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Follow up: Gaston County D.A. accused of withholding evidence in murder case

Follow up: Gaston County D.A. accused of withholding evidence in murder case


On Monday, July 3, 2017, a Superior Court judge granted Mark Carver’s request for an evidentiary hearing, which will be held in September. Carver claims he was wrongly convicted of the 2008 death of Irina Yarmolenko, a UNC Charlotte student. As previously discussed here, Carver’s attorney, Chris Mumma of the N.C. Center on Actual Innocence, has alleged that Gaston County District Attorney Locke Bell failed to comply with a court order directing him to turn over investigative and prosecutor files. No ruling on the contempt motion was entered, according to local media reports, and Mumma repeated her request for a contempt finding during the hearing.

As The Charlotte Observer reported on Monday: “Mumma and Bell have been wrangling for months over evidence. North Carolina is known as an ‘open-file discovery’ state in which the law requires attorneys to turn over their complete files to the opposing side.” Although the District Attorney’s Office provided Mumma with additional files during Monday’s hearing, the earlier concerns raised about Bell’s office’s full compliance appear to remain, with the presiding judge “elicit[ing] promises from Bell and Mumma that they would exchange all evidence before any hearing on the defense request for a new trial takes place.”

Prosecutorial misconduct found in Massachusetts

Prosecutorial misconduct found in Massachusetts


The scandals marring Massachusetts’ state drug labs — and its criminal justice system — have taken a new turn. Former state chemists Sonja Farak and Annie Dookhan have both received their legal comeuppances for their misconduct. And at least one wrongfully convicted person, Leonardo Johnson, has been awarded $2 million as a result of being victimized by Dookhan’s lies. But last week, following months of hearings and as predicted, state prosecutors were held to account for their actions in a blistering court ruling.

Hampden County Superior Court Judge Richard J. Carey steadied his focus, and ire, on the State Attorney General’s Office. As reported in the Boston Herald, Judge Carey “ruled that two assistant AG’s engaged in ‘intentional, repeated, prolonged and deceptive withholding of evidence from defendants, the court and local prosecutors … (conduct that was) egregious and harmful to the administration of justice.’”

Judge Carey found that the two prosecutors “tampered with the fair administration of justice” by failing to produce — and by deliberately concealing — documents that the Commonwealth was required to turn over to defendants on trial. They also made material misrepresentations to another judge, conduct that Judge Carey deemed “a fraud upon the court.” In addition to his findings of prosecutorial misconduct, Judge Carey dismissed the convictions of seven defendants and allowed another to withdraw his guilty plea.

“The ramifications from their misconduct are nothing short of systemic,” Carey wrote in his lengthy order, and were “in many ways more damning.”

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California Supreme Court finds “discriminatory bias” in prosecution’s use of peremptory jury strikes

Supreme Court of California
Wikimedia Commons

California Supreme Court finds “discriminatory bias” in prosecution’s use of peremptory jury strikes


The California Supreme Court overturned the 2012 convictions of three men after finding that Kern County prosecutors used peremptory strikes in a discriminatory manner to keep Latinos off their jury.

According to the Los Angeles Times, “The unanimous decision, written by Justice Mariano-Florentino Cuéllar, appeared intended to send a clear signal to prosecutors, defense lawyers and the lower courts that charges of racially motivated juror exclusions must be taken seriously.”

The ruling is also a blow to Kern County District Attorney Lisa Green, who insisted that her prosecutors did nothing wrong in the case. Green must now decide whether to retry Rene Gutierrez, Jr., Gabriel Ramos, and Ramiro Enriquez, who were tried and convicted for shooting Clarence Langston in Bakersfield. Langston survived the shooting. Gutierrez was sentenced to prison for 30 years to life, plus 27 years. Enriquez was sentenced to prison for 14 years to life, plus 25 years. Ramos was sentenced to prison for 5 years

During jury selection, the trial prosecutor struck ten Latinos from serving on the jury. The defendants raised a joint Batson/Wheeler motion, “contending that the prosecutor had improperly excluded prospective jurors on account of Hispanic ethnicity.”

Although the trial court agreed that the defendants had established a prima facie claim of discrimination, the trial court ultimately denied their motion after “finding the prosecutor‘s reasons to be neutral and nonpretextual.” The Supreme Court found that the record did not support a finding “that the trial court met its obligations to make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation,’” as is required under BatsonWheeler, and their progeny.

The ruling is particularly significant because of the infrequency with which appellate courts have overruled trial court findings that no discrimination took place during jury selection. In his concurring opinion, California Supreme Court Justice Gordon Liu noted that this was the first time in 16 years, and only the second time in 25 years, that the California Supreme Court overturned a ruling based on discrimination in jury selection.

According to The Open File, a website run by “an informal collection of lawyers, law professors, law students and policy advocates who are concerned about prosecutorial misconduct,” the California decision was particularly notable because of “the careful attention the justices gave to the record and to what actually happened in the proceedings below. Rather than filling in the record’s gaps with untethered assumptions that amplify the deference already owed to trial court decisions, the Court looked at them squarely and made clear that they cannot be written off in the prosecution’s favor.”

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