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Prosecutorial misconduct in DE renders guilty plea unconstitutional

Delaware Coat of Arms
Wikimedia Commons

Prosecutorial misconduct in DE renders guilty plea unconstitutional

When a defendant pleads guilty, he must do so “knowingly, intelligently, and voluntarily.” Whether those requirements are undermined when prosecutors withhold information concerning the credibility of a key witness was explored in a recent decision by Judge Richard Stokes of the Superior Court of Delaware.

On February 19, 2016, Michael Coverdale came to court on heroin-related criminal charges. During the February 19 hearing, Coverdale’s attorney informed the court that the State had just disclosed that the its forensic chemist, Dr. Bipin Mody, had resigned. Defense counsel said that he understood that Mody “was actually suspended pending discipline up to termination,” and suggested that what little he knew about the situation “affects the integrity of the information” — the testing of the heroin — “that substantially affects this case.”

The prosecutor dismissed Coverdale’s attorney’s suggestion and asserted that Mody’s departure was unrelated to any wrongdoing. “There is no Bradyinformation that the State is aware of,” the prosecutor assured Coverdale and the court, rerferring to Brady v. Maryland—a US Supreme Court case that requires prosecutors to provide information to the defense when it is material and exculpatory.

Three days later, the prosecutor again dismissed concerns about why Mody’s employment ended. “Your Honor, I did check with Wilmington and the only issue is his turnaround time on case work. There’s nothing else.”

Up against a plea deadline, Coverdale agreed to plead guilty.

Only after Coverdale pled guilty, the truth about Mody — and what prosecutors knew yet withheld from Coverdale — emerged.

Contrary to the prosecutor’s earlier claims, Mody didn’t lose his job because of “laziness.” Instead, what the prosecutor knew — and withheld — was that Mody “was subject to disciplinary actions because he … did not follow correct testing procedures; undertook multiple practices which, in a variety of ways, undermined the chain of custody; and/or was untruthful with regard to his … testing procedures.”

According to Judge Stokes, issues known by the Delaware Department of Justice regarding Dr. Mody included: he did not always rerun drug samples after being told to do so; some cases had to be retested because he was not following the proper testing procedures; he was not always candid when confronted about his errors and omissions; he sometimes entered incorrect lot numbers for reagents; cases were returned to him because he had not entered the correct information on his reports; and he did not follow proper procedures when doing his proficiency tests.

Judge Stokes found that these “affirmative prosecutorial misrepresentation[s] … caused the defendant to enter the plea under a misapprehension or mistake as to his legal rights.” Notwithstanding the uphill legal battle defendants often face when asserting that prosecutors withheld Brady information before entering a guilty plea, Judge Stokes found the conduct in Coverdale’s case crossed the line.

“In this case, the prosecutor’s misrepresentation and concealment of the Bradymaterial was serious; i.e., it was a grave misrepresentation which constituted grave prosecutorial misconduct. Furthermore, the misrepresentation impacted the integrity of the plea process and the justice system in turn.”

Judge Stokes concluded that Coverdale “entered a plea bargain that he otherwise would not have entered,” and vacated his convictions.

SA Melissa Nelson (Office of the State Attorney for Florida’s Fourth Judicial Circuit) Elections matter: Florida’s 4th Judicial Circuit

SA Melissa Nelson
Office of the State Attorney for Florida’s Fourth Judicial Circuit

SA Melissa Nelson (Office of the State Attorney for Florida’s Fourth Judicial Circuit) Elections matter: Florida’s 4th Judicial Circuit

In August 2016, Melissa Nelson overwhelmingly defeated Angela Corey to become the chief elected prosecutor in Northeast Florida. During her campaign, Nelson “assembled a coalition of support ranging from the National Rifle Association to liberal trial lawyers. Many were motivated by dislike of Corey, who had become an increasingly polarizing figure locally and nationwide.”

It is axiomatic that campaigning is easier than governing. So now six months into her tenure, the question on the table is how is Nelson doing? Or as The Florida Times-Union recently explored: Has she delivered?

At one time, Corey, the elected prosecutor before Nelson, was largely seen as unbeatable. In the modern era no chief prosecutor had ever been voted out of office in Jacksonville, and it was assumed that Corey would keep her job for as long as she wanted.

