Widespread Prosecutorial Misconduct in the U.S.?

Thursday, November 24th, 2011
Baton Rouge, Louisiana

PROSECUTORS GONE WILD!

Over the past few months, there has been a rash of reports and charges of widespread and intentional withholding of evidence on the part of federal prosecutors in a number of high profile criminal cases. Intentional is the key word here. Mistakes can be made when prosecutors work under heavy case loads and the pressure of meeting deadlines. But in way too many cases, prosecutors hiding evidence that is favorable to the defense has proven to be deliberate, and in direct violation of the law.

Even though such miscarriage of justice often leads to the conviction of an innocent defendant, rogue prosecutors who violate the law in this way are rarely prosecuted, or even sanctioned. This is a blight on the American justice system, today.
It takes a courageous and determined judge to weed out the abuse of prosecutors who willfully violate the law. In too many instances, there is a mere slap on the wrist, or even the ignoring of the abuse altogether. But every now and then, a tenacious judge comes forth and shows his mettle and demands full accountability from the cadre of rogue prosecutors. One such judge is Emmet G. Sullivan, of Federal District Court in Washington.

Judge Sullivan presided over the Senator Ted Stephens case, where a whistleblower provided information of the widespread hiding of evidence. Upon learning of the extensive improprieties of the Justice Department officials in the case, Judge Sullivan appointed a special investigator, who, just this week, issued a scathing report. The 500 page document concluded that the Stephens case was “permeated by the prosecutors’ serious, widespread, and at times intentional and illegal concealment of evidence,” -- evidence that would have been extremely helpful to Stephens’ defense.

The judge lashed out at the prosecutors, who deliberately withheld information favorable to the defense, and quoted from the report that the case was “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Stephens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.” The Judge is now considering making a strong recommendation for obstruction of justice charges against the prosecutors in the case.

My home state of Louisiana is certainly not immune from wayward prosecutors who withhold information helpful to a defendant. Just two weeks ago, the United States Supreme Court again heard a New Orleans case where key evidence was withheld from a defendant who was convicted of murder. Defense attorneys in Louisiana have said for years that the standard modus operandi for prosecutors in New Orleans when it comes to handing over key evidence helpful to the defendant is, “When in doubt, don’t give it up.”

As quoted in the New York Times, a former U.S. Attorney from New Orleans said that the office policy was “keeping away as much information as possible from the defense attorney.” Defense lawyers in New Orleans confirm that there have been 28 convictions, many that put defendants on death row, where later it was determined that prosecutors had withheld key evidence that would have supported the innocence of the accused.

In the notorious case of Dan Bright, convicted and put on death row for a murder he did not commit, evidence came out years after his conviction that the FBI, thanks to a credible informant, had been in possession of the name of the actual killer all along. Luckily for Dan Bright, because of the unconstitutional withholding of key evidence by the prosecution and the FBI, his conviction was thrown out, and he now is a free man.

The Forman of White’s jury, who recommended he be put to death, was Kathleen Norman, who was a guest on my radio show on several occasions before her untimely death last year. She was so incensed over White’s wrongful conviction and the hiding of evidence that would have cleared him by the FBI, that she became head of the Louisiana Innocence project, helping others like White mount a credible defense.
Unfortunately, a calculating prosecutor who intentionally hides evidence that could find a defendant innocent runs only a slight risk of sanctions. There are few judges like Judge Sullivan, who demand an accounting for violating the law. A recent examination of prosecutorial misconduct by The Yale Law Journal concludes that “prosecutors gone wild” by intentionally violating the law, and even sending innocent defendants to the gas chamber are rarely sanctioned. Their conclusions stated:

“Given the Supreme Court’s repeated endorsement of professional discipline as the appropriate vehicle for addressing allegations of prosecutorial misconduct, one might suppose that state bar agencies frequently sanction prosecutors. In fact, prosecutors are rarely held accountable for violating ethics rules. A Chicago Tribune study identified 381 homicide cases nationally in which Brady violations (withholding evidence) produced conviction reversals. Yet prosecutors faced disciplinary action in only forty-four of those cases, and seven of these actions were eventually dismissed.

