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Prosecutorial Misconduct and the Death Penalty

by LINN WASHINGTON, Jr.

The recent outrage in Pennsylvania over the scheduled October 3 execution of a man who killed two men who had sexually abused him during his childhood has tarnished the reformer image of Philadelphia DA Seth Williams, exposing him as just another prosecutor willing to trample justice to preserve a death penalty.

When Seth Williams successfully campaigned to become Philadelphia’s top prosecutor a few years ago he used a catchy phrase: “A New Day/A New DA.”

But based on Williams’ recent posturing and positions taken by him, evidence indicates this new DA continues operating in the same old way as his predecessors.

Instead of running his office in accordance with that ‘New Day’ many expected, DA Williams is defending death penalty cases that are stained by prosecutorial misconduct and is pursuing factually bogus charges against victims of police brutality, including one involving a blind man charged with attacking the police who beat him.

The most pronounced example of Williams’ old wine/new bottle stance is his vigorous –and intellectually dishonest — public relations campaign backing the execution of child-sex abuse victim-turned-murderer Terrance Williams.

A week before the scheduled execution (which was halted by a Philadelphia judge just days before it was to take place), DA Williams wrote an op-ed article in the Philadelphia Inquirer in which the DA denounced death row inmate Williams for never mentioning his sexual abuse during trial. But putting aside the obvious point that a sex abuse victim might not dare to report such a violation, in his op-ed the DA himself declined to report that prosecutors during that trial had withheld evidence of that very sexual abuse, in the form of police reports about it, from the defense, the court and the jury, in order to enhance the the chances of winning a sentence of death.

The DA’s failure to mention that the prosecution had withheld important mitigating evidence is journalistic misconduct of the same nature as the prosecutorial misconduct he was hiding from readers.

The Philadelphia DA’s Office took a spanking later when, during the same week, a Philadelphia city court judge set aside the death penalty on Terrance Williams and Pennsylvania’s Board of Pardons, which had earlier met and denied Williams’ request for clemency, reconvened a clemency hearing in his case.

Terrance Williams was scheduled to be executed by lethal injection on October 3 for killing one of his abusers. His death warrant had been signed in September by Pennsylvania Governor Tom Corbett, a Republican former state attorney general who ignored an avalanche of clemency pleas including pleas from former prosecutors, judges, clergy, jurors who convicted Williams and even the wife of one of Williams’ victims, who had informed prosecutors at the time of the trial that her husband had indeed earlier sexually abused his killer.

Corbett, it should be noted, had received criticism for foot-dragging a probe into the Penn State child predator scandal involving now convicted Jerry Sandusky when Corbett served as the state’s attorney general.

The actions by the judge and pardons board in the Terrance Williams case both resulted largely from more evidence of disturbing misconduct by Philly prosecutors — misconduct which violates ethical rules and court rulings.

The prosecutorial misconduct cited by the judge as the basis for her halting of the execution of inmate Williams occurred over two decades before DA Seth Williams assumed control of that office in January 2010.

However, the prosecutorial misconduct that led to a second Pardons Board hearing occurred during DA Williams’ watch.

The Pardons Board, though, learned there had been a misrepresentation by one of DA Williams’ prosecutors, who reportedly assured Board members considering Williams’ most recent clemency petition that Philly prosecutors had not made a plea deal with Terrance Williams’ co-defendant during Williams’ 1986 murder trial.

But the DA’s office knew, in fact, that just such a deal had been made, because documents in DA files detailed it.

In the legal world, “misrepresentation” is as an assertion “not in accordance” with facts.
In the world of laypersons, “misrepresentation” of this sort is generally called, more bluntly, a lie.
Laypersons and lawyers both understand the often damaging consequences of lies, especially in death penalty cases.

That op-ed article authored by DA Williams mentioned poignently how the daughter of the man whose murder landed inmate Williams on death row opposed clemency, but he omitted all references to a recent campaign by police and prosecutors to force that man’s wife to withdraw her support for clemency — a campaign which included unannounced evening visits by police to her front door to pressure her.
Prosecutorial misconduct is perhaps the most grievous yet least publicly examined element of systemic lawlessness by law enforcers.

