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Burden of Proof
June 11, 2007
New Orleans CityBusiness
By Richard A. Webster
Editor’s note: The three-part Hidden Innocence series concludes today with a detailed look at how prosecutors can withhold evidence with little fear of punishment.
Shareef Cousin, John Thompson and Dan Bright were convicted of murder and sentenced to death in three separate cases in New Orleans.
The courts eventually acquitted and ordered the release of all three when it was discovered prosecutors had withheld vital evidence.
Cousin, Thompson and Bright are now free, but the anger, pain and economical punishment of their jail experiences linger.
The trio served more than 30 years combined in Angola State Penitentiary. Yet only one prosecutor found guilty of withholding evidence was penalized.
“They try to straight up execute me when they know I didn’t commit the crime,” Thompson said.
Thompson, a 44-year-old New Orleans native, still owns a photo of former Orleans Parish prosecutor Jim Williams, one of the men responsible for his conviction.
The photo, which originally ran with an article in Esquire magazine in the 1990s, shows Williams standing behind an expensive mahogany desk displaying a miniature electric chair. Seated in the replica execution device are photos of five men Williams sent to death row. Thompson is right in the middle.
“They call it malfeasance of office and get a slap on the wrist while I’m up at Angola on death row for 18 years. Somebody help me understand this,” Thompson said.
Of the five men in Williams’ toy electric chair, two men were exonerated, two sentences were commuted to life and one awaits a new trial.
Nick Trenticosta, director of the Center for Equal Justice in New Orleans, said Williams has a long history of wrongful conduct in capital cases but has never been punished. Williams refused to comment.
The Louisiana Supreme Court has only punished one prosecutor for withholding evidence despite 24 criminal convictions being overturned since 1990, including eight death sentences.
Between 1970 and 2003, Louisiana courts reversed 27 criminal convictions based on prosecutorial misconduct, according to the Center for Public Integrity. Of those 27 cases, 14 involved prosecutors withholding evidence from the defense.
In 2005, New Orleans prosecutor Roger Jordan was found guilty of withholding evidence in the case of Cousin, who was one of the youngest people ever sentenced to death at the age of 16.
The Louisiana State Supreme Court suspended Jordan for three months but deferred the suspension in light of his good reputation within the legal community. Jordan was unavailable for comment.
“Every death row exoneration occurred because the prosecutor failed to disclose exculpatory evidence,” said Trenticosta. “That’s an alarming statistic. These are calculated measures to take people’s lives away.”
George Bourgeois, deputy chief of the Orleans Parish DA’s screening division, said prosecutors are dedicated to the pursuit of justice and not mindless witch hunts.
“If the evidence shows a person is guilty, you prosecute. But if the evidence does not show that, you don’t prosecute. It’s as simple as that,” Bourgeois said.
Evidence withheld
Last week, Orleans Parish District Attorney Eddie Jordan dropped murder charges against Gerone Walls, 20, and Cedrick Curtis, 19, who were implicated in the 2004 shooting death of Daniel Breaux of Houma as he walked to his car from the New Orleans Jazz and Heritage Festival.
The New Orleans Police Department failed to disclose an 8-year-old witness had cleared the pair of any wrongdoing. The teenagers spent nearly three years in prison for a crime they didn’t commit.
Jordan’s office declined comment.
Dane Ciolino, a professor with the Loyola University New Orleans College of Law, said the withholding of evidence must be proven intentional, as opposed to a “good faith” mistake, in order to find a prosecutor guilty of misconduct.
“That’s the really hard part,” Ciolino said. “The bar is set extremely high. Unfortunately prosecutors, like any other lawyer, want to win and when they believe they’re on the side of the angels they don’t want anything to get in the way of winning.”
Pete Adams, executive director of the Louisiana District Attorneys Association, said prosecutors need the freedom to make legal decisions without the threat those decisions will be used against them.
“Prosecutorial discretion is critical to the criminal justice system,” Adams said. “Prosecutors should be able to make decisions free from the retaliation of defense lawyers who might make frivolous complaints against them in order to chill the decision-making process.”
Limited access
Ciolino said suppression of evidence could be avoided by instituting a statewide “open file discovery” law, which demands the prosecution give the defense all evidence, including witnesses, before trial.
In criminal cases, Louisiana prosecutors are obligated to share only evidence that could prove useful to the defense. But without an open file discovery law, the decision on what is useful and what is not is left entirely to the discretion of the prosecution.
This gray area often spurs accusations of evidence suppression, said Bourgeois.
“The prosecutor may have acted in good faith, but at a later date a court may decide the suppressed evidence was in fact exculpatory,” Bourgeois said.
In Louisiana civil cases, the defense is granted more access to evidence than in criminal cases such as rape and murder.
“Louisiana has the worst rules on discovery than any other state,” Trenticosta said. “Don’t you think the guy who is either going to be killed in the electric chair or lose his freedom for the rest of his life should have the opportunity to challenge what’s going on rather than have to wait until the witness hits the stand?”
Adams said many DA offices are instituting their own open file discovery policies.
Barron Burmaster, Jefferson Parish executive assistant district attorney, said his office did.
“There are no suppression of evidence issues with us because if it’s in our case file, the defense is going to see it,” Burmaster said. “Better safe than sorry.”
Emily Maw, director of the New Orleans Innocence Project, said she can’t find an open file discovery policy anywhere in the New Orleans area.
“The majority of wrongful convictions in the New Orleans metropolitan area have been either completely or partially attributable to the prosecutors withholding evidence that helped prove that the defendant was innocent,” Maw said. “That includes both the Jefferson Parish District Attorney’s Office and the Orleans Parish District Attorney’s Office. There was certainly no ‘open file policy’ in place when two 17-year-olds, Travis Hayes and Ryan Matthews, were tried and wrongfully convicted by the Jefferson Parish District Attorney’s Office in 1998 and 1999, respectively.”
The courts exonerated Matthews in 2004 and Hayes in 2007.
Prosecutors bullet-proof
It is rare for the Louisiana Supreme Court to suspend prosecutors for misconduct. Prosecutors also have absolute immunity from civil lawsuits when acting on behalf of their clients. Even prosecutors found guilty of wrongdoing cannot be sued and can only be cited for professional misconduct by the disciplinary board, which has only happened once.
Criminal charges cannot be brought against prosecutors found guilty of suppressing evidence, even if they destroy a file that could have proved the innocence of a defendant, said Burmaster.
“Do we want DAs making decisions based on what they think is the best thing to do or worrying about liability?” Bourgeois said. “It’s the same reason judges are given immunity so they can make decisions without any concern whether it will mean a lawsuit or not.”
This argument does not satisfy the men who lost decades of their lives at the hands of prosecutors found guilty of withholding evidence.
“These people figure they don’t owe me anything. But I think if you make an error, you should pay for that,” said Calvin Willis, a Shreveport native who served 22 years in Angola for a rape conviction courts later overturned. “They took away my life. What’s happened to them?”
Trenticosta said the treat of civil lawsuits could help keep prosecutors in line.
“As it stands, there are no deterrents to these prosecutors,” said Trenticosta. “If they get caught withholding evidence so what? Nothing happens to them. But if there was the possibility of losing some money maybe things would change.” |
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