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 03:17 PM | Comments (5) | crimlaw

Call Me Killjoy

I was just going through old email and noticed an announcement for a GW end-of-year party that was apparently last Friday at a local bar. I'm sure I wouldn't have gone even if I'd known about it—I was sleeping off a 24-hour paper-writing binge at the time. It's only worth mentioning because apparently the student government sponsored the event and paid for the first $3000 in drinks.

Does any other "profession" enable alcoholism the way law does?

Don't get me wrong. I'm a big beer fan and free drinks are really the best kind, but this just strikes me as, well, not the greatest idea. I mean, it's great that the student government organizes and sponsors the party, but why do they need to buy drinks? Law students who want to drink to celebrate the end of the year are going to drink regardless of whether someone else is buying, so if the student government has an extra $3000 to throw around, why not create a summer grant for a needy public interest law student or something?

Yeah, I'm obsessed with funding public interest law students.

Posted 02:40 PM | Comments (5) | law school

Beyond Red v. Blue

The Pew Research Center has just released its latest typology of America's political divisions. You can take the survey yourself to see where you fit in the nine different categories Pew has devised. I'm fairly sure most of you can guess where the survey pegs me:

This group has nearly doubled in proportion since 1999, Liberals now comprise the largest share of Democrats and is the single largest of the nine Typology groups. They are the most opposed to an assertive foreign policy, the most secular, and take the most liberal views on social issues such as homosexuality, abortion, and censorship. They differ from other Democratic groups in that they are strongly pro-environment and pro-immigration, issues which are more controversial among Conservative and Disadvantaged Democrats.

Yeah, more or less. And just in case you missed it, let's repeat:

Liberals now comprise the largest share of Democrats and is the single largest of the nine Typology groups.

Hope springs eternal.

Posted 08:15 PM | Comments (1) | general politics

Blawgging Summer Jobs: Discuss

As spring transitions into summer, the time has come for most law students to prepare for their summer jobs. If you're a law student with a blog, you're probably wondering how much you'll be able to say about your job on your blog. No? Well, I am. And since my class in “professional responsibility” didn't address blogging at all (I can't imagine why), I'd love to hear from lawyers, other law students, professors, whomever, about the ethics and boundaries of blawgging a summer job.

As I see it there are at least two main levels of concern for the summer job blawgger. First, there's the concern about professional responsibility and confidentiality: How much can I say about what I'm doing without violating my professional duties? Generally, Model Rule 1.6 says that you can't “reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by” several different exceptions that probably won't apply to most law students in summer jobs. This obviously means you shouldn't blawg about anything you learned in confidence, but if what you say would not be “revealing” then it's ok, right? I take that to mean that if the information is otherwise publicly available, it's ok to blawg. Unfortunately, it turns out that often very little of what happens in a law office is otherwise publicly available.

The other main level of concern is more prudential: How will what I write reflect on me as a future lawyer and how will it affect my career chances in the future—either with my current summer employer, or with others who might find my blawg in the future? The answer to this seems to depend on the person and the type of work involved. If you're working in a “white shoe” firm somewhere, you probably want to say next to nothing about what you're doing. Nobody wants any light shed on those smoky backroom deals. (Joke!) If you're working in a political advocacy/policy position, you might be able to say a lot more about what you're doing because part of your job is to spread the word about your employer's agenda.

Since I'm working at a public defender's office again this summer, I'm specifically interested in hearing thoughts on what I can talk about in that context. I said almost nothing last year about the different cases I saw in court or worked on, but instead talked mostly about my own impressions of learning the basics of criminal defense. On the other hand, Public Defender Law Clerk has been writing more detailed anecdotes about the cases that run through the jurisdiction he/she is working in. Monica has also written some excellent and detailed posts about working in a PD's office (like this one, where she won a trial!). I don't think any of these posts cross any lines of confidentiality, but I could be wrong. Any other opinions out there?