As these studies indicate, infrequent punishment of prosecutors cannot be blamed on a paucity of discoverable violations. Even when judicial findings of misconduct result in conviction reversals, disciplinary sanctions are almost never imposed against the offending prosecutor.”

Conduct by rogue prosecutors of withholding information that could prove an accused innocent is far too prevalent. A segment of ambitious prosecutors are looking for another notch on their gun to add to their resume for advancement. The higher the rate of convictions, the more likely they can parley their actions into becoming an elected district attorney or perhaps a judge. The only way to reign in their efforts to convict at any price is through sanctions, disbarment and criminal prosecution. We need a lot more Judge Emmet Sullivans on the bench to both uphold justice, and to make certain that those who compromise justice are held fully accountable.
*****

“The only thing that assures fairness in the courtroom are judges with courage to keep their eyes open, watch what is happening, keep an open mind and make fair decisions fair to both sides.”
Brandon Sullivan

Peace and Justice

Jim Brown

Jim Brown’s syndicated column appears each week in numerous newspapers and websites throughout the South. You can read all his past columns and see continuing updates at www.jimbrownusa.com. You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownusa.com.

Should Voting be Mandatory?

Thursday, November 17th, 2011
Baton Rouge, Louisiana

YOU ARE GOING TO VOTE -- OR ELSE!

Why don’t more people show up to vote on Election Day? In elections all over America, fewer voters are turning out at the polls than ever before. The New York Times ran an op-ed piece last week decrying this national trend, and suggesting that voting be mandatory, just like jury duty. So how big is the problem, and how important is it to force citizens to vote?

My home state of Louisiana recently held what traditionally is the largest election in any four year period, to pick most of the statewide and local public offices. Turnout was a miserable 35%. In some precincts, fewer than 10 voters showed up to cast their ballots. There have been recent elections where the only people to show up were the five required voting commissioners. And low turnout is not unique to Louisiana. The downward trend is prevalent all across the country.

Of course we should encourage all Americans to vote. Participatory democracy is a hall mark of our system of government. There have been hard fought battles in the past century to give voting rights to women and to protect the voting rights for a cross section of minorities. The Voting Rights Act was necessary in 1965, but it’s outlived its usefulness and discriminates against a hand full of mostly southern states. The problem today is not to stop voter discrimination, but how to encourage more people to show up on Election Day.

In his recent op-ed article, William Galston with the Brookings Institution argues what he feels to be a number of advantages to mandatory voting. He points out that thirty-one countries have some form of mandatory voting, including two thirds of Latin American nations and a cross section of other democracies that include Australia. Here’s what he sees as the benefits of a legal obligation to vote:
“Imagine our politics with laws and civic norms that yield near-universal voting. Campaigns could devote far less money to costly, labor-intensive get-out-the-vote efforts. Media gurus wouldn’t have the same incentive to drive down turnout with negative advertising. Candidates would know that they must do more than mobilize their bases with red-meat rhetoric on hot-button issues. Such a system would improve not only electoral politics but also the legislative process. Rather than focusing on symbolic gestures whose major purpose is to agitate partisans, Congress might actually roll up its sleeves and tackle the serious, complex issues it ignores. “
All well and good, and few would argue with the advantages of lessening the tension of governing and creating an atmosphere for more political compromise, and less of the present “in your face” way of governing.

But what price is paid for such results? Does the government have to hold a stick over your head with financial sanctions to force you to vote? Australia, for example, fines any eligible voter who fails to show up at the polls. A small fine to begin with, about the amount of a traffic ticket, with escalating amounts for repeated failures. Yes, turnout is around 95 %, and Australians tend to see voting as a personal obligation, something not nearly as ingrained in the U.S.

One reason, particularly here in Louisiana, that voting percentages are way down, is the changing patterns of “getting out the vote.” Retail politics in the past meant well oiled political machines that spent considerable resources on Election Day. Both political parties developed aggressive get out the vote campaigns with transportation being provided to voting locations for voters who requested it. Numerous political rallies, beginning months before Election Day, was standard campaign procedure in years past. Now it’s primarily television, direct mail and robo calls. The election “street money” and the retail politics of the past have gone by the wayside, resulting in less reinforcement and fewer voters making their way to the polls.

