AZ prosecutors fight proposed ethical rules to protect the innocent...

It's frightening how protected some agents of the court are from taking reponsibility for correcting wrongful convictions - they aren't even necessarily being blamed for misconduct.  Prosecutors act like they are infallible and never need to take responsibility for their mistakes, while holding all the rest of us accountable for ours. Their resistance to being held to a higher standard than currently exists is the very reason we need these proposed rules to go into effect.

Arizona's prosecutors seem especially shameless. Instead of fighting these new rules they should be leading the way to building a more just system. I'm especially disappointed with Maricopa County attorney Bill Montgomery's response, but not surprised. He's refused to take action in the wrongful conviction of Courtney Bisbee: one of her accusers recanted several years ago, and has been fighting to get her case re-heard, but Montgomery won't even talk to the kid, who authored this petition.

Courtney's judge, Warren Granville, and Bill Montgomery both have the power to have her case re-opened tomorrow, if they wanted - they just refuse to exercise it because they don't want to admit liability for her wrongful conviction and prolonged imprisonment in the first place - she was convicted in a trial by judge, not jury. Prosecutors should not be allowed to represent counties in civil action because of the conflict of interest it creates, undermining the primary duty of the prosecutor being to the People, as evidenced here. If Montgomery's most pressing sense of duty was to justice for the People, Courtney's case would have had a new hearing by now.

Meanwhile, Courtney- whose family was financially ruined by her trial and who now has to represent herself - has been spending the past six or seven years in prison going through the appeals process trying to exercise her rights - the appeals process is cumbersome and time-consuming and often doesn't work to trigger new trials because of "technicalities", people - a trial can conform perfectly and still result in convicting an innocent person if all evidence wasn't available at the time, for example, as opposed to the evidence being withheld. In Courtney's case, the recantation of a chief accuser and witness hasn't guaranteed her a new trial. 

 Courtney Bisbee and daughter 

Taylor Lee

The damage by wrongful convictions isn't just to the life of the accused -  Courtney's whole family has been devastated, and her daughter is growing up without her. Criminal prosecution destroys lives and those people should get it right the first time, and should be mandated to fix things when exculpatory evidence presents itself - clearly what's in place now isn't working. Maybe these rules will compel prosecutors to be a little less reckless convicting people in the first place, too. Members of the public should read the petition Courtney's accuser wrote about her conviction, and write to the Arizona Supreme Court and tell them to support the proposed rule changes.

Here's their web comment form:

AZ Supreme Court: Contact us

Here's the postal address:

Chief Justice Rebecca White Berch 

Arizona Supreme Court

1501 W. Washington St

Phoenix, AZ 85007

 
excellent coverage here by Gary Grado the AZ Capitol Times, by the way...

----------------from the AZ Capitol Times------------------------

Proposed ethical rules would require prosecutors to disclose evidence even after convictions

By Gary Grado - gary.grado@azcapitoltimes.com 

Published: December 17, 2012 

 

 

Henry Hall was on death row when police found the remains of Ted Lindberry in the desert west of Phoenix in March 2001.

A jailhouse snitch had testified that Hall bragged he beat Lindberry to death, breaking his wrist and smashing his skull. But an autopsy of the skeletal remains found no broken bones. And worse yet, prosecutors didn’t inform Hall’s defense attorney about the discovery until a year later, after the remains had been cremated.

A bevy of defense attorneys led by Larry Hammond, who heads the Arizona Justice Project, are citing troubling cases like Hall’s and wrongful convictions throughout the country as reasons for proposing new ethical rules requiring prosecutors to turn over new evidence that might prove a defendant’s innocence after a conviction.

The Arizona Supreme Court, which sets the rules governing attorneys and court procedures, has drafted the proposed new rules and is seeking input from the legal community. If the rules are adopted, prosecutors could be disciplined by the State Bar of Arizona for violating them.

Under the proposal, a prosecutor would have to inform the court and the defendant if credible evidence surfaces that raises a reasonable likelihood the defendant didn’t commit the crime for which he was convicted.

