had abandoned the patients as well as most other nurses and doctors, but Dr. Pou had remained at the hospital with temperatures soaring over 100 degrees, the lower floors inundated with five feet of water with no electricity or support. At least 34 deaths were cause by the horrible conditions. Now, a New Orleans grand jury has concluded that Dr. Pou was not responsible for any of the deaths. No action was taken against Dr. Pou by the Louisiana Medical Association, the New Orleans Coroner concluded that there was insufficient evidence to find that a crime had been committed, the American Medical Association has praised Dr. Pou, and one of the AG Foti’s expert witnesses has himself been indicted. However, many families of the victims in the hospital have filed several civil lawsuits against Dr. Pou, all of which have cost her ample amounts of money.

     Foti first announced that it was his “duty” to seek indictment of Dr. Pou and the two nurses for the murder of the patients at MMC. He touted the case as his get-tough-on-elder-abuse political stance, but now his office is disavowing any connection with the case due to the backlash of community support in favor of the medical personnel and their actions under such horrific conditions. The Louisiana voters’ disfavor of him was evident when he placed dead last in the three way primary in October 2007, losing his office to James "Buddy" Caldwell Jr. Foti is now facing a civil suit file by Dr. Pou who has accused him of using her arrest to fuel his re-election campaign. In addition to the civil lawsuit Dr. Pou filed, one has to wonder if she has also filed a complaint with The Louisiana Attorney Disciplinary Board. What Michael Nifong did in the Duke Lacrosse rape case in making inappropriate statements that cost him in part his law license appears to be identical to what AG Foti has done to Dr. Pou. Interestingly enough, there is no indication that Foti has had a complaint filed against him or has suffered any threat of professional discipline for his misconduct.

     Arising from this case has been two bills proposed from the Louisiana State Senate. The two bills propose immunity for civil iability for in-state doctors and out of state volunteers practicing in disaster areas. Protection from criminal liability is still under House debate in the State of Louisiana.

NUMBER FIVE WORST PROSECUTOR IN THE COUNTRY:
THE WINNER IS ASSISTANT U.S. ATTORNEY JEFFREY AUERHAHN

     Jeffrey Auerhahn – best known for putting New England mobster Vincent “Animal” Ferrara behind bars in the early 1990s. Ferrara was prosecuted for ordering the killing of Vincent James Limoli, in 1985, in the city of Boston, Massachusetts. The infamous case arose out of the Department of Justice’s investigation and successful prosecutions of numerous individuals accused of being co-conspirators in the alleged Patriarca Family of La Cosa Nostra in the mid-1980s. Ferrara pleaded guilty to the murder pursuant to a plea agreement with the Government in connection with the Limoli murder; he was sentenced to 22 years in prison and served 13 years before being released in 2005 due to prosecutorial misconduct by U.S. Attorney Jeffery Auherhahn. Prior to Ferrara’s guilty plea, Auerhahn had learned that Walter Jordan (the government’s only source of direct evidence in the case) had been told by Ferrara’s co-defendant, Pasquale Barone, that Ferrara had not ordered the Limoli murder. Jordan’s statement had been presented, on at least two occasions, to the Government and had been reduced to writing but Auerhahn improperly and illegally failed to disclose it to defense lawyers. Instead, Auerhahn only informed Ferrara that Jordan would testify that Ferrara had directed Barone to murder Limoli and did so in an effort to encourage Ferrara to plead guilty, which he eventually did. Auerhahn’s failure to disclose exculpatory evidence to Ferrara constituted both a breach his affirmative duty and a blatant infringement on Ferrara’s constitutional due process rights.

     The Justice Department’s internal Office of Professional Responsibility concluded that Jordan’s statement was exculpatory and that Auerhahn had a duty to disclose it. However, the Justice Department only gave Auerhahn a slap on the wrist for his misconduct and argued in a 2006 brief that the withheld evidence was not material and that Auerhahn was not required to disclose it. The presiding judge in the Ferrara case, Chief District Judge Mark L. Wolf wrote a letter to Alberto Gonzales complaining that the Justice Department’s private reprimand of Auerhahn was an unduly lenient response to Auerhahn’s decision to withhold exculpatory evidence from the defense. Judge Wolf, dissatisfied with the Justice Department’s reprimand, requested that the Massachusetts Board of Bar Overseers launch disciplinary proceedings against Auerhahn. However, there is no indication that Auerhahn has been disciplined by the Board of Bar Overseers and their website lists him as “active” and that he “has no record of public discipline.” It is obvious, for the facts stated above, that Auerhahn should be reserved a spot on our list of the ten worst prosecutors because, in the words of Judge Wolf, his prosecutorial misconduct “required the release from prison of a Capo in the Patriarca family of La Cosa Nostra,” yet he has not been professionally disciplined and there is no indication that he will ever be held accountable for his indiscretions.

