May 3
TEXAS:
Former Texas Prosecutor Probably Sent Innocent Man to His Death. Now He's on
Trial for Misconduct.
The courthouse in Corsicana, Texas, roughly 60 miles southeast of Dallas, has
been meticulously restored to its original 1905 glory, a time when the county
was awash in oil money. Its main courtroom has soaring, 2-story pink walls and
gold-flecked architectural details that frame the judge's bench, witness stand,
and jury box. For more than 3 decades, John Jackson worked this room (though
during those years it was a far more utilitarian space), 1st as a prosecutor
with the Navarro County district attorney's office and later as an elected
judge, until his retirement in 2012.
Last week he returned, this time as a defendant, facing charges brought by the
State Bar of Texas, whose lawyers argue that Jackson violated basic legal
ethics in connection with his conduct in prosecuting the county's most
notorious case, the death penalty trial of Cameron Todd Willingham, who was
convicted and ultimately executed for what the state insists was the December
1991 arson-murder of his 3 young children in the home they shared just over a
mile away.
Specifically, the state's lawyers contend that Jackson made a deal with a
jailhouse snitch who agreed to testify against Willingham and then hid that
deal from Willingham's defense attorneys - a clear violation of both law and
ethics. They say that Jackson took extraordinary measures over the next 2
decades to conceal his deceitful actions.
"It is a duty of the prosecution - an ethical obligation - to turn over that
evidence," state bar lawyer Kristin Brady told jurors in her opening arguments
last Wednesday afternoon. "For years he protected this snitch; for years. It
wasn't for [the snitch's] protection, it was for his own protection."
The prosecution of Willingham has been widely reported and litigated, in part
because his conviction was secured on twin pillars of evidence known to wreak
havoc in the criminal justice system: junk science and incentivized snitch
testimony.
Where the junk science is concerned, there is now little question that the fire
that killed Willingham's children was not arson - caused, as the state claimed,
by Willingham spreading lighter fluid around his house and setting it ablaze.
Leading fire scientists have weighed in to say that the evidence the Corsicana
Fire Department and Texas fire marshal investigator relied upon in fingering
Willingham as the cause of the deadly blaze was based on outdated, discredited
fire-science folklore.
It is the 2nd basis of the prosecution, however, that underlies Jackson's
current civil disciplinary trial.
In short, lead prosecutor Jackson called a man named Johnny Webb to testify at
Willingham's 1992 trial to say that while he was locked up in the county jail
on an aggravated robbery charge, his fellow inmate, Willingham, randomly, and
in detail, confessed to Webb his alleged crime. Under questioning by Jackson,
Webb asserted that he did not expect any benefit in exchange for his
incriminating testimony.
In the years since Willingham's 2004 execution, significant evidence has come
to light indicating that was untrue. Records amassed by the bar association and
the Innocence Project - including lengthy correspondence between Jackson and
Webb spanning roughly a decade - strongly suggest not only that it was at least
implied to Webb that he would receive a reduced sentence for his testimony, but
also that Jackson went to great lengths to make that happen. Moreover, Webb now
insists that his trial testimony was false and compelled by Jackson.
On the witness stand on April 27, Jackson vehemently denied the allegations.
Lawyers for the bar's Office of the Chief Disciplinary Counsel have tried to
make clear that they are not here to re-litigate the question of Willingham's
guilt or innocence, which they say is irrelevant. The sole issue at hand, they
argue, is whether Jackson's actions as they relate to his dealings with Webb
violated legal ethics - so far to seemingly thin effect.
Indeed, where the bar attorneys have toed that straight-line, Joseph Byrne,
Jackson's attorney, has done his best to conflate the issue of Willingham's
guilt with Jackson's innocence: The bar, he has suggested, is motivated only by
an interest in tarring Jackson in order to demonstrate that his client - and
the state of Texas - hastened the execution of an innocent man.
The Shoulders of a Jailhouse Snitch
It was roughly 10:30 a.m. on December 23, 1991, when the fire broke out in the
5-room wood frame house on West 11th Ave. in Corsicana that Willingham shared
with his wife, Stacy, and their 3 young daughters. The bodies of Willingham's
twin 1-year-old girls were found amid the charred remains of the house. They
had perished in the fire. First responders later carried out the 2-year-old,
who was still alive. She died at the hospital shortly thereafter, of smoke
inhalation.
According to the local newspaper, Willingham was distraught at the scene.
Sitting on the back of a fire truck, he was sobbing and screaming, "I want to
see my babies!" He was taken to the hospital as well, where he was treated for
1st- and 2nd-degree burns on his face, back, and hands, according to the
Corsicana Daily Sun. At the time of the fire, Stacy was picking out Christmas
presents for the kids at the local Salvation Army.
The heartbreaking tragedy brought a groundswell of local support. Firefighters
and cops pledged to help the family make it through the holiday season. But the
goodwill quickly disappeared. On January 8, 1992, Willingham was arrested,
booked into jail, and charged with three counts of murder.
In the 16 days between the fire and Willingham's arrest, things had changed
significantly, primarily because of the assessment of the fire marshal
investigator, Manuel Vasquez. According to Vasquez, there were telltale signs -
among them, burn marks on the floor and so-called crazed glass - telling him
this was no innocent blaze.
Meanwhile, witnesses at the scene - and people who observed Willingham in the
days just after the fire - concluded that he wasn't appropriately distraught
and was seemingly unconcerned about what had happened. The elected district
attorney announced that his office would seek death for the 23-year-old father.
After a 2-day trial led by Jackson that summer, Willingham was found guilty and
sent to death row. He was executed in February 2004, despite serious questions
about the validity of the fire science that sent him there. In the intervening
years, a number of experts reviewed the case, concluding that there was no
evidence of arson. Instead, experts suggest the fire was more likely caused by
a space heater or faulty wiring. In the absence of evidence of arson, the
integrity of Willingham's conviction rested squarely on the shoulders of a
jailhouse snitch.
