Saturday, June 13, 2015


You've got to make them lose to make them learn.
That was Cathy Cook, arguing in the Supreme Court of Ohio about what it would take to get prosecutors to stop cheating, lying, hiding evidence in capital cases.  Instead, what the court did, routinely, was admonish.
Bad prosecutor.  Don't do that again.  Be aware, one of these days if you keep it up we'll reverse a conviction.
Empty threats.  No consequence.  No change in behavior.  The prosecutors were righteous, after all. They weren't breaking the rules in order to convict the factually innocent.  They were taking bad guys off the street.  No need for the niceties.  

So yeah, undoing some of those convictions based on prosecutor misconduct might achieve something - especially if the courts really had balls and said that they couldn't try the defendants again - even if the prosecutors said that they were bad dudes who'd done bad stuff.  Make 'em lose and maybe they'd learn.

Or maybe not.  Because really, the cops'll just bust the guys so they can do it again.  Or maybe the cops'll shoot next time and save everyone the bother.  I mean, they can do that with pretty much no consequence to them even without much in the way of justification.  See Michael Brown and Eric Garner and Tamir Rice and Freddie Gray and . . . .  Well, just look at Michael Brelo who was, after all, acquitted.*

Rick Horowitz suggests a different approach to the cops, making them have personal liability insurance for their police behavior (link removed).  
The most important component of this proposal is that if an individual is unable to obtain the insurance, they are unable to work as a law enforcement officer. Period. No ifs, ands, or buts. No workarounds.
This final part of the proposal provides a beautiful means of weeding people out of the force who should never be on the force in the first place. Let insurance company actuaries help clean things up. Individual insurance companies can develop their own means of deciding who to insure, and who not to insure. After all, assessing and deciding on what is acceptable risk is what they do.  
There's an elegance to Rick's proposal I like.  But it doesn't help us with the self-righteous prosecutors who'll do whatever it takes - and damned the rules.  After all, what's the risk to them.  Oh, sure, maybe some chewing out from a panel.  Embarrassing, but.  Ho hum.

And so, in the spirit of, here's something you don't see every day, I bring you to the Lone Star State where, you may recall, Anthony Graves spent 18 years in prison, 16 of them in solitary, 12 of them on death row, for a mass murder (6 members of a family, including 4 children) he didn't commit.  

How'd that happen?  Meet Charles J. Sebesta, Jr., the man who put him there.

He's the prosecutor who put on perjured testimony.

  • Who didn't tell the defense - or the jury - that Robert Carter, a co-defendant and the key witness against Graves, admitted the night before his testimony that he committed the crime alone and that Graves had nothing to do with it.  
  • Who had others testify that Carter had been consistent with his story implicating Graves knowing that their testimony was false.  
  • Who had Carter himself give the false testimony on the witness stand.
  • Who arranged for threats to prosecute Graves' alibi witness for capital murder if she testified, accurately, that he was with her and elsewhere at the time of the killings.

And who, oh yeah, there is a point to this, just got disbarred.

Prosecutors like to say that the bad guys need to learn there are consequence to them when they commit crimes.  Frankly, most of our clients don't understand those connections.  They've generally lived lives that haven't lent themselves to a clear understanding of cost-benefit analysis.  

But Sebesta?  He'd been preaching it for years.

Rule of Law for a change.

*Yes, I know that the Rice and Gray cases are still pending.


  1. Jeff, I am most likely correct in the assumption that Sebesta will suffer no civil or criminal penalties beyond this disbarment?

    1. He's got absolute civil immunity (an invention by the Supreme Court) for everything he did as a prosecutor. And lying and suborning perjury and hiding exculpatory evidence are things he did as a prosecutor. A few years ago, the Supremes were looking into taking up the question of whether a prosecutor might be liable for intentionally framing a person he knew to be innocent. The case settled and they dismissed it without ever exploring the merits. As far as I know (and there could certainly be things I don't know), there's no evidence that Sebesta actually believed Graves was innocent when he was securing his conviction and death sentence. In fact, he still seems to believe Graves was guilty, though I could be reading too much into his protestations that he did nothing wrong when I say that.

      As for criminal penalties, for whole bunches of reasons, legal and quasi-political, almost certainly not.

      So yes, you're correct.

    2. Of course, it doesn't matter whether he "believed" Graves to be guilty or innocent, the only question is whether he DELIBERATELY lied, cheated, fabricated evidence, suborned perjury and hid exculpatory evidence, etc., in which case he violated Graves' federal due process rights by a line of cases going back to 1935's Mooney v. Holohan. Since there was a trial here, the violation would be straightforward and unarguable no matter what Sebesta subjectively believed about Graves' guilt or innocence.

      Disbarring the prosecutor, or prosecuting the prosecutor, doesn't do anything for Graves, but I guess it makes other judges and prosecutors feel better about themselves, although that's not a good thing. We should all be ashamed of what happened here.

      Absolute immunity has been such a terrible idea. I agree that making them lose is important; but in my view it's even more important to make them pay. It won't be them paying personally, of course, it will be the municipality or the state or some insurance company or a combination of all three, but that's even better because that would start to affect the institutional culture at some point. When large amounts of institutional money have to be paid out because of certain kinds of misconduct, the powers that be take a serious interest in curbing that kind of misconduct. Absent that, you're likely to get empty gestures at best, and that's what the disbarment really is.

      And making them pay would also compensate Graves, who is absolutely entitled to be compensated handsomely.

      It's a win-win, and except for that pesky absolute immunity doctrine that's probably how things would pan out.