Tag Archives: misconduct

Killing innocents

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Jail_barsWe struggle with the question of how to kill those convicted of killing others.

Arkansas apparently is struggling to win the indoor record for killing the most on death row in the shortest period of time, 8 persons in 10 days.

Some people on death row are saved by the bell.

Eight men on death row in Arkansas have been saved by midazolam – at least for awhile.

The current death cocktail requires that the person be put asleep with midazolam so that he is not awake when two other drugs suffocate and kill him.

So what’s the hold up?

Midazolam doesn’t always work.

A federal judge, Kristine Baker, wrote an 101 page decision concerned that the drug doesn’t work, thus stopping the executions.

Our society is in a bad place when we talk about how we kill inmates instead of whether we should at all.

Arkansas is so anxious to kill they intend to appeal the judge’s ruling.

There are plenty of good reasons not to execute anyone.

The best reason is that the so-called judicial system doesn’t get it right; it convicts innocents.

Damien Echols was convicted as a teenager in Arkansas with two friends for murdering three boys.  They suspected he was part of a satanic cult.  He spent about two decades on death row waiting for his execution.  DNA proved he did not commit the crime.

Some people believe that if Virginia had better-paid criminal defense lawyers with more administrative and investigative resources, it would have a better criminal justice system.

That’s just not the case. Continue reading →

FBI Director Comey bobbles confidential investigative info

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gallery_justiceWhen I was a New York federal prosecutor, in the same Manhattan office where FBI Director James B. Comey served under then US Attorney Rudolph Giuliani, we did not ever say publicly that we had an “ongoing investigation,” because we wanted to protect the investigation from disclosure, it was also against Justice Department guidelines, and we did not want to expose anyone to ridicule and humiliation who might never be charged or prosecuted.

Nor would we release information about a public official in an imminent election, less than two weeks away in the presidential election at hand, and we would never have “suggested” there might be wrongdoing when we had no evidence whatsoever of wrongdoing – and you don’t have any evidence – if you haven’t even asked a federal judge to issue a warrant to review the “suspect” information.

When Director Comey wrote the U.S. Congress, telling them that he had information from an “unrelated” investigation, he admitted he didn’t know if it “contained classified information.”

Nor could he say he had anything “important.”

Director Comey wrote Congress to tell them the FBI had to “assess their importance.”

And Director Comey couldn’t say that what he had was “significant.”  Director Comey confessed that “the FBI cannot yet assess whether or not this material may be significant.”

Director Comey felt he had to explain himself to FBI personnel, as what he was doing was unprecedented; he wrote, “We don’t ordinarily tell Congress about ongoing investigations.”

Director Comey thus did what was extraordinary and he knew it. Continue reading →

Prosecutors who cheat justice

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John P. Flannery asked Judge Kozinski about criminal justice reform

John P. Flannery asked Judge Kozinski about criminal justice reform

Loudoun Circuit Court Judge Thomas D. Horne, as Chair of a “Special Committee on Criminal Discovery Rules,” sought to put a stop to prosecutors ambushing the Accused at trial and, even worse, from withholding evidence of innocence or wrongdoing cabined away by the prosecutor or by his investigators or witnesses; Judge Horne sought to bring “clarity and transparency” to the process.

Anybody who has suffered our criminal justice system knows that you get more information, by law, in a $500 bad debt civil case than if your freedom and reputation are on the line in a criminal case.

Judge Horne’s committee recommended reforms to the “system” to cure these defects. But the Supreme Court of Virginia accepted not one of the long needed reforms.

The best prosecutors in the Commonwealth and across the nation have an open file policy – meaning the Accused gets to see what’s in the prosecutor’s files – because these prosecutors believe their primary directive is to do justice, not to win at all costs.

When I was a federal and a state prosecutor we opened our case file because we knew an adversary for the Accused might see something we overlooked and, even when a witness might be at risk, we’d find a way to make critical information available.

It is an open secret that this nation’s dockets are awash in unjust convictions and too severe sentences because full and fair discovery of what the prosecution knows is withheld on a daily basis.

The most egregious prosecutorial lapses occur with information characterized as Brady, that is, evidence that contradicts the government’s charges, impeaches their witnesses, and mitigates against the more severe punishment the prosecutor is demanding.

US Chief Judge Alex Kozinski, from the Ninth Circuit federal appellate court, wrote in United States v. Olsen, 737 F. 3d 625 (9th Cir. 2013) – “[T] here is an epidemic of Brady violations abroad in the land.”

Judge Kozinski went further and said that there are too many “rogue investigators and forensic experts.” You’ve seen the reports of various federal and state labs impeached by bad practices and outright fraud including how the FBI estimated that over ten thousand cases going back to 1985 involved lab misconduct. Continue reading →