Meaningful punishment…? Puh-lease!

[Note: I intend to continue my multi-part blogathon about asset forfeiture reform, but this blog relates to something that is time-sensitive — a new report issued today, discussed farther down the page.]

A fellow defense attorney sent me a Huffington Post article from November 8, 2014, For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully Convicting an Innocent Man, by University of Cincinnati law professor Mark Godsey, a former prosecutor and editor of the Wrongful Convictions Blog.  It begins:

Today in Texas, former prosecutor and judge Ken Anderson pled guilty to intentionally failing to disclose evidence in a case that sent an innocent man, Michael Morton, to prison for the murder of his wife. When trying the case as a prosecutor, Anderson possessed evidence that may have cleared Morton, including statements from the crime’s only eyewitness that Morton wasn’t the culprit. Anderson sat on this evidence, and then watched Morton get convicted. While Morton remained in prison for the next 25 years, Anderson’s career flourished, and he eventually became a judge.

In today’s deal, Anderson pled to criminal contempt, and will have to give up his law license, perform 500 hours of community service, and spend 10 days in jail. Anderson had already resigned in September from his position on the Texas bench….

I agree with Godsey’s statements that most prosecutors and police are ethical and try to comply with their responsibilities under the Constitution – if “most” means at least half.  But there is no way to know for sure. I have seen an inordinate number of dishonest, corrupt cops and prosecutors who withhold evidence, fabricate evidence, and lie in court, and bury their wrongdoing until a zealous adversary or reporter uncovers it.  It would be impossible to determine how common unethical prosecutors and police are because so few get exposed for their wrongdoing.

I also agree with Godsey’s statement that, when police and prosecutors get caught committing flagrant violations of ethics, law and their constitutional responsibilities, they almost always escape punishment of any kind for it.  Read his Huff Po article for some very troubling examples of corrupt prosecutors and cops being coddled and even rewarded.

I generally handle asset forfeiture cases, which naturally attract corrupt cops and prosecutors because of the profit incentive.  I also occasionally handle criminal appeals – if they involve issues which interest me. Since I am outraged by police and prosecutorial misconduct, many of the appellate clients who have hired me have claims of prosecutorial misconduct.

From my perspective, the reason misconduct is so prevalent is because the entities who are supposed to perform the checks and balances to keep rogue officers and prosecutors in line are not only not serving their intended roles, but often help the miscreants get off the hook for any punishment.

Here are my theories about who is to blame:

1.  Police agencies have a code of silence; even honest cops and prosecutors refuse to report misconduct they have witnessed other officers commit

In 1990, 10 narcotics officers in the Los Angeles Sheriff’s Office were indicted for skimming off a portion of the money they seized for forfeiture during drug busts and dividing it among themselves.  U.S. Indicts 10 Sheriff Deputies : Narcotics: The L.A. County officers are accused of stealing more than $1.4 million seized in drug arrests, by Victor Merina and Daryl Kelley, LA Times 2/23/1990.  “No one in law enforcement likes, or would wish to investigate one’s own,” the prosecutor was quoted as saying, but “the FBI, IRS and Sheriff’s Department worked have side by side… to ensure that this case was properly handled.”

In the 1990s LA Times Reporter Victor Merina wrote a series of articles covering this rare prosecution of the officers in L.A., as the case unfolded.  Court testimony detailed crimes much worse than stealing from money that should have gone into the forfeiture fund — crimes against people, including planting evidence, unjustified beatings of demonstrators and suspects, lying on police reports, lying in affidavits to get warrants, etc.  The article describes lead prosecution witness Sgt. Robert Sobel’s descent into corruption, saying: “Like others, he held his tongue–newly baptized in the code of silence–and he rationalized the brutality as simply the way things were done in the real world.”  See the series of articles The Slide from Cop to Criminal.

