July 19
TENNESSEE:
Should convicted criminals with severe mental illnesses be eligible for the
death penalty? The death penalty in Tennessee already has lots of discussion
surrounding it. But what about criminals who can't remember their crimes?
The life of Billy Ray Irick hangs in the balance.
He's on death row, and is currently scheduled to die Aug. 9. Irick raped and
killed a 7-year-old girl in Knox County in 1985.
His crime is bringing to light a larger issue for one Tennessee group.
The Tennessee Alliance for the Severe Mental Illness Exclusion fights against
the death penalty for people with severe mental health issues.
The group hosted a panel Wednesday in Knoxville.
The discussion centered around the question: Should Tennessee allow people with
severe mental illnesses to be punished by death?
Even early in Billy Ray Irick's life, his mental health was in question.
The Tennessee Alliance for the Severe Mental Illness Exclusion, or TASMIE, says
at just 8 years old, Irick stayed at a psychiatric hospital.
They say his illness is well documented.
In 1985, they say he was having hallucinations when he committed a crime that
would put him on death row.
"Individuals with a serious mental illness have impairments that may cause them
to do things that they wouldn't otherwise do," Dr. Jeff Stovall said.
Stovall is a professor of psychiatry at Vanderbilt University.
He says most people misunderstand mental health in criminals.
"The perception is that people with a psychiatric illness are more dangerous
than someone without a psychiatric illness, when in fact the studies would tell
us that people with psychiatric illness are no more likely to commit a crime
than anyone else," Stovall said.
Tennessee State Senator Dr. Richard Briggs pushed to change who is eligible for
the death penalty in this past legislative session.
"The death penalty is deserved for the worst of the worst who commit horrendous
crimes," Briggs said. "But people have to know what they're doing to have the
death penalty."
Under his bill, people with severe mental health issues would not be put to
death.
It failed in the senate judiciary committee in March.
"We'll have a completely different legislature next year because of the
turnover that we're having," Briggs said. "And I will refile the bill in the
2019 session. And if you fail, we'll just try, try again, because we think
we're right with this."
Even if Briggs' bill had passed, it would not have impacted Irick because he
was already sentenced to death.
(source: WBIR news)
ARKANSAS:
State suspends search for execution drug
KARK reports that the state Correction Department has temporarily stopped
searching for midazolam, 1 of the drugs used in executions. That likely means
no further executions until the law can be changed in 2019 to provide more
secrecy in the drug acquisition process.
The legislature meets in 2019.
ADC Director Wendy Kelly said Tuesday the decision was made after Arkansas'
highest court ruled earlier this year that the department would have to reveal
who the drug's manufacturer is.
ADC Spokesperson Solomon Graves said Tuesday the department is in discussion
with the governor and attorney general's offices on changing the wording of the
Arkansas Method of Execution Act, which would protect the identity of the
drug's manufacturer.
Once it's approved by the Governor, Graves says ADC will begin Legislative
outreach.
Graves says if the wording is changed to protect the identity of the
manufacturer, ADC would resume its search for the drug.
Midazolam is a sedative and it has been controversial as to effectiveness in
preventing suffering by those being executed. The drugmakers say it must not be
used for executions and so states like Arkansas have turned to clandestine and
sometimes dubious sources to obtain the drug. Its apparently dishonest
acquisition of a recent supply led to a lawsuit by a drug distributor to
reclaim its drugs so they wouldn't be used for an unintended purpose. Judge
Wendell Griffen ruled in favor the distributor, setting of a contorversy of his
own because he is a death penalty opponent. A subsequent judge, Alice Gray,
made the same ruling on the same facts and a case in Nevada has also been
resolved in favor of the drug company.
So when the state says it wants to change the law so that there are no means to
trace the source of drugs, it means it wants protection for its dishonest means
of killing people.
No inmates currently have execution dates set. The state already lacked an
unexpired supply of vecuronium bromide, another of the three execution drugs.
The potassium chloride expires Aug. 31 and the midazolam supply was to last
through January, according to an earlier USA Today article.
(source: Arkansas Times)
WASHINGTON:
Washington man could face death penalty if convicted in killings of Saanich
couple
A Seattle-area man could face the death penalty if convicted of the aggravated
1st-degree murders of a young Saanich couple.
William Earl Talbott ll was arrested in May and charged with murder in the
deaths of 18-year-old Tanya Van Cuylenborg and 20-year-old Jay Cook, who were
killed in November 1987. He has pleaded not guilty to the crimes.
