Executions to Resume in California as Study Hammers Prosecutorial Misconduct in Multiple Exonerations

Jerry-BrownFor the first time in four years California is likely to execute an inmate on death row, as the final hurdles were cleared Friday when U.S. District Court Judge Jeremy Fogel refused to block the execution of Albert Greenwood Brown. He has been on death row since 1980.

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.

In essence, he gave him the choice between something that has never been implemented before, and procedure that has been the subject of multiple lawsuits.

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


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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22 thoughts on “Executions to Resume in California as Study Hammers Prosecutorial Misconduct in Multiple Exonerations”

  1. Don Shor

    “…given the increasing number of questions and scrutiny on the death penalty and wrongful convictions.”

    There appears to be no question that Albert Brown raped and murdered the teenage girl and then taunted her parents about it. So your concerns about wrongful conviction don’t apply in this case. Why shouldn’t this execution go forward?

  2. wesley506

    According to data from The Field Poll in a July 22, 2010 survey Californians still overwhelmingly still support the death penalty…

    [quote]Seventy percent of voters statewide favor capital punishment, with Chinese Americans expressing the strongest support (76 percent), followed by whites (71 percent.)

    Among Latinos, 69 percent said they approve of state-sponsored execution; among blacks, the figure was slightly lower but still decisive—63 percent. Support was lowest among Vietnamese Americans (55 percent) and Korean Americans (54 percent).

    Interestingly, the younger the voter, the greater the support: overall, 73 percent of 18- to 29-year-olds said they back the death penalty, versus 66 percent of people 65 and older.[/quote]

    Let the will of of majority of the people of all ethnicities and age groups in this state be carried out.

  3. Don Shor

    What purpose does it serve to keep him alive? He showed no remorse, never claimed innocence, taunted her family. I’m sure they would like to see the sentence carried out.
    I’m not a fan of the death penalty due to the uneven nature of its implementation and the problems with innocent people being convicted. But there seems to be no question about this case. Do you believe anyone should ever be executed for any reason? If not, then all these debating points aren’t really relevant.

  4. David M. Greenwald

    Don: To me it’s not about him per se, other than the fact that he’s a human being and I see little reason after 30 years to execute him. He probably isn’t even a threat to society at this point.

    I think there are three points, first is that yes I’m against the death penalty in all cases.

    Second, though I think even if this particular guy is guilty and remorseless, re-starting the death penalty opens the door to more ambiguous cases.

    Third, really I have always been against the death penalty, but watching the Yolo County justice system the last nine months, and knowing that at least in this county defendants represented by the public defenders office get mostly competent representation (unlike other areas), I’m simply not willing to open any doors because there are a lot of people that should not be on death row, Virginia just executed one of them and she was not “innocent either.” Texas got one that was innocent.

  5. hpierce

    [quote]In essence, he gave him the choice between [u]something that has never been implemented before[/u], and procedure that has been the subject of multiple lawsuits.[/quote]

    Is the Bee incorrect in reporting that the judge took as ‘compelling’ the “fact” that [u]nine[/u] single drug executions have been carried out in Washington and Ohio without any apparent difficulty, and that this is undisputed and significant? Do you dispute the judge’s conclusion and have the facts to support your position?

    I have grave doubts (pun intended) about both the morality and efficacy re: deterrent effect, of the death penalty. I do know that those executed never commit crimes again, and that it helps some (not all) family members of the victims achieve ‘closure’.

    That being said, your comment re: ‘never been tried’, is unsubstantiated, (you didn’t qualify it as “in California”), and IMHO, irresponsible.

  6. David M. Greenwald

    I should have qualified that it had never been implemented in California. I did not have the time to look into whether it really worked without a problem as the Judge claims (the Judge not the Bee is the source of that claim). To me nine times is hardly what you might call a sufficient sample size to determine it has worked without difficulty.

    I think the Judge probably rushed his decision, he was under-pressure, and he will probably regret doing so.

  7. E Roberts Musser

    Don Shor: “What purpose does it serve to keep him alive? He showed no remorse, never claimed innocence, taunted her family. I’m sure they would like to see the sentence carried out.
    I’m not a fan of the death penalty due to the uneven nature of its implementation and the problems with innocent people being convicted. But there seems to be no question about this case.”

    This is about where I am on this issue. I don’t really have any problem executing this criminal in particular. My only fear about executing him is that we open the door for accelerating executions in general in this state, which could involve cases which may be more questionable as to guilt.

  8. hpierce

    [quote]To me nine times is hardly what you might call a sufficient sample size to determine it has worked without difficulty. [/quote]

    Possibly. However, nine times with zero problems is a hint that the likely chances of there being a problem is between 0 and 11%. But I never studied statistics.

