Saturday, August 7, 2010


Let's say you're a prosecutor.  Let's say you've put people in prison.  Let's say that some of them claim to be factually innocent.  Let's say that some of those believe DNA testing will prove it.
If you're a prosecutor of decency, integrity, and fairness, you almost surely think they're wrong.  You wouldn't have pursued the prosecutions unless you believed the people guilty.  Even after they were convicted, had they come to you with compelling evidence of a mistake, you'd have joined them in requesting their names be cleared.  You know, after all, that there's a double injustice when the innocent are convicted of crimes.
  • The innocent suffer.
  • The guilty escape.
You do not sanction such results.  You understand that humans can make mistakes and even their best systems can err.  Whatever power you have, you will use to undo such errors.
And so, if you were one of the prsoecutors to whom Governor Ted and General Cordray wrote last week asking that you permit DNA testing (at no cost to taxpayers, by the way) on behalf of a convicted person, you would have understood that DNA testing could have one of three outcomes.
  1. It could confirm guilt.
  2. It could prove innocence.
  3. It could be inconclusive.
None of those outcomes would offend you.  So when you got that letter, you'd immediately have said,
Of course.  But why just that person?  Let's do DNA tests in any case where there's a chance, however remote, they might provide proof one way or another.
Which explains, perhaps, why you are not a prosecutor.
Those letters from the Governor and the General?  I wrote about them on Thursday. They were sent to seven prosecutors around the state urging each of them to permit DNA testing in a particular case where they'd opposed it.
The seven cases included one where the convicted person was dead, three where the people were no longer in prison but hoped to clear their names, one of a man on death row, and two of other current prisoners.  In their original report in the Columbus Dispatch, Mike Wagner and Alan Johnson allowed Ted to explain.
"I really think it's irrational not to take advantage of methods that could establish either guilt or innocence when those technologies are available to us," Strickland told The Dispatch. "I can think of no good argument why anyone would be denied DNA testing if, in fact, there is a reasonable or relevant opportunity to bring clarity to whether or not someone is guilty of a crime." 
Like I say, you'd think so.  But you wouldn't be a prosecutor.  We know that, because now four of the seven prosecutors have responded, as has John Murphy, the Executive Director of the Ohio Prosecuting Attorney's Association.  Are you really going to be surprised when I tell you that they aren't just jumping at the prospect of "bring[ing] clarity"?  Johnson and Wagner have a follow-up report in today's Dispatch.
Several prosecutors urged to permit DNA testing in specific criminal cases are firing back at Gov. Ted Strickland and Attorney General Richard Cordray, accusing them of "political grandstanding" and taking sides against victims.
Four of seven prosecutors in the cases under scrutiny, as well as the Ohio Prosecuting Attorneys Association, sent critical letters in response to Strickland and Cordray's requests this week.
Thus far, none has agreed to what was acknowledged as a voluntary request for DNA testing.
John Murphy, head of the prosecutors' association, said he was "deeply dismayed and surprised" that prosecutors were not consulted in advance.
"The action you have taken unfortunately gives the impression that you have taken sides, and you have done so with only the convicted criminals' side of the arguments," he told Strickland and Cordray.
Let me pause, for a moment, to ask what the hell these guys are talking about?
One example will do.  Tyrone Noling is on on death row from for a double murder in 1990.  He insists he is innocent.  The Cleveland Plain Dealer took up his case several years ago and raised some serious questions.  The paper made public records requests and discovered potentially exculpatory evidence that had been concealed from the defense.   The prosecutor insisted that Noling's lawyers couldn't use that information.  Regina Brett wrote about what happened next in her column in the PD.
The prosecutor's file contains facts that might free a man on death row.
But for 10 years, Tyrone Noling and the attorneys handling his appeals haven't been allowed to see them.
They didn't know the information existed until Plain Dealer reporter Andrea Simakis found it.
Ohio doesn't have open discovery. Prosecutors don't have to open their files and share with the defense. They can actually hide information.
Journalists can get information that the defense can't.
What's at stake?
Only a man's life.
The prosecutor's file shows that police had two other viable suspects in the 1990 murders of Cora and Bearnhardt Hartig in Atwater Township.
One suspect matched the description of a man seen near their neighborhood the day of the murder. The suspect said he didn't know the couple. He lied. He sold them insurance.
The other suspect owned a gun that ballistic tests showed could have been used to kill the Hartigs.
Don't tell anyone. Tyrone Noling sits on death row, even though three guys who testified against him have recanted.
The prosecutors don't seem interested in who is guilty or innocent. They already got a victory.
They fought to keep it last week in Portage County, where Judge John Enlow could -- and should -- grant Noling a new trial.
Assistant prosecutor Pam Holder argued, "I'm a little concerned The Plain Dealer is releasing information to the public that's not available to the defendant. . . . "
She's not concerned that the information could free Noling.
She's not concerned that the information could mean they convicted the wrong man.
She's concerned that the media are letting everyone know about it.
She wasn't arguing that the information doesn't exist. She was arguing that Noling shouldn't get to see it.
That was three and a half years ago.  Noling remains on death row.
As I always say at times like this, I don't know what happened that day in 1990.  I've never represented Tyrone Noling.  I've never met him.  I don't have any idea whether he killed those people.  But damn, what's the risk?  Where's the harm?  Why hide the evidence?  And to bring it back to where we started,
But you see, Portage County Prosecutor Victor Vigluicci is among those who say he's refusing to go along with the Governor and the General.
Because, well, damned if I know.
* * * * *