NUMBER SIX WORST PROSECUTOR IN THE COUNTRY:
THE WINNER IS GEORGIA PROSECUTOR DAVID MCDADE

     David McDade – Best known for Prosecuting Genarlow Wilson. At the age of 17, Genarlow Wilson was a rising football star at Douglasville high school, in Georgia, with scholarship offers to attend some of the top universities in the nation. Shortly after his senior football season had ended, Wilson attended a New Year’s party at a hotel room where he engaged in consensual oral sex with a 15-year old girl. Wilson did not know it at the time, but this party would be one of his last moments of freedom. A week later, on the first day of the second semester of his senior year, Georgia police went to the school and escorted Wilson from the building in handcuffs. Wilson was charged with four felony offenses of rape and child molestation. Weeks before, Wilson had been in the newspaper for being all-conference in football and now, he was on the front page, branded as a rapist and child molester.

     Genarlow Wilson refused to plead guilty and take the prosecution’s plea deal which had already been accepted by other defendants involved in the incident in exchange for a 5-year sentence. In February of 2005, Wilson walked into a Douglas County courtroom to face the charges and District Attorney David McDade’s team of prosecutors. Two charges had already been dropped, and it was evident from the first witness that the rape charge wouldn’t stick either. However, the alleged child molestation was on videotape and shown to the jury. The jury acquitted Wilson on the rape charge but convicted him of aggravated child molestation for having oral sex with another teenager; he was 17 and she was 15. Because the age of valid consent is 16 in Georgia and due to an archaic loop hole in Georgia law regarding oral sex, Wilson received a minimum mandatory 10-year sentence beginning in 2005, along with one year of probation, and is required to register as a sex offender for the rest of his life.
The harsh sentence Wilson received was widely denounced and Georgia changed its law so that no other teenager could be similarly sentenced under this loop hole in the law. After the change, if applied retroactively, Wilson would now be charged with a misdemeanor, up to one year in prison, and no sex offender registration. A Monroe County Superior Court judge then ordered that Wilson’s felony conviction be reduced to a misdemeanor and that he be immediately released from prison. Georgia’s Attorney General, Thurbert Baker, and DA David McDade appealed that judge’s ruling and have fought vigorously to keep Wilson behind bars.

     McDade was also found to have distributed the videotape of the sex act between the two minors, and now may face legal troubles for violating federal child pornography laws. He released the video after receiving an open records request under state law from the Associated Press and said he has given it to about three dozen people in all, including reporters, lawmakers and several members of the public who requested it. Georgia’s Chief Federal Prosecutor, U.S. Attorney David Nahmias, said in a statement that federal law prohibits the distribution, receipt, and possession of child pornography in most circumstances and, thus, prohibits the distribution of the Wilson’s videotape because it depicts minors engaged in sexually explicit conduct. McDade exclaimed that the release of the videotape was made pursuant to state law and was not illegal as it was evidence in the widely-publicized case. Nahmias’ office refused to say whether they would bring criminal charges against McDade but reassures the inept prosecutor that federal child pornography laws supersede state disclosure laws.

     It should be obvious from the facts presented above why we have selected Mr. McDade. His persistence in having Genarlow Wilson punished for a crime that no longer exists under Georgia law – because of its harsh effect on defendants such as Wilson – and for arguing that the change in the law cannot retroactively exonerate him, has secured McDade a spot on our list. Furthermore, violating federal child pornography laws and attempting to hide behind a petty state disclosure law should also provide sufficient grounds to have McDade removed from office, disbarred, and possibly prosecuted for his actions. The combined effect of all the events culminating from the Wilson case and McDade’s handling of it, has earned McDade a spot as our number six worst prosecutor in the nation in 2007.