Tragically, the officers’ misconduct and accusations harmed many people, some of whom were probably innocent, yet the only crime by the crooked cops which was prosecuted was the theft from funds slated for forfeiture.  The title of this article says it all: “LAPD Tied to Thefts of Money in Drug Raids Scandal: A former sheriff’s sergeant says narcotics officers and deputies also beat suspects and filed false reports. The FBI is investigating the cash-skimming allegations.” Victor Merina, LA Times 10/2/1990.   Despite all of their corruption and misconduct, this squad of officers received medals and praise for the amount of forfeiture revenue they brought in.

This series of articles was a real eye-opener for me, because it illustrated how cops go bad and why, from the mouth of a ring leader in a corrupt “elite squad” of cops, after he pleaded guilty and testified against his fellow officers.

It is easy to see how this code of silence came to have an iron grip on law enforcement.  Cops who found themselves assigned to police squads tainted by corruption were afraid to report the corruption — for their own safety and job security. After seeing how corrupt officers profit from their misconduct, many fall victim to the temptation themselves.

Higher ups who learned about corruption would no doubt be reluctant to expose the corruption of their own subordinates, because it would bring disgrace on the department and reflect badly on their leadership.

Plus, bucking the code of silence often results in retaliation against the whistleblower.  Even Internal Affairs investigators have an incentive to resolve investigations of cops in ways that do not blemish their department or expose their scandals.

Another factor which makes matters worse – when corruption is uncovered within the agency but not made public, often, rather than punishing the scofflaw, the agency solution is simply to transfer the corrupt cop out of the geographical area, to get them out of the picture before defense attorneys or the public find out and make a field day of it.

Just like priests who molest children and are transferred to a distant diocese, the transfer is not likely to cause the dishonest cops to repent and reform their corrupt activities.  They just move to a new territory where they can find fresh victims who are not wary of them for their past reputations.

2.  Corrupt cops sometimes team up with corrupt prosecutors to protect each other and invent evidence to “make cases”

In one of my appellate cases several years ago, the prosecutor had put on two police agents who testified that in their “expert opinion” a spreadsheet found in my client’s house represented the actual figures my client expected to reap from his medical marijuana crop (legal under California law) in the basement of his home.  The indoor plants measured 16 inches high, and the basement was only 15 feet by 15 feet.  In his opening statement the prosecutor said the spreadsheet proved my client expected to net “$1,856,000 per week” from this tiny garden.

The prosecutor walked the officers through their testimony about the spreadsheet, eliciting “expert testimony” that the spreadsheet represented how much money my client was actually grossing per week — even though he was arrested and his grow was shut down months before the dates in the spreadsheet ended.  It was very clear from the way the prosecutor presented the falsified evidence that he had encouraged the officers to make it seem as damaging as possible by the misleading way they presented the testimony.

At our post-remand hearing on the misconduct I showed that the agents had to have known that this spreadsheet was part of a rough draft for a dispensary in another city miles away – a dispensary which never came to fruition because my client  abandoned the idea without finishing the draft proposal and legal documents and draft Excel spreadsheet.

The prosecutor and his officers had to have known that the spreadsheet came from that irrelevant rough draft document — because the entire document, including the spreadsheet, was in the discovery materials the government turned over to the defense before trial.

At trial, my client’s trial attorney told the judge he believed the entire proposal — which would prove the spreadsheet was irrelevant to the grow — was in the material the government turned ove rin discovery, and asked for a recess to retrieve the discovery material from his office and locate the relevant pages. To thwart that plan, the prosecutor told a white lie – he pulled out the one page spreadsheet and a few surrounding pages, and argued that nothing immediately adjacent to that spreadsheet on either side was relevant to it, and therefore that it was a stand-alone document.  The prosecutor had to know the entire draft proposal including the spreadsheet was also in the government’s discovery materials, 100 pages away from the place where a single page of the spreadsheet was found.

Because the prosecutor mislead him, the defense attorney backed down and said he must have been mistaken, and withdrew his request for a recess to check the discovery materials.

We discovered the complete proposal was there in the discovery materials after all, while preparing the appeal.  (Ironically, the prosecutor caused the mid-appeal remand by questioning the validity of a document I had gotten from trial counsel, which I thought was one of the trial exhibits.  The actual marked trial exhibit had mysteriously disappeared during the interval between trial and the time I was able to get the record on appeal, and it was never found, but from the description of the document, it was the same document in substance, just printed out on a different printer.)

