Thursday, August 2, 2012

Karen Plants Disbarred - Michigan

The criminal justice system is defenseless against the united forces of a corrupt prosecutor and a perjured witness. When the judicial authority knowingly allows this behavior, the rights guaranteed to every citizen are nothing more than the mouthing of platitudes. In 2005, Alexander Aceval and Ricardo Pena were the victims of such a judicial lynching. In those cases, the prosecutor and the trial judge were aware that the investigating officers and one of the witnesses committed perjury - not once - but several times during the pre-trial hearings and the trials of each man. When advised of the perjury, rather than taking actions to correct it, the police, prosecutors, and even the judge conspired to allow this perjured testimony to be used against each defendant.

The testimony concerned the role of a paid police informant. The defendants were told that a confidential informant was used in the investigation leading to their arrests. Only two people could have been that informant - Chad Povish or Bryan Hill. Povish had set up the deal with Aceval. Prior to this investigation he had cooperated in several other investigations and was paid by the police for his cooperation. Povish and his companion were both well known to the officers investigating this case. Yet in sworn affidavits and in subsequent court hearings they claimed that both these men were strangers to the police when the drugs were exchanged and the arrest went down. Neither Hill or Povish where charged with any crimes. In fact, Povish testified at both the preliminary hearing and in the separate trials of Aceval and Pena. Povish testified that he was unaware of the fact that the duffel bag he and Hill were delivering contained 47 kilos of cocaine when in fact he intended to net 10% of the proceeds of the sale.

The prosecutor, Karen Plants, knew this shorty after the arrest. When she asked the arresting officer why Povish and Hill were not charged, she was told that Povish was a paid confidential informant. During the preliminary hearing, the officers and Povish falsely denied any prior relationship. To her credit, Plant informed her supervisor about the perjury and queried an appellate attorney on her ethical obligations. The matter was brought to the attention of the trial judge; however, Plant asked the court, ex parte to overlook this felony based on a belief that Povish would be targeted for retribution if this information was disclosed to the defendants. Later, during the trial of each defendant, she instructed the witnesses how to answer the questions and successfully objected each time the defense attorney attempted to elicit this information. Again, the trial court sanctioned this procedure.

The two defendants were charged with conspiring to deliver 47 kilos of cocaine and tried separately.  Pena was convicted; Aceval's jury did not reach a verdict. While the appeal was pending, the county attorney disclosed the misconduct, apologized to Mr. Pena and offered him a new trial. Having seen the error of his ways, Pena agreed to plead guilty to a lesser offense and offer testimony against Aceval. While the state's case was now considerably stronger, Aceval was undeterred, unrepentant, and ready for his second trial. Just as a paranoid person may have real enemies, a perjured witness may also speak truthfully. Chad Povish and the lying police would now confess their sins and testify that while they were untruthful about some facts, they had not lied about others - specifically, that Mr. Aceval was an integral part in the distribution of a large quantity of cocaine.

Mr. Aceval decided to fight fire with fire and employed his own perjured witness. Unfortunately for him, his perjured witness had an epiphany and confessed his sin to the judge and prosecutor during the course of his second trial. In addition to the other evidence, now his own witness would condemn him. Mr. Aceval had little alternative but to change his trial strategy; he pleaded guilty and appealed to the higher courts. While he fought the good fight, prosecutorial misconduct rarely results in a dismissal of the criminal charges. After five years of legal wrangling, his sentence of ten to fifteen years was finally affirmed in December, 2010.

The phrase "corrupt prosecutor" is not entirely accurate. There is nothing in the record to suggest that Karen Plants was motivated by any ill will towards either man or desire for personal gain. In fact, her motive is better described as misguided altruism: she allowed the perjured testimony to protect the safety of a witness. While her motives may not have been impure, her actions were clearly illegal. She, along with the two investigating officers were later charged with conspiring to suborn perjury. Later, she pleaded guilty to felony misconduct in office and sentenced to six months imprisonment.