  9. Just me

    While I will be very upfront as “pro death sentence”… The problem I have with all this is the timing.. Jerry Brown decides to get executions going as he is running for Governor… I only wish I didnt see this as a political advancement issue….

  10. Themis

    Personally, I have many reservations about why it is ok to put anyone to death. There have been too many people sentenced to die that were later found out to be innocent of their crime. DA’s and judges have been politically motivated to continue to look tough on crime so the pursue convictions of people they know are innocent. This really does seem to be politically motivated so Jerry Brown looks tough on crime.

  11. JustSaying

    Tonight’s “60 Minutes” story about how our process generates victims’ “positive” eye-witness identifications and solidifies “memories”–even when both are completely false–reaffirms my opposition to capital punishment.

    At least we can free the innocent ones [u]IF[/u] we haven’t already killed them by the time DNA testing proves they didn’t do the crime. There’s no way even to try to make it right if they’re already dead. Oops, sorry.

    On a related matter, why the vocal resistance from the legal system whenever the already convicted ask to use DNA testing in an effort to prove their innocence?

  12. E Roberts Musser

    Just Saying: “On a related matter, why the vocal resistance from the legal system whenever the already convicted ask to use DNA testing in an effort to prove their innocence?”

    Resistance is not from the “legal system”, which would include the public defender. I assume what you meant to say was resistance from the prosecutor? The reason for resistance from the prosecutor should be obvious. Prosecutors do not want to admit they got it wrong in identifying the perp, but any prosecutor with integrity will want to make darn sure to get it right.

    DNA testing should be mandatory if everyone wants to make sure justice is paramount. However, such testing is not without controversy. Here is part of article from Internet site: “
    Now there’s DNA sampling. Obama told Walsh he supported the federal government, as well as the 18 states that have varying laws requiring compulsory DNA sampling of individuals upon an arrest for crimes ranging from misdemeanors to felonies. The data is lodged in state and federal databases, and has fostered as many as 200 arrests nationwide, Walsh said.

    The American Civil Liberties Union claims DNA sampling is different from mandatory, upon-arrest fingerprinting that has been standard practice in the United States for decades.

    A fingerprint, the group says, reveals nothing more than a person’s identity. But much can be learned from a DNA sample, which codes a person’s family ties, some health risks, and, according to some, can predict a propensity for violence.

    The ACLU is suing California to block its voter-approved measure requiring saliva sampling of people picked up on felony charges. Authorities in the Golden State are allowed to conduct so-called “familial searching” — when a genetic sample does not directly match another, authorities start investigating people with closely matched DNA in hopes of finding leads to the perpetrator.”

    Read More http://www.wired.com/threatlevel/2010/03/obama-supports-dna-sampling-upon-arrest/#ixzz10kKZSkQc

  13. JustSaying

    Elaine, you’re correct that I didn’t mean to include defense folks. I was trying to put judges in with prosecutors, though. It seems to me that if someone claims that DNA evidence would exclude him, the DA should not fight testing, and the judge should routinely approve such requests.

  14. Themis

    It looks like people in this county are finally waking up to some of the corruption in this county. Thanks for helping provide a jolt. Hopefully people will keep wanting to fix the problems here. Please keep keeping us all informed.

  15. wesley506

    In 1976, Albert Greenwood Brown Jr. broke into a Riverside home early in the morning and hid in a hall closet until everyone had left. A 14-year-old girl returned to the home from her paper route and began to get ready for school. As she walked down a hallway, Brown jumped out of the closet, dragged her to her mother’s room, choked her until she was unconscious and raped her. Brown was convicted of this crime and sent to state prison on May 4, 1978 from Riverside County with a four-sentence for rape with force.

    Brown was released to parole on June 14, 1980. On October 28, 1980, he posed as a jogger one early morning and grabbed 15-year-old Susan Jordan as she walked by an orange grove on her way to Arlington High School in Riverside. As she struggled, he dragged her into the orange grove out of sight, raped her, and then strangled her to death with one of her shoelaces. He took her school identification cards and her school books and went to work cleaning cars at Rubidoux Motors.

    Susan’s parents had left early that day to go to work. Coincidently, her mother’s car was being serviced at Rubidoux Motors, so she went to work on a commuter bus.

    Susan’s mother called home at 3 p.m. and learned that only Susan’s younger sister was home. She picked up her car from Rubidoux Motors at 5:40 p.m. and drove to the high school in search of her daughter Susan. Susan’s mother went home and called police.

    Meanwhile, Brown found Susan’s family listed in the phone book and called their house at approximately 7:30 p.m. and told Susan’s mother, “You will never see your daughter again.” He then told her where Susan’s body could be found, hung up and made a similar call later that evening telling Susan’s parents where they could find her identification. At about 7:31 p.m., the Riverside Police Department received a call from Brown, who told them where they could find Susan’s body.