In the spring of 1992, Johnny Webb had just pleaded guilty to a charge of
aggravated robbery; according to the plea, Webb had tried to rob a woman of her
purse at knifepoint.
While he was awaiting transfer to prison, Webb met Willingham, who had been
arrested and charged with murder roughly 2 months before. Webb was a jail
trusty at the time, meaning he was allowed more freedom than a typical inmate
and was tasked with daily chores - in this case, keeping the floors in the
common area of the cellblock clean. That put him in daily contact with any
number of inmates, including Willingham.
According to Webb's account at Willingham's trial, for the 1st month that Webb
was around him, Willingham didn't say much - only that he was having a
difficult time sleeping and that he did not kill his children. One day that
changed: Out of nowhere, Webb said Willingham confessed that he had set the
fire in order to kill the kids - or, rather, to ensure that the authorities
wouldn't find out that 1 of them had been grievously injured, presumably by his
wife Stacy, earlier that morning. Webb said that Willingham came home to find
one of the children injured and set the fire to cover the abuse.
There was immediate reason to be suspicious of Webb's account: None of the
children showed any signs of abuse and Stacy wasn't even at home when the fire
broke out. There was but one detail in Webb's story that dovetailed with the
state's theory of the case, the notion that Willingham had used an accelerant
to start the blaze.
Under Jackson's questioning, Webb testified that he was not coaxed by anyone to
provide this story about Willingham nor promised anything in return for his
testimony in the case. "As a matter of fact, I told you there is nothing I can
do for you," Jackson followed up.
"You said there was nothing that no one can do for me," Webb affirmed.
The Pivotal Witness Recants
Sitting nervously on a wooden bench outside the courtroom on the opening day of
Jackson's trial was Webb, a slight 47-year-old man with piercing eyes and a
thinning wash of light-colored hair. Decades of drug use and repeated
incarceration have done little to curb his youthful appearance. Still, he
looked wary, repeatedly working his hands together as if at any moment he might
need to flee.
As it turns out, Houston District Judge David Farr, the visiting judge tasked
with overseeing Jackson's trial, had ordered Webb to check in with him at the
courthouse every morning at 8:30 until he was called as a witness. The purpose,
Farr noted to the lawyers before the trial started, was to ensure that if Webb
did get a hankering to flee before testifying, he wouldn't be more than 24
hours ahead of the law that would find him and bring him back.
Certainly, there are plenty of reasons for Webb to be nervous, not least of
which is that he has told many stories over the years - and not only about what
Willingham supposedly told him back in 1992.
On that point alone, Webb first said that Willingham confessed; then, shortly
after allegedly relating that story to Jackson but before testifying at
Willingham's trial, he supposedly called the FBI from the jail to say that he
was going to be forced by the state to testify about something - Willingham's
confession - that never happened. When the FBI showed up, Webb allegedly turned
them away, saying he???d never made the call in question. He then testified at
the August 1992 trial and said he was given no deal in exchange for doing so.
Once shipped off to prison, Webb engaged in extensive correspondence with
Jackson, imploring the prosecutor - who took the bench as the county's district
judge in January 1997 - to do something to ease his time in prison. Beginning
in October 1992 - less than 2 months after Willingham was convicted and just
after Webb testified a 2nd time, at a hearing where Willingham unsuccessfully
sought a new trial - Jackson did just that, according to attorneys for the
state bar.
Jackson wrote numerous letters - to prison officials, to the Board of Pardons
and Paroles, and even to Gov. Rick Perry - where he lauded Webb's role in the
Willingham case. He told prison officials that Webb was a "pivotal" witness. In
court last week, Jackson testified that he didn't really think Webb was all
that important but said otherwise in the hope that it would get favorable
attention from authorities.
Eventually, Jackson tried to get Webb out of prison by retroactively changing
his aggravated robbery charge to a charge of simple robbery, which would reduce
Webb's 15-year sentence and make him immediately eligible for parole. He was
ultimately successful, availing himself of a legal process reserved for
correcting purely clerical issues arising from a legal judgment.
According to Jackson, there was a legitimate issue in his mind about what
charge Webb had actually pleaded guilty to back in 1992, and he was simply
trying to resolve the discrepancy. Reducing Webb's charge would be a matter of
"justice," Jackson intimated during testimony last week.
The problem, however, is that there's no doubt Webb was charged with and
pleaded guilty to aggravated robbery - something Jackson should know since he
not only represented the state at Webb's plea hearing back in 1992, but also
questioned Webb about his conviction during Willingham's trial - making his use
of this particular process highly improper, according to the bar.
Ultimately, Jackson testified that he was trying to assist Webb and was "hoping
I'd be able to find a way" to do it. But it wasn't because he had any deal with
Webb, he insisted, though he did say that "I guess it's possible" that he had
told Webb he would try to reduce his charge.
Jackson said his true motivation for helping Webb was to ensure his safety in
prison. As a snitch, he would be a potential target of violence, and Jackson
felt he was obligated to protect his witness. Letters from Webb described being
abused by members of the Aryan Brotherhood prison gang, which particularly
despised snitches and allegedly had ties to Willingham's half-brother, who was
serving a life sentence for murder. "It was a special case and I tried to do
everything I could to prevent violence against Johnny Webb," Jackson testified.
Importantly, though, Jackson never alerted Willingham's attorneys to any of the
actions he took over the years to aid the snitch.
Trial and Tribalism
By 8 a.m. on April 26, the day Jackson's trial commenced, the Corsicana
courthouse was crawling with security - including cops in army green flak
jackets patrolling the exterior and interior of the building. One deputy said
the extra show of force was deemed necessary simply because of the high-profile
nature of the case. Others have intimated it was because of possible threats,
presumably to Jackson and/or Webb, by members of the Aryan Brotherhood,
allegedly hostile to the state's case against Willingham.
