Mark Godsey: For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully Convicting an Innocent Man

Ken Anderson defends himself at a Court of Inquiry investigation in Georgetown, Texas, on Feb. 8, 2013. (Photo via Propublica.org)

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.
What makes today's plea newsworthy is not that Anderson engaged in misconduct that sent an innocent man to prison. Indeed, while most prosecutors and police officers are ethical and take their constitutional obligations seriously, government misconduct--including disclosure breaches known as Brady violations--occurs so frequently that it has become one of the chief causes of wrongful conviction.
What's newsworthy and novel about today's plea is that a prosecutor was actually punished in a meaningful way for his transgressions.

Disgraced Judge Ken Anderson

I give speeches about the Innocence Movement, and tell stories from real cases, all around the world. No matter where I am, when I finish speaking the first question usually is, "What happened to the police/prosecutors who did this to the poor guy?" The answer is almost always, "Nothing," or worse, "The police officer was promoted and now is the chief of his department." The adage that the powerful go unpunished is no truer or more visible than with police officers and prosecutors in America--even when they send innocent people to prison from their misconduct.
My client Roger Dean Gillispie of Dayton, Ohio, for example, spent 20 years in prison as a result of police misconduct. In 2007, we presented overwhelming evidence that the police officers, like Anderson in the Morton case, failed to turn over evidence to the defense before trial that would have cleared Gillispie. We also supplied the court with evidence that the police officer in charge had harassed and intimidated witnesses helpful to the defense, and had manipulated the evidence. Before going to court to clear Gillispie, we met with the local prosecutors, hopeful that they wouldn't tolerate such misconduct and would do a thorough (and neutral) investigation to get to the truth. Instead, they simply denied everything in knee-jerk fashion, and fought to keep Gillispie in prison until a federal court finally found government misconduct and threw out his charges in December 2011. To this day, the police officer in the case has not been investigated by a neutral, independent body. The only thing he has received is promotions.
Rogue cops and prosecutors going unpunished is the rule rather than the exception. In Illinois, two police officers whose improperly grueling interrogation techniques led to the wrongful conviction of Juan Rivera and others were not penalized when their 3rd degree tactics came to light. Rather, they were recently hired at taxpayer expense to teach interrogation courses to other police officers around the state.
A recent study found prosecutorial misconduct in nearly one-quarter of all capital cases in Arizona. Only two of those prosecutors have been reprimanded or punished. This led the Arizona Republic to conclude:

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.

Other studies/articles with similar troubling results can be found here, here, here, and here.
Fortunately, there is something very simple that judges across the country can do to eradicate this problem. All judges, state and federal, should issue the standing "ethical rule order" proposed by the Hon. Nancy Gertner and Innocence Project Co-Founder Barry Scheck. The proposed order requires prosecutors to disclose, pre-trial, all evidence that "tends to negate the guilt of the accused or mitigates the offense." Details regarding the proposed ethical rule order, including all the justifications supporting it, can be found in this article by Barry Scheck.

Michael Morton, exonerated in October 2011 (Photo via innoncenceproject.org)

The reason such standing ethical rule orders are important is that they allow prosecutors, like Ken Anderson, to be held in criminal contempt if they are later found to have engaged in misconduct. Anderson could be punished today only because such an order had been issued in the Morton case.
Today's conviction of Ken Anderson stands out as an extreme aberration in a society where police and prosecutorial misconduct goes largely unpunished. But it is a step in the right direction. Hopefully, today's result will deter rogue cops and prosecutors in the future from engaging in similar misconduct. But this will happen only if judges across the country do what the judge did more than 25 years ago in the Morton case: issue an order requiring that proper disclosure to the defense, or risk criminal contempt proceedings.

This post originally appeared in The Huffington Post.
Mark Godsey is a Professor of Law at the University of Cincinnati College of Law and the Director of the Ohio Innocence Project.  Follow him on Twitter @wrongconvblog

Visit http://www.innocenceproject.org

  

More Than a Protest Novel: Connecting the Dots - 1.5MillionBlack(Wo)Men Missing

From L to R Kathy Horan, Oresa Williams, Iesha Sekou, Andre T. Williams, and Marlon Peterson

It seems that when we as a people speak out against institutional violence against us, the response falls within one of two misguided narratives.  The first, is that we must have done something to deserve it.  Most people I know personally are intelligent enough to know cheap deflection when they hear it since unfortunately, victim blaming isn't unique to racial issues.  The other narrative supports the farcical notion that because poor black neighborhoods experience extreme violence, something that's more a function of socioeconomic circumstances rather than racial pathology, that we should be silent on institutional abuses until those afflicted communities are a utopia of peace and understanding.  Last time I checked, most of us could walk and chew gum at the same time and its why it always feels like a breath of fresh air when I get to meet people who do it well enough to have made it their life's work.