Ms. Plant's troubles did not end there. There is no greater threat to the integrity of the judicial system than the use of perjured testimony. The prisons are full of people all too happy to reduce their stay by implicating others in their crime. Sometimes they tell the truth; other times they simply tell the police and prosecutors what they want to hear. While this type of testimony is inherently suspect, all too often prosecutors are simply indifferent to its truth reasoning that it is a matter for the judge or jury to decide. In these cases however, it was clear that Plants knew of the perjury and did everything in her power to make sure the jury did not know the true facts. The local grievance panel, noting her unblemished record and remorse, took pity and only suspended her from the practice of law for two years. Unsatisfied, the grievance administrator sought review with the state Discipline Board which disbarred Plant - the most serious sanction that could be imposed. The Board's decision is a 'must read' by all prosecutors.

Sunday, February 26, 2012

Third Party Culpability: The Dingo Really Did Take the Baby-Well Maybe

Lindy and Azaria
In any prosecution it is generally permissible for a defendant to introduce evidence that someone other than the accused committed the offense. The evidence is admissible if it establishes a direct connection between a third party and the crime charged. In the early 1980's Lindy Chamberlain was charged with murder in connection with the death of her nine week old daughter. Her husband, Michael, was also charged as an accessory after the fact for the same offense. The Chamberlains' defense was that a third party was responsible for the death of their infant daughter, Azaria. The alleged perpetrator in her case, however, was not another human being, but rather a dog-more specifically canis lupus dingo, or dingo, a wild dog native to Australia. The case first drew national attention in Australia and later international fame when Lindy's ordeal was the subject of a movie A Cry in the Dark starring Merly Streep.

The case has significant parallels to the matter of the West Memphis Three. The parallels are remarkable not because of the similarities, but rather, the dis-similarities as the facts of each case are as diametrically opposed as the respective hemispheres where the incidents occurred. The defendants in the West Memphis Three were three youths; the Chamberlains' were the parents of three young children. The prosecutor in the West Memphis case argued that the victims were killed as part of a satanic ritual. In the Chamberlain case, an unstated subtext of the police investigation and the prosecution's case was that the crime was a sacrificial rite committed by religious fanatics-the Chamberlains were both members the Seventh Day Adventists Church. While science was to play a pivotal role in correcting each miscarriage of justice, the Australians acted with relative swiftness, releasing Lindy three years into her prison term and quashing the convictions of each parents two years later (her husband received a suspended sentence). On the northern side of the equator, the West Memphis Three waited over seventeen years before they were begrudgingly released and only after pleading guilty under the Alford doctrine. While Lindy was financially compensated for her wrongful conviction, the West Memphis Three were rewarded with probationary terms following their release. Since Lindy's conviction, two separate inquiries have been held in an attempt to determine the actual cause of Azaria's death. To date, the West Memphis prosecutors have done little more than pay lip service to the evidence of third party culpability that exists in those cases. The common theme of each conviction, however, is that ignorance and prejudice were substantial factors that contributed to the verdicts of each trial.

Azaria Chamberlain went missing on August 17, 1980 in the Australian Outback. Her parents, and two brothers, Aiden and Reagan, ages 6 and 4 were on a camping vacation in Uluru the aborigine name for Ayers Rock, a giant red monolith located in the Northern Territory of Australia. On the second night of their stay, several campers heard a low growl followed by a baby's cry. When Lindy returned to her tent she saw a dingo running off. The tent where her daughter was sleeping was empty; there were dingo paw prints in the area and blood on the bedding inside the tent. Despite an intensive search of the surrounding area, the body of Azaria was never found; a week later, bloody clothing worn by the infant was found near a boulder at the base of Ayers Rock. Although the authorities had received reports of dingo attacks on children only weeks before Azaria's disappearance, they doubted that a dingo had the strength to carry off the child in the manner described and suspected that the child was murdered by her mother.