During the remand, when I started inquiring about this misconduct, I asked to see certain evidence that had never been turned over in discovery, including the hard drive backup of my client’s computer.  I wanted to see if there was any evidence that the cops had been the ones who entered the wildly escalating figures into the spreadsheet while they had custody of my client’s computer.  When the prosecutor started making excuses to avoid turning over the evidence, I demanded other evidence as well.  When we finally came to court for a hearing over their refusal to turn it over, the prosecutor  produced documents showing all of the evidence had been destroyed.  That very prosecutor had authorized  the destruction of some of the evidence while our direct appeal was still pending, and while he was in active litigation with us!

Among other outrageous claims made to explain the loss or destruction of evidence, one of the agents claimed that the physical evidence from the grow had been stored outdoors in a fenced lot at the local sheriff’s office for several years, and was destroyed by the department after the elements  had obliterated the evidence tags.  If true, that would have been a complete violation of DEA regulations regarding custody and storage of evidence.

After a particularly dramatic hearing in which I grilled both officers with the evidence of their misconduct, the judge made some statements indicating he couldn’t believe what the cops were saying, and I thought there was a chance he would do the right thing.

Instead, the prosecutor filed a motion arguing the court lacked jurisdiction to grant a new trial based on evidence of misconduct that came out during a mid-appeal remand, and the trial judge said his hands were tied, he couldn’t do anything about it.

The appeal was decided by a panel containing a new judge who had been appointed to the bench just before the scandal broke about his involvement in signing off on the “torture memo” which President Bush relied on to justify the torture at Abu Ghraib. He also wrote the opinion in my case, mangling many of the facts.  When I filed a motion to correct the errors, they issued another opinion, changing the facts but leaving the conclusion as is.

I was so shocked and appalled at the miscarriage of justice that I lost my confidence that justice would be served in this case.  I referred my client to another lawyer to do the post-conviction § 2255 (federal habeas corpus) motion. The new attorney filed a § 2255 petition outlining the misconduct, using the evidence I had developed in our mid-appeal remand, among other grounds for new trial.  The new attorney worked out a probably unprecedented plea deal that vacated the conviction and allowed my client to enter a plea to a lesser offense.  The settlement and plea agreement blamed the overturned conviction on the failure of trial counsel to advise the client of a plea bargain.  No mention was made of the prosecutorial misconduct.

The bad guys all got away with it. The two cops were transferred elsewhere.  The prosecutor is still there, no doubt doing the same thing.  The trial judge retired when my client filed the § 2255 petition.  Because of the plea bargain, my client got out after serving 7 years instead of 10, for conduct that was not illegal under California law.  I am happy to say that my client is no worse for the wear. He survived the ordeal without losing his optimism and integrity.  He is a great person and they did not diminish him at all. That is the only victory in his case.

Incidentally, a reporter covering this case told me that this prosecutor had gotten in some trouble at a previous office, and they transferred him out of that office to this current position to squelch the scandal.

3.  Judges often bend over backwards protecting police and prosecutors

I talked a little about judges’ unwillingness to do anything about government misconduct in the story above. Rather than add more war stories of my own to this long blog, I will instead give you the link to this scholarly report which was released today, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a study published by the National Association of Criminal Defense Lawyers.  (Note: The link is to a press release about the study.  Click the link in the second line of the press release to download the report in pdf format.)

4.  “Good ole boy” defense attorneys don’t report misconduct, and sometimes help cover up corruption

I recently took over a civil forfeiture case from another defense attorney, who was pressuring the  client to take a pre-indictment felony guilty plea he had arranged through his negotiations.  My client claimed to be innocent, and told me the police reports falsely portrayed the substance of the conversations central to the fraud allegations, so I asked the prior defense attorney for the audio tapes of the conversations.  He admitted he didn’t have them – he had never gotten them from the government.