The county's law enforcement machine was ready for any eventuality - and
regardless of whether the threats were legitimate, it made for a significant
show of force for the jurors required to march in and out of the courtroom past
the armed officers.
Byrne, Jackson's attorney, played the security to good effect. In asking
Jackson about other actions he took to help Webb - notably, issuing two bench
warrants to bring Webb back to the county jail to serve out part of his
sentence - he gestured to the deputies in the courtroom. Of course Jackson
would want to bring the vulnerable Webb back to the county where he would be
guarded by sheriff???s employees, people Jackson trusted, who worked every day
to keep residents of the county safe - including, he noted, the jurors
currently sitting in judgment. Jackson, now 66, who has slightly stooped
shoulders, a lispy Texas drawl, and a face that rests in a half-smile, nodded
knowingly.
Much of Byrne's trial strategy seemed to be based in this kind of tribalism:
Jackson worked to keep the county safe from child murderers such as Willingham
and bent over backward to help a troubled young man, Johnny Webb, who helped to
put a monster in prison. Why would such a man do anything unethical or illegal
to make that happen?
Byrne spent much of his opening argument focused on the years of litigation in
the Willingham case - at one point even suggesting that current fire science is
actually unreliable, bought and paid for by out-of-state forces like the
Innocence Project (which filed the initial ethics complaint with the bar in
2014 on behalf of Willingham's relatives), whereas the investigation that
fingered Willingham for murder was solid. The message was clear: Outside forces
are using the state bar and its trumped-up ethics charge to try to bring down a
good man.
Indeed, Byrne has worked hard to get Judge Farr to allow into evidence as much
of the grisly detail of the children's deaths and negative evidence regarding
Willingham's character as possible, much to the consternation of bar lawyer
Kristin Brady, who was clearly exasperated by Byrne's histrionics. Almost all
of the trial's 3rd day was spent with the lawyers arguing this issue outside
the presence of the jury, whose 15 members spent the day cooling their heels.
The details are necessary to show how strong a case Jackson had against
Willingham, Byrne argued - so strong that he didn't even need to call Webb as a
witness, let alone make and then conceal a deal with him. But the case details
aren't "relevant to anything," Brady argued, "because [Jackson] still used
Webb." The grim details would serve only to prejudice the jury.
Byrne later retorted, "I hope it's prejudicial."
But Byrne's approach obfuscates one of the core missions of the Texas State
Bar: to police its members, enforcing basic ethical principles that are key to
safeguarding the public from deceitful attorneys.
Since 2011, the bar has sought sanctions - which range from public reprimand
all the way up to disbarment - against more than 2,000 attorneys. Since 2013,
it has had roughly 10 cases against prosecutors that ended in sanctions -
including 2 notable examples.
In 2015, former District Attorney Charles Sebesta was disbarred for withholding
evidence from attorneys working to defend a man named Anthony Graves, who spent
18 years in prison, 12 of them on death row, before finally being exonerated.
(Graves was friends with Willingham during the years that both of them were on
the row.) And in 2013, a former DA and elected judge, Ken Anderson, was forced
to give up his law license after he agreed to plead guilty to prosecutorial
misconduct for his role in the wrongful conviction of Michael Morton. (Anderson
was also sentenced to 10 days in jail.) Morton spent 25 years in prison for the
murder of his wife before DNA evidence linked her killing to another man.
Anderson, like Sebesta, also hid exculpatory evidence from Morton's attorneys -
the action Jackson now stands accused of in the Willingham case.
That Jackson's trial is happening in public, his fate in the hands of a common
jury, is something of an anomaly. Lawyers charged with ethical infractions are
given a choice of how they want to proceed. They can have their case heard in
District Court, as Jackson has opted, or considered in private by a panel made
up largely of other attorneys. Since 2013, just three prosecutors have chosen
the public option.
There is clearly a calculus involved in the decision. "Getting in front of a
panel is quicker, but if you feel like you're not going to do well there, you
take it to trial court," Houston criminal defense attorney John Floyd told the
Corsicana Daily Sun. It would seem Jackson chose wisely; Byrne's attempts to
retry the Willingham case are likely an easier lift in front of a jury than
before a panel of lawyers.
"I Thought I Could Change Things"
On a breezy Tuesday morning before the trial began, I went in search of Johnny
Webb. I'd read all about the various stories he'd offered regarding his
testimony against Willingham, and about his alleged deal with Jackson, and I
wanted to see if I could find the truth.
In some of his correspondence with Jackson, Webb complained that he was being
bullied into recanting his trial testimony. In 1 letter, he wrote that members
of the Aryan Brotherhood had put out a hit on him and the only way to save his
life would be to recant his statements. In another letter, he wrote that he'd
been "ambushed" in prison by 2 journalists. Webb wrote that the reporters said
he and Jackson together had "murdered" Willingham. He said he told them only
what Willingham had told him, "and I sure didn't lie."
Webb has also said that Jackson coerced him into concocting a false story about
Willingham in order to secure a conviction. That narrative started in 1992 and
has resurfaced over the years, including in 2 interviews that attorneys working
with the Innocence Project conducted in 2014.
"He said, well, let's go over [what] I think needs to happen," Webb recalled of
his conversation with Jackson. "He says I've got this guy Willingham who did
this. We know he did it. We know he's guilty. We just can't prove it." In
exchange for his help, Webb said Jackson told him that his robbery case would
disappear. "He says, even if you're convicted now, I can get it off of you
later. And a matter of fact, he did try."
In depositions taken in anticipation of Jackson's trial, Webb apparently
reiterated his claim of coercion, admitting that he'd perjured himself at
Willingham's trial - a crime for which Webb could still be prosecuted.