Talbott, 55, is expected to appear in Snohomish County court on Thursday.
Snohomish County's chief criminal deputy prosecutor Craig Matheson expects the
hearing will be brief.
"All we are doing is extending notice of the date of death penalty decision
until Nov. 30 and continuing the trial date into 2019," Matheson said. "It's
just the start of a very long process. I think it will be anywhere between a
year-and-a-half and 2 years before we're actually in a courtroom."
Under Washington state law, there are two penalties available for aggravated
murder: the death penalty and life without the possibility of parole, Matheson
said.
Once an individual has been charged with aggravated murder, the elected
prosecutor has to make a decision within 30 days and then serve written notice
upon the defence on whether he or she plans to seek a special sentencing
proceeding, also known as a death-penalty hearing.
"Typically, the defence will request that the 30-day time frame be extended so
they can put together a mitigation package," Matheson said. "We're agreeable to
it because when you're making a decision of that magnitude, having more
information is better than having less."
The mitigation package, which will be forwarded to elected Snohomish prosecutor
Mark Roe, will contain all of the reasons the prosecution should not seek a
special sentencing proceeding on Talbott or any other defendant in his
position.
A decision will be then made on how prosecutors want to proceed.
In the U.S., murder is when a victim is killed intentionally with malice
aforethought. This means the person committing the crime had the intent to kill
another person.
Aggravated murder occurs when the accused is alleged to have done one of the
following:
-- killed someone intentionally with planning;
-- intentionally killed a person younger than 13 years of age;
-- intentionally killed a person while serving a term in prison or while a
prison escapee;
-- intentionally killed a law officer on official duty or with planning;
-- killed someone or illegally terminated a person's pregnancy while in the
process of committing rape, kidnapping, arson, robbery, burglary, terrorism or
trespassing.
There are 8 inmates on death row in Washington state. The last execution in the
state took place in 2010. Washington utilizes 2 methods of execution: lethal
injection and hanging. Lethal injection is used unless the inmate chooses
hanging as the preferred execution method.
Cook and Van Cuylenborg boarded the Coho ferry to Port Angeles on Nov. 18,
1987, in the Cook family van. They planned to return home the next day via the
Interstate 5 highway. At 10:16 p.m., they bought tickets at the Bremerton ferry
dock to catch the ferry to Seattle. Neither was seen or heard from again.
Van Cuylenborg's body was found in a ditch in Skagit County in a wooded area of
Parsons Creek Road, between Old Highway 99 and Prairie Road. She had a
.38-calibre gunshot wound to the back of her head. She had been restrained with
zip-tie fasteners and sexually assaulted.
On Nov. 26, Cook's body was found near High Bridge on Crescent Lake Road, east
of Monroe. He was covered by a blue blanket. He had been strangled and
restrained with the same type of zip-tie fasteners as Van Cuylenborg.
Police have said they do not know what the motive was for the killings.
DNA led to a breakthrough in the 30-year-old case.
A genealogist, CeCe Moore, worked with experts at Parabon NanoLabs to build a
family tree for the suspect based on the genetic evidence recovered from the
crime scenes. They used data that had been uploaded by distant cousins to
public genealogy websites to pinpoint a suspect.
Police kept Talbott, a trucker living north of Sea-Tac International Airport,
under surveillance until a paper cup fell from his truck in Seattle in early
May. A swab of DNA from the cup came back as a match to evidence from the crime
scenes.
(source: Times Colonist)
USA:
At
https://www.americanbar.org/content/dam/aba/publications/criminaljustice/SCJ2018_Capital_Punishment.pdf
[www.americanbar.org], you will find my extensive chapter on capital punishment
developments (through the end of March 2018), which appears in the ABA Criminal
Justice Section's book: The State of Criminal Justice: 2018.
Information on buying the entire book will soon be available at
www.ambar.org/cjsbooks
(source: Ron Tabak)
*******************************
America Is Stuck With the Death Penalty for (At Least) a Generation----With
Justice Anthony Kennedy's retirement, the national fight to abolish capital
punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years
after de facto abolishing it, the justices effectively took ownership of the
American death penalty and all its outcomes. They have spent the decades since
then setting its legal and constitutional parameters, supervising its general
implementation, sanctioning its use in specific cases, and brushing aside
concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice
Anthony Kennedy's retirement from the court this summer, the Supreme Court will
lose a heterodox jurist whose willingness to cross ideological divides made him
the deciding factor in many legal battles. In cases involving the Eighth
Amendment's prohibition against cruel and unusual punishment, his judgment
often meant the difference between life and death for hundreds of death-row
prisoners.