Prosecutors oppose the change for several reasons, said Yavapai County Attorney Sheila Polk, chair of the Arizona Prosecuting Attorneys’ Advisory Council. She said there are already rules of professional conduct, or ethical rules, in place related to the concealment of evidence and administering justice. There is also case law that requires prosecutors to disclose evidence that clearly shows a defendant’s innocence after conviction.

Polk said defendants are also afforded the right to challenge their convictions and offer evidence of innocence or new evidence after trial in Superior Court.

The proposed rules also require a prosecutor to “undertake further investigation, or make reasonable efforts to cause an investigation” to see if the defendant was wrongfully convicted after coming across new information of possible innocence.

“I think that’s a fundamental misunderstanding of prosecutors,” Polk said. “Law enforcement investigates and they present to us cases to charge.”

Prosecutors don’t have the resources to conduct investigations and they would probably lose their immunity from lawsuits by venturing into investigations, Polk said.

She said rules of professional conduct apply to all attorneys across the board, but prosecutors will have the extra obligations.

“Why all of a sudden are prosecutors being singled out?” she asked.

Hammond said the proposed rules don’t impose a duty for prosecutors to personally investigate, only that the prosecutor would be required to ask local police to investigate.

“It amazes me this has been controversial at all,” said Hammond. “It is a hot-button issue for some prosecutors.”

Hammond said the American Bar Association’s board, which consists of 500 people, unanimously approved the proposed rules in 2009, and the National District Attorneys Association and prosecutors from around the country have supported them.

“Everybody thought it was a great thing to make clear that every public prosecutor has a duty to disclose newly discovered evidence when somebody is in prison,” Hammond said.

Hammond leads the Arizona Justice Project, a nonprofit organization that fights for prisoners it deems to have been wrongfully convicted or who have suffered clear and unmistakable injustice. The organization is involved in several cases disputing the science used to convict people in cases of shaken-baby syndrome and arson.

Siding with the defense attorneys are former Attorneys General Terry Goddard and Grant Woods and former Arizona Supreme Court Justices Stanley Feldman, Charles Jones and Thomas Zlaket. Mark Harrison, an attorney with expertise in attorney ethics, wrote a brief on their behalf in support of the new rule.

“Wrongful convictions unfortunately occur, and Arizona’s ethics rules currently provide very little guidance to prosecutors post- conviction,” Harrison wrote.

The language in the proposed Arizona rules is nearly identical to model rules, or guidelines, adopted by the American Bar Association in 2008. As of Sept. 26, eight states have adopted the ABA guideline or a modified version of it, while Michigan, Maryland and North Carolina, rejected them. Nine states are studying whether to implement the rules. The rest have done nothing.

The ABA guidelines grew out of a 2006 report of the Association of the Bar of the City of New York, which recommended the expanded ethical rules for prosecutors “[i]n light of the large number of cases in which convicted defendants have been exonerated, most often as a result of DNA testing but also as a result of other proof that they were wrongfully convicted.” The report stated that prosecutors should be obligated to give serious consideration and devote resources to credible claims of innocence after a conviction.

Maricopa County Attorney Bill Montgomery filed a written response with the Supreme Court opposing the rules, stating that Arizona is not facing a problem with wrongful convictions.

Montgomery pointed to the state’s poster-child of wrongful convictions, Ray Krone, to prove that prosecutors do the right thing when presented with new evidence. Krone was convicted of first-degree murder and sentenced to death for the 1991 murder of Phoenix bartender Kim Ancona. He was eventually exonerated in 2002 when DNA testing proved Kenneth Phillips, a convicted rapist, was the killer.

“Revised ethical rules are not necessary to further the goal of releasing inmates who are actually innocent,” Montgomery’s chief deputy, Mark Faull, wrote to the court.

Hammond has a different recollection of how prosecutors reacted to Krone, saying the Maricopa County Attorney’s Office fought efforts to have evidence tested for DNA. It took media attention and a DNA match to Phillips to get the state to pick up the pace in releasing Krone, Hammond said.

“If we didn’t have the good fortune of Phillips having the DNA in the database, they would have fought that too, but they don’t like to talk about that,” Hammond said.