It was late morning by the time I parked across the street from the house I
would later find out belongs to Webb's mom. The crumbing bungalow had seen
better days. A broken windowpane was haphazardly covered from the inside. A
sign on a screen door warned that because of the rise in the price of ammo,
there would be no warning shot. 2 cats slept on the porch next to a half-eaten
bowl of kibble. No one answered the door. As I turned to walk back to the car,
I spotted a man across the street smoking a cigarette and watching me. I
recognized him. "Are you Johnny Webb?" I called out. "I don't know," he said.
"Am I?"
Indeed, he was. I introduced myself as a reporter and he recoiled, looking at
me suspiciously. "I can't give any interviews," he said. I understand, I
replied. But then he began talking. I asked him if he was prepared to testify
in court; yes, he said, but he planned to invoke his Fifth Amendment right
against self-incrimination. Did that mean that what he'd said about being
coerced was untrue, I asked him. He said that talking to the Innocence Project,
"trying to fix things," had cost him. He's lost work - the contractor he worked
with had to let him go, he said, once his boss's well-connected clients found
out Webb was on the crew - and wants nothing more than to get this behind him,
get out of Corsicana, and start his life anew. "I thought I could change
things," he lamented about his involvement in the Willingham case. "I've
learned that one man can't."
Jackson's trial continues this week.
(source: The Intercept)
******************************
PB man sentenced to life for Dallas murders
A former student at the University of Arkansas at Pine Bluff who was convicted
of capital murder in the 2014 shooting deaths of 3 people in Dallas will spend
the rest of his life in prison after his attorneys worked out a deal Saturday
with prosecutors to take the death penalty off the table.
In return, Justin Pharez Smith, 24, had to confess to shooting 4 people in the
head during a robbery at what Dallas Police called a "drug house."
3 of those people, Tyteanna Brown, 21, Kimberly Montgomery, 36, and Demarcus
Walton, 37, all died. The fourth was also shot in the head but survived by
playing dead Smith, originally from Pine Bluff, also pleaded guilty to 2
pending counts of aggravated assault and 1 pending count of attempted murder.
According to the Dallas Morning News, when special prosecutor Edwin King asked
Smith Saturday if he had killed those 3 people, Smith said, "yes, sir."
He then asked if he could address the families of his victims, telling them,
"First, I want to apologize. What I did was absolutely horrible, was wrong. I
was playing God and that was wrong of me. I had no right to take the life of
anybody with my own hands."
Smith was sentenced to life in prison without the possibility of parole on the
capital murder allegations, 20 years for each of the aggravated assault
convictions and life for the attempted murder murder conviction. The sentences
are to run concurrently with the murder charge. Among those who testified
during the penalty phase of the trial was current Jefferson County Judge Henry
"Hank" Wilkins IV, who said Smith had once preached a sermon at Wilkins'
church.
Wilkins said Smith should not be put to death.
"Is the execution of one man, one of the Lord's children, going to bring anyone
back?" Wilkins was quoted as saying. "It never provides the solace that people
are looking for."
Defense attorney Paul Johnson said Smith could do well in prison, saying that
Smith was once a model college student who performed anti-violence spoken word
poetry. An aspiring rapper, Smith released a song called "Fear," which included
lines such as "toe tags" and "body bags the day before the killings. The Dallas
Morning News also reported that Smith now has "24" tattooed on his forehead, a
small cross under his left eye and the Star of David, which is used by some
street gangs. He also has similar tattoos on his arms and legs - all done in
jail.
(source: Pine Bluff Commercial)
PENNSYLVANIA:
Philly DA candidate: I'm the only one who'll never seek the death penalty
There's really no question that Philadelphia civil rights attorney and
candidate for district attorney Larry Krasner has been more outspoken on the
death penalty than any of his seven opponents. But is he the only candidate
running for district attorney who has explicitly pledged to never seek it if
elected?
Krasner's campaign, gearing up for the May 16 primary, wrote on the Democratic
candidate's platform page on his website that "Larry Krasner is the only
candidate running for District Attorney who explicitly pledges to never seek
the death penalty." But we swear we've heard that before, at least once. So we
decided to check the claim.
We reached out to every candidate for district attorney -- 6 other Democrats
and 1 Republican -- to ask for clarification on their stance on the death
penalty, including whether or not they support Gov. Tom Wolf's death penalty
moratorium (that could be overturned when another governor takes office).
Here's what we learned:
Beth Grossman - We didn't hear back from Grossman, the lone Republican
candidate in the race, but she told Philadelphia Magazine in March that she
supports the death penalty "in certain cases," but wondered if it's
"economically feasible."
Michael Untermeyer - Untermeyer, an ex-Republican and a former assistant
district attorney, doesn't personally support the death penalty but wouldn't
rule it out in the most extreme circumstances, his campaign said.
Joe Khan - A spokesman for Khan, a former federal prosecutor, said the Democrat
would only seek the death penalty in the most extreme circumstances. During a
recent forum when candidates were asked if they would ever seek the death
penalty, Khan responded that he wouldn't while a statewide moratorium is in
place.
Jack O'Neill - O'Neill, a former assistant district attorney and a Democrat,
said while prosecuting homicides in Philadelphia, he never chose to seek the
death penalty. But he said he wouldn't rule it out in the most heinous
circumstances, like if a police officer were killed.
Teresa Carr-Deni - The former judge's campaign confirmed her stance is that she
would only seek the death penalty in extreme or heinous circumstances.
Rich Negrin - Negrin, the former city managing director, didn't respond to a
request for comment. But during a recent forum when asked if he would ever seek
the death penalty if elected, Negrin responded "no." That's a harder stance
than he took in a February interview with Philadelphia Magazine, when he said
only that he supports Wolf's moratorium, not that he would never seek the death
penalty if that moratorium were to be lifted.
Tariq El-Shabazz - A spokeswoman for El-Shabazz, a former deputy under District
Attorney Seth Williams, said El-Shabazz "will not seek to impose the death
penalty." In the same forum mentioned above when asked about whether or not he
would seek the death penalty, El-Shabazz responded "no" -- twice. But similar
to Negrin, that's different from his prior characterization. In an interview
with Philadelphia Magazine in March, El-Shabazz said only that he supports
Wolf's moratorium.
