Tag Archive | Malicious Prosecution

Series of Articles Alleging Prosecutorial Misconduct alleged Capital Cases

Prosecutorial misconduct alleged in half of capital cases

Part 1 of 4

Noel Levy was Arizona Prosecutor of the Year in 1990 when he convinced a jury to convict Debra Milke of first-degree murder for allegedly helping to plan the murder of her 4-year-old son.

A year later, he convinced a judge to send her to death row.

It was a scandalous case: Prosecutors charged that in December 1989, Milke asked her roommate and erstwhile suitor to kill the child.

The roommate and a friend told the boy he was going to the mall to see Santa Claus. Instead, they took him to the desert in northwest Phoenix and shot him in the head.

But neither man would agree to testify against Milke, and the state’s case depended on a supposed confession Milke made to a Phoenix police detective.

Milke denied confessing.

The detective had not recorded the interview, and there were no witnesses to the confession.

When Milke’s defense attorneys tried to obtain the detective’s personnel record to show that he was an unreliable witness with what a federal court called a “history of misconduct, court orders and disciplinary action,” the state got the judge to quash the subpoena.

“I really thought the detective was a straight shooter, and I had no idea about all the stuff that allegedly came out,” Levy recently told The Arizona Republic.

But in March of this year, after Milke, now 49, had spent nearly 24 years in custody, the 9th U.S. Circuit Court of Appeals threw out her conviction and sentence because of the state’s failure to turn over the detective’s personnel record so that Milke’s defense team could challenge the questionable confession.

The 9th Circuit put the onus on the prosecution.

“(T)he Constitution requires a fair trial,” the ruling said, “and one essential element of fairness is the prosecution’s obligation to turn over exculpatory evidence.”

The 9th Circuit judges ordered that Milke be retried within 90 days or be released.

The chief circuit judge referred the case to the U.S. Attorney General’s Office to investigate civil-rights infringements. Under the 9th Circuit order, prosecutors must allow the detective’s personnel record into evidence if they use the contested confession.

Prosecutors are responsible for the testimony of the law-enforcement officers investigating their cases. Cops and prosecutors are the good guys. They put criminals in prison, sometimes on death row. Juries tend to believe them when they say someone is guilty. They don’t expect them to exaggerate or withhold evidence. They don’t expect their witnesses to present false testimony.

Yet The Arizona Republic found that, when the stakes are highest — when a trial involves a possible death sentence — that’s exactly what can happen.

In half of all capital cases in Arizona since 2002, prosecutorial misconduct was alleged by appellate attorneys. Those allegations ranged in seriousness from being over emotional to encouraging perjury.

Nearly half those allegations were validated by the Arizona Supreme Court.

Only two death sentences were thrown out — one for a prosecutor’s tactics that were considered overreaching but not actual misconduct because a judge had allowed him to do it.

Two prosecutors were punished, one with disbarment, the other with a short suspension.

There seldom are consequences for prosecutors, regardless of whether the miscarriage of justice occurred because of ineptness or misconduct.

In fact, they are often congratulated.

Since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials, according to The Republic’s examination of court documents.

And when prosecutors push the limits during criminal trials, whether crossing the line into misconduct or just walking up to it, there are risks: Convictions like Milke’s get overturned, even if it takes 24 years, and innocent people, like Ray Krone, go to prison.

See more stories at:
http://www.azcentral.com/news/arizona/articles/20131027milke-krone-prosecutors-conduct-day1.html?nclick_check=1

New York Times Editorial on the Brady Rule

The New York Times

The New York Time’s Editorial Board advocates laws that require open file policies in felony criminal cases.

Miami judge calls child support prosecutor’s actions ‘reprehensible’

The Miami-Dade State Attorney’s office must pay $7,645 in legal fees to a man who was wrongly accused of owing money to his ex-wife.

BY DAVID OVALLE

DOVALLE@MIAMIHERALD.COM

When his ex-wife falsely accused him of shirking on $3,632.25 in child support, Miami businessman Tony Schehtman discovered that the government had stripped him of his passport.

That sparked a lengthy legal dispute that ended in unusual fashion: a Miami-Dade judge chastised prosecutors for going along with the claim, then ordered them to pay Schehtman’s legal bills.

The judge’s unusually scathing order sanctions prosecutors and Schehtman’s ex-wife, ordering them to each pay $7,645 in legal fees. Circuit Judge Pedro Echarte, in his Jan. 8 order, called their actions “reprehensible” and “irresponsible.”

The judge said that even though Schehtman had proven he was not in arrears, the prosecutors failed to correct the wife’s claim, instead quibbling in court for months and hindering Schehtman’s ability to travel for work.

“This court finds that the State Attorney’s Office engaged in pointless litigation,” Echarte wrote.

Prosecutors have decided against asking a higher court to review the judge’s decision.

“We are not appealing the judge’s order despite a belief in the merits of our position,” said spokesman Ed Griffith.

The legal clash stems from a bitter divorce between Schehtman and former wife, Lina Maya-Schehtman. Together, they have a 6-year-old son.

Schehtman describes himself as the CEO of International Technologies Marketing, a tech sales firm focused on Latin America.

The State Attorney’s Office, through Florida’s Department of Revenue, is tasked with enforcing the payment of child support.

In December 2010, Maya-Schehtman went to the State Attorney’s Office and filed a routine sworn-affidavit alleging her ex-husband was late on child support.

Schehtman, the judge later found, filed documents with the court and prosecutors showing the affidavit was wrong. Prosecutors nevertheless “certified” the delinquent child support, reporting it through a computer system to the Florida Department of Revenue.

In Tallahassee, any “non-custodial” parent who owes more than $2,500 in back support is then automatically reported to a federal child support office, which then notifies the U.S. State Department — which then freezes the person’s passport.

Schehtman — who says he travels often to Latin American for business — did not know the document had been frozen until he went to renew his passport. He was out of work for several months, his lawyer say.

“This is one of the most egregious cases I have ever witnessed in 19 years of practicing family law,” said Schehtman’s lawyer, Jonathan Jonasz.

A slew of court hearings followed. Prosecutor Stephen Glazer told the judge that as they soon as they learned the wife was wrong, they tried to amend the affidavit. Echarte didn’t buy it.

The State Attorney Office’s said the case has sparked change in internal policy. Now, the office does not report back child support payments to Tallahassee based only on a sworn affidavit — instead, prosecutors wait for a court order.

“We acknowledge that no system is infallible,” spokesman Griffith said. “The State Attorney and her leadership team are constantly seeking ways to improve the process. This case has afforded such an opportunity.”

Schehtman has since hired San Francisco lawyer John G. Heller to explore a civil lawsuit.

“The State Attorney deprived a law-abiding citizen of a fundamental liberty: his freedom of movement,” Heller said. “We will do what it takes to make sure this never happens again.”