Another reason voting percentages are way down is the fact that in many states, way too many elections are held. School boards and local taxing districts often pick an “off election” date, with few other items on the ballot. They look to get their particularly constituency to the polls with the hopes that those who oppose their particular proposition will not take the time to vote. In many European countries, where voting participation is always quite high, one annual Election Day is held on a Sunday. Families go to church and then take the time to vote, knowing that they will only have to vote once a year. In my home state of Louisiana, voters are often asked to vote six times or more per year, frequently with only one or two local issues on the ballot. Generally, U.S. voters face too many elections of little interest to them, resulting in extremely low voter turnout.

Is democracy served by telling citizens that they have to show up and vote, regardless of their interest and/or ignorance of the candidates and the local issues? Can a registered voter be told by the government: “Regardless of your interest in this election, we are requiring you to show up, and if you don’t, you will be fined.”

And finally, how about the argument that not voting is actually a vote? If all votes are your opinions, then by not voting, are you not expressing your opposition to all those candidates and items on the ballot? I remember back in the 1970’s as a Louisiana State Senator I introduced a proposed law to include “none of the above,” on the ballot. Isn’t that what you’re indicating when you fail to vote? And if so, isn’t this your constitutional right?

If the country is going to have a system of government that is responsive to a majority of its citizens at all levels, then high election turnouts is a key ingredient for such a goal. There are a number of ways for elections officials to encourage going to the polls on Election Day, but it begins with education at the grade school level.

But making voting mandatory takes away the right of a citizen to choose. Freedom means the right to express your views as you see fit. Voting is one of those options. So is non-voting. It’s all about your freedom of choice, isn’t it? To vote, or not to vote -- that is your decision. But living with the consequences is not.

*****

“I never vote for anyone. I always vote against.” W.C. Fields

Peace and Justice

Jim Brown

Jim Brown’s syndicated column appears each week in numerous newspapers throughout the South and on websites worldwide. You can read all his past columns and see continuing updates at www.jimbrownusa.com. You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownusa.com.

A Day to Remember!

Friday, November 11th, 2011 (11/11/11)
New Orleans, Louisiana

VETERANS HONORED AROUND THE WORLD!

Many soothsayers are excited about what may happen on 11/11/11. They consider the number 11 to be a Master Number. According to those believers, on this special day, you can use mind power to actualize what you want in your life. For them, it is a day to look forward. But there are those, like yours truly, who acknowledge that this is a special day, but for a totally different reason. For us, November 11 is a day to look back, to remember -- the special day to honor the millions of veterans who served and fought throughout this century to protect our right to be free.
November 11th is Veterans Day. Few Americans know the difference between Veterans Day and Memorial Day, which is celebrated in May.

Veterans Day honors all those who served in any military capacity. Memorial Day commemorates those who gave their lives in service to America. And there are countries worldwide that have adopted this day to remember and honor those who served in the many wars of the 20th century. Services and ceremonies will take place on Friday in Canada, Australia, New Zealand, India, South Africa, France, Belgium, Israel, Italy, the Netherlands, and Poland, just to name a few.

For many Americans, Veterans Day is just another holiday to get off work. There is quite a contrast to this attitude in Great Britain. The military celebration there is called Remembrance Day, and it is held on the Sunday closest to November 11. There are church services throughout the country, and there are parades of ex servicemen and women in towns and villages from north to south. In both world wars, London was under heavy attack from the Germans with nightly air raids, and the Brits were much more personally touched than we were. I witnessed the emotion of this special day on a trip to London a few years back.

I had landed at Gatwick Airport on Remembrance Day, and took a cab from Victoria Station to my hotel, dropped off my bags, and had the driver take me to St. Paul’s Cathedral. Designed by Christopher Wren, with its great dome that stood defiant to the blitz of German planes night after night, this has always been one of my favorite churches. Princess Diana was married here, and this famous cathedral has witnessed the burials of so many who impacted history, from Lord Nelson to Winston Churchill.