Discovery had closed, but the government had responded to the civil forfeiture interrogatories by saying the defense could view the evidence instead, upon request.  The prior defense attorney hadn’t bothered to ask to view the evidence.  Instead he relied on the hearsay police reports, which summarized the evidence — falsely, as it turned out.

When I asked the forfeiture prosecutor for the audio tapes of the conversations, repeatedly, and he continue stalling, I pressed harder and found out he had never heard them either.  Because the defense attorney had not asked to view the evidence, the prosecutors had not bothered to obtain the evidence from the local police agency that investigated the case.   Neither my client’s former defense counsel, nor the civil forfeiture prosecutors, nor the criminal prosecutor who had negotiated the pre-indictment plea offer with him had ever seen the actual evidence.  Instead, all of them –  including the defense attorney – relied solely on the federal law enforcement agency’s summaries of the local police agency’s hearsay reports.

I had to file a motion to compel discovery to get them to turn over the evidence, even though they had promised to turn it over on request.  The audio tapes of the conversations between my client and the undercover agent, and those between my client and the (eventually convicted) fraudster were exculpatory for my client.  The actual evidence showed the officers’ paraphrases of the conversations in the police reports they turned over to prior counsel were false.

With so much misconduct turning up, I continued pressing until they turned over everything, including the transcript of the post-arrest police interview of the convicted fraudster, who  repeatedly told them that my client was not involved, and did not know he was committing fraud, and was “legitimate.”

Using the actual evidence instead of relying on false summaries by the police, I was able to convince the criminal prosecutor to close the investigation against my client without any charges.

During the week before we signed the settlement agreement in the forfeiture case, both of the forfeiture prosecutors who worked on the forfeiture case suddenly retired after 30+ years in the U.S. Attorney’s Office.

I would have referred the forfeiture prosecutors to their state bar for filing a civil forfeiture complaint alleging fraud without first reviewing the evidence, but they both retired before I could do that.  I called the state bar about the defense attorney’s attempt to plead a client guilty without even viewing the evidence, and they adamantly urged me to report the ethics violations, saying it was my ethical duty to report it.

I was reluctant because the defense attorney was well known and seemingly had a good reputation – which he certainly had not lived up to in this case.  He was a well connected “good ole’ boy.”  I  encouraged my client to report it to the bar.  You can guess what happened.  The bar employed a special rule that exempted the attorney because he regularly represented attorneys with disciplinary proceedings before the bar — and dismissed my client’s complaint summarily without actually reviewing the evidence we submitted. My client filed an appeal and they summarily denied that too, without an opinion.  I doubt they ever looked at the evidence.

My client filed a fee arbitration complaint seeking a refund of part of the $80,000 in fees the attorney had been paid. It was probably futile — the arbitration hearing would be heard by three arbitrators from the local bar association.  The attorney was a very active member in that bar association.  You can guess how that went.  They found in his favor, saying my client had not proven that he had provided inadequate or substandard service, or had not earned the $80,000 in attorneys fees which the client had paid him.

I am sickened to learn that the state bar and the local bar associations have the same code of silence  that has allow police misconduct to flourish.

So that is how it happens – our an entire judicial system and every component of the checks and balances that used to keep it somewhat honest — have now become inured to corruption. The legal ethics system of the bar, the last bastion of oversight for legal ethics – like many other government agencies — is apparently in bed with the people it is supposed to be policing.

In short, I agree with everything Mark Godsey said in his blog except this: “What’s newsworthy and novel about today’s plea is that a prosecutor was actually punished in a meaningful way for his transgressions.”

Yes, former prosecutor and judge Ken Anderson is newsworthy for going to jail for his misconduct, but 10 days in prison for falsely causing a person to spend 25 years in prison is not meaningful punishment.

Michael Morton, were he able to find an attorney willing to take his case, could  sue Anderson for civil rights violations, but we know how that would likely turn out.

Brenda Grantland

Brenda Grantland is a private attorney in Mill Valley California, with 30 years' experience primarily in asset forfeiture defense, as well as federal criminal appeals and victims rights and restitution. Brenda handles federal cases throughout the country, and frequently works with other attorneys or legal teams as a consultant or co-counsel.

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