At the first inquest, concluded on February, 20, 1981, the coroner, Denis Barritt, found that the child was probably killed by a dingo. However, the authorities, media, and general public were not satisfied and continued to suspect the couple. Bigotry concerning the Chamberlains' adherence to the Seventh Day Adventists faith-believed by many Australians to be nothing more than a devil worshiping cult- produced a stream of bizarre rumors including the claim that the name Azaria meant "sacrifice in the wilderness". Later that year, the police searched the Chamberlain's home and auto in Cooranbong, New South Wales, some 1700 miles from Uluru. During the search, they found what was believed to be blood spatter on the front seat of the family car. Further investigation of the child's clothing claimed that the tears were caused by scissors rather than an animal. Aided by inept investigation techniques, dubious scientific evidence and harsh public opinion, the Supreme Court for the Northwest Territories quashed the findings of the first inquest and ordered a second. At that hearing, Coroner Gerry Galvin committed Lindy Chamberlain for trial for the murder of Azaria and her husband, Michael, on the charge of being an accessory after the fact.

The prosecution theorized that Lindy, in the space of five to ten minutes, had slashed her daughter's throat in the front seat of the car, stuffed it into a camera bag and returned to the barbeque area until an opportunity presented itself to blame a dingo for the baby's disappearance. They further claimed that Chamberlains later buried the body and planted the clothing in the area it was eventually found. The most damning evidence was a contentious forensic report claiming to have found fetal haemoglobin, typically present in infants six months or younger, in the Chamberlains' car. Years later, further analysis showed the substance to be a combination of baby's milk and a chemical sprayed during the manufacture of the automobile. Evidence of Lindy's innocence fell on the jurors' deaf ears. The un-contradicted evidence of witnesses who observed Lindy to be a devoted and affectionate mother to the baby and her sons was overshadowed by the media created impression left by her apparent coldness in her pre-trial interviews with the press. Evidence that there were dingos sighted in the vicinity of the campground, dingo paw prints leading from the tent, as well as their prior attacks on children was, likewise, ignored. On October 29, 1982, the jury convicted both parents of the offenses.

Ironically, it was the unrelated death of a hiker that led to the exoneration of the Chamberlains. In February, 1986, after the Federal Court and Austrian High Court had rejected their appeals, the police were investigating the disappearance of missing man last seen climbing Ayers Rock. During the course of their search, they found the matinee jacket worn by Azaria near a dingo den and were confronted with the reality that the criminal justice system had failed. A week later, the government of the Northern Territory released Lindy from prison and announced that there would be a new inquiry into Azaria's death. In the lengthy report issued by Justice Trevor Morling, he discredited much of the original evidence and concluded that the case against the Chamberlains was insubstantial and the verdicts were "unsafe". Several months later, the government of the Northern Territory enacted special legislation that allowed the Chamberlains to apply to the Criminal Appeals to have their convictions quashed. Finally, on September 15, 1988, the appellate court unanimously quashed the convictions.

A third inquest held in 1995, Coroner John Lowndes returned an open finding, meaning the baby’s death was registered as “cause unknown” - a finding that will likely be overturned by a fourth inquest now underway before Coroner Elizabeth Morris. In that hearing, an investigator testified that between 1990 and 2011 there have been over two hundred documented attacks by dingos on humans including three fatal attacks on children and fourteen other significant attacks. The lawyer assisting the coroner, Rex Wild, a former director of public prosecutions in the Northern Territory, has asked the court to "accept on the balance of probabilities that the dingo theory is the correct one."

Despite the evidence, there are still those who will continue to believe that Lindy Chamberlain-Creighton (now divorced and remarried) murdered her daughter. It is a sad commentary that the ignorance and prejudices of some allows them to afford a "presumption of innocence" to a wild dog but not to the devoted and loving mother of a newborn. UPDATE June 12, 2012. The coroner has ruled that the cause of Azaria Chamberlain's death was "the result of being attacked and taken by a dingo." The death certificate will be changed to reflect this new finding.