Hammond pointed out one case in which a Tucson woman, Carolyn June Peak, was convicted of second-degree murder in the shooting death of her husband after the prosecutor withheld reams of material, some of which would have cleared her. Pima County prosecutors discovered the hidden evidence after the original prosecutor, David White, died of cancer. The case was eventually dismissed in 2003.

A group of defense attorneys on the State Bar of Arizona’s Criminal Practice and Procedure Committee also urged the Supreme Court to adopt the rules. They stated that in Hall’s case the prosecutor in 2001 wasn’t legally or ethically obligated to turn over the evidence of the remains while the case was pending appeal. The state was able to argue to the Arizona Supreme Court that the victim’s bones were broken, while not mentioning the discovery of the remains or the autopsy finding that no bones had been broken.

The court’s March 2003 decision in the case said Lindberry’s body has never been recovered.

Court records show Hall’s attorney, Thomas Gorman, was informed six months before the Oct. 31, 2002, oral arguments. Gorman said that didn’t necessarily matter because the body wasn’t part of the trial record and couldn’t be used as an issue on appeal.

Gorman said prosecutors still should have told him about it and not destroyed the remains, but instead he was left without an opportunity to have his own pathologist examine the body.

He said he believes the prosecutors in the case acted unethically even without the proposed new rule.

“They are required to act in the interest of justice,” Gorman said.

“They’re there not just to secure a conviction, they’re there to do justice.”

Gorman was able to convince the Supreme Court to reverse Hall’s murder conviction and order a new trial based on misconduct of a bailiff.

Hall’s new judge, Roland Steinle of Maricopa County Superior Court, ruled that the defense could tell Hall’s new jury how the state didn’t disclose the information on the remains. That wasn’t necessary because Hall pleaded no contest to second-degree murder on Jan. 31, 2011, and he was sentenced to 16 years in prison with 13 years credit. He is due to be released in October 2013.

 

Killing us softly: Prosecuting suicide.

I attended a community roundtable meeting last night about mental illness in the criminal justice system, and the issue of prosecuting people for suicide attempts came up. Killing oneself is no longer against the law in America, but it seems that doesn't stop the cops and prosecutors from coming after you if you fail. A woman in the audience noted that she had just helped get charges dismissed against a man who the City of Phoenix tried to prosecute for disorderly conduct over his attempt to jump off of a bridge after he recovered from the crisis. The city attorney's office complained that he disrupted traffic and tied up public services with his actions.


Isn't that what public services are for - to deal with that kind of thing? Arizona's suicide rate is twice our homicide rate, so we'd better come up with more creative ways to discourage people from killing themselves if we want to lower the death toll. This kind of prosecution seems aimed at minimizing the public's inconvenience, that's all.

Just a few months ago, at a similar meeting, I heard about a man in either Pima or Pinal county who was being prosecuted for criminal damage after surviving a suicide attempt in which he threw himself in front of a car. The damage to the vehicle was over $1000, so he was facing a felony - and therefore possible prison time.


What is wrong with this state? If a person dies from self-inflicted injury, they're listed as a suicide victim. If they survive, however, they can be prosecuted as a perpetrator. Granted, that guy's actions placed the occupants of the vehicle at risk and he should compensate them for the property damage. But that calls for restorative justice, not criminal justice interventions.

I know it's not just here. Last March, the ACLU filed a brief in Indiana on behalf of a woman who was being prosecuted for murder after she miscarried her child in a failed suicide attempt. Currently in the news, a marine in Maryland is fighting his conviction for self-inflicted injury (he cut his wrists in a suicide attempt), which brought with it six months in the brig and a bad conduct discharge. And many years ago in Michigan, when my brother overdosed on my grandmother's prescription medications in a suicide attempt, the cops came and arrested him a month later for possession of a controlled substance - which they seized from his room when the paramedics responded with them to the 911 call. He pled guilty to avoid prison.

I suspect this is happening far more often than any of us could imagine. We need to be substantiating and documenting these reports, and bringing them to light - the city and county attorneys making these decisions need to be held responsible for them, and people struggling with serious mental illness desperately need the support of the community behind them when they're being prosecuted for their symptoms - like despair, impulsivity, delusions, lack of insight, and self-injurious behavior.