It seems as if everyone in the city wears a poppy to commemorate the huge British losses during World War I. More than 59,000 British soldiers are buried among the poppies in Flanders Fields in Belgium. Every school child learns of Major John McCrae, a Canadian doctor who tended to the dying on the battlefield and wrote the memorable war poem “In Flanders Fields.”

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.
We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders fields.

Being able to be a part of the service at St. Paul’s is a special honor for anyone in the city. The Lord Mayor of London is always in attendance, along with numerous other public officials. Following a traditional ceremony full of pomp and circumstance, a parade winds through the business district, with most of those who attend the service joining in. A large contingent of World War I veterans make their way through the streets of London. It’s a moving sight to see.
When I arrived at St. Paul’s for the 10:00 A.M. service, the church was already full. People milled around outside the church, hoping to find a place to sit. An elderly female usher pointed at me and told me it would be very difficult to find a seat. I was dressed in a British-cut suit and needed a haircut, so perhaps she mistook me for a Londoner. She asked if by chance I was a member of the St. Paul’s Society.

The society has a building fund to maintain the church. A few years before, I had made a ten-pound donation (about sixteen dollars) to join the society. When I acknowledged that I was a member, she checked her membership book to confirm my donation, then led me down the center aisle to the front pews and sat me right behind the Lord Mayor. That was certainly one of the most farsighted donations I ever made.

On this special Friday, I will join what I hope to be a large group of fellow veterans and their families in my hometown of Baton Rouge at a special ceremony to be held at Louisiana’s Old State Capitol. The ceremony is being sponsored by the USS Kidd Foundation, which supports a battleship that is permanently located there.
So on this Friday, November 11th, I won’t be concerned about any mystical meaning of 11/11/11. I’ll pin a poppy on my jacket, join the families at our special Veteran’s Day celebration, and give thanks to the many who served and died, so that I would have the freedom to write each week about whatever I wish. I hope in some small way, you, too, will remember.

*****

“But this Veterans Day, I believe we should do more than sing the praises of the bravery and patriotism that our veterans have embodied in the past. We should take this opportunity to re-evaluate how we are treating our veterans in the present.”
Nick Lampson

Peace and Justice

Jim Brown


Jim Brown’s syndicated column appears each week in numerous newspapers and websites throughout the country. You can read all his past columns and see continuing updates at www.jimbrownusa.com. You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownusa.com.

Political Musical Chairs in Louisiana?

Thursday, November 3rd, 2011
New Orleans, Louisiana

MAJOR POLITICAL SHAKEUP ON THE LOUISIANA HORIZON?

In my home state of Louisiana, voters are about to witness a high stakes political game of musical chairs on both the state and national level. This could lead to new faces in the top three Louisiana political offices. We just could be talking about U.S. Senator Bobby Jindal, Governor David Vitter, as well as new Washington lobbyist, Mary Landrieu. The political posturing for these future offices is already underway.

Louisiana’s current governor, Bobby Jindal, continues to stay coy about his plans, and insists he will finish his current four year term. But once a politician experiences the national limelight, the lure of “moving on up” by seeking a U.S. Senate seat or a cabinet position is hard to pass up. Jindal will be half way through his second term as governor when the 2014 election for the Senate seat, presently held by Democratic Senator Mary Landrieu, comes up. And even though Jindal says he won’t run, many think he “protests a bit too much.” Just look at his recent campaign spending.

Jindal had a handful of no names running against him for governor, who spent virtually nothing in their campaign efforts. The Governor could well have received the same final vote total (64%), if he had not spent a penny. Yet he poured millions of dollars into his reelection effort. Jindal donated campaign funds in 193 separate legislative races, including 49 races where the candidate had no opposition. That’s $2,500 per candidate who was unopposed. Numerous robo calls, and door to door solicitations by Jindal campaign staffers were the norm throughout the state.

So why all the effort for an election where the incumbent was a cinch? Jindal has raised over $10 million for his reelection efforts. But under federal campaign laws, he cannot spend any of these funds in a campaign for a federal office. He has cleverly (and legally) used his state funds to build up major IOUs for his future political endeavors. If this includes a U.S. Senate race, so be it. The state money is legally used to lay a major foundation for what could well be a future federal race.

