Get Informed

Regular updates, analysis and context straight to your email

‘Progressive DA’ Fights to Put Innocent Man Back in Prison

Office of East Baton Rouge District Attorney Hillar Moore

‘Progressive DA’ Fights to Put Innocent Man Back in Prison

The evidence connecting Wilbert Jones to the 1974 rape for which he spent 46 years in prison was always weak. He was freed shortly before Thanksgiving due to the revelation that East Baton Rouge prosecutors hid evidence pointing to a different suspect entirely. But thanks to the efforts of East Baton Rouge District Attorney Hillar Moore III, Jones now faces the prospect of returning to prison after less than a month of freedom.

Soon after Louisiana 19th Judicial District Judge Richard Anderson vacated Jones’ conviction, Moore promised to file an appeal to the Louisiana Supreme Court to seek “justice for the victim,” who died in 2008.

Sure enough, on Friday Moore’s office asked the Supreme Court to reinstate the conviction, arguing that Judge Anderson had overreached by freeing Jones. Anderson found that “the State’s case against Jones was weak, at best,” and that the hidden, “highly favorable” evidence could have altered the trial’s outcome.

Moore claims to be a “progressive DA.” A 2013 Times-Picayune profile noted his conference table was stacked with iconic justice reform titles including The New Jim Crow and Don’t Shoot.

“For the guy whose job is prosecuting bad guys, Moore is hell-bent on finding a way to keep them out of courtrooms,” the Times-Picayune declared.

Moore’s record on keeping “bad guys” out of courtrooms is questionable, but he has certainly seemed hell-bent on keeping Jones, now 64 and in poor health, locked up for the rest of his life. District attorneys have enormous discretion in deciding which cases to pursue; Moore is not obligated to defend the conviction of his predecessors. But he has continued to fight in the face of mounting evidence of wrongdoing by his office.

Jones was granted a new evidentiary hearing in June. At that point, Moore could have simply declined to defend the conviction. The original case rested entirely on identification by the victim, a nurse at a Baton Rouge hospital. She later testified she had doubts that she had identified the right man, saying her attacker had a different voice and was taller than Jones.

Jones’ attorneys at the The Innocence Project introduced police reports indicating a serial rapist had committed nearly identical assaults in the same time period. The suspect in those cases matched the nurse’s description, and lived a block away from where he had left her after the assault. Yet prosecutors with the East Baton Rouge DA’s office, which Moore leads, withheld this information from Jones’ defense team for decades.

Moore’s latest appeal disputes that his office suppressed this evidence, arguing that the assaults were not similar enough to exonerate Jones. Furthermore, Moore asserts, the other rapes were publicized in the media at the time, so Jones’ defense attorneys should have investigated any possible connection themselves.

It’s not clear why Moore is continuing to fight a nearly 50-year-old case where the defendant has already served more than four decades behind bars. But Jones’ case sheds light on potentially major scandals at the East Baton Rouge DA’s office.

One of the prosecutors on Jones’ case had a history of withholding evidence favorable to the defense. In 1973, he was responsible for 11 overturned convictions. Evidence that could have been DNA-tested to exonerate Jones mysteriously disappeared after his conviction, leaving defense lawyers with only an empty envelope. The other suspect discovered by the Innocence Project was charged only with armed robbery in one of the rape cases, and was never prosecuted in the other, though his fingerprints were found in the victim’s car.

Many in Louisiana celebrated Wilbert Jones’ release as a rare correction of injustice. But while the holes in the case against Jones were big enough to free him, it’s unlikely they will prompt Moore to investigate his office’s failings. The ease with which Jones was wrongfully convicted and the effort it took to get him out demonstrates the destructive power of prosecutors’ win-at-all-costs approach. Jones may be home, but that power hasn’t budged.

Thanks to Burke Butler.

New York’s Attorney General Just Indicted a District Attorney for Covering Up a Police Shooting of an Unarmed Black Man

Joel Abelove for District Attorney
Photo: Joel Abelove Facebook

New York’s Attorney General Just Indicted a District Attorney for Covering Up a Police Shooting of an Unarmed Black Man

A New York State grand jury indicted Rensselaer County District Attorney Joel E. Abelove on charges of official misconduct and perjury on Friday afternoon. The indictment stems from Abelove’s concealment of evidence about the shooting of an unarmed black man by a Troy police officer, and allegations that Abelove lied during a subsequent investigation. According to the indictment, Abelove repeatedly interfered with Attorney General Eric Schneiderman’s efforts to investigate the killing of 37-year-old Edson Thevenin, who was shot eight times by police sergeant Randall French following a traffic stop gone awry.