I'm not saying that a psychiatric disorder exempts a person from responsibility for their actions. There's a difference between prosecuting a criminal with a mental illness, and prosecuting a person for the "crime" of being mentally ill, however - that happens far too often in America. It's important to make that distinction and be conservative about filing charges in these kinds of circumstances for many reasons - particularly in Arizona, where the mentally ill are more than nine times as likely to end up behind bars as in the state hospital. 

Even if there's some merit to a case, for example, or someone was particularly reckless and harmed others, the negative effects on the community of prosecuting it can still be greater than the benefits of doing so. It can have the chilling effect of discouraging people from reaching out for help after initiating a suicide attempt for fear of being criminally punished. That marine's conviction for self-inflicted injury is especially troubling given the high rate of suicide among service members these days - it's not like he shot himself in the foot to avoid deployment. I can hear a lot of GIs now telling themselves to be sure to use their service weapon if they take themselves out, so there's no chance of survival lest the same humiliation befall them...no more room for ambivalence there.


People aren't usually thinking rationally when they try to kill themselves, and while we should all be mindful not to harm others in the course of harming ourselves (as in with drugged or drunk driving), the consequences of such prosecutions - discouraging people from seeking help in the midst of a suicidal crisis - can be devastating to the "innocent" - those who are careful not to take others out with them - who may die for fear of summoning our community's emergency responders if they have lest minute regrets. It also leaves a lot of other victims behind to grieve them. That's not what we expect for our tax dollars when our fellow citizens are suffering so.

If the profession can't rein its own members in and establish some better parameters to minimize criminal charges against people for the symptoms of their mental illness, then advocates for suicide prevention should be hounding their lawmakers to explore legislative remedies to this problem. In the meantime, please help me publicize when such prosecutions occur so we know just how often it happens, and under whose watch. Spread the word among public defenders, prisoners, the mental health community, and anyone else who might care. And tell those with the power to make decisions about such things that this is unacceptable.


Gary Verberg is the City Attorney for Phoenix - it's my understanding that all criminal prosecutions done by the city are ultimately his responsibility. I haven't verified the details of the allegation about the case above, so don't go off accusing his office of brutalizing people with psychiatric disorders. Just please contact him and make sure he knows that city residents expect suicide attempts to be treated as a medical emergency, not a criminal offense. The contact information for his office is:

Street Address:
300 West Washington, 8th Floor
Phoenix, AZ 85003 

Mailing Address:
P.O. Box 4500
Phoenix, AZ 85030-4500

Phone Numbers:
602-262-6461
Fax: 602-262-7052

The Maricopa County Attorney, Bill Montgomery, didn't make it to the roundtable last night, but he has been to others in the past year and has expressed his own sentiment that it's inappropriate, as a rule, to criminalize people who would not otherwise be offenders but for the symptoms of their mental illness. While we were talking largely about things like destroying property and being disorderly in the course of a psychotic episode, I think this kind of thing would fall under the same category. If you want to let him know your feelings on the issue, though, just in case they got some poor soul facing jail for trying to kill themselves now, drop him a line too at: 301 W. Jefferson St., Phoenix, AZ 85003 / 602-506-3411. I write to him all the time, myself.

Finally, if you're only going to write to one person or place about this, hit these folks: The Arizona Prosecuting Attorneys Advisory Council. It's made up of county attorneys across the state to promote their common crime-fighting agenda with the public and legislature, apparently. They're the folks who invest in propaganda campaigns that further demonize the prison population to support their claim that they've been putting all the right people behind bars in this state, and that we therefore don't need to reform sentencing guidelines or eliminate mandatory minimums. They can be reached at: 1951 W. Camelback Rd., Suite 202, Phoenix, AZ 85015 / 602-542-7222. 

Be sure to send a copy of the letter you send to any of them to the Arizona Republic - or to me - as well, so it can be published. Contact the AZ Republic at: the Editor, The Arizona Republic, P.O. Box 1950, Phoenix, AZ 85001. Letters may also be faxed to (602) 444-8933. Or use their on-line form here.

