Prosecutors Breaking Bad

The following are various cases in which prosecutors have reportedly engaged in misconduct, ethical violations or criminal behavior, which evidence the need for effective solutions to the persistent problem of prosecutorial abuses.

California

In 2012, the California Supreme Court overturned the death sentence of Miguel Bacigalupo based on a finding of prosecutorial misconduct. While leaving his murder convictions intact, the Court found that former prosecutor Joyce Allegro – who later became a judge – and her lead investigator had withheld evidence from Bacigalupo’s attorneys that indicated a Columbian drug cartel had been involved in the murders.

That information would have bolstered Bacigalupo’s defense that he had been forced to commit the murders because cartel members threatened to kill him and his family if he refused – a duress argument that may have spared him the death penalty. See: In re Bacigalupo, 55 Cal. 4th 312, 283 P.3d 613 (Cal. 2012).

As previously reported in PLN, embattled Del Norte County, California district attorney Jon Michael Alexander faced disbarment after he was found guilty of several counts of misconduct, including charges that he spoke to a defendant without her attorney present and then lied about it. [See: PLN, May 2013, p.48; Jan. 2013, p.46]. That incident was merely the latest of multiple complaints filed against Alexander. He was suspended by the County Board of Supervisors in April 2013; regardless, he said he would fight to keep his job.

“I am the elected DA of this county; I still believe that I am,” he stated. “My job is to represent the people of this county as a prosecutor. I am not ready to relinquish that right.”

On April 30, 2014, the State Bar Court recommended disbarment, noting the hearing judge found that Alexander had “committed acts of moral turpitude” by attempting to conceal his misconduct. “Alexander has been involved with the disciplinary system since 1994, yet he continues to commit misconduct, even while on probation and while serving as the chief law enforcement officer for Del Norte County,” the Court wrote. Accordingly, he was “involuntarily enrolled as an inactive member of the State Bar” pending a final decision by the California Supreme Court.

On February 29, 2012, former Contra Costa County prosecutor Paul Sequeira filed a lawsuit in state court against Senior Deputy District Attorney Harold W. Jewett, accusing Jewett of assault and battery. The two men had argued about an election campaign in March 2010, leading Jewett to allegedly “sucker punch” Sequeira in the face. Jewett, who previously had been named “Prosecutor of the Year” by the California District Attorneys Association, was suspended for 30 days without pay – although he was later promoted. [See: PLN, May 2013, p.41; May 2010, p.50].

In May 2012, Sequiera received a $50,000 settlement from Contra Costa County after filing a claim for damages related to the incident.

District of Columbia

Former Assistant U.S. Attorney G. Paul Howes was accused of mishandling $42,000 in witness vouchers in the 1990s, giving the payments to relatives and girlfriends of informants, then trying to evade detection and punishment.

As a result of his misconduct the Department of Justice agreed to significantly reduce the sentences of at least nine defendants, including seven convicted of murder. The D.C. Bar’s Board of Professional Responsibility merely recommended that Howes be suspended; however, in a rare rejection of such light discipline, in March 2012 the D.C. Court of Appeals held disbarment was “the only appropriate sanction” considering the scope of Howes’ misconduct. He was the first federal prosecutor to be disbarred in over a decade. [See: PLN, March 2013, p.38].

Maine

Former state prosecutor James M. Cameron, 51, was convicted in 2010 on charges of sending, receiving and possessing child pornography, and sentenced to 16 years in federal prison. He was released pending an appeal after serving five months; however, he fled when seven of his 13 convictions were upheld by the First Circuit in 2012. Captured in New Mexico 18 days later, he was returned to Maine. On October 17, 2014, the U.S. District Court held that Cameron now faces 24 to 30 years in prison due to his flight while on bail.

Massachusetts

When Internet activist Aaron Swartz, 26, was caught illegally downloading academic articles from MIT, federal prosecutors filed 13 charges that could have put him in prison for up to 35 years. They then offered Swartz a plea deal in which he would serve six months. Instead, Swartz committed suicide in 2013 and the prosecutors, including Assistant U.S. Attorney Stephen Heymann, were accused of inappropriately overcharging and using a lengthy prison term as leverage to force Swartz to plead guilty. [See: PLN, June 2013, p.56].

U.S. Senator John Cornyn questioned Attorney General Eric Holder about the case, asking, “Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines, and then offer him a three or four month prison sentence?”

Holder replied that he thought it was a “good use of prosecutorial discretion.”

