While the national media dutifully reports on the stunning number of erroneous convictions in the U.S., the tone of their reporting belies the media’s inability to honestly examine the seriousness of the issue. These matters are typically reported as “false convictions,” inferring that mistaken guilty findings simply occur through no direct fault of the prosecutors. After all, most people will readily concede that in any line of work, mistakes do happen. This approach does, however, ignore the insidious nature of the problem and gloss over the perniciousness of those responsible for these tragedies.
False conviction is actually a euphemism for false prosecution. Convictions do not just happen. They do not have a life of their own. They do not result from well-intentioned efforts to prosecute those believed to be guilty. Rather, these state-sponsored crimes are the culmination of prosecutors who knowingly make false claims while employing a “win at any cost” strategy and judges who allow their courtrooms to be used as staging grounds for prosecutorial assaults upon the citizenry.
While there are several recognized causes of wrongful convictions, government malfeasance plays a role in the majority of cases
On Friday, March 8, a federal jury awarded $13.2 million to David Ayers of Cleveland, OH for his pain and suffering after spending 13 years in prison for a murder he did not commit. The jury found that two Cleveland police detectives had violated his civil rights by coercing witnesses into testifying falsely and withholding exculpatory evidence. Ayers had been arrested in 1999 for allegedly killing 76 year old Dorothy Brown. He had been released from prison in 2011 after the Sixth Circuit Court of Appeals reversed his conviction. Subsequently, the state of Ohio decided not to seek another trial. DNA testing conclusively showed that a pubic hair found in the mouth of the victim did not belong to Ayers.
David Ayers was framed by police and spent 13 years in prison for a crime he did not commit. Were the prosecutors complicit?
"This should have been stopped a long time ago," Ayers told the Cleveland Plain Dealer after the jury's verdict Friday. "My goal is that it never happens to anyone else ever again."
Ayers claimed his innocence from the outset, but prosecutors focused solely on him as a suspect, ignoring all other leads. As is common in so many wrongful prosecutions, just before the trial began, a jailhouse informant was conjured-up by the prosecution. Donald Hutchinson, a career criminal, told prosecutors that Ayers confessed to him while in jail. Despite a lengthy history of lying to investigators, Hutchinson was shamelessly presented by the prosecution as a dependable witness and allowed to testify at Ayers’ trial.
Ayers filed his civil rights lawsuit in March 2012 against six Cleveland police officers, the city and the county housing authority. Allegations against three of the officers, the city and the housing authority were initially dismissed by a judge who found that their roles did not violate Ayers' rights.
One of the remaining officers settled out of court with Ayers for an undisclosed amount. The Friday verdict was against Michael Cipo and Denise Kovach, who were the lead investigators in the case and who continue to deny any misconduct.
Among the most serious allegations made by Ayers against Kovach and Cipo were that the two detectives conspired with each other to entirely fabricate a confession that Ayers never made, coerced a friend of Ayers to lie by saying that Ayers had told him of the murder before the victim’s body was discovered, and furnished key information about the crime to Ayers' prison cellmate so he could later testify falsely against Ayers about a confession that was never made.
While it is clear that the detectives engaged in illegal and outrageous behavior, one must wonder where the actions of the prosecutors fit into this tragedy. Considering how closely investigators typically work with the prosecution, it seems unfathomable that the prosecutors were unaware of Ayers’ likely innocence. The most probable scenario is that prosecutors worked hand-in-hand with the investigators to completely fabricate evidence against the accused.
False prosecutions are disproportionately impacting minority communities
Part of what allows these false prosecutions to succeed is jurors’ reticence to concede that representatives of their government, who have been entrusted with the due administration of justice, would knowingly concoct a wholly false case against the accused. Even when there is a stunning lack of evidence, or an obvious flaw in the testimony of witnesses, jurors are often naturally inclined to believe that the accused “must have done something.”
The current trial of Abu Ghraib whistleblower, Paul Bergrin, is a case in which the government appears to be banking on precisely such juror preconceptions. Bergrin, a former JAG lawyer and prominent criminal defense attorney, was among the first people to report human rights abuses at the notorious Abu Ghraib prison. Bergrin sought to compel testimony from Bush, Cheney and other administration officials and now stands accused in federal court of murder, large-scale drug dealing, conspiracy and a host of other serious offenses. Informed observers believe that his current legal situation is a direct result of his aggressive actions against high-ranking government officials, and meant to be a warning against others contemplating a similar course.
Former JAG lawyer and criminal defense attorney Paul Bergrin is battling a prosecution team that has repeatedly suborned perjury
Regardless of its impetus, Bergrin’s prosecution is a disgraceful affair that displays many of the hallmarks of false prosecutions. Most prominent is government’s subornation of perjury. Lead prosecutor AUSA John Gay and his band of rogue prosecutors have scraped the depths of the criminal underworld to assemble a veritable parade of practiced perjurers desperate to lie their way out of prison through any available means. While there is nothing unique about government prosecutors teaming-up with perjurious felons to produce false testimony, the depth and scope of the effort against Bergrin is truly stunning.