NUMBER SEVEN WORST PROSECUTOR IN THE COUNTRY:
THE WINNER IS TEXAS PROSECUTOR CHARLES SEBESTA
    
     Charles Sebesta – Best known for prosecuting Anthony Graves who was convicted of capital murder in 1994 and has served on death row for about thirteen years now. In 1992, in the small town of Somerville, Texas (about ninety miles outside of Houston), there was a brutal murder of a family of six and officials had always suspected that Graves was somehow responsible. Robert Earl Carter (a key prosecution witness and Graves’ co-defendant) met with Prosecutor Sebesta before the trial commenced and he immediately claimed full responsibility for the murders. Sebesta never made any mention of Carter’s inculpatory statement to Graves’ attorneys Calvin Garvie and Lydia Clay-Jackson. Carter testified against Graves implicating him as an accomplice and was eventually executed for the murders but, before he was put to death, recanted his testimony. Charles Sebesta’s prosecution and overall handling of the Graves’ case has raised many eyebrows and questions regarding violations of the rules governing the professional conduct of prosecutors in Texas.

     The obligation of a prosecutor to disclose evidence of innocence has been expressed in every model code of ethics promulgated by the American Bar Association (ABA) since 1908. Likewise, the Texas Rules of Disciplinary Procedure (TRDP) provides in Rule 3.09 (d), that a prosecutor’s duty to disclose evidence is violated if he or she fails to disclose “all information that may support a claim of innocence, mitigate the offense, or reduce the punishment.” In other words, Sebesta violated Rule 3.09 (d) by failing to disclose Carter’s statement which could have been helpful in formulation Grave’s defense to the murders or, at the very least, could have been used to impeach Carter’s testimony at trial as a prior inconsistent statement. In addition, TRDP Rule 3.03 (a) (5), states that a “lawyer shall not knowingly… offer or use evidence that the lawyer knows to be false.” At trial, Sebesta violated Rule 3.03 (a) (5) by offering Carter’s testimony which implicated Graves as an accomplice and he did so with knowledge of a previous statement, in which Carter took full responsibility for the murders.

     Sebesta prosecuted the Graves-Carter murder case “at all costs” and with no regard for the rule of law or rules of professional conduct. He presented false, misleading evidence at trial in an effort to secure the conviction of an innocent man who now sits on death row because of it. Does this attorney get a satisfaction from knowing he has put an innocent man on death row? How many more innocent people has he convicted and sent to jail? Has he been disciplined for his actions? Because Sebesta’s prosecutorial misconduct has given rise to these questions, there are adequate grounds to have him placed on our list of ten worst prosecutors in the United States in 2007. By the way, according to the State Bar of Texas website, Sebesta has not been disciplined (without any indication that an investigation has been launched) and he is listed as “eligible to practice in Texas.” Congratulations, Mr. Sebesta! You’re our (un)lucky number seven.

NUMBER EIGHT WORST PROSECUTOR IN THE COUNTRY:
THE WINNER IS WARD CO. DISTRICT ATTORNEY RANDALL REYNOLDS

     Randall Reynolds – Best known for his lack of leadership in response to allegations of sexual abuse at the West Texas State School in Pyote, Texas. Dating back to early 2005, a Texas Rangers investigation and 229-page report prepared by Sgt. Brian Burzynski alleged that at least two adult prison guards (John Paul Hernandez and Ray E. Brookins) sexually molested at least 10 incarcerated teen-aged boys for several months, while top Texas Youth Commission (TYC) officials did little to investigate or stop the activity. DA Randall Reynolds (who has a private practice on the side) was emailed a copy of the report in April of 2005 by Sgt. Burzynski, yet he delayed filing charges until January of 2007.

     Texas Attorney General, Greg Abbott, by virtue of his office, can also prosecute such cases but can only do so after the local D.A.’s office notify his office and asks for assistance. The Texas A.G. and Governor are furious with Reynolds because he did not request intervention by the A.G.’s office until mid-January 2007 (nearly two years after allegations of the sexual abuse surfaced). Meanwhile, the prison guards suspected of molesting the young boys both had left town and at least one of them had secured employment working with school-aged children elsewhere. The local D.A.’s office in Ward County, Texas, is criticized for dragging their feet on the prosecution of the TYC prison guards but Reynolds feels that the criticism is harsh and unfair because he was unable to pursue the case until he did because he lacked “adequate staff” to do so.