Schneiderman, under Governor Andrew Cuomo’s 2015 Executive Order, is required to investigate and, if warranted, criminally prosecute cases in which police have killed unarmed civilians in New York state. In the immediate aftermath of Thevenin’s death, Schneiderman’s Special Investigations and Prosecutions Unit, requested that Abelove’s office provide copies of the investigative files about the shooting. Abelove, however, pointedly stymied Schneiderman’s investigation. Rather than provide the information to the Attorney General, Abelove presented a truncated version of the case to a grand jury that ultimately cleared French of any wrongdoing less than a week after the shooting.

“As we allege, District Attorney Abelove’s actions violated the law and undermined a criminal investigation,” said Attorney General Schneiderman. “The Governor’s Executive Order was designed to restore public confidence in our criminal justice system — yet the actions we detail today only served to further erode that confidence.”

Abelove’s efforts to shield a police officer from criminal liability for the shooting death of an unarmed civilian is exactly the type of conflict of interest that Cuomo’s Executive Order is meant to avoid.

On April 17, 2016, Thevenin was pulled over by French on suspicion of drunk driving. Following a short chase, where French claims Thevenin attempted to run him over, French shot Thevenin eight times through his windshield. By the next day, Troy’s mayor, its police chief, and its district attorney, Abelove, were in agreement about what happened: Thevenin had tried to run over French. Within four days, Thevenin brought the case before a grand jury, which decided not to indict French. However, just hours after the shooting, the state’s attorney general, under the 2015 Executive Order, had decided to investigate the shooting, asking Abelove to hand over investigative files relating to the case — and to hold off on convening a grand jury before the the AG decided whether to intervene or not.

Abelove ignored Schneiderman’s request and convened a grand jury anyway.

The first count of official misconduct against Abelove stems from allegations that he “knowingly withheld material evidence” from the grand jury. There are two potential pieces of information that should have been presented to the grand jury. First, two civilian witnesses came forward with accounts — including cell phone video — that directly undermined French’s justifications for the shooting. Abelove did not present either eyewitness account to the grand jury. Second, since Abelove convened the grand jury just four days after the shooting, the autopsy report on Thevenin had not been completed — denying the grand jury of evidence to potentially contradict French’s assertion that Thevenin was intoxicated.

Abelove’s handling of French’s own self-serving testimony led to the second count of official misconduct. Abelove compelled French to testify before the grand jury, but failed to require him to sign a waiver of his Fifth Amendment privilege against self-incrimination or immunity from prosecution before doing so. In failing to secure the waiver, Abelove effectively — and, according to the indictment, knowingly — immunized French from any criminal prosecution by the AG’s office.

It is incredibly rare for someone connected to a possible crime who is testifying in front of a grand jury to not sign a waiver of immunity from prosecution, and often police officers who feel that their testimony would implicate themselves do not sign the waiver and also do not testify in front of a grand jury.

The grand jury, hearing testimony only from police officers, quickly cleared French. It is highly unusual for a grand jury determination in a police-involved killing to be made in New York State in under a week — for example, the grand jury looking into the Eric Garner killing took over four months to come to a decision. In 2015, Abelove’s office presented a case to a grand jury involving a shootout between police officers and a suspect, Thaddeus Faison, who was eventually killed by the officers. The Faison grand jury issued its ruling more than 75 days after the incident. To many observers, the speed with which Abelove rushed the process in the French case was no mistake.

Schneiderman promptly sued Abelove following the grand jury’s decision, claiming that Abelove had “flagrantly violated” Cuomo’s executive order. The AG demanded that Abelove hand over all files relating to the case, stop investigating the case, and “annul” the grand jury decision. Abelove agreed to hand over the files and stop his investigation, but refused to vacate the grand jury’s decision.

Then, in September, Schneiderman empanelled a grand jury to investigate whether Abelove’s conduct constituted a criminal offense. In October, Abelove invoked his right to appear before the grand jury. The third count of the indictment returned today charges that Abelove lied to the grand jurors when he tesitified that his office had previously allowed an officer investigated for shooting a civilian to testify without signing an immunity waiver.

Schneiderman’s grand jury, unlike Abelove’s, heard testimony from multiple witnesses who claim that French’s life was not in danger when he fired on Thevenin. The grand jury also heard from a former prosecutor in Abelove’s office, Vincent O’Neill, who was fired by Abelove just days after being contacted by officials from Schneiderman’s office about the investigation.