This panel was an event specifically designed to discuss youth violence in the ghetto, disseminate information on organizations that are trying to combat it, and to brainstorm on what steps can be taken to stem the tide.  The most recent senseless death weighed heavily on everyone's perspective, the unconscionable murder of NY Deputy General Counsel Carey Gabay -- a Harvard grad and fellow Jamerican,   illustrating why organizations like these are needed.  The featured speakers were people who'd been deeply impacted by the violence they'd experienced in their own lives but chose to actively do something about it instead of simply accepting it or letting it break their spirits.

Desean Hill (1995-2003)

Andre T. Mitchell, founder of Man UP!, Inc., spoke about how the death of an 8 year old East New York child, Desean Hill, spurred  him action.  A decade later, Man Up! has grown to be a force for good in Brooklyn, becoming one of the most impactful and effective community groups in the city. They intervene and connect with kids before they fall victim to the lies of the fast life and support them on their journey to adult hood.  Their members also participate in a positive kind of recidivism, giving back to the group that helped them so others can benefit and follow the same path.  Their work has been so life changing, it warranted coverage from local news outlets usually more concerned with black bodies than black success stories.

Marlon Peterson, founder of the Precedential Group, spent a decade in prison for an armed robbery that resulted in death of his friend.  He shared a personal story about how circumstances and bad choices can scar you for life and despite everything that he's done positively since his release, there are still people who will never see him as anything more than a criminal, specifically the loved ones of the person that died as a result of his actions.  He has worked tirelessly with his group to arrest the cycle of violence where they can through his writing, which has appeared in many major publications and websites, and speaking engagements like this.

Iesha Sekou, CEO of Street Corner Resources

Iesha Sekou, founder and CEO of Street Corner Resources, is one of those people who is more of a force of nature than a personality.  She, more than anyone one the panel, made me smile with her unapologetic style and straightforward approach.  I always love those women that not only stand in their purpose but wield it like an Zulu spear, effecting positive change without compromising her values.  Iesha, like most of the panelists shared a personal story of how violence shaped her worldview and how it compelled her to be the voice to the voiceless through her radio show and irrepressible activism.  She's a member of more committees, councils, and organizations than I, ashamedly, can remember but she was by far my favorite panelist.

The story of final panelist, Oresa Napper Williams, founder of  the grief support organization Not Another Child, hit closest to home and was absolutely heartbreaking.  Her son was taken from her when he was 13, murdered by a 15 year old following the orders of a 32 year old thug.  Her story was how her organization helped her become functional again by helping others who were suffering like she was.  She even found a way to forgive the boy who killed her son.  The main reason she was able to do so was because the boy was grieving for her son as much as she was.  He didn't want to do it but the 32 year old threatened him.  To make it worse, it was a case of mistaken identity that the 32 year old tried to justify at his sentencing hearing by dragging Oresa's son's reputation through the mud.  Saying he shouldn't have been where he was or standing or with the people he was standing with as if caused his own death by being at the wrong place at the wrong time.  That kind of scapegoating is all too familiar.  There was one aspect of her story that I found surprising, though.  After her son's death, some of her family chose to "move on" by not speaking his name.  She didn't need to say it but the look on her face was one I recognized as she spoke.  It was like they were killing him all over again.  He existed.  He lived, loved, laughed, cried, and meant something to the people who loved him.  I can't imagine how pretending he was never here, like he never mattered, could be construed as "healing."

The young man's name, by the way, is Andrell Napper.

Petra Lewis w/ Kathy Horan

The night ended with a reading from the best selling novel "The Sons and Daughters of Ham Book 1: A Requiem by the author herself, Petra Lewis, to whom I am grateful for inviting me.  This was followed by a Q & A with former WNYC reporter turned podcaster, Kathy Horan, where shared her personal story of how violence touched her life (stabbed in the leg at a night club, Uncle killed by a hitman hired by an ex, and a friend shot in the head) and she turned her grief into a critically acclaimed novel.  She urged those of us who had been similarly touched to give back through partnering with the organizations represented who've already done a lot of ground work.