     By April of 2007, the Texas A.G.’s office was forced to take over the case due to Reynolds’ severe mishandling and it announced 13 indictments after the grand jury adjourned. A three-page petition for removal was filed in Ward County, Texas, against the so-called “do nothing D.A.” Randall Reynolds in connection with his failure to act diligently in response to the reports of sexual abuse at TYC. The petition alleged that Reynolds should be removed from office pursuant to Chapter 87 of the Texas Local Government Code for “incompetency” and “official misconduct,” citing his inaction on the TYC case. Reynolds, in response, filed his own removal petition on the same day claiming that Ward County Attorney Kevin Acker exceeded his legal authority by asking Reynolds to resign and/or seeking his removal. The county attorney – in this case, Mr. Acker – must represent the state in the case to remove Reynolds and that may be a source of animosity giving Reynolds an incentive to seek removal of Acker from office. At any rate, Reynolds may only be removed from office after a jury trial but we are certain that his misconduct and/or inaction is this case coupled with the age and relationship of the offenders to the victims, a jury will have no qualms about removing such an inept prosecutor from office.
While his blunder only ruined the lives of minor children and their families, and allowed pedophiles to continue their sexual acts with impunity for almost two years, one can only wonder whether McDade’s inattention to the allegations was only because the victims in this case were “bad seeds.” That is, would have Mr. Reynolds been more attentive of the allegations of sexual misconduct if they had involved “good seeds” or even his own children? We think his response would have been drastically different.

     The State Bar of Texas website lists Reynolds as “eligible to practice in Texas” and there is no indication that an investigation has been launched to seek his disbarment in connection with his malfeasance in the TYC case. We, however, have selected Mr. Reynolds as eighth worst prosecutor in the United States in 2007 because of his lackadaisical approach to reliable accusations of sexual abuse of minors by the very individuals that are charged with caring for and setting an example for these misguided youths. It takes a really callous prosecutor to turn a blind eye in the face of these allegations, and for this reason, we have selected Reynolds as our number eight. We can say with confidence that Mr. Reynolds has truly earned his placement on our list of the Ten Worst Prosecutors in 2007.

NUMBER NINE WORST PROSECUTOR IN THE COUNTRY:
THE WINNER IS PONTOTOC CO. DISTRICT ATTORNEY BILL PETERSON

     Bill Peterson – Best known for the (botched) murder prosecution of Ronald Williamson, a former minor league baseball player from Ada, Oklahoma. In 1982, a 21-year old cocktail waitress in Ada named Debra Sue Carter was raped and murdered, and for five years the local police could not solve the crime. For some unknown reason, police had suspected that Williamson and his friend Dennis Fritz were the culprits and, in 1987, both were arrested and charged with capital murder. Apparently, while Williamson was in jail for writing a bad check, a jailhouse snitch told prosecutors that Williamson had confessed to killing Carter, giving the police “probable cause” for an arrest. At trial, McDade presented testimonial evidence from Glen Gore, their main witness, that Carter had complained to a friend that Williamson "made her nervous," and also presented a microscopic hair analysis conducted on 17 hairs recovered from the crime scene which state experts insisted matched Fritz, Williamson, and Carter (the victim). In 1988, both men were convicted of first degree murder. Fritz received a life sentence. Williamson was sentenced to death.

     Bill Peterson was quick to arrest and prosecute Williamson with weak evidence which eventually led to Williamson’s release from prison in 1999. After serving eleven years on death row, Williamson was finally freed after DNA evidence showed his innocence. The DNA results proved that the state experts had misidentified every single hair taken from the crime scene; none of them belonged to either of the two men. The DNA profile obtained from the crime scene, however, matched Glen Gore, the state’s main witness at trial. At the time, Gore was serving three 40-year sentences for unrelated charges of first-degree burglary, kidnapping, and shooting with intent to injure. Both Williamson and Fritz filed a civil lawsuit accusing Bill Peterson and other defendants – including the city of Ada, the state of Oklahoma, Gore, and county police officers – of engineering “a false case that consisted of faulty forensic evidence, fictitious confessions reported by jailhouse snitches with overwhelming motives to lie, in addition to the self-serving lies of the actual murderer.” Williamson and Fritz settled the suit and both men received an undisclosed sum of money.

     The rogue acts of prosecutor Peterson sparked best selling author, John Grisham to write his first non-fiction book about how poorly Peterson has handled the Williamson case titled “The Innocent Man, Murder and Injustice in a Small Town” (visit: www.randomhouse.com/features/grisham/main.php). Peterson is still the Pontotoc District Attorney and there is no evidence that he has ever been disciplined for his conduct in relation to the Williamson case. In our search for information we did, however, find a website set up by Peterson which catalogues the events of the Williamson trial and makes an attempt to point out follies in Grisham’s perspective and sources for the non-fiction novel (visit: www.billpetersondistrictattorney.com). For the accomplishment of having a well-known author capture your colossal screw-up in a best selling novel and for vigorously prosecuting a capital murder case on weak physical evidence and jailhouse informants, we have selected Prosecutor Bill Peterson as the ninth worst prosecutor in 2007.