And it's not just DNA.  Regina Brett's column was about Ohio's need for open discovery.  In civil cases, both sides have, essentially, all the evidence before trial.  Of course, in civil cases we're talking about something important, like money.  In criminal cases, where liberty and sometimes life is on the line, the rules are different.  The prosecutor gets to keep much of its evidence secret.  The result: Trial by ambush.  Brett spearheaded years of effort to get that changed.
And changed it was.
Effective July 1 this year, we have open discovery in Ohio (Rule 16, here).  The rules aren't perfect.  To get it enacted, the criminal defense bar and the prosecutor had to work together and the result was compromises on both sides.  But it's an enormous step forward.
The catch, of course, is that it assumes good faith on everyone's part.  I mean, it's fine to have a rule that says, the prosecutor must reveal police reports to the defense (which is part of what the new discovery rules say and is a dramatic improvement), but what can you do if the prosecutor just slips one of the reports out of the file and puts it in a secret, second file?  The rules forbid cheating.  They don't make it impossible.
Anyhow, one of the rules involves the names of witnesses.  Prosecutors are to turn them over to the defense.  There is, of course, an exception.  It's Rule 16(D).
Prosecuting Attorney’s Certification of Nondisclosure. If the prosecuting attorney does not disclose materials or portions of materials under this rule, the prosecuting attorney shall certify to the court that the prosecuting attorney is not disclosing material or portions of material otherwise subject to disclosure under this rule for one or more of the following reasons:
(1) The prosecuting attorney has reasonable, articulable grounds to believe that disclosure will compromise the safety of a witness, victim, or third party, or subject them to intimidation or coercion;
(2) The prosecuting attorney has reasonable, articulable grounds to believe that disclosure will subject a witness, victim, or third party to a substantial risk of serious economic harm;
(3) Disclosure will compromise an ongoing criminal investigation or a confidential law enforcement technique or investigation regardless of whether that investigation involves the pending case or the defendant;
(4) The statement is of a child victim of sexually oriented offense under the age of thirteen;
(5) The interests of justice require non-disclosure.
Reasonable, articulable grounds may include, but are not limited to, the nature of the case, the specific course of conduct of one or more parties, threats or prior instances of witness tampering or intimidation, whether or not those instances resulted in criminal charges, whether the defendant is pro se, and any other relevant information.
The prosecuting attorney’s certification shall identify the nondisclosed material.
See, that's to allow nondisclusure in the exceptional case where there's a serious reason based on "reasonable, articulable grounds" to hold back some information.
Did I say the exceptional case?  Did I mention that these rules only work when applied in good faith?  Did I mention Joe Deters?
Deters is the prosecutor in Hamilton County, Ohio.  That's Cincinnati.  Here's his position (I'm trying to be fair about this) as reported by Kimball Perry in today's Cincinnati Enquirer.
In some murder cases, there have been threats of witness intimidation and an actual killing of a witness in a murder case.  Therefore, he's witholding witness names in all murder cases.
An angry Deters announced last month that he was sick of witness problems in murder cases and would withhold witness names in them after a witness in the Keyvonte Criswell's murder case was killed.
Criswell was in the Hamilton County Justice Center charged with murder in the Feb.15 killing of Jerald Travis. While in jail, Criswell is accused of telling relative Desmond Criswell and friend James Johnson the name of the lone eyewitness to the killing - Aaron Burns. Johnson and Desmond Criswell went online to the Clerk of Courts website, printed a list of witnesses in the case and went hunting for Burns, Deters said.
"The (alleged) killers were walking through the neighborhood with a Clerk of Courts witness list," he said.
On June 15, they gunned Burns down, Deters said, so he couldn't testify.
Johnson and both Criswells are indicted for Burns' slaying.
Deters and his assistant prosecutors are frustrated with witnesses who are reluctant, terrified or refuse to get involved because they don't want to be labeled a "snitch."
They're tired of cell phones being whipped out in court and pictures taken of testifying witnesses. They're concerned that people they believe are cold-blooded killers could escape justice because of fear and intimidation.
Let's see.  In this one case, folks got the names from the Clerk of Courts.  That's not discovery to the defense.  In other cases, people are taking cell-phone pictures of witnesses in court.  That's not discovery to the defense.  And none of this is specific to the case. 
Perry talked to defense attorneys, too.
They are particularly alarmed, though, that Deters' office is issuing requests to withhold witness names when there is no allegation of witness intimidation.
"They're not doing it on a case-by-case basis," said Carl Lewis, president of the Greater Cincinnati Criminal Defense Lawyers Association.
Ohio criminal rules require prosecutors to give to those charged with crimes, or their attorneys, witness names unless the prosecuting attorney has reasonable grounds to believe that disclosure will compromise the safety of a witness, victim, or third party, or subject them to intimidation or coercion.
Attorney Richard Goldberg who represents Clarence Jackson, also indicted in the Palmore shooting, says Deters' request to withhold witness names in that case "doesn't even allege my client threatened anybody or intimidated anybody."
"I'm just kind of amazed they did it on this case for no reason," Goldberg said.
See, here's the thing.  There's a damn rule.  Deters doesn't have to like it.  But he's supposed to obey it.
* * * * *
Which brings me to the point.
Let's say that you're a prosecutor.  And let's say that you're supposed to be concerned about ensuring that justice (whatever that might be, and no, I'm not going back to that discussion here) is done.  And let's say that you recognize that as the representative of the government on the side of enforcing the law, you have a special obligation to obey the law.  
Now let's say that you could allow (not act, just allow) that which might provide hard proof one way or the other about someone who claims a miscarriage of justice.  And let's say that you could obey the law or ignore it because convicting people while obeying the law is tougher than convicting them while ignoring it.
Like I say, maybe you'd do the right thing.  Which is why you aren't a prosecutor.