That means that besides Krasner, 2 other candidates in the race -- Negrin and
El-Shabazz -- have said at one point or another that they would not seek the
death penalty if elected district attorney, but both failed to offer up that
hard stance when asked earlier this year. (In Krasner's February Philadelphia
Magazine interview, he said he's strictly against the death penalty and would
never seek it if elected.)
A spokeswoman for El-Shabazz said his stance is "not new," and the candidate
himself said last month that he has opposed the death penalty for his entire
career. PolitiFact Pennsylvania could not find an example from prior to April
when either Negrin or El-Shabazz said publicly that they would never seek the
death penalty if elected district attorney.
When PolitiFact reached out to Krasner's campaign Monday regarding the
statement on their website that Krasner is "the only candidate running for
District Attorney who explicitly pledges to never seek the death penalty," a
spokesman responded that that language has since been updated. The website now
reads: "Larry Krasner is the only candidate running for District Attorney who
explicitly pledges to never seek the death penalty and has done so throughout
the campaign."
"Some of the other candidates have changed their positions so quickly that it's
hard to keep up," spokesman Rich Garella said in an email, noting: "We have now
adjusted the language on our website to reflect the fact that 2 of them have
recently adopted the position that [Krasner] has had for more than 30 years."
Garella wasn't able to identify when the claim in question was posted on
Krasner's campaign website. Krasner, a well-known civil rights and criminal
defense attorney, has long been an outspoken critic of the death penalty.
Our ruling
Krasner's campaign for district attorney wrote that he "is the only candidate
running for District Attorney who explicitly pledges to never seek the death
penalty." At this point in the race, 2 other candidates have made a similar
pledge.
But it doesn't appear either of those candidates were as explicit about that
view throughout the campaign, unlike Krasner, who has long railed against the
death penalty. When PolitiFact pointed out the discrepancy to Krasner's
campaign, the website was almost immediately updated.
We rate the claim Mostly False.
(source: politifact.com)
*****************
Philly DA candidate blasts investigative journalism: I never repped a client on
death row
"In my 30 year career including dozens of capital cases, not a single client of
mine has ever been sentenced to death."
Our Analysis
DA candidate Tariq El-Shabazz went nuclear on reporter Ryan Briggs last week
after Briggs published an investigative story on City & State PA questioning
El-Shabazz's handling of a 2000 murder case. In a 2-page critique released on
Twitter, El-Shabazz referred to Briggs as a "fake news reporter" and accused
him of racism.
The long statement, released Friday, also suggested Briggs had incorrectly
stated the former client of El Shabazz was on death row and included this line:
"In my 30 year career including dozens of capital cases, not a single client of
mine has ever been sentenced to death."
Has El-Shabazz really never represented someone who was sentenced to death?
We'll start with Anthony Brown. Briggs' article originally included the
following passage: "With nothing but death row ahead of him, Brown began to
file state and federal court petitions largely centering around El-Shabazz's
failure to investigate his case." According to a Philadelphia Daily News
article from 2000, Brown was given a life sentence for the murder. State
records also indicate nobody by the name Anthony Brown has been sentenced to
death in Pennsylvania.
Greg Salisbury, editor of City & State PA, said the line about death row was a
copy editing error. He said the story was corrected Monday. The above sentence
now reads, "With nothing but the rest of his life in prison ahead of him," and
a correction is noted at the end of the piece.
But another client of El-Shabazz, infamous drug dealer Kaboni Savage, presents
a murkier picture. In 2013, Savage was given a federal death sentence for 12
counts of murder, 6 of which stemmed from a 2004 retaliatory fire bombing in
North Philly.
El-Shabazz, however, did not represent Savage during the federal case for which
he received the death penalty. Salima Suswell, a spokesperson for El-Shabazz,
said he was disqualified from representing Savage because of a conflict of
interest and couldn't represent him. The conflict arose because of the earlier
case in which he repped Savage. In federal court filings, El-Shabazz is not
listed as an attorney for Savage in the case. The earliest motion by the
defense comes from Christopher Warren, who was a court-appointed attorney.
Savage wasn't El-Shabazz's client in that matter, Suswell said. "So the
statement stands as true."
A 2004 Inquirer article indicates El-Shabazz was representing Savage when the
drug dealer was already being suspected - but not yet charged - in the fire
bombing. The article explains that the FBI was targeting Savage, lists
El-Shabazz as his lawyer and quotes him as saying Savage had nothing to do with
the firebombing "directly or indirectly."
So the fact-check comes down to this question: Is it fair for a lawyer to say
none of his clients have ever been sentenced to death when a major client of
his received a death sentence in a case he didn't litigate after being
disqualified from representing him?
2 legal experts say yes. Claire Finkelstein, director of the Center for Ethics
and the Rule of Law at Penn, said given the context, El-Shabazz's statement is
not incorrect.
"He's trying to prove he's a good lawyer," Finkelstein said. "If you look at
the spirit of it, it doesn't falsify the claim. He's not responsible for that
guy getting the death penalty."
Said Jules Epstein, a longtime trial lawyer and a professor at Temple Law, who
disclosed that he knows El-Shabazz: "The fact that a former client got the
death penalty with a different attorney is no reflection on this lawyer
whatsoever."
Our Ruling
After a critical article was published about him last week, Tariq El-Shabazz
released a statement Friday calling reporter Ryan Briggs racist and of
publishing fake news. In his statement, El-Shabazz said the article had
incorrectly claimed former client Anthony Brown was given a death sentence and
that not a single client of his had ever been sentenced to death.
Brown was not given the death penalty. He received a life sentence, and City &
State PA corrected the error Monday. But a former client of El-Shabazz, Kaboni
Savage, received a death sentence. El-Shabazz, however, did not represent
Savage in the federal case that led to the sentence.