It's tough to relate to the horrific scenarios described if you've never lived them but we can all relate to the grief of losing someone you love.  We live, we love, we bleed, we cry, and we hurt just like everyone else and that truth of our humanity should strike a chord with everyone, regardless of background.  Solving violence among our children is important work but also dependent on factors that are way beyond the control of the community itself.  Some of them are familiar like, lack of government funding for education, high unemployment, and poorly maintained infrastructure.  Others are more insidious like media and entertainment re-inforced negative stereotypes and historical precedent of discrimination.  In short, there is a lot of work to do and we'll need all the help we can get.
 
 


Here are a list of links of the attendees with info on how you can get involved.

Man Up! Inc., Founder A. T. Mitchell  http://www.manupinc.org/
Contact: atmitchell@manupinc.org
Not Another Child, Founder Oresa Napper Williams http://notanotherchild.org/
Contact: oresa@notanotherchild.org
Street Corner Resources, Founder Iesha Sekou http://scrnyc.org/
Contact: ieshasekou57@gmail.com
The Precedential Group, Founder Marlon Peterson http://www.precedentialgroup.com/
Contact: precedential@gmail.com
Petra Lewis http://www.hamnovels.com
Contact: Petra@Petralewis.com

Thabo Sefolosha shows why 'sticking to sports' isn't a viable option

Three years ago, LeBron James and his teammates paid tribute to slain teenager Trayvon Martin. The decision drew praise from many and scorn from others. Stick to sports, they said. A year ago, in the wake of the killing of Mike Brown by a police officer in Ferguson, five St. Louis Rams made the "hands up, don't shoot" gesture while entering the field. The decision drew praise from many and scorn from others, including St. Louis' police union. Stick to sports, they said. Ten months ago, in the wake of a grand jury declining to indict a New York City cop who choked Eric Garner to death for selling loosies, Derrick Rose wore a t-shirt that read "I can't breathe," a nod to Garner's tragic final words. The decision drew praise from many and scorn from others. Stick to sports, they said.

Last April, Thabo Sefolosha of the Atlanta Hawks got his leg broken by a New York City cop for no good reason. Thabo Sefolosha didn't have the option of sticking to sports, did he?

After breaking Sefolosha's leg, authorities pursued obstruction charges. The case against Sefolosha was comically weak. Reports suggest prosecutors offered him a plea deal which would commit the player to a day of community service and result in charges being dropped so long as Sefolosha (who had no record whatsoever) didn't get in trouble in the next six months. He declined the deal. Later, prosecutors came back with a better offer: no community service, charges will be dropped in six months if Sefolosha's (clean) record remained clean. He declined that deal, as well. On Friday, a jury of Sefolosha's peers completely and quickly exonerated the player.

Thabo was lucky. He had the money to hire a good lawyer. He had a boss, Hawks coach Mike Budenholzer, willing to testify in support of him. He's represented by a union that went to bat for him, both in ensuring he'd get a paycheck despite his injury and in ensuring he had what he needed as the case went to trial. Thabo was lucky in that he's a professional basketball player and not someone without the resources to defend himself in court.

Thabo was also lucky that the cop Thabo faced didn't put him in a fatal chokehold or unload a handgun into him. Being a pro basketball player didn't save him from those fates, because as Thabo learned all too well, being a pro basketball player won't save you from an overzealous police offer intent on misusing his badge and his authority. This could have been much worse. For others, it has been much worse.

This is why LeBron and Rose speak up when injustice and death befalls other Americans: because they know it could just as well have been them. It's not about cops, either: both LeBron and Rose and countless other pro athletes (black and white) have been vocal about social issues that affect our communities because they know it could all happen to them. Rose has donated millions toward programs intent on stemming the bloodshed caused by gun violence in Chicago. LeBron recently spoke out in support of gun control measures after a series of tragedies in Cleveland.

John Wall and other NBA stars have offered their public support and cash for similar efforts far beyond the narrow concern of police violence. In many cases, they do these things because they see themselves in the people they are helping. LeBron, Rose and Wall remember what it was like to grow up in neighborhoods without hope, and they understand the power their examples and their resources hold. That's why they don't stick to sports.

Thabo Sefolosha may have never intended to defend the free speech of pro athletes when he set out to exonerate himself, but he didn't skirt those responsibilities either.

"It's troubling to me that with so much evidence in my support that this case would even be brought to trial and that I had to defend myself so hard to get justice," he said in a statement. "It pains me to think about all of the innocent people who aren't fortunate enough to have the resources, visibility and access to quality legal counsel that I have had.

Sefolosha didn't stick to sports. By standing up for himself, he held strong for others. Social activism should never require justification.

This article originally appeared on SB Nation written by Tom Ziller.  Follow him on Twitter @teamziller