Many observers believe Bergrin’s current legal woes to be a direct result of his Abu Ghraib whistleblowing
The government case against Bergrin consists almost exclusively of testimony from convicted criminals who are being rewarded for parroting the government’s allegations. All of the central witnesses have admitted to having previously lied to courts and investigators, yet are now being presented by the prosecutors as “credible.” One cannot help but notice that there is a remarkable dearth of evidence corroborating their often surreal testimony.
Bergrin, who continues to act as his own defense lawyer, has seized upon the lies of his accusers and elicited additional falsehoods. Almost all have been caught in outrageous mendacity on the stand, but charges of lying under oath are reserved exclusively for defense witnesses, so the prosecutors’ partners in perjury spin their wild tales with impunity. The government’s central witness against Bergrin, fake hit man Oscar Cordova, was not only forced to concede that he had repeatedly lied to federal investigators in the past, but had to be recalled by the government after his initial testimony was completed to admit that he had phoned-in death threats against himself prior to testifying. Cordova, who also admitted to being under professional care and taking at least two different types of mood-stabilizing drugs, interestingly assumed a woman’s persona when making the calls. Despite all of the trial’s obvious problems, USDJ Dennis Cavanaugh has denied more than one defense motion for a mistrial, allowing the affront to justice to proceed.
Key prosecution witness Oscar Cordova claims to be the son of imprisoned Latin King leader, Lord Gino, but is almost certainly a government imposter
One cannot feign surprise at or blame career criminals for seizing upon any opportunity to extricate themselves from legal jeopardy. People do, however, expect a higher level of integrity from prosecutors who purport to be acting for the public good. Unfortunately, these expectations are often misplaced as it is the prosecutors who enable and orchestrate the perjury which allows a false prosecution to end in a false conviction. These are result-oriented affairs in which the prosecutors begin with a dogmatic certainty of guilt and then fill in the blanks by any available means to achieve their desired outcome. When it is ultimately discovered that someone convicted through such means is innocent, it is hardly a false conviction that somehow mistakenly occurred. Rather, it is a false prosecution that was flawed from its inception and perpetuated through prosecutorial chicanery.
Sadly, prosecutors engaging in such behavior are more likely to be pushed up the judicial corporate ladder than they are to be meaningfully sanctioned. Ken Anderson was a prosecutor in 1987 when he worked to convict Michael Morton for the slaying of his wife. Morton was freed last year after DNA evidence cleared him of the crime. Another man is now facing murder charges.
Ken Anderson’s dogged work to falsely prosecute innocent defendants was rewarded with a judgeship
Anderson parlayed his success at trial into a judicial post and now serves as a state district judge. A disciplinary panel for the State Bar of Texas is bringing a civil action against the former prosecutor for knowingly withholding exculpatory evidence from Morton and his lawyers. Such actions against prosecutors are exceedingly rare.
Michael Morton was falsely prosecuted through the use of perjured testimony and withheld exculpatory evidence
“Before, during and after the 1987 trial, (Anderson) knew of the existence of several pieces of evidence and withheld same from defense counsel," according to the lawsuit, which also serves as a disciplinary petition.
On Friday, Anderson's attorney, Eric Nichols, said he and his client "respectfully disagree" with the Bar's assertions.
Eric Nichols is defending Judge Anderson against a civil action brought by the Texas Bar
"Incorrect allegations that were first made by attorneys representing Mr. Morton have unraveled over time and will continue to do so," said Nichols. "We will defend against these allegations in the public forum of a court of law." John Raley, an attorney for Morton, said he was confident Anderson would "be held accountable."
Attorney John Raley spent seven years working on Morton’s exoneration
According to the Bar's lawsuit, Anderson violated professional conduct rules by withholding five items. They include a memo to the sheriff's lead investigator in the case regarding a tip that a check made out to the victim was cashed nine days after she was killed; a phone message to the investigator that the victim's credit card was recovered in San Antonio; and a sheriff's department report from neighbors describing a man parking a van on the street behind the Mortons' home several time before the August 1986 killing. The Bar also alleges he withheld the transcript of a taped interview between the investigator and Morton's mother-in-law; and a condensed transcript of the taped interview.
Incredibly, the taped interview included the victim's mother saying her 3-year-old grandson told her that he witnessed the killing, gave details about it and said his father wasn't home at the time. Morton, who was convicted on solely circumstantial evidence, maintained he was working when the murder took place and that an intruder was responsible for his wife's death. "(Anderson) affirmatively told the trial court that he had no evidence favorable to the accused," the lawsuit said. "That statement was false." ,
Unfortunately, there is very little downside risk to prosecutors who employ these tactics and knowingly pursue false prosecutions. Recent Supreme Court cases have suggested that prosecutors are immune from suit, even when proved to have purposefully employed the use of false evidence against a defendant. Until prospective jurors are fully acquainted with how widespread the use of these tactics has become, they remain susceptible to being erroneously swayed against the accused. The sickening stream of false prosecutions shows no immediate sign of abating.