Because he didn't represent Savage in that case, a spokesperson for El-Shabazz
said his claim stands as true. A former trial lawyer and expert on legal ethics
agree.
But while true in a legal sense, El-Shabazz's statement needs clarification.
We rule the claim Mostly True
(source: billypenn.com)
DELAWARE:
Legislator tries to block death penalty restoration
1 day before legislation reinstating the death penalty was to be heard in
committee a Dover Democrat filed a bill to restrict the methods of execution.
On the death penalty, House Bill 155, introduced by Rep. Sean Lynn, D-Dover,
would bar the state from executing convicted killers by lethal injection or
hanging - effectively leaving the state without the means to carry out a death
sentence.
Lawmakers are set to debate House Bill 125, which would put capital punishment
back in place, in the House Judiciary Committee today. The bill is expected to
be released to the full chamber.
Delaware has been without a death penalty since the state Supreme Court struck
it down in August, concluding that a portion violated the right to a jury
trial.
If both bills pass, the state would effectively be left with a death penalty
but no way to perform executions, unless an amendment is tacked on to the death
penalty bill.
The European Union has banned the export of certain drugs used for execution,
creating difficulties for states trying to carry out death sentences. Arkansas
executed 4 inmates in 8 days last month because its supply was set to expire,
and the Utah Legislature reinstated the firing squad in 2015.
Delaware was the last state to perform a hanging when it executed Billy Bailey
in 1996.
2 years ago, a Department of Correction spokesman said the state did not have a
supply of drugs for lethal injection. The department could not be reached for
comment Tuesday.
Rep. Lynn admitted he doesn't expect his bill to pass but introduced it to make
a statement.
"We are using a different variety of drugs which are not designed at all for
the purpose of killing someone," said the Democrat. "So, for example, when you
have the lethal injection, it's like 3-drug cocktail. The 2st is an anesthetic
so ostensibly you don't feel what's going to happen to you. So the anesthetic
that they typically use the EU won't supply to us, so we're basically
experimenting on people."
His proposal had been in the works but was deliberately introduced Tuesday to
coincide with House Bill 125.
Gov. John Carney, a Democrat, is opposed to capital punishment for convicted
killers but has said he "wouldn't rule out" backing a bill that allows for
executing individuals who kill law enforcement officials.
(source: delawarestatenews.net)
ALABAMA:
Death penalty trial begins in Huntsville church food pantry slayings
The death penalty trial of Huntsville's church food pantry killings suspect
will begin with opening statements Wednesday morning, despite concerns about
the racial makeup of the jury.
Richard Burgin, 53, is on trial for capital murder in the May 21, 2013 stabbing
deaths of brothers Anthony Jackson, 76 and Terry Jackson, 69. The Jackson
brothers were stabbed multiple times at West Huntsville United Methodist
Church, where they volunteered to clean and help with food distribution.
Prosecutors will seek the death penalty if the jury convicts Burgin, who was
tied to the killings by DNA evidence on a cup near the scene.
Jury selection wrapped up this afternoon, despite the defense team's concerns
about the racial composition.
The 14 people who have been selected to hear the case include 6 white men, 7
white women and 1 black woman. Of those 14, 2 jurors are alternates. However,
it won't be known which jurors are alternates until the trial ends and the case
is handed to the jury for deliberations.
When jury selection began Monday, a pool of 80 randomly selected potential
jurors included 15 nonwhite members. Of those, 35 were removed because of
excused absences or other circumstances.
By Tuesday when the attorneys began striking the jury, only 45 potential jurors
remained, including 6 people who are nonwhite. During the striking process,
prosecutors chose 5 of the 6 nonwhite members to be removed from the jury.
After asking a series of questions to learn about the potential jurors, both
the prosecution and defense choose which people they want removed from the jury
pool.
Defense attorneys Chad Morgan and Larry Marsilli expressed concerns about
Birgun's ability to get a far trial without more diversity on the jury. But,
Circuit Judge Karen Hall ruled the trial will proceed with the selected jury
because prosecutors provided nonracial reasons for why they struck the 5
nonwhite people. Those reasons, provided by Madison County Assistant District
Attorneys Randy Dill, Tim Gann and Jay Town include:
Among the 17 potential trial witnesses are police officers, medical examiners
and emergency medical workers. The trial is expected to last about a week and
will include a trip to the crime scene. Hall authorized the jury visiting the
church after prosecutors filed a motion and the defense team agreed.
On the day of the crimes, a witness told police he saw a black man go to the
door of the church at 3104 Ninth Ave. S.W., according to testimony during a
preliminary hearing. The witness, who lived across the street, said the black
man spoke to a white male then entered the building, according to police. A few
minutes later the black man emerged carrying a number of items, including a red
cup, the witness told police.
Police took DNA samples from several transients in the area around the church
following the slayings but none matched the DNA found on the cup, Gray
testified at the preliminary hearing in 2014.
In December 2013 the Alabama Department of Forensic Sciences informed police
they had found a match with Burgin, who was in prison at Draper Correctional
Facility.
Burgin was in Draper because of a parole violation.
Opening statements are scheduled to begin in Hall's courtroom Wednesday at 9
a.m.
(source: al.com)
*******************
Who Is Intellectually Disabled? Supreme Court Orders Alabama To Reconsider
Death-Row Case----A month after a ruling against Texas' standards for
determining when someone is intellectually disabled - and, therefore,
ineligible for the death penalty - justices sent a case back to Alabama courts
for further review over similar questions.
A US Supreme Court decision from March over Texas' death penalty standards -
specifically, how the state determines who is intellectually disabled - could
have a ripple effect into another state with one of the country's largest
death-row populations.
The Supreme Court on Monday ordered Alabama courts to reconsider whether the
state's process for determining if a person is intellectually disabled, and
thus ineligible for the death penalty, is constitutional in the wake of that
March ruling.