The grand jury’s indictment against Abelove is an extremely rare example of a sitting District Attorney being criminally prosecuted while still in office. Most recently, Suffolk County District Attorney Thomas Spota was federally indicted as part of a cover-up of a beating of a man in police custody, and Philadelphia District Attorney Seth Williams was found guilty of taking bribes while in office and sentenced to federal prison.

The two counts of official misconduct are misdemeanors, while the perjury charge is a Class D felony. Abelove faces a possible sentence of seven years in prison and a fine up to $5,000 if found guilty.

The looming criminal charges aside, the political fallout from the French case remains unclear. Earlier this year, following community outcry that he do so, Abelove recused himself from a case involving the shooting of a Troy man by a police officer. Abelove cited the “high caseload” of his office as the need for the appointment of a special prosecutor.

It is unclear if Abelove will remain District Attorney following the indictment. Under New York State law, the governor has the power to remove District Attorneys. Abelove, a Republican elected as the Rensselaer County District Attorney in 2014, faces re-election next year.

More in Explainers

Meet The Prosecutor Turned Reality TV Star Who Runs One Of The Worst Offices In America.

Under District Attorney Steve Wolfson, prosecutors in Las Vegas have led the nation in new death sentences, repeatedly engaged in racist jury selection, and maintained a secret bank account to pay witnesses for their testimony in criminal cases.

Meet The Prosecutor Turned Reality TV Star Who Runs One Of The Worst Offices In America.

Under District Attorney Steve Wolfson, prosecutors in Las Vegas have led the nation in new death sentences, repeatedly engaged in racist jury selection, and maintained a secret bank account to pay witnesses for their testimony in criminal cases.

During the opening credits of Las Vegas Lawa 2016 Investigation Discovery show, a voice over announces, “Vegas. It’s exotic, exciting, excessive,” and the evenly-tanned face of the Clark County District Attorney Steve Wolfson appears. “I’m Steve Wolfson,” he says, “I’m not afraid of the cameras seeing what we do.”

Las Vegas Law is COPS for the lawyer set. There are men in suits — Clark County prosecutors — sitting around a sexy polished conference room table talking about evidence that is “devastating” to the case and problems involving proximate cause and admissible evidence: “That’s opinion; it’s not evidence.” The prosecutors weigh whether sex assault victims are credible or not: “Is that enough to overcome reasonable doubt?”

Drama notwithstanding, the television series accurately depicts a long-standing cowboy culture in the Clark County DA’s office, where lassos are replaced by legal pads. And while Wolfson, elected in 2012, promised to clean up the office and make it presentable for the 21st century – as evidenced by his willingness to put his actions on television – it’s far from clear that the office has changed substantially from its wild past.

Take the death penalty, for example. A 2016 report by the Fair Punishment Project found that Clark County was one of the “deadliest” counties in its disproportionate use of the death penalty. But, the report also found that nearly half of Clark County’s capital cases between 2010 and 2015 were plagued with prosecutorial misconduct, one of the highest rates of misconduct among counties that frequently seek the death penalty.

One of the attorneys responsible for this state of affairs is David Stanton, an old-school prosecutor from before Wolfson’s time, who is famous for vigorously pursuing capital cases. After he was fired from the Reno DA’s office in 1999 for problems with anger management, a speeding citation, and resisting arrest, Stanton subjected himself to counseling and moved to Vegas.Once in the Clark County office, Stanton distinguished himself with his zeal for punishment and his talent for sending men to death row. And Vegas had a lot of capital cases. At its zenith around 2011, just before Wolfson took over the office, Clark County had eighty pending capital cases, twice the number as Los Angeles, which has a population five times larger.

Wolfson took over the office after spending eight years on the Las Vegas City Council and promised to reduce the use of the death penalty by giving more scrutiny to each death-penalty eligible case. To his credit he has, by about half. But, he had steadfastly maintained that the death penalty is worth it no matter the cost even as case after case is vacated because of racial discrimination in jury selection. Further, he hasn’t substantially altered the composition of the staff attorneys, who are the ones regularly trying these capital cases. Stanton himself has sought and obtained eight death sentences in his tenure in Clark County, four under Wolfson, despite Wolfson’s promises to decrease the use of the death penalty. (In the first episode Las Vegas Law, Stanton tries a death penalty case, and Wolfson intones that he is “one of the best attorneys in the office.”)