  1. Prosecutors, I guess, forget they are supposed to be fighting for truth and justice not numbers in their "win column".

    Below is one prosecutor's response to the DNA letter:

    excerpts from Ashland Times-Gazette:

    County Prosecutor Ramona Francesconi-Rogers said Wednesday that she's willing to talk with the state attorney general about releasing possible DNA evidence in a decade-old robbery case -- if he agrees to look at the big picture.

    At issue is a cigarette butt collected as evidence from a farm in Clear Creek Township where Arthur L. Swanson committed a strong-arm robbery against an Amish man in 1998. Swanson, a Mansfield resident who was 54 years old at the time, took the family's egg money.

    The cigarette butt was never presented as evidence during trial. Nor was it mentioned in testimony. Yet, it has become a focal point, both as a basis for unsuccessful appeals and what Francesconi-Rogers characterized as "political maneuvering" on the part of Ohio Attorney General Richard Cordray and Gov. Ted Strickland.

    Democrats Cordray and Strickland are running for re-election in November.

    The issue came to the fore this week in Columbus, where the Dispatch spotlighted Swanson's case. The article was a follow-up of a weeklong series the Dispatch published in 2008 with the assistance of the Cincinnati-based Innocence Project. The series explored the potential for using DNA testing to overturn wrongful convictions.

    Francesconi-Rogers indicated her response would be "a conditional no."

    "If Cordray will read the trial transcript and read the court of appeals' briefs and decisions, then come down to my office and tell me that the cigarette butt would have changed the jury's mind, then we'll have further discussion," she said.

    She acknowledged Wednesday that the cigarette butt might very well not have Swanson's DNA on it. It had been collected by investigators at the scene as potential evidence. The defense attorney was given that information during the pretrial discovery process.

    Francesconi-Rogers' concern is that the DNA evidence is being framed as conclusive. She's worried people might get the impression that, if Swanson's DNA is not found on it, he is automatically innocent.

    There is always the danger of a civil suit against the state or county. An attorney representing Swanson's mother requested the cigarette butt in 2007 pursuant to a possible civil action for wrongful imprisonment. Francesconi-Rogers refused to release the cigarette butt. Marc Dann, the state attorney general at the time, ruled that she was not obligated to turn over the evidence.

  2. While reading the part about Ohio's criminal discovery rules, I had to do a double-take on the date, actually the year, of the post.

    We have our discovery battles here in California, but compared to what you face in Ohio (and our brothers and sisters face in Texas) it's a miracle you get anything accomplished resembling justice.

  3. Well, like I say, the rules have changed, and the new ones are pretty good. The question is how the prosecutors will act. Ultimately, it rests on good faith - or courts that will really enforce. Since we often don't have the latter, we're going to need a lot of the former.

  4. I think we should be even more efficient in protecting witnesses, why not have a secret trial closed to the public with just the prosecutor, the jury, and anonymous witnesses wearing ski masks and using those voice scramblers. That way our innocent witnesses and preciously fragile justice system can operate with the utmost efficiency and safety. We can just hold the accused in prison during the secret trial and let him know how it went when its all over, that way nobody gets hurt.