Wednesday, February 1, 2012

The West Memphis Three

The notion of "due process" is often little more than a speed bump in an overcrowded criminal justice system. Those accused of crimes are expected to admit their culpability and accept the consequences for their behavior. Plea bargaining is an accepted and necessary part of American jurisprudence and, in its absence, the courts would effectively shut down. The majority of criminal defendants are, in fact, guilty of something and, to their credit usually, if not begrudgingly, accept responsibility for their behavior. The legislature and courts provide rewards for doing so in the form of diversionary programs and reduced or suspended sentences. When a defendant claims he is "innocent", but wants to avoid a trial, the court requires what is called an Alford plea where he acknowledges his understanding that the legal system is designed to grind him into submission and it is in his best interest to accept whatever daily special the prosecutor is offering. The defendant who insists on his day in court is a monkey wrench in this slow grinding process and treated in the same manner one would treat an annoying hemorrhoid.

The government, with its seemingly unlimited resources, will spare no expense to remove this hemorrhoid tissue from society. Those with the resources to adequately defend against the onslaught are cynically accused of using their wealth to manipulate the process; those that are acquitted are vilified for "beating the system". The public assumes that government resources are being used appropriately and are more likely to direct their ire at those that would defy it than those charged with its administration. Confident of the public's support, the police and prosecutors often behave like children that have been bestowed with super powers and charged with the task of removing the blight of crime from society. Unfortunately, the gift of infallibility is not a power that can be granted by legislative fiat. Even more unfortunate, is the inability of these bureaucrats to acknowledge this legislative deficiency.

On August 19, 2011, three Arkansas men, Damien Echols, Jason Baldwin, and Jessie Misskelley, collectively known as the West Memphis Three, pleaded guilty under the Alford doctrine to charges stemming from the deaths of three eight-year-old boys. More than most, these men knew the painful and slow grinding process that the innocent must endure in an "infallible" criminal justice system. They had spent more than eighteen years behind bars for these crimes despite the fact that most reasonable people concluded long ago that their convictions were unjust. The american public watched as numerous documentaries disabused the evidence that had established their guilt. That same public witnessed the transformation of these defendants from confused and troubled teenagers into mature, articulate, and intelligent adults. As mature adults, they understood that maintaining their innocence would result in further incarceration; only a guilty plea would bring them the freedom they sought.

The pleas were made possible in November, 2010 when the Arkansas Supreme Court granted the three convicted men the right to present evidence of their innocence in a habeas petition. During their original trials in 1993, the science of DNA (deoxyribonucleic acid) was in its infancy and the juries did not hear that there was no DNA to connect any of these defendants to the crime scene or the victims. While a major victory for the West Memphis Three, the decision meant that they must return to the trial court and present "compelling evidence that a new trial would result in acquittal"-a process that could take years to complete. The prosecutors, knowing that a new trial would likely be granted, offered a deal that would free, and hopefully shut up, the three men and also save the state of Arkansas millions of dollars.

Accepting responsibility for one's misdeeds can be a costly proposition and the Arkansas bean counters were probably happy with this result. The guilty pleas meant an end to almost two decades of costly litigation and precluded the three from filing wrongful-imprisonment suits for the time they spent in prison. Unlike their counterparts in Arkansas, prosecutors in Illinois admitted their mistake in the case of Thaddeus "T.J." Jimenez after another man confessed to the murder he had been convicted of. Recently, a federal jury awarded Mr. Jimenez $25 million dollars after he had spent sixteen years in prison for a crime he did not commit. While the specter of civil liability was one factor, the cost of having to retry an eighteen year old case based on tenuous evidence would not sit well with any prosecutor. But there is another cost incurred by society when the innocent are wrongly convicted-a guilty person has been allowed to go unpunished.