This willful lawbreaking by prosecutors leads to wrongful convictions, imprisonment of innocent people, the failure to pursue real criminals and in the worst instances, executions of the innocent or of those who should never have faced a death penalty.

Jurors in the Terrance Williams case, contacted by his current defense team, have said they would never have sentenced him to death if they had been aware of his earlier sexual abuse by the victim – information prosecutors withheld from jurors, according to defense representations and to the latest judge’s ruling halting the execution.

An article in the Summer 2012 edition of the New York Criminal Law Newsletter labeled prosecutorial misconduct as “something which is learned and taught.”

A now infamous training video showing Philadelphia prosecutors receiving instruction from a DA office supervisor on how to illegal stack juries to obtain convictions especially death penalty cases surfaced in 1990s, leading to the reversal of many convictions. The prosecutor in that video, Jack McMahon, now in private practice, regrets his participation and today is an ardent opponent of capital punishment.

Prosecutorial misconduct is one of the “leading” causes of wrongful convictions according to a 2006 Wisconsin Law Review article.

According to the respected Innocence Project, while honest mistakes cause some wrongful convictions, far too many wrongful convictions arise from the “conviction-at-all-costs” policies adopted by too many prosecutor offices nationwide.

The Innocence Project, which specializes in using DNA to expose wrongful convictions, recently secured the death row release of Damon Thibodeaux in Louisiana. Thibodeaux is the 18th person released from death row due to DNA and the 300th person exonerated by DNA evidence.

The core problem with the kind of prosecutorial misconduct in Philadelphia evident in Terrance Williams’ death penalty case and in those police abuse cases ending in acquittals of the (falsely) accused is that this misconduct fits the same old pattern of Philly prosecutors staunchly defending the indefensible – including fighting to retain tainted convictions, even in capital cases.

Since inmate Williams only seeks conversion his death sentence to life in prison without parole, not prison release, DA Williams is wasting DA office resources appealing. Life–without-parole is considered by many to be the harsh punishment of “walking death,” and those given such sentences can pose no further threat to society.

There’s a decades-long legacy of Philadelphia prosecutors playing fast and loose with facts and fairness in prosecutions ranging from cases of simple disorderly conduct to the super-serious death penalty.

Three of the six persons exonerated and released from Pennsylvania’s death row since the mid-1970s were Philadelphia residents.

And mixed into the matrix of injustice endured by each of those three men was misconduct by prosecutors — misconduct that included the withholding evidence of innocence from defense attorneys, judges and, of course, jurors.

That trio includes Harold Wilson, whom prosecutors wrongfully put on death row in 1988 by citing as evidence of guilt a bloody shoe print and a blood-stained jacket.

The thing is, that shoe-print size was 8 while Wilson wore/wears a size 13 shoe. And, that blood-stained jacket was much smaller than clothing fitting the tall, heavy-set Wilson.

Post-conviction DNA testing also helped secure Wilson’s 2005 release after he had spent nearly 6,000-days on death row. Wilson has blasted Philadelphia prosecutors for trying to withhold that DNA evidence of his innocence from his defense lawyers.

As long ago as 1978, when Philadelphia DA Seth Williams was 11 years old, a federal judge castigated misconduct by Philly prosecutors as “absolutely incredible.”

That judge leveled his criticism at the conclusion of a trial which convicted six Philly police detectives for outrageous brutality during their investigation of a fatal fire-bombing.

One of the acts angering that judge in 1978 was Philly prosecutors giving immunity to a man who confessed to that fire-bombing. He found that those same prosecutors – only days later – had prosecutedanother man for the very same fire-bombing, despite their knowing of his innocence due because of the other man’s confession!

Meanwhile, many members of Philadelphia’s Puerto Rican community remain angered about prosecutorial misconduct underlying the conviction of an alleged murder-rapist in a 1973 case that took place outside of Philadelphia’s world-famous Art Museum.