A complaint was filed against Heymann with the Office of Professional Responsibility; the outcome of the complaint is unknown, as the OPR does not disclose information about specific disciplinary cases.

Michigan

On August 16, 2012, a federal jury in Detroit found former Assistant Attorney General Andrew Shirvell guilty of stalking, defamation, intentional infliction of emotional distress and invasion of privacy in a civil suit filed by Chris Armstrong, the University of Michigan’s first openly gay student body president. The jury awarded Armstrong $4.5 million in damages.

Shirvell had been fired from the Attorney General’s office in 2010 after he “repeatedly violated office policies, engaged in borderline stalking behavior and inappropriately used state resources” to target Armstrong, because he objected to Armstrong’s sexual orientation. He had also lied to investigators about his actions. [See: PLN, June 2013, p.43]. Shirvell appealed the jury verdict to the Sixth Circuit on October 10, 2013; his appeal remains pending.

New York

Darrell Dula, 25, was released from the Rikers Island jail in New York City in April 2012, where he had served ten months while facing a rape charge. In fact, the victim had recanted the rape accusation the day after she made it. She even signed a recantation, and had made similar allegations a year earlier that she had also recanted.

That information was not provided to Dula’s defense counsel, however, leading to an indictment and Dula spending almost a year in jail pending trial. Prosecutor Abbie Greenberger said her boss, Lauren Hersh, had pressured her to proceed with the case. Greenberger claimed she was not aware of the recantation documents, which, after another prosecutor took over, were found to be missing from the case file.

The charges against Dula and three co-defendants were later dropped, and Dula filed separate lawsuits against the City of New York and the Kings County District Attorney’s Office. Hersh resigned in May 2012 following an internal review by the DA’s office that found she had acted inappropriately.

During a sworn deposition on December 19, 2013, former Brooklyn district attorney Charles J. Hynes admitted he had held witnesses in criminal cases against their will in hotel rooms – a practice he denied when he ran for reelection earlier that year.

“They were not free to leave; so sure, they were prisoners,” he stated, though he later said he meant the courts were responsible, as judges had signed material witness warrants.

Hynes was deposed in a lawsuit filed by Jabbar Collins, who served 16 years in prison for murder before his conviction was reversed in 2010. A key witness in the case testified that the chief prosecutor, Michael F. Vecchione, had threatened to assault him or charge him with perjury if he didn’t testify against Collins. The witness was kept in jail for a week, then held in a hotel room for another week under armed guard.

The federal court that reversed Collins’ conviction called prosecutors’ actions in the case “shameful,” including their failure to inform defense counsel that witnesses had recanted their testimony or been held against their will. Vecchione announced his retirement from the DA’s office in November 2013.

The New York Times reported in June 2014 that the city’s Department of Investigation had issued findings that accused Hynes of using funds seized in criminal cases to pay a political consultant – a former DA employee – almost $220,000 to work on Hynes’ unsuccessful reelection campaign. He had also hired state Supreme Court Justice Barry Kamins to assist with his campaign, which was a significant conflict of interest. Pursuant to an agreement with the state Commission on Judicial Conduct, Kamins agreed to retire from the bench. In August 2014, a grand jury began considering potential criminal charges against Hynes.

Collins settled his wrongful conviction suit against the City of New York and two police detectives for $10 million on September 19, 2014. He had previously settled a lawsuit against the state for $3 million. See: Collins v. City of New York, U.S.D.C. (E.D. NY), Case No. 1:11-cv-00766-FB-RML.

On March 21, 2014, Bronx Criminal Court Judge John Wilson sharply criticized assistant district attorney Megan Teesdale in a rape case involving defendant Segundo Marquez. Wilson accused Teesdale of failing to disclose that the victim initially told police she had consensual sex with Marquez in exchange for money.

The judge said it was the most “egregious” violation he had seen, stated Teesdale’s conduct amounted to “gross negligence” and ordered her not to appear in his court again. The charges against Marquez were dropped after he had spent eight months in jail. Teesdale said the failure to disclose was a mistake due to multiple prosecutors handling the case.

Ironically, Judge Wilson is now facing an investigation by the State Commission on Judicial Misconduct for criticizing Teesdale and barring her from his courtroom. Teesdale reportedly did not face any discipline from the DA’s office.

North Carolina

The badly botched prosecution of the 2006 Duke University lacrosse rape case resulted in the resignation of Durham County district attorney Mike Nifong. Despite a lack of evidence indicating their involvement in the alleged crime, three Duke lacrosse players were charged with rape, kidnapping and sexual offense. They were later exonerated.