It is doubtful the authorities in Arkansas will ever prosecute any other person for the deaths of these children. The DNA evidence that was not available in 1993 did implicate two other people-Terry Hobbs and his friend David Jacoby. Hobbs, the step-father of Steven Branch, was not initially considered a suspect but the evidence against him is compelling to say the least. He has a history of violent and sexually deviant behavior and cannot be eliminated as the source of a hair fiber found in a ligature binding Michael Moore. Additionally, he gave several different accounts of his whereabouts during the time the boys went missing and has no verifiable alibi. Natalie Maines Pasdar, a singer for the Dixie Chicks and supporter of the West Memphis Three, was sued by Hobbs in 2008 for defamation after she publicly reiterated the evidence against Hobbs. The case was a disaster for Hobbs. The previous allegations and innuendo became sworn depositions as Hobbs was required to defend his past behavior, his criminal record and his actions the night the children went missing. Under scrutiny, Hobbs stories became inconsistent and incoherent. The case was dismissed a year later and Hobbs was ordered to pay over $17,000 in legal fees to Pasadar.

Scott Ellington, the current prosecuting attorney, has stated that he would re-examine the case and, if credible evidence was produced, re-open the case. The West Memphis Three are well advised not to hold their collective breaths waiting for any official action. While prosecutors are quick to assign blame, they are reluctant to accept responsibility. History has taught that the best response to claims of "actual innocence" is simply ignore them and hope they go away. Three men have admitted that the state has sufficient evidence to prove their guilt and, under the circumstances, it would be political suicide to initiate a prosecution with a the central theme of "oops, we made a mistake." The reputations of the police and prosecutors involved are far more important than the rights of the three convicted felons.

It has been said that the best revenge is to live well and towards that end, I can only wish the West Memphis Three a long, happy and prosperous life.

NOTE: Much more has been written and publicized about these cases than I could possibly write. Professor James Elkins, of the West Virginia College of Law has compiled a list of resources concerning this case including the trial transcripts as well as links to the various media reports about the cases. I first became aware of the West Memphis Three in 1996 after watching HBO's documentary Paradise Lost, The Child Murders at Robin Hood Hills. At that time, while I was not convinced that the boys were factually innocent, I had grave reservations about the proof that had convicted them of these crimes, particularly the evidence against Damien Echols and Jason Baldwin. Jessie Miskelly, Jr., had given the police a statement that implicated Echols and Baldwin as well as himself in these crimes He later recanted this statement and claimed it had been coerced.

Because the statement implicated the other co-defendants, Miskelly was tried first and convicted. Faced with a sentence of life, plus forty years, the prosecutors believed he would testify against the co-defendants in exchange for a reduction of that sentence. It appears that there were negotiations between Miskelly and the prosecution but, for whatever reasons, no deal was made and he was not called as a witness. Without his testimony, and based on my limited knowledge of the case, it was my opinion that while these three probably committed the crimes, I didn't think the state had proved its case against two of the defendants.

At the time, my view was that this was one of those cases where there was "probable cause" to believe the defendant's guilt, but not proof "beyond a reasonable doubt". This is they type of case which should, but usually does not, create an ethical dilemma for a prosecutor. The Rules of Professional Conduct, § 3.8(1), applicable in Connecticut, prohibit a prosecution only where the case is not supported by "probable cause". Other jurisdictions have adopted the ABA standards which are more stringent and state that a prosecutor should decline prosecution in the absence of "sufficient admissible evidence to support a conviction". See, ABA, Criminal Justice Standards, § 3-3.9. In applying this standard, appellate courts will view the evidence in a light most favorable to sustaining the conviction. As such, appellate courts are ill equipped to deal with a wrongful conviction based on an error of fact. It simply looks to see if the direct and circumstantial evidence, if believed, establishes each element of the charged crime.

Notwithstanding the legal sufficiency of the evidence, the ABA standards allow a prosecutor to decline prosecution, when he or she has a "reasonable doubt" about the accused' guilt. This is a gate keeping function where the prosecutor, with regard for the presumption of innocence, is expected to use his or her judgment and examine and weigh all the evidence, whether inculpatory or exculpatory. In this situation, the standard leaves the decision of whether or not to prosecute to the discretion of the prosecutor.