Judge Fogel, a Clinton appointee to the federal bench, expressed concern about the limited time in which he had to evaluate the state’s revised execution procedures. He gave the condemned inmate the choice of being put to death by a single injection, as opposed to the state’s three-drug method.
Wrote Judge Fogel, he was “painfully aware that, however it decides a case of this nature, there will be many who disagree profoundly with its decision. The moral and political debate about capital punishment will continue, as it should.”
Santa Clara University law professor Ellen Kreitzberg, an expert on the death penalty, expressed surprise to the LA Times Friday at Judge Fogel’s ruling. She cited the meticulous effort Judge Fogel had spent five years ago in “examining the setting, training and testing that lay behind California’s lethal injection process, before finding flaws in it. But the judge’s ruling in Brown’s case came without his having examined the new execution chamber that has been built in the meantime, and without his examining the training for those who administer the drugs.”
“There are so many unanswered questions and so many uncertainties, that to allow the execution to go forward with those is really troubling,” said Prof. Kreitzberg to the Times. “It’s surprising after five years that everyone is rushing to have these executions move forward so quickly.”
Pushing for the resumption of executions in California is AG Jerry Brown, who is currently the Democratic Governor Candidate in California – and a lifelong opponent of the death penalty.
As we reported on Thursday, AG Brown’s move is all the more surprising, given the increasing number of questions and scrutiny on the death penalty and wrongful convictions.
The latest bombshell comes from a USA Today investigative report that revealed serious prosecutorial misconduct as a factor in 65 of 258 DNA exonerations nationwide.
Those cases involved documented appeals and/or civil suits addressing prosecutorial misconduct with 31 cases, resulting in court findings of error and 12 cases leading to reversals. That misconduct ranged from suggestiveness in identification procedures, withholding evidence from the defense, deliberate mishandling or destruction of evidence, coercion of false confessions and the use of unreliable government informants or snitches.
Writes USA Today on Friday, “Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.”
“Judges have warned for decades that misconduct by prosecutors threatens the Constitution’s promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses,” the story continues. “Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation’s most elite and powerful law enforcement officials — themselves violated laws or ethics rules.”
“In case after case during that time, judges blasted prosecutors for “flagrant” or “outrageous” misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said others had broken plea bargains,” they write.
USA Today blasts prosecutors, saying “Such abuses, intentional or not, doubtless infect no more than a small fraction of the tens of thousands of criminal cases filed in the nation’s federal courts each year. But the transgressions USA TODAY identified were so serious that, in each case, judges threw out charges, overturned convictions or rebuked prosecutors for misconduct. And each has the potential to tarnish the reputation of the prosecutors who do their jobs honorably.”
The consequences for doing this are appallingly light. The USA Today found that only one federal prosecutor was even temporarily barred from practicing law due to misconduct during the last 12 years.
The USA TODAY report found a pattern of “serious, glaring misconduct,” said Pace University law professor Bennett Gershman, an expert on misconduct by prosecutors. “It’s systemic now, and … the system is not able to control this type of behavior. There is no accountability.”
The ramifications here are severe. In short, innocent people are punished, guilty individuals go free or face far less punishment, and the taxpayers are left with the bill. USA Today found that the Justice Department has paid nearly $5.3 million “to reimburse the legal bills of defendants who were wrongly accused. It has spent far more to repeat trials for people whose convictions were thrown out because of misconduct, a process that can take years, although the full price tag is impossible to tally.”
While this report looks at federal prosecutions, can we believe that our local prosecutors are any less culpable?
Yolo Judicial Watch has been monitoring a murder trial in Yolo County that is about to conclude. The trial is wrought with prosecutorial and police lies and misconduct. The scariest aspects of this trial is that there is no doubt that these are commonplace tactics by law enforcement, but rarely are they captured and caught, as they were in this particular case.
—David M. Greenwald reporting