My address is PO Box 20494, Phoenix, AZ 85036. Or you can email me at prisonabolitionist@gmail.com.


Thanks.

AZ Prosecutors' "Truth-in-Sentencing" Propaganda

I didn't post the press release below when it first came out because it's propaganda of the highest order. The state's prosecutors are all just trying to justify their mandatory minimums and derail any efforts at sentencing and prison reform this year. The AZ Department of Corrections own data shows that there's been a decrease, not an increase, in the violent criminals they've been committing in the past two years - it's not an inherently more violent population of prisoners - it's a more abusive and neglectful administration.

Az Department of Corrections:

decrease in committed violent offenders 2009-2011, from their annual report. 

Fischer's last report for the state prosecutors association (Prisoners in Arizona: A Profile of the Inmate Population) was a huge distortion to manipulate the public's fears, too (here's the PR campaign that went with that one, and the excellent, detailed report put out by AZ Attorneys for Criminal Justice disputing it). Deception seems to be the only way the state prosecutors association can make it's case, which means they don't have much of one to begin with. Here are minutes to the 2010 AZ House Committee on Sentencing Reform where Professor Mona Lynch - also an "expert" on criminal justice in Arizona - takes that report apart.

This interview on KJZZ about the more recent report - with criminologist Franklin Zimring, Bill Montgomery and Sheila Polk - is pretty interesting. Zimring's done a lot of research on the claims the prosecutors assert himself, and dispels many of the myths this kind of thing perpetuates.

For a look at what else may be behind the escalating violence in AZ state prisons, check out my blog post on it here...

Speaking of truth-in-sentencing and our tough state prosecutors, check out how seriously Barbara LaWall's office (Pima County Attorney) takes sexual abuse of children when perpetrated by corrections' officers...How is it "truth-in-sentencing" when double standards for law enforcement officers remain?

----------from the Maricopa County Attorney's Office-----

Landmark Study Underscores Success of Arizona’s Sentencing Laws

PHOENIX, AZ (January 5, 2012) – Arizona has prevented more than a million crimes since 1994 by incarcerating its most dangerous criminals, according to a major research study released today. Titled Prisoners in Arizona: Truth-in-Sentencing, Time Served and Recidivism, the study concludes that Arizona’s Truth-in-Sentencing (TIS) laws, which ensure that convicted criminals serve at least 85% of their sentence, led to a 17.7% drop in reported crime over a fifteen year period after TIS laws were enacted in 1994.

“This study provides the crucial element that has been missing from the public policy discussion about our criminal justice system, namely, facts,” said Maricopa County Bill Montgomery. “What this research shows is that our current sentencing laws are putting the right people in prison for the right reasons and keeping us all safer as a result,” he added.

Commissioned by the Arizona Prosecuting Attorneys Advisory Council, the study notes that Arizona’s crime rate fell by 38.5% from 2002 to 2010, more than twice the national rate. At the same time, Arizona’s prison population has become increasingly violent. According to the study, more than 95% of inmates are violent and/or repeat felony offenders.

The study also found that, contrary to popular belief, Arizona’s prison population has been on a steady downward trend since 2009, dropping by an average of 31 inmates per month after growing by more than 100 inmates per month for 38 years. These numbers reflect the success of diversion programs, substance abuse treatment, probation and other prison alternatives that have prevented low-level offenders from transitioning to full time criminal careers.

“These are precisely the outcomes that proponents of sentencing reform predicted nearly two decades ago,” said Yavapai County Attorney Sheila Polk, who serves as Chairman of the Arizona Prosecuting Attorneys Advisory Council. “The very clear, documented benefits we are seeing in Arizona should serve as an important guide to other states that are looking at making similar reforms to their sentencing systems,” Polk added.

Prisoners in Arizona is authored by Daryl R. Fischer, Ph.D., a widely respected expert on criminal justice statistical analysis and former Research Manager for the Arizona Department of Corrections. The study builds on a foundation of information presented in an earlier study Dr. Fischer conducted in 2010. Prisoners in Arizona is available for download at www.azsentencing.org.