Wolfson has also continued many of the dirty tricks that previous prosecutors used to ensure convictions. A recent investigation into Wolfson’s office found that for over two years, he maintained a Clark County tradition of paying witnesses for their testimony from a secret checking account and failed to disclose that information to the defense. The payments appear to have been substantial, including cash, rent payments, and relocation expensessometimes over $1,000 in amounts, totaling somewhere in excess of $300,000; prosecutors also allegedly created fake subpoenas to cover up the payments. One witness said that prosecutors knew she was using her cash to purchase drugs.

This was a particular problem in capital cases, contributing to the high number of overturned convictions. Once uncovered, Wolfson called the cash program “probably inappropriate,” and promised to change the practice to limit payments to costs associated with coming to and from the courthouse to testify, which is Nevada state law. (There was also a requirement that prosecutors maintain a database of such information, but news stories suggest it has not been maintained.) Stanton, for his part, steadfastly maintained that there was nothing unusual about the program, telling a judge in 2014 that there was no need to disclose to the defense the fact that the DA office was paying a witness’s rent payments.

In addition to keeping the line attorneys who continue the “old ways,” Wolfson has also inadequately addressed recent high-profile innocence cases. This year, a ProPublica story highlighted the wrongful conviction of Fred Stesse and revealed the sins of William Kephart. Kephart was a prosecutor in the Clark County DA office from the early 1990s until 2010, when he became a justice of the peace and then judge. As the investigation notes, Kephart has been cited in at least five instances of prosecutorial misconduct. The Nevada Supreme Court even admonished Kephart for mischaracterizing “reasonable doubt” in a capital case, adding, “[I]t is apparent that some prosecutors are not taking to heart this court’s repeated admonishments…We can no longer tolerate noncompliance.” The court also required Kephart to explain why he should not be sanctioned, which is highly unusual. Steese was pardoned this month, even though Wolfson’s office wrote a letter opposing the pardon.

Another one of Kephart’s cases to come recently under fire is the murder prosecution of Kristin Lobato. Lobato was prosecuted for killing and mutilating a man in 2001. She was finally convicted of manslaughter after two trials and has steadfastly maintained her innocence. In February of 2016, Kephart gave a television news interview about the Lobato case, as it had pending appeals. “I stand behind what we did. I have no qualms about what happened and how we prosecuted this matter. I believe it was completely justice done,” he said. The May 2017 complaint filed against Kephart argues that this statement contradicts Lobato’s innocence claims. Kephart, for his part, has said that he’s done nothing wrong.

But Kephart is far from the one bad apple in the bunch. Indeed, the entire culture of the office has remained tainted. Wolfson has succeeded in making incremental changes, but he has retained many of the staff members hired under the old regime and has not made any moves to rectify past mistakes. Instead, Wolfson has sought the limelight with such stunts like taking to Reddit to comment on O.J. Simpson’s fitness for parole. (His wife, retired Judge Jackie Glass, also has the acting bug. She replaced Nancy Grace on Swift Justice for one season until the show was cancelled and presided over O.J.’s 2008 robbery trial.) Wolfson recently announced his intent to run for re-election this year, ending rumors he might run for Senate.

The Clark County DA’s office isn’t the only one where prosecutors skirt the law and go unpunished. Rather, the infectiousness of misconduct is an example of why it is so difficult to discipline prosecutors. Indeed, time after time, prosecutors are named in misconduct complaints and manage to skate by because, as Kephart responded in his most recent complaint, they argue that being named is enough. Unlike the criminal defendants they seek to put behind bars, prosecutors are able to escape by minimizing the damage done to individual lives. And even when they are disciplined, their sanctions are so meaningless as to be laughable. In one 2002 sanction, Kephart was asked to pay a $250 fine.

Times may be changing. In response to the Stesse case, the Nevada legislature passed two laws intended to curb prosecutorial misconduct this session. Both measures were substantially watered-down from their original forms thanks to lobbying by an ADA’s from Wolfson’s office. None of the proposed laws help past victims of misconduct nor do they provide for penalties to deter prosecutors from future misconduct.

In the meantime, the main portrayal of the Wolfson’s office remains the spaghetti Western version available on the small screen. Some defense attorneys have argued that the show violates the rights of their clients. Final takes are approved by Wolfson’s office and the County also receives payment for each show. Many TV shows glorify the role of the prosecutor’s office, portraying them as gladiators fighting against people who are clearly bad folks we want off the street. “It’s like the defendants get the benefit of the doubt,” complains one Clark County ADA on the show, apparently forgetting yet again about the idea of “innocent until proven guilty.”

Thanks to Burke Butler.

More in Podcasts