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May 11, 2005

Bad Prosecutor, No Consequences

Several moons ago Blonde Justice asked for stories about prosecutors behaving badly. I promised a story “about a prosecutor who suppressed and lied about evidence, was caught red-handed doing it, but managed to get a guy executed despite these crimes, and now sits as a trial court judge in a nearby U.S. city.” Well, I wasn't kidding. I finally dug out a few of my notes on the incredible case of Wilbert Lee Evans. Justice Marshall summarized the relevant facts pretty well in his dissent from the Supreme Court's denial of certiorari to reconsider Evan's death sentence:

Petitioner Wilbert Lee Evans was convicted of capital murder in April 1981. At his sentencing hearing, the State urged the jury to recommend the death sentence based on Evans' “future dangerousness.” To prove future dangerousness, the State relied principally upon the records of seven purported out-of-state convictions. The State's prosecutor later admitted that he knew, at the time he introduced the records into evidence, that two of them were false. One of the seven “convictions,” for assault on an officer with a deadly weapon, had been dismissed on appeal. Another, for engaging in an affray with a deadly weapon, had been vacated on appeal, and Evans had been reconvicted in a trial de novo; the conviction for one crime was, however, counted as two convictions. After considering Evans' prior “history,” the jury determined that there was a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society, and it recommended the death penalty based solely upon its finding of future dangerousness. 228 Va. 468, 323 S. E.2d 114 (1984). Evans was sentenced to death on June 1, 1981.

Evans v. Virginia, 471 U.S. 1025 (1985) (some internal citations omitted).

That opinion goes on to describe how Virginia law at the time of Evans' original conviction said that “when a capital defendant's right to a fair and impartial jury is violated during the sentencing phase of trial, a death sentence must be commuted to life imprisonment.” This was because the law also said that only the jury that heard the guilt or innocence phase of the trial could impose punishment, but since the jury was tainted by some sort of error in the first phase, it could not effectively change the punishment, and therefore the only fair solution in death penalty cases was to commute the sentence to life. However, the law changed on March 28, 1983 “to allow for resentencing by a different jury after a death sentence was set aside.” Coincidentally, the prosecutor who knew he had committed fraud in the original Evans trial in 1981 decided on that very day—March 28, 1983—to admit to his crime. This means that not only did this prosecutor willfully and knowingly deceive a judge and jury in order to convict Evans, but he then kept his fraud secret until the very day when his admission would no longer be able to save Evans life. Can you say bad, bloodthirsty, evil prosecutor? I can.

Here's how Justice Marshall dispassionately describes this:

At a hearing to consider the propriety of resentencing Evans, the prosecutor at Evans' trial admitted that he knew the evidence that he introduced at the sentencing hearing was false. The judge then ordered a new sentencing hearing. A new jury recommended the death penalty, and petitioner was again sentenced to death.

Um, why wasn't this prosecutor disbarred?

The story only gets more awful from there. Much of it is summarized in Marshall's 1990 dissent to the Supreme Court's denial of certiorari to consider staying Evans' execution. Evans v. Muncy, 498 U.S. 927 (1990). The short story is that during the nine years Evans was in prison, he was a model inmate and even acted heroically to help stop a prison riot. “According to uncontested affidavits presented by guards taken hostage during the uprising, Evans took decisive steps to calm the riot, saving the lives of several hostages, and preventing the rape of one of the nurses.” This was rather important in light of the fact that his death penalty was based on the jury's finding of “future dangerousness.” A guy who steps in to stop a riot doesn't sound too dangerous, does he?

(Tangent: This pro-death group provides a PDF file of a story about Evans' actions in the riot. The group's point is that Evans can't be a hero because he killed a man. That story is interesting for the added detail it provides about Evans' case, but my point here is just to draw attention to the irony of the pro-death site using an animated image of the scales of justice going up and down constantly. They're right: So long as the state is killing people, those scales of justice will never balance.)

But none of the evidence in Evans' favor mattered. Viriginia killed Evans on October 17, 1990. It apparently did a great job of it, too:

When Evans was hit with the first burst of electricity, blood spewed from the right side of the mask on Evans's face, drenching Evans's shirt with blood and causing a sizzling sound as blood dripped from his lips. Evans continued to moan before a second jolt of electricity was applied. The autopsy concluded that Evans suffered a bloody nose after the voltage surge elevated his high blood pressure.

But that's not the end of the story. The very best part of this whole horrible tale of American justice in action is that the intentionally fraudulent prosecutor was not disbarred. In fact, I don't think he was disciplined at all. In fact, he now sits as a judge hearing criminal cases in the same jurisdiction where he committed his horrible crimes.

So there you have it: A true and chilling tale of a very very bad prosecutor who suffered no consequences for his egregious behavior. I've seen him in court and I secretly suspect he is an emotionally broken man because he's being devoured from the inside by guilt from what he's done, but that's probably just wishful thinking on my part.

Posted May 11, 2005 03:17 PM | crimlaw

Wow. What an awful story. How can one reconcile this without succumbing to cynicism. I mean, I've heard of many stories of prosecutorial misconduct before so I'm not shocked by it, but there seems something particularly evil and sadistic about this; a kind of in your face misconduct. I picture a kind of smirking man joking about his "little secret" with the knowledge that it would no longer avail Evans.

Posted by: edmund at May 12, 2005 12:23 AM

What is the name of the prosecutor/judge ?

Posted by: S.cotus at May 12, 2005 01:58 PM

Yeah what is the name?


Posted by: Melissa at May 12, 2005 08:11 PM

The first rule of Fight Club is: You don't talk about fight club!

But seriously, all of this is public record and I've put enough out here that anyone who really wants to know the name could find it w/out too much trouble. I've been told someone is working on a book about this case, so perhaps that will "tell all" soon.

Posted by: ambimb at May 16, 2005 07:03 AM

I'm sorry, I just can't get too worked up about this.

The person in question was actually, convicted of whatever the crime was, and he had 5 (instead of 7) previous convictions for things. Wow, that's a huge difference...

Does it make me queestion the prosecutor's behaviour in other cases? Possibly. Should he have been disbarred? I don't know.

Was there a gross miscarriage of justice in this case? No. At least, not that you've shown.

Posted by: Deoxy at May 17, 2005 10:24 AM

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