Nearly 15 years ago, the Supreme Court held that it was unconstitutional for
states or the federal government to execute intellectually disabled people. In
that case - Atkins v. Virginia - and a follow-up case barring states from using
a strict cut-off IQ measurement to determine intellectual disability, the court
had left open questions about how a state could determine whether a person is
intellectually disabled.
This past fall, however, the justices considered whether Texas used appropriate
standards in making intellectual disability decisions in death penalty cases.
The so-called Briseno factors used by Texas courts - a series of questions
addressing adaptive skills - overemphasized a focus on adaptive strengths, the
Supreme Court held in March, and were not appropriate.
Justice Ruth Bader Ginsburg, writing for the court's 5-justice majority, wrote
that the use of the factors "creat[ed] an unacceptable risk that persons with
intellectual disability will be executed." Even Chief Justice John Roberts, who
dissented from the court's ruling along with Justices Clarence Thomas and
Samuel Alito, wrote that he "agree[d] with the Court ... that those factors are
an unacceptable method of enforcing the guarantee of Atkins."
The court sent Bobby James Moore's case back to the Texas courts to address his
sentencing in light of the decision.
While Moore's case was pending before the justices, the lawyer for Taurus
Carroll - on death row in Alabama - asked the justices to review Carroll's case
on similar grounds. Carrol's lawyer, Benjamin Maxymuk, wrote that if the
Supreme Court sided with Moore, Carroll "will be entitled to similar relief
from his death sentence."
Alabama balked, writing one day before the decision in Moore's case was handed
down that Carroll's case "is distinguishable from Moore because the Alabama
courts do not require a consideration of the 7 evidentiary factors developed by
the Texas Court of Criminal Appeals in Ex parte Briseno" - in other words,
Alabama did not use the Texas standards. The state also asserted that the
Alabama courts had followed the Supreme Court's ruling in the Atkins case in
determining that Carroll is "not intellectually disabled."
The Supreme Court handed down the decision in Moore on March 28. About a week
later - with the decision in hand - Carroll's lawyer responded, quoting from
the Moore decision. "As in Moore, the consideration below of Mr. Carroll's
adaptive functioning 'deviate[s] from prevailing clinical standards, by
'overemphasiz[ing] Mr. [Carroll]'s perceived adaptive strengths," he wrote.
The justices did not take Alabama's advice. The court granted Carroll's case on
Monday, vacated the lower court's judgment, and remanded the case to Alabama's
Court of Criminal Appeals "for further consideration in light of Moore v.
Texas."
Such a move is not uncommon when the justices issue decisions that have a
bearing on similar laws in other states or affect related cases. With Moore,
however, there had been discussion about how Texas was out of the mainstream
because of the way it addressed intellectual disability.
The court's opinion in Moore said as much, with Ginsburg writing, "The Briseno
factors are an outlier, in comparison both to other States' handling of
intellectual-disability pleas and to Texas' own practices in other contexts."
While the justices gave no reason for their decision on Monday (and no justices
noted their disagreement with the order), the move does shift the issue - and
Carroll's case - back to the state's courts, where Alabama judges will have to
decide how much of an effect, if any, Moore should have on Alabama's methods of
determining intellectual disability.
Although Maxymuk declined to comment, another criminal defense lawyer involved
in death penalty cases in the state told BuzzFeed News he saw the move as a
positive sign.
"We are pleased that the Supreme Court has ordered the Alabama courts to
reexamine Mr. Carroll's case in light of Moore v. Texas," John Palombi, a
lawyer with the Federal Defenders for the Middle District of Alabama, wrote in
an email. "This will require Alabama courts to follow scientific principles
when making the life or death decision of whether someone charged with capital
murder is intellectually disabled."
The state's lawyers, however, tell BuzzFeed News that they will continue to
argue that Carroll is not intellectually disabled and should not be exempted
from the death penalty.
"The trial court and the Court of Criminal Appeals have already rejected
Carroll's claims that he is intellectually disabled," Deputy Attorney General
Thomas Govan, chief of the Attorney General's Capital Litigation Section, said
in a statement. "The State will continue to argue, as it has argued previously,
that Carroll does not meet the criteria for intellectual disability."
(source: buzzfeed.com)
OHIO:
Slaying suspect faces death penalty
A Liberty man has been indicted by a Trumbull County grand jury on capital
murder charges connected to the April 24 slaying of his elderly female
neighbor.
Sean Clemens, 33, 420 Churchill Hubbard Road, faces 2 counts of aggravated
murder with specifications of aggravating circumstances, 1 count of aggravated
robbery, 1 count of aggravated burglary, arson and tampering with evidence. The
case has been labeled a death penalty case because the victim was killed during
the commission of another crime, according to Ohio state law.
Clemens is accused of killing Jane LaRue Brown, 84, 503 Churchill Hubbard Road,
while she was in her bed, according to a court affidavit.
Also indicted today was Douglas Scott Day, 23, of Roaming Shores, who is facing
aggravated murder and attempted aggravated murder charges, each with a firearm
specification.
Day is accused in the April 26 shooting death of Cathryn Lambert, 48, and the
wounding of her daughter, Tiffany Lambert, 26.
(source: Tribune Chronicle)
*********************
2 additional attorneys added to Nasser Hamads defense team
2 Cleveland attorneys have been added to the defense team of Nasser Hamad of
Howland, including David Doughten, whose representation of Donna Roberts helped
temporarily reverse her death sentence in the murder of her husband in 2001 in
their Howland home.
Doughten and Atty. Robert Dixon filed a document April 19 in the case called an
"appearance," stating that they will be appearing on behalf of Hamad in his
aggravated- murder case after being "retained by the defendant's family."
On the same day, they filed a motion requesting a status conference at which
they could discuss motions, pretrial evidence and the trial schedule.
It adds that Doughten and Dixon anticipate a request for a "slight change" in
the current trial date.