But Corey’s draconian views on criminal justice caught up with her. Her decision to seek a long prison sentence for Marissa Alexander, a woman who fired a shot in the direction of her estranged husband who had just beaten her, and to try 12-year-old Cristian Fernandez as an adult for the murder of his half-brother, drew international condemnation. The Nation ran an article on Corey asking if she was the “cruelest prosecutor in America.”

Nelson easily defeated Corey with a promise to change the office culture and mete out justice in a responsible, reform-minded manner.

Early indications are that in Florida’s Fourth Judicial Circuit, this particular election has provided positive returns for those who believed in Nelson’s platform of change.

Nelson is going forward with plans to launch the first conviction integrity unit in Florida, with her office actively seeking a director who will ferret out wrongful convictions. She has also endorsed the use of civil citations for juveniles rather than arresting and jailing them.

Nelson has also been willing to dismiss charges in cases in which Corey almost certainly would not. For example, she dropped the charges against one man charged with arson and murder who had been locked up for three years after determining the case against him was weak.

Nelson dropped the charges against a woman who shot and killed her husband after she said he had beaten her. She also dropped the charges against two men and cut misdemeanor plea deals with three other men who’d been involved in an anti-war protest and got into an altercation with a Donald Trump supporter.

While it’s impossible to say if Corey would have done any of these things if she were still in office, her previous record strongly suggests that she wouldn’t have done any of them.

To be sure, concerns remain that Nelson has not gone far enough to change the corrosive culture that Corey left behind. But early returns suggest that Nelson has at least cleared the low bar set by her predecessor.

All of which offers another clear reminder that the most powerful actor in the justice system — the elected prosecutor — can and should remain accountable to her constituents.

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Misconduct results in reversal in 34-year-old case

Seal of the Idaho judicial branch
Wikimedia Commons

Misconduct results in reversal in 34-year-old case

The Idaho Supreme Court ruled this past Monday that Idaho County prosecutors committed misconduct during Mark Lankford’s 2008 murder retrial. As a result, Lankford will need to be released from prison or retried for a 1983 double-murder. The court originally overturned Lankford’s convictions last summer but prosecutors petitioned for a rehearing. The court’s 39-page opinion (again) found that prosecutors unconstitutionally withheld critical information from Lankford concerning a key witness.

Over 34 years ago, U.S. Marine Capt. Robert Bravence and his wife, Cheryl Brevance, were murdered at a campsite in the Sheep Creek area of Idaho County. Their bodies were discovered three months later. Mark Lankford, a former oil company accountant from Houston, and his younger brother, Bryan Lankford, were later apprehended in Texas and charged with the murders. Each brother has blamed the other for the crimes.

The brothers were tried and both sentenced to death in 1984. Bryan Lankford was later resentenced to life and is now up for parole in 2018. Mark Lankford was granted a new trial in 2009 after the U.S. Court of Appeals for the Ninth Circuit found that his original trial counsel was ineffective. He was retried in 2008, convicted again, and given two consecutive life sentences.

According to the court, prosecution witness Lane Thomas’ “credibility as a witness was essential to Lankford’s conviction.” Which is why the trial prosecutor’s failure to disclose that he had told Thomas ahead of trial “that he would try to get him out of prison and placed on probation” was so critical.

As the court had previously explained, and repeated in its ruling on Monday, “[Prosecutors] should not exert their skill and ingenuity to see how far they can trespass upon the verge of error, because generally in so doing they transgress upon the rights of the accused.” The court’s ruling examined multiple instances of the prosecutor “transgress[ing] upon” Lankford’s rights, although it ultimately granted relief on the singular issue of his promise to help Thomas get out of prison and secure probation. For example, the State had “failed to mention” that the trial prosecutor had arranged for Bryan Lankford (who testified against his brother during the retrial) to have a cell phone while in prison to call his wife; helped facilitate communication between Bryan and his brother, Lee John; allegedly failed to disclose that $1,500 was given to Thomas, the key witness, after the trial; and failed to correct Thomas’ testimony when Thomas stated that he was only testifying for a letter of cooperation and for “just being honest.”

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