"In a very real sense, the Eighth Amendment meant whatever Justice Kennedy
decided that it meant," Robert Dunham, the executive director of the Death
Penalty Information Center, told me. "He was often the 5th vote in denying
stays of execution and in favoring the state on questions of lethal injection,
but he was also often a fifth vote for determining that a particular
death-penalty practice was unconstitutional."
The high court will likely continue to intervene in death-penalty cases that
stray too far from the legal mainstream. But without Kennedy, it will no longer
be the venue for a systemic attack on capital punishment as it had been in
recent years. "It seems likely that there will be a firm, 5-person majority on
the court in Kennedy's wake with absolutely no interest in revisiting the
status quo on the constitutionality of capital punishment," Carol Steiker, a
Harvard University law professor who specializes in the death penalty, told me.
Kennedy first joined the court in 1988, but he didn't make his mark on capital
cases until after he had spent more than a decade there. In the 2002 case
Atkins v. Virginia, he joined the majority decision that barred states from
executing people with intellectual disabilities. 3 years later, Kennedy wrote
the court's opinion in Roper v. Simmons to abolish the death penalty for crimes
committed when the defendant was under 18 years of age. Roper's logic later
became instrumental in the court's rulings that radically scaled back
life-without-parole sentences for juvenile offenders.
In each case, Kennedy's stance drew strenuous dissents from the court's other
conservatives. After Kennedy concluded in Roper that executing people for
crimes they committed as juveniles no longer fit within the nation's "evolving
standards of decency," noting that the United States was the last country on
Earth that still permitted the practice, Justice Antonin Scalia complained,
"The court thus proclaims itself sole arbiter of our nation's moral standards -
and in the course of discharging that awesome responsibility purports to take
guidance from the views of foreign courts and legislatures."
In 2008, Kennedy joined again with the court's 4 liberal justices in Kennedy v.
Louisiana to abolish the death penalty for crimes other than murder. The case
at hand involved a particularly disturbing case of child rape, and the
dissenting justices criticized the court for deciding such acts were beyond the
death penalty's scope. "I have little doubt that, in the eyes of ordinary
Americans, the very worst child rapists - predators who seek out and inflict
serious physical and emotional injury on defenseless young children - are the
epitome of moral depravity," Justice Samuel Alito wrote.
Kennedy nonetheless drew a line between crimes in which the victim died and
those in which they did not. "In this context, which involves a crime that in
many cases will overwhelm a decent person's judgment, we have no confidence
that the imposition of the death penalty would not be so arbitrary as to be
'freakish,'" he wrote, paraphrasing a death-penalty ruling from the 1970s. "We
cannot sanction this result when the harm to the victim, though grave, cannot
be quantified in the same way as death of the victim."
Those decisions represented "the biggest area of Eighth Amendment growth in a
protective direction in the last two decades, and Kennedy was instrumental in,
if not the chief architect of, that growth," Carol Steiker, a Harvard
University law professor who specializes in the death penalty, told me. "The
jurisprudence that he helped develop and build in those cases is probably the
best, most likely path to constitutional abolition."
In the 2015 case Glossip v. Gross, Kennedy joined the court's other
conservatives to uphold Oklahoma's haphazard lethal-injection protocol. But
there were indications of movement toward abolition behind the scenes. Justice
Stephen Breyer wrote a lengthy dissent in Glossip that called for the court to
reconsider whether the death penalty violated the Eighth Amendment, the first
such call from a sitting justice in almost a decade. A few months later, Scalia
told a University of Minnesota law school audience that he wouldn't be
surprised if the court voted to abolish it soon.
Some death-penalty abolitionists and legal observers took these as signals that
the court - Kennedy himself, for all intents and purposes - might declare
capital punishment unconstitutional, if given the opportunity. In the years
that followed, capital litigators brought multiple appeals to the justices that
asked them to revisit the practice's constitutionality in hopes of triggering
such a ruling. But the court declined to hear all of them, suggesting that its
most influential member wasn't willing to go that far.