A short time later, Judge Ronald Rice changed the date of the final pretrial
hearing from 1:30 p.m. May 18 to 1:30 p.m. May 17. The case is set for trial at
9 a.m. Sept. 18.
Neither filing mentions Atty. Geoffrey Oglesby of Sandusky, who has represented
Hamad, 47, since just after he was charged in the Feb. 25 shooting deaths of 2
young men and the shootings of 3 other people who came to his house on state
Route 46 in Howland in what police have called an ongoing dispute.
When contacted by phone Monday, Oglesby said he is unable to comment on the
makeup of Hamad's defense team because of the gag order imposed in the case by
Judge Rice.
Oglesby pointed out that in the county where he has his offices, attorneys must
file a withdrawal if they are no longer going to serve as a defendant's
counsel. There's been no such filing in the Hamad case, according to the online
docket in the Hamad case.
Hamad could get the death penalty if convicted of certain charges in the case.
Oglesby filed a number of motions shortly after he took over Hamad's defense in
early March. The judge denied most of them within several weeks.
In responding to one that asked the judge to disqualify himself and the
prosecutor's office from the case, Judge Rice said the idea was "meritless,
frivolous and inflammatory."
With Doughten as 1 of Roberts' attorneys, her death sentence was vacated twice
by Ohio Supreme Court justices and remanded to the trial court for
resentencing, initially because prosecutors had assisted in writing the judge's
original opinion.
Roberts, 72, later successfully argued the judge in the case should have
considered her history of depression, head injuries and other mitigating
factors before handing down a death sentence.
In the latest case, Roberts' legal counsel argued her death sentence should be
vacated because the original judge had died, leaving a new judge to decide a
death sentence without being involved in the original trial or hearing from
Roberts directly.
Doughten is also the attorney for Martin Yavorcik, convicted last year for his
involvement in the Oakhill Renaissance Place corruption scandal in Mahoning
County and has represented a numerous other people at trial and on appeal
during a long career.
(source: Youngstown Vindicator)
TENNESSEE:
Jody Hughes confession suppressed by trial judge
A confession by Jody Hughes to the murder of Tyler Worth in 2015 was suppressed
due to his confession after reportedly being threatened with a plea agreement
being revoked.
Though it was scheduled to be the 1st day of a possible 2-week trial, Monday
was instead set aside for motions to be decided upon by Circuit Court Judge
Sandra Doneghy. Several law enforcement officials testified about the events
that led to Hughes' arrest for the October 2015 homicide. The main testimony
came from 10th Judicial District Drug Task Force director Bill Cherry, who
questioned Hughes about Worth's death.
According to Cleveland Police Department reports, Worth was reportedly picked
up just off Green Drive, and his body was taken to a site on Hughes Lake Road
(which was learned in court Monday was actually on Lead Mine Valley Road) where
it was buried. It was later picked up at that site and taken to Polk County,
where it was dumped into a ravine in a remote area.
The suppression hearing Monday was not to determine if Hughes had actually
killed Worth, but if a confession he made while being questioned by Cherry was
coerced. An agreement was made with Hughes and the District Attorney General's
Office that if he would lead authorities to the site where Worth was located,
the death penalty would be not be sought by the state.
However, Hughes' attorney Wilton Marble questioned Cherry about him telling
Hughes when the two were together that the agreement with the DA's office could
be removed, and Hughes could face the death penalty. He said that it was
obvious that his client did not want to die.
Cherry said that Hughes finally admitted to the homicide, saying "I shot him, I
shot him ... I want the deal."
Marble said that "the state cannot use the death penalty to induce the
defendant to confess," Marble said. "It's like putting a pork chop in front of
a hungry wolf."
He said that this was a case of coercion of his client, and Doneghy agreed,
having the confession by Hughes to Cherry stricken from future proceedings in
the trial.
"It appears that the defendant did bring up the deal, and Director Cherry did
say that he thought that he believed the defendant did not actually know where
the body was," Doneghy said. "There could be no deal, because he could not
fulfill the terms.
"I do find that there is that coercive nature about the confession, due to the
defendant's fears about death," the judge continued, "so I will suppress the
confession."
It was not stated in court whether the death penalty could still be imposed on
Hughes should he be found guilty of Worth's murder.
Other motions presented at the suppression hearing Monday included showing the
jury photographs from Worth's autopsy, allowing taped interviews to be used in
court, and a potential request for a change of venue due to pre-trial
publicity. Doneghy allowed both the photographs and taped interviews to be a
part of the trial, and said that she will address a change of venue possibility
should it become an issue with today's jury selection, though at first she
denied the request.
"We might have to revisit this motion," the judge said. Doneghy indicated that
potential jurors will be questioned individually about their knowledge of the
case, and that both Marble and the DA's office will have 8 challenges to
possible jurors that they can use. The state prosecution is being led by
Assistant DAs Dallas Scott and Drew Robinson.
Doneghy also said that she will impose her 10-word or less limit on objections
by either side in the case.
Discussions between the judge, the defense and prosecution team led to
speculation that the trial may take no more than 9 days, with the possibility
that is could continue into Saturday of the coming weekend.
Hughes will be tried for 1st-degree murder, kidnapping and tampering with
evidence. The tampering charge will be consolidated with tampering with the
murder weapon, property in Hughes' possession that relates to the case, and
Worth's body, and instead of being separated, will be charged together.
4 other co-defendants in the case were charged with accessory to tamping with
evidence. They were previously identified as Richard Leroy "R.L" Jerger,
Jeffery Todd Crumley, Guy Roy Hawkins, and Ashley Marie Rutledge. Marble was
appointed to defend Hughes, due to the fact that the Public Defender's Office
had already been assigned to represent Jerger.
Hughes, 28, will remain incarcerated at the Bradley County Justice Center
throughout the trial. The jury selection was to begin this morning, and opening
statements by the defense and prosecution could begin this afternoon.
(source: Cleveland Daily Banner)
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