Prosecutors, using tainted testimony from one alleged participant, secured six convictions, including those of two men later exonerated based on one’s having been in Puerto Rico at the time of the crime and the other having been at a police station reporting a stab wound he had received earlier that day.

That tainted Art Museum rape-murder case testimony came from a man who said police brutally beat him into falsely confessing after he went to them – while high on LSD – to fraudulently claim a reward offered for information about that rape-murder.

Activists currently are seeking the mercy release of an ill and elderly inmate sentenced for that 1973 crime, but they have reportedly received a cold shoulder from DA Williams’ office.

Yes, Philadelphia DA Seth Williams has initiated commendable reforms of prosecutorial practices including some involving death penalty cases.

Yet DA Williams’ public posturing on the Terrance Williams case echoes that of his widely despised predecessor, Lynne Abraham – an avid execution advocate. Williams had assailed the ardent death penalty advocacy of Abraham while campaigning to replace her.

DA Williams is entitled to his dubious opinion that inmate Williams is a brutal murderer who is despicably attempting an orchestrated make-over from villain to victim.

And DA Williams is entitled to his fact-challenged claim that former prosecutor now Philadelphia Common Pleas Court Judge Teresa Sarmina erred in finding prosecutorial misconduct (including suppression of evidence) during that 1986 trial of Terrance Williams when she halted his scheduled execution.

However, DA Williams strains credulity when defending his efforts to have inmate Williams executed as simply an attempt to “preserve the integrity” of the jury’s verdict and sentence. (DA Williams denies “celebrating” the death penalty in his insistence that inmate Williams face execution.)

Where is the integrity in Terrance Williams’ conviction when the reality is that Williams’ inept defense attorney, in a capital case where his client’s life was on the line, only met Williams, then a teen, for the first time one day before the beginning the trial?

A truly “New Day DA” should not be defending the integrity of a conviction arising from lawyer ineffectiveness that constituted an obvious denial of the defendant’s fundamental fair trail rights.
Judge Sarmina found evidence that prosecutorial misconduct had undermined “confidence” in Williams’ guilty verdict.

And where is the “integrity” in DA Williams’ office prosecuting those court-clogging, cost-wasting police abuse cases that recently ended in acquittals?

One of those acquittals involved Darrell Holloway, a legally blind man whom police accused of attacking officers during an August 2011 incident.

Prosecutors did not question the believability of that alleged attack, which police claimed apparently involved Holloway employing super-human radar/sonar through his prosthetic right eye, which enabled him to chase after policemen he couldn’t see.

A cell phone video of that 2011 incident, where eyewitnesses contend police beat Holloway, contains distinctive audio of eyewitnesses telling police that Holloway was blind, including one man who yelled “he’s blind” twenty times during a span of one 71-second interval.

Holloway’s left eye was shot and damaged by the same 2007 shotgun blast to the face that destroyed his right eye.

Holloway, during his trial, removed his prosthetic eye in front of the jury to counter police testimony proclaiming he was not blind, testimony that included sworn assertions from the officer who beat him that he saw Holloway walking without assistance and texting after the 2011 incident.

The other acquittal involved Jeff Hart, a noted Philadelphia radio broadcaster charged by police with disorderly conduct in July 2012 for cursing an officer after that officer ordered Hart to leave the scene of an arrest where Hart said he had seen an officer beat a handcuffed man.

Hart, who denied disobeying the police order, said the arresting officer roughed him up before falsely charging him with using profanity.

Incidentally, federal and state courts have repeatedly held that is it not illegal to verbally abuse a police officer.

Also, courts have repeatedly held that it is illegal for police to use excessive force.

Philadelphia’s Police Department is now rocked by yet another brutality scandal – this one a cell-phone video of a police supervisor viciously punching a woman in the face, knocking her to the ground and then arresting, her despite her appearing to have committed no criminal offense, and posing no threat to the officer.

The major problem with prosecutorial misconduct in Philadelphia and across America is that the offending prosecutors are rarely if ever penalized.

Linn Washington, Jr. is a founder of This Can’t Be Happening and a contributor to Hopeless: Barack Obama and the Politics of Illusion, (AK Press). He lives in Philadelphia.

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