With Kennedy now gone, it's virtually certain that the Supreme Court won't
abolish the death penalty for at least a generation. Earlier this month,
President Donald Trump nominated Brett Kavanaugh, a reliably conservative judge
on the D.C. Circuit Court of Appeals, last month to fill Kennedy's seat. While
Trump himself is an unusually enthusiastic proponent of the practice,
Kavanaugh's own views on the death penalty are unknown. The D.C. Circuit's
narrow geographic jurisdiction means that it almost never hears death-penalty
cases compared to the other federal appellate circuits.
As a result, there is no clear record for how Kavanaugh approaches the practice
as a judge. Justices Clarence Thomas and Samuel Alito are resistant to
curtailing capital punishment, and Justice Neil Gorsuch has voted alongside
them during his 1st term on the court. If Kavanaugh votes in a similar manner,
the court's posture toward the death penalty would shift decisively away from
limiting its scope. "The immediate impact of Kennedy's retirement in terms of
Eighth Amendment law is that it's now whatever Chief Justice Roberts decides
that it is," Dunham said.
Roberts generally sides with the rest of the court's conservatives on
death-penalty matters. He has also joined the court's liberals on occasion to
rule in favor of defendants in certain egregious cases. In the 2017 case Buck
v. Davis, he sided with a death-row prisoner after an expert testified during
the sentencing phase that he posed a greater threat of "future dangerousness"
because he is black. Though the exchange was a brief part of the overall trial,
Roberts said in his majority opinion that it was still too much. "Some toxins
are deadly in small doses," he wrote.
Death-row prisoners will still bring cases to the Supreme Court, but Steiker
said that the future of abolition efforts will now turn to the state and local
level. "States are really where the story is happening," she told me. "There
are state constitutional challenges that can be brought. Seven state
legislatures have voted to abolish the death penalty in the past 10 or 12
years." She also noted that a growing number of district attorneys are
declining to seek the death penalty in cases where they otherwise could.
A local focus makes sense given the current geography of capital punishment.
Death sentences increasingly come from only a handful of counties scattered
across the country. Though state legislatures allow or forbid the death penalty
as a matter of law, local prosecutors often decide in practice whether a
defendant will face it. Cities like Houston and Philadelphia that once handed
down dozens of death sentences have recently seen the election of district
attorneys who are more skeptical of it.
For now, the rulings written by Kennedy will continue to mark the outer limits
for American executions on a national level - unless the justices of a future
generation choose to push them even further. "The law that Justice Kennedy
leaves behind offers something of a blueprint for a future Supreme Court if it
wanted to continue this project of reassessing the death penalty and its
concordance - or not - with evolving standards of decency," Steiker said.
(source: Matt Ford is a staff writer at The New Republic.)
******************************
Federal Death Penalty Prosecutors Accuse One Another of Destroying Evidence and
Other Misconduct in Discrimination Lawsuit
A team of federal prosecutors charged with promoting "consistency and fairness"
in death penalty cases has been hurling incredible, on-the-record accusations
against one another - from neglecting boxes of evidence to destroying interview
notes - and defense attorneys want to know why this is the first they're
hearing about this alleged misconduct.
Publicly, prosecutors typically are tight-lipped about missteps. But a recent
internal dispute and civil lawsuit prompted some members of the Capital Case
Section to speak up about serious misconduct in some death penalty cases.
In 2016, federal prosecutor Jacabed Rodriguez-Coss sued the Justice Department,
alleging supervisors in the Capital Case Section discriminated against her and
retaliated when she filed a complaint. A judge tossed out her lawsuit in late
June, according to court records, and she intends to appeal.
While Rodriguez-Coss's lawsuit had nothing to do with how federal prosecutors
behaved in a courtroom, both sides dredged up alleged misconduct in how they
handled death penalty cases.
It's rare for details like these to come out publicly, and even more unusual
for prosecutors to be pointing the finger. Even judges almost always redact the
names of prosecutors when they find misconduct egregious enough to throw out a
conviction.
But now defense attorneys are questioning the capital case unit's overall
integrity.
"It is safe to assume that if Ms. Rodriguez-Coss had never filed her
gender-discrimination suit, the government never would have disclosed even the
limited information it has now provided," defense attorneys wrote to a judge in
March.
Serious Failures and Deficiencies
When she filed her discrimination lawsuit, several former colleagues of
Rodriguez-Coss submitted affidavits in support of her case. One of them delved
into the way prosecutors handled death row cases, pointing to "serious failures
and deficiencies."