NUMBER TEN WORST PROSECUTOR IN THE COUNTRY:
THE WINNER IS LOS ANGELES CITY ATTORNEY ROCKY DELGADILLO

     Rocky Delgadillo – The recently re-elected Harvard educated Los Angeles City Attorney, Rocky Delgadillo, is known best for prosecuting famed Paris Hilton and his hard stance against what he claims is a two-tiered judicial system where, “the rich and powerful receive special treatment.” In 2005, during the Fleishman-Hillard PR billing fraud scandal Delgadillo prosecuted Doug Dowie, a PR Executive, for allegedly padding billings to the city by a jaw-dropping $4.2 million. The Fleishman-Hillard case received national coverage and Delgadillo was applauded by the media for his tough stance on political corruption in City Hall. During this time, Rocky Delgadillo was portrayed as championing for the rights of all Angelinos and he appeared to be infalliable, but this time would be short-lived. Recently, investigators from the Los Angeles Ethics Commission and the State Bar of California have launched an inquiry into Delgadillo’s misuse of city resources for personal benefit but his status is currently listed as “active” on the State Bar’s website.

     The investigation comes after Delgadillo publicly admitted that he had allowed his wife, Michelle, to use a city-owned vehicle to drive to a doctor’s appointment which subsequently resulted in over $1,200 of damage while in her possession and which the city paid for. Only after government accountability advocates accused Delgadillo of misusing public funds did Rocky decide to reimburse the city for the expense. To make matters worst, Michelle was operating the vehicle on a suspended license and with a warrant out for her arrest for failing to appear in court nearly nine years earlier on charges of driving without insurance, with a suspended license, and in an unregistered car. Delgadillo also admitted that (unbeknownst to him) he had driven without auto insurance for about a year and that his wife had done so for about 2 years. Nevertheless, the misuse of pulic resources does not end here; Delgadillo is also under suspicion of having used public employees for his personal benefit on many occasions (e.g. baby sitting, running errands, handyman services, etc.). While citizens felt that Delgadillo’s role as City Attorney gave him a unique insight into the “two-tiered” judicial system he so preached about, many were surprised to find out that Rocky and his family were also receiving special treatment under this system.

     Much like the Hollywood Rocky sagas, this Rocky wins in the end; however, in this instance, he’s won a spot on our infamous list of worst prosecutors in the United States in 2007. Delgadillo was selected as number 10 because his blunders pale in comparison to those of the other selections. Not to say that his actions are of lesser importance but Delgadillo only ruined his family’s and a City’s reputation, only lost the confidence of his constituents, and only ruined his own political career. In relation to the blunders of Gonzales, McEachern, and Nifong, Delgadillo’s mere misuse of public resources for his own personal gain appears as if his only reason for appearing on the list is for being dumb enough to get caught with his hand in the cookie jar (and then publicly confessing to it). But then again, we think that if Delgadillo were only given the opportunity to make a mistake on a grander scale he would be up for the challenge, and maybe then he could move himself up a couple of spots on the list. Hey, there’s always 2008…

     The Bennett Law Firm’s (BLF) Attorneys have served in the United States Attorney’s Office for the Western District of Texas. They consider themselves to be "good" prosecutors with experience in both state district attorneys offices and federal prosecutors with the United States Attorney’s Office. The BLF holds the office of prosecutor in high regard and is intolerant of those individuals who engage in conduct which place all prosecutors (both federal and state) in public rebuke. Furthermore, the firm holds steadfast to the principle that prosecutors who are responsible for causing a miscarriage of justice should be held accountable through notoriety, recusal, and even disbarment. Attorney Robert S. “Bob” Bennett has been qualified as an expert on prosecutorial abuse and prosecutorial recusal, he has also published numerous articles and has been invited to give several speeches on the topic.
The BLF and the “Bad Prosecutor Blog” website are dedicated to maintaining high standards of professionalism in the practice of law and they chose to recognize the ten worst prosecutors in the United States in 2007 to bring about an open discussion of prevalent prosecutorial misconduct, and most importantly, to stress the importance of holding bad prosecutors accountable for their unlawful indiscretions. Prosecutorial misconduct ranges from hiding, destroying, or tampering with evidence, case files or court records; failing to disclose exculpatory evidence; using false or misleading evidence during trial; to improper behavior during grand jury proceedings. The BLF’s aim for “Ten Worst” list is to expose the harsh reality that bad prosecutors are not always disciplined for such misconduct and, in most cases, continue practicing law without ever facing repercussions for their unlawful misconduct. The BLF and the website strongly believe that the list will heighten public awareness and, in turn, help curb unjust prosecutions and deter future prosecutorial misconduct.