    At about 8:05 p.m. that night, a Riverside police officer and his canine found Susan’s torn clothing in the orange grove and Susan’s body about 60 feet away. Police found Susan’s student identification in the phone booth Brown had identified.

    By a margin of over 2 to 1 the people of California support the death penalty. Aliens did not commit the rapes and murder. Brown did not claim that he suffers from ADHD, co-dependent personality, meth addiction, not enough love during childhood, absent father figure, or being fed too many twinkies during childhood as the cause of his evil.

    In California the death penalty means boring them to death.

  16. Iyah

    wesley506: What happened to those two girls and families is the worst nightmare. I pray for them to find peace, although realizing they may never find it especially given what has happened to them. I agree any person who can do that is evil. I think the argument being made is that sometimes people are wrongly convicted. Although, many people want to believe are judicial system is perfect – it is far from that. David’s article today reveals so many problems.

    The innocent shouldn’t be wrongly killed because of problems in our legal system. The person who killed those little girls is evil. Unfortunately there have been some people proved innocent who were sitting on death row. I’m not saying this man is one of them. But for those that are out there. I’m for being more prudent. I’d rather let them waste away in prison.

  17. David M. Greenwald


    I appreciate that this man did some very horrible things. I also appreciate that this case does not seem to be in dispute.

    However, here are my concerns going forward.

    First, from a moral standpoint, I don’t think the state has the right to take a life. I certainly don’t believe you teach people that killing is wrong by killing. Nor do I think that the death penalty has a deterrent effect.

    Second, if opening the door to this execution opens the door to more questionable ones, then that’s a problem for me.

    Third, I appreciate that two-thirds of the public supports the death penalty, although that number generally falls below 50% when the alternative of life without parole is given.

    Nevertheless, I have sat through nine months of trials in this county, a perspective most people don’t get to have. And while I have always been against the death penalty, watching our system at work is an eye opener most people don’t get to experience first hand. It is frightening how poor informed the legal system is to scientific research that has discredited a number of methods that are used to determine guilt and innocence, including confessions, interrogations, eye witness identification and testimony, and even some of the so-called forensic sciences have never been tested in double-blind scenarios to test the validity of the methods.

    In short, I am left with little faith in the justice system. At least if we put someone in jail for life, we can release them if we made a mistake. It doesn’t rectify it, but it’s hard to bring people back from the dead. Look at the Texas case, you really want the state to have that kind of power? You think it makes us safer for that to occur?

  18. Don Shor

    David, lyah, do either of you have the slightest doubt that he is guilty? If ever there was a case for resumption of the death penalty, this is it.
    “I don’t think the state has the right to take a life.”
    Ever? This is the problem with absolute moral positions. They lead to untenable outcomes. I am not comfortable with the death penalty in many, perhaps most cases. But you have boxed yourself into a corner. Your absolute position means that the victim’s family will never know closure, among other issues.
    I don’t know if this is a theological position on your part, or just extreme discomfort. But perhaps you can see how these issues aren’t that simple.

    “if opening the door to this execution opens the door to more questionable ones...” The slippery-slope argument simply won’t hold up, since the death penalty is the law of the land and has been upheld at every level. Your concern about injustices is well taken, but would be better directed toward supporting innocence projects and mandatory DNA laws.

  19. David M. Greenwald

    Don: The research I have seen shows that victims families really never get a sense of closure regardless. Death penalty generally does not alleviate that feeling. In fact, it often makes it worse.

    For me, I just don’t think you teach people not to kill, by killing.

    It’s not a slippery slope argument. They are re-starting executions in California. The first scheduled execution may not be in dispute, but once executions are allowed it won’t be long until they are in dispute.

    “Your concern about injustices is well taken, but would be better directed toward supporting innocence projects and mandatory DNA laws.”

    I do, but that does not mean that the death penalty by itself is not a problem. DNA can exonerate in some cases, but most cases do not involve physical evidence of that sort, doesn’t that make you uncomfortable that there is a good likelihood that innocent people have and will be put to death by the state?

  20. Iyah

    Don, To say that it makes me extremely uncomfortable to kill an innocent person would be an understatement. I have a hard time with people being okay with that. My discomfort is both coming from my moral background and how I believe civilized societies should be. I agree with David, how can the state justify teaching killing is wrong by killing. I saw an interview of a rape victim who testified that one man raped her, only later to learn she had misidentified her rapist because that man was exonerated through DNA. She felt horrible that the wrong man was in prison all this time and the two are working together to find the right man.

    On a side note, the tv news this evening said the manufacturer of the drug used in lethal injections is reducing inventory and has given a letter to all the States with Capital Punishment that they do not want their drug being used to kill people.

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