There has been talk of Jindal angling for a cabinet position in a new Republican administration, or even a Vice Presidential slot. But his ill advised endorsement of Texas Governor Rick Perry, whose presidential campaign seems to flounder more as each week goes by, has limited Jindal’s future choices. His options would seem to be either head back to the private sector, or go for the U.S. Senate seat.

What about the current incumbent, Mary Landrieu? She is serving her fourth term. But if she is making plans for a reelection effort, any close political observer would hardly know it. Her current campaign disclosure statement shows a little over $800,000 on hand for a 2014 race. That’s weekend walking around money for the Jindal campaign. She rarely comes home to Louisiana. And her actions in Washington are troubling to a number of Louisiana democrats.

Landrieu had the chance recently to hand pick a new 5th Circuit Court of Appeals judge. This was the first opportunity to make such a choice, since the present opening was the first with a sitting democratic president in office. Obama, as with past presidents from both parties, adheres to the wishes of the home state senator from the same party. One can imagine the number of democratic state and federal judges salivating over the opportunity for such an appointment. But Landrieu turned her back on a fellow democratic appointee, and adhered to a campaign supporter of Republican Senator David Vitter.

An obscure assistant prosecutor, Stephen Higginson, who had given Vitter multiple campaign contributions, was Vitter’s pick. Higginson might show up for work as a judge, but he had rarely bothered to vote in local and state elections. Since 2007, Higginson passed on voting numerous times, including in a number of judicial elections. And even though Higginson is not even a democrat, Landrieu apparently decided it was to her advantage, perhaps as a future Washington lobbyist, just to go along with Vitter.

I was in Washington a few weeks ago, and the consensus from a number of capitol political observers is that Landrieu isn’t looking much like a candidate for 2014. With Louisiana becoming a solid red state, and her chances for reelection questionable, Landrieu seems more focused on firming up her Washington relationships in both parties to set the stage to pass on reelection, and do what retired members of congress generally do -- stay in Washington and build a lucrative lobbying career.

This brings us to the final member of the triumvirate. Current Republican U.S. Senator David Vitter seems eager to come back home. He spent enormous resources in the recent gubernatorial election in support of two statewide losers. But both candidates were running against incumbents and were underdogs to begin with. Vitter’s effort tightened up the margins of victory, and allowed him to crisscross the state talking about others, and not be on the defensive as he has been in the past few years. He has raised money for a number of legislative candidates, and like Jindal, seems to be building up political statewide IOUs for the future.

Is it the Governor’s mansion for Vitter in 2015? The Senator enjoyed the political give and take when he was in the state house of representatives. But Washington is more disjointed, and Vitter’s current aggressive confrontations generally take place through press releases. In Baton Rouge, he can relish the infighting and be much more politically relevant again. So even though he has five years left on his current term, look for him to be back in Louisiana often in the months to come, submitting to the allure that enticed Huey Long, Edwin Edwards, Dave Treen, Buddy Roemer and Bobby Jindal, to come back home from Washington to the Governor’s mansion.
And then there is present Lt. Governor (and heir apparent if Jindal leaves office for Washington) Jay Dardenne. How does he respond to a Vitter candidacy? Remember that Vitter pummeled Dardenne during the recent Lt. Governor campaign. Dardenne had the audacity to consider running against Vitter in 2010, and Vitter neither forgets nor forgives. These guys could, along with popular state treasurer John Kennedy, create a real barnburner in a 2015 gubernatorial election. And if Dardenne is not successful in being elected governor? Well, there would be a special election for U.S. Senator just a short time later. Senator Dardenne? Governor Dardenne? There’s a nice ring to both.

So don’t despair, you enthusiastic Louisiana political devotees. Yes, 2011 was, with a few exceptions, a rather dull political year. But we’re just a few years away from what well could be one of the nastiest, most vicious, no holds barred political shootouts in many a year. I can hardly wait.

*****

“Politicians and diapers should be changed frequently and all for the same reason.” ~José Maria de Eça de Queiroz, translated from Portuguese
Peace and Justice

Jim Brown

Jim Brown’s syndicated column appears each week in numerous newspapers and websites throughout the country. You can read all his past columns and see continuing updates at www.jimbrownusa.com. You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownusa.com