James Peterson, who still works on the death penalty team, allegedly destroyed
interview notes he took as part of an ongoing murder case in Indiana. But the
defendant's attorney would have never known that the interviews happened in the
first place - much less about the possibility of destroyed evidence - if it
weren't for Amanda Haines, who retired from the team in 2017 and submitted a
sworn statement in support of Rodriguez-Coss's lawsuit.
In her affidavit, Haines, who worked for the Justice Department for about 2
decades, said she brought concerns to her supervisors about the way some of her
male colleagues handled cases, but they did nothing.
Reached via phone, Haines declined to discuss prosecutorial misconduct in the
capital case unit.
When Haines took over an Indiana death penalty case in 2014, she said in her
affidavit, she found Peterson had destroyed notes from interviews with a dozen
witnesses. She claimed this violated a Justice Department directive requiring
that "prosecutor notes and original recordings should be preserved."
That directive was issued in 2010, in the wake of high-profile misconduct
cases, such as the systematic hiding of evidence in the prosecution of late
Alaska Sen. Ted Stevens.
The Indiana defendant, Andrew Rogers, claimed he unsuccessfully sought mental
health treatment from the prison before killing another inmate. On his
supervisors' orders, Peterson interviewed people who might have had knowledge
about Rogers's attempts to seek treatment - details that might have helped
Rogers. But Haines alleged that he destroyed notes from these conversations.
Only because of the Haines affidavit did the defense even know these interviews
took place. The New York Times wrote earlier this year about the lawsuit and
the demotion of 2 Capital Case Section chiefs amid separate harassment
allegations.
"The government actually continued to withhold the information for years, to be
discovered only by chance after a former CCS lawyer filed a civil lawsuit in a
district almost a thousand miles away," defense attorneys wrote to the judge.
In her statement, Haines said she told supervisors she believed Peterson's
conversations with mental health professionals "needed to be disclosed to the
defense." But rather than investigate, she said, they took her off the case.
After Haines's affidavit, Peterson wrote to the court that his interviews were
brief and none of the interviewees provided details that might "exculpate
Rogers or damage the government's case against him."
"At no time, have I attempted to suppress the fact that I interviewed [Bureau
of Prisons] personnel," Peterson wrote.
In January, Rogers's attorneys asked a judge to prohibit the government from
seeking the death penalty, calling it "shocking that prosecutors in the section
dedicated solely to capital cases would be so cavalier in regard to a
defendant's life."
Over prosecutors' objections, the judge ordered the government to search for
any handwritten notes or other documentation from Peterson's interviews that
might still exist. The judge also ordered Haines and Rogers to answer questions
under oath about the matter.
Rogers's attorney, Nathan Chambers, declined to discuss the case and said in an
email that his team didn't "want to be perceived as litigating the issue in the
media rather than in court."
The U.S. Attorney's Office for the Southern District of Indiana declined to
comment.
In the same affidavit, Haines accused another former co-worker, Steven Mellin,
of failing to review stacks of potential evidence or interview important
witnesses in another death penalty case. She inherited the case from Mellin in
2013, she said, only to discover potentially exculpatory material sitting in
unopened boxes.
"I learned that significant deadlines had been missed and that important
documents had not been reviewed or produced," Haines wrote in her affidavit,
adding that key witnesses "had never been interviewed."
Mellin did not respond to multiple emails and calls.
Upon interviewing the neglected witnesses, Haines found that one might have
lied on the stand. The defense asked the judge to prohibit the government from
seeking the death penalty, claiming "a troubling pattern of non-disclosure by
the prosecution." Notably, the court had reversed the original death sentence
after a different group of federal prosecutors withheld several FBI reports.
The judge denied motions alleging prosecutorial misconduct, and the government
eventually agreed to a plea agreement with life imprisonment.
At the time, Haines said, she flagged Mellin's handling of this case to her
supervisors. But far from being investigated for potential discipline or
retraining, he was assigned to lead the high-profile trial of Boston Marathon
bomber Dzhokhar Tsarnaev.
The U.S. Attorney's Office for the Middle District of Pennsylvania declined to
comment.
Mellin left the Capital Case Section and currently is a federal prosecutor in
Texas.
Ruth Friedman, a federal defender in Maryland and director of the Federal
Capital Habeas Project, said in an email that Haines's allegations of
misconduct were disturbing.