The “Bad Prosecutor Blog” website is currently researching and preparing next year’s list for the Ten Worst Prosecutor in the United States in 2008.

While a prosecutor’s job is to seek justice, there have been numerous instances in U.S history where federal and state prosecutors have engaged in unethical conduct simply to secure a conviction where otherwise not possible if they had played “by the rules.” The “Ten Worst Prosecutors” list carefully researched and produced by the Bennett Law Firm (BLF) in Houston, Texas, features a handful of recent occurrences where federal and state prosecutors did not play “by the rules” with respect to evidence in criminal trials and ruined the lives of innocent people to further their own professional careers.

The BLF and the “Bad Prosecutor Blog” website (visit: http://bennettlawfirm. typepad.com/badprosecutors) chose to recognize the ten worst prosecutors in the United States in 2007 to bring about an open discussion of prevalent prosecutorial misconduct, and most importantly, to stress the importance of holding bad prosecutors accountable for their unlawful indiscretions. For over thirty years, the BLF has been involved in criminal, civil, and administrative investigation. BLF Attorney Robert S. “Bob” Bennett, a former federal prosecutor, has been qualified as an expert on prosecutorial abuse and prosecutorial recusal. Mr. Bennett has also published numerous articles and has given countless speeches on these topics.

Prosecutorial misconduct ranges from hiding, destroying, or tampering with evidence, case files or court records; failing to disclose exculpatory evidence; using false or misleading evidence during trial; to improper behavior during grand jury proceedings. The BLF’s “Ten Worst” list exposes the harsh reality that bad prosecutors are not always disciplined for such misconduct and, in most cases, continue practicing law without missing a beat. The BLF and the website strongly believe that the list will heighten public awareness and, in turn, help curb unjust prosecutions and deter future prosecutorial misconduct.

Other bad prosecutors selected for the BLF “Ten Worst” list include the likes of Louisiana Attorney General Charles Foti, Jr., Massachusetts Assistant U.S. Attorney Jeffrey Auerhahn, Georgia Prosecutor David McDade, Oklahoma D.A. Bill Peterson, L.A. City Attorney Rocky Delgadillo, and Texas licensed attorneys: Charles Sebesta and Randall W. Reynolds.

Foti’s persistence in attempting to prosecute a doctor and two nurses after hurricane Katrina and making extrajudicial statements surrounding their guilt have secured him a spot on the BLF’s “Ten Worst” list. Auerhahn’s blatant disregard for the constitutional rights of an innocent man which resulted in a 22 year sentence and 13 years behind bars before it was ever discovered has earned him a listing as well. McDade was selected for overzealously prosecuting a 17-year-old over oral sex with a consenting 15-year-old girl under an archaic loophole in Georgia law (which has now been abolished) and for distributing a video of the sexual encounter in violation of federal child pornography laws.

Texas prosecutor, Charles Sebesta, makes an appearance on the list for presenting false, misleading evidence and not disclosing an exculpatory confession during the murder prosecution of Anthony Graves which resulted in his conviction and being sent to death row for capital murder in 1994. Ward County D.A, Randall W. Reynolds, was selected for dragging his feet in response to reliable allegations of sexual abuse of inmates at the West Texas State School in Pyote, Texas, and delaying the prosecution of two accused prison guards for more than 2 years.

Also selected was prosecutor Bill Peterson for inspiring John Grisham to write a novel about his vigorous yet erroneous prosecution and conviction of Ron Williamson for capital murder in 1988 on weak physical evidence and jailhouse informants. Last, but certainly not least, the list includes the Harvard-educated L.A. City Attorney, Rocky Delgadillo, who is best known for prosecuting famed Paris Hilton and publicly admitting that he misused public resources by negligently allowing his accident-prone wife to use a city vehicle for personal errands resulting $1,200 of damage and then letting taxpayers foot the bill, all the while complaining about a two-tiered judicial system that gives “special treatment” to the privileged.

If you would like to obtain a copy of the BLF’s “Ten Worst Prosecutors” Article, please visit http://bennettlawfirm.typepad.com/badprosecutors or contact Scott Chauveaux at 713-225-6000; e-mail Schauveaux@bennettlawfirm.com. To contact BLF Attorney Bob Bennett, visit: www.bennettlawfirm.com or email Bbennett@bennettlawfirm.com.

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