Generally, it seems that if you're doing cases that play out in public proceedings, you can write about anything that anyone who might have happened to be in court would have learned or observed just by being there and paying attention. This means that it's harder to talk about cases pre-trial, but once there are proceedings in public, there is more that's safe to say. I guess for now the rule I'll be following when I start my job next week is that if I were a reporter on the criminal beat and I could have learned something in that capacity, then it's bloggable. That's still a little vague, but it seems like a good rule of thumb to follow for now.

Posted 01:02 PM | Comments (25) | 2L summer

Help Redesign the Imbroglio!

Dear readers: As I just mentioned, I'm hoping to redesign this site very soon. I'm thinking clean and simple is the way to go, but I'm still not really sure how to accomplish that.

Therefore, I'm asking for your help. Please let me know what bugs you about this page, or what you particularly like, what you don't like, what you never look at, what you look at every day, what you've never understood, what you think is necessary/unnecessary/missing, etc.

In addition to that general call for whatever is on your mind, I have some specific questions:

1. Do you ever read or click through the bits? Do you ever wish you could comment or trackback to them? Would you miss them if they were gone? Do you think they are pointless? Are you ambivalent about bits?
2. What about the comment sidebar? Do you ever check that out? It actually doesn't work correctly, and I realize that. I see it as more of a way for me to keep track of conversations I'm participating in, but it wouldn't really need to appear on this page to accomplish that goal.
3. Have you ever transmogrified ai? By that I mean, have you ever used the little drop-down menu at the upper-right to change the default stylesheet for this page? Again, do you like that “feature”? Would you miss it if it were gone?
4. Column widths: Are the widths for the text too wide or too narrow, as far as you're concerned? I am often bothered by columns of text that are on one extreme or the other; I mostly think there's a good balance here with the main column of blog posts and the sidebar, but, well, I could be wrong. Plus, most of you browse via IE and that might make everything look different.
5. What do you think of 3-column layouts? If you prefer 2-columns, do you prefer sidebars on left or right?
6. Do you read the RSS feed for this page, and if so, how often do you click through to the main page? I'm thinking if the majority of readers are moving to RSS-only, there's not much need to make this page visually interesting, is there?

And be honest. I'm pretty tired of this “look,” so you won't hurt my feelings, I promise.

Posted 11:09 PM | Comments (13) | meta-blogging

Stoopid Style

It's over. It was over sometime late Friday afternoon, actually. “It” here means my second year of law school. Hoo. Ray.

Here's how to finish your second year in stoopid style: First, schedule three finals in two days and make sure you don't study at all before the last 3-4 days before those finals begin. Take your finals and then blissfully retreat from reality for a week. Then, approximately 16 hours before your final 30-page paper is due, start writing it. Stay up all night listening to great music and drinking some diet carbonated and caffeinated beverage, alternating a cup of coffee occasionally for good measure. Pepperidge Farms goldfish are also helpful. Write about something with which you're fairly familiar and basically rehash arguments you've previously made in other papers, combining them in the most gawdawful mismash you can possibly concoct. Finish a few hours before it's due, spell check, shower, turn it in, and pray that it's good enough for a C.

There. You're done. Don't you feel great now?

For me, the answer is, um, well, I sure I wish I wouldn't have waited for the last minute to work on that damned paper, but yeah, done is good.

Since finishing I've felt a little lost. What to do now? The job starts in a week and I've got a long to-do list, so I'm sure I'll be plenty busy. If all goes well, this site will be completely redesigned by the end of the week, but, well, no promises.

But first, here's another little story of my stoopid stylings: I was walking home in my sleep-deprived stupor on Friday after turning in my paper and I met someone I'd met briefly before who was very nice and we said hello and she introduced me to her friend and they were both very friendly and also seemed to know all about the fact that I had finished finals last week and everything and I was thinking, “hmm, she must read my blog.” Then, the next day I realized: “Holy inability to add two plus two, Batman! That was LawRah!” It is also possible that her friend was Idle Grasshopper, but for that I have basically no evidence. So my point here, if you haven't gathered, is that I am stoopid. And I also want to apologize to LawRah for being so clueless. Um, I get it now.

Posted 10:53 PM | Comments (2) | 2L