Nifong was disbarred in June 2007 for ethics violations, including lying about DNA evidence that had been withheld by his office. He also was held in criminal contempt and served one day in jail. “Mr. Nifong did not act as a minister of justice, but as a minister of injustice,” said Doug Brocker, an attorney with the North Carolina State Bar.

Oklahoma

Oklahoma prisoner Michelle Murphy, 37, was exonerated and released in May 2014 after serving 20 years of a life sentence for murdering her infant son. According to an October 12, 2014 Tulsa World news report, Tulsa County prosecutor Tim Harris told jurors at Murphy’s trial that “police found someone’s blood near her slain baby’s body – blood he implied could be hers.”

However, according to Murphy’s attorneys, at the time of the trial Harris had a report from the Oklahoma State Bureau of Investigation that indicated the blood found at the crime scene had a different blood type than Murphy’s.

Harris argued he did not withhold evidence and had shown the report to Murphy’s defense team – a claim they disputed. He opposed a request to unseal documents in the case.

“There was so much misconduct. So much exculpatory evidence that was not produced. There was a great deal of deception,” said one of Murphy’s appellate attorneys, Sharisse O’Carroll.

Harris has not been disciplined in connection with the case, though he announced in November 2013 that he would not seek re-election.

Tennessee

On December 23, 2013, the Tennessee Supreme Court publicly censured Shelby County assistant district attorney Thomas D. Henderson for misconduct in a death penalty case, following a complaint filed by the Office of the Tennessee Post-Conviction Defender. Henderson was accused of failing to tell defense counsel about an eyewitness who saw two other suspects with blood on their hands at the crime scene, and who identified one of those suspects in a photo lineup. He did not pick the photo of the defendant, Michael Dale Rimmer, who was later convicted of murder and sentenced to death.

When Rimmer’s attorneys asked for Brady materials prior to trial, instead of producing the eyewitness report and identification of another suspect, Henderson wrote: “[T]he State of Tennessee is now unaware of any evidence which tends to exculpate the defendant of the crime charged against him.”

Henderson agreed to the censure, and was also ordered to pay $1,745.07 for the cost of the misconduct investigation. Rimmer’s murder conviction was overturned in 2012; he faces a retrial, and the Shelby County District Attorney’s Office has recused itself from his case, calling it a “distraction.” Meanwhile, Rimmer remains on death row.

Texas

During a 2012 trial involving a defendant accused of injuring a child, then-Polk County assistant district attorney Kaycee Jones and the judge over the case, Elizabeth Coker, exchanged ex parte texts about the prosecution’s trial strategy. Judge Coker apparently initiated the texts, and Jones relayed them to the lead prosecutor.

The incident was reported by another member of the prosecution team, and in May 2014, Jones – now a state district judge – received a public reprimand and $650 fine from the Texas Bar Association. She agreed to the reprimand, which cited her for “professional misconduct” for inappropriate communication with Judge Coker, who resigned from the bench in December 2013 amid a judicial misconduct investigation.

Jones’ sanction was widely criticized as being overly lenient, particularly since she was suspected of engaging in ex parte communications with Coker in other cases, too.

Utah

On July 14, 2014, John Swallow and Mark Shurtleff, both former Utah Attorneys General, were arrested by agents with the FBI and Utah Department of Public Safety and charged with numerous state felony offenses that included tampering with evidence, taking bribes, obstructing justice, misuse of public funds and making false statements.

The charges center on relationships Shurtleff and Swallow had with wealthy defendants, including Jeremy Johnson and Marc Sessions Jenson. Shurtleff allegedly used Johnson’s private plane to fly to California and New York, while Swallow is accused of using Johnson’s houseboat and Ferrari while serving in the Attorney General’s office.

Johnson faced federal fraud charges, and Jenson had been charged with securities fraud. The criminal charges against Swallow and Shurtleff remain pending.

West Virginia

As part of a corruption investigation involving public officials in Mingo County, West Virginia, prosecutor Michael Sparks was charged with conspiring to conceal drug-related activities that involved county sheriff Eugene Crum, by violating the constitutional rights of a defendant who had planned to testify against the sheriff.

Sparks resigned in October 2013 and was disbarred. [See: PLN, Nov. 2013, p.42]. He subsequently pleaded guilty, and on July 7, 2014 was sentenced to one year in prison followed by a year on probation, plus a $500 fine.

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