"Her references to prosecutors withholding exculpatory, impeachment, or
mitigation evidence at the very least raise serious questions about the
fairness of federal capital trials," she said.
Serious and Unacceptable Problems
After the Rodriguez-Coss lawsuit grabbed national headlines, defense attorneys
around the country began taking a second look at cases involving the death
penalty squad.
An attorney for Ricky Fackrell, a white supremacist sentenced to death in Texas
in June for killing another inmate, filed a motion alleging the prosecutor's
handling of his client's case "fits the pattern" Haines described.
There are "serious and unacceptable problems at the CCS," his attorney, Gerald
Bourque, wrote in a motion seeking the prosecutor's interview notes. The judge
denied the request, ruling that "purported personnel problems" in the unit were
not relevant to the case at hand.
"The CCS makes itself a target for investigation," Bourque said in an email.
"From its makeup to its decision-making processes to its in-house politicking.
It's all subject to scrutiny. Are they deciding based on case value or on
advancement or other non-case related factors?"
Fackrell has appealed his conviction. The U.S. Attorney's Office for the
Eastern District of Texas declined to comment.
In May, defense attorneys for Donald Fell, who is facing the death penalty in
Vermont, argued that assertions by "insiders" like Haines "raise questions
about the integrity of the Department of Justice's handling of pending Federal
capital cases."
Until Rodriguez-Coss sued, they didn't know one prosecutor was being
disciplined for how he was handling their client's case while it was still
ongoing. They asked for materials showing whether "misconduct, ethical lapses,
and/or malfeasance within the Capital Case Section" might have tainted the
trial.
Prosecutors responded that the alleged misconduct had nothing to do with Fell's
case and his request for documents was "premised on the ambiguity of loaded
verbiage cherry-picked from a civil suit."
"Those claims may impugn the ethics of some government employees, but they shed
no light on Fell's case," wrote Assistant U.S. Attorney Bill Darrow in a
motion. Darrow declined to discuss the case.
Blameworthy Conduct
The discrimination lawsuit even surfaced allegations against Rodriguez-Coss
herself.
In denying her suit in June, the judge said her supervisors' actions were
justified given Rodriguez-Coss's "egregious" behavior and "clear and repeated
failures" to follow court orders.
Asked about their decision to call Rodriguez-Coss back to Washington, D.C. - a
move she said was retaliation after she complained about travel requirements -
supervisors pointed to a California judge's "blistering criticisms" of her
behavior.
In January 2014, during a murder trial in Fresno, California, the judge
lectured both sides, chastising the defense for a motion he considered an
"overreaction." However, the judge said, those concerns "pale in comparison to
my reaction to some of the stuff that's going on with the government in this
case."
"It might be most charitably described as cavalier," the judge said of the
string of deadlines Rodriguez-Coss and her team had missed. He counted off 6
late filings from the previous year alone.
Almost a year earlier in the same case, the judge had noted the government's
tardiness in responding to discovery motions, further admonishing
Rodriguez-Coss that her responses "all too often appear cursory."
He also pondered "why government counsel should not be held in contempt for
their flagrant disregard of the court's orders." Another judge warned
Rodriguez-Coss that a "pattern of late filings" might lead to sanctions.
At the January 2014 hearing, Judge John Coughenour asked her what further
options he had.
"One would be to send a letter to the Attorney General of the United States
expressing my displeasure at the way this case is being handled," Coughenour
said, adding that he could send her supervisor a transcript of the rebuke.
"I'm not going to do either of those things today," he said. "But I'll do both
of them if this doesn't stop right now."
Rodriguez-Coss did not return multiple phone calls or an email requesting an
interview.
Gwynn Kinsey, who was deputy chief of the Capital Case Section until he was
investigated for harassing an administrative assistant, according to the New
York Times, said he ordered Rodriguez-Coss to the Justice Department's
headquarters for closer supervision - not out of retaliation. He said he did so
after the court made good on its warning and sent hearing transcripts to the
U.S. attorney's office in Sacramento.
"I've never had a case where I've had these kinds of expressions of concern by
a court with one of my attorney's performance," Kinsey said in an August 2017
deposition as part of the discrimination lawsuit. He considered the judge's
frustrations to be "fair criticism," he said, but didn't formally determine
whether Rodriguez-Coss committed misconduct.
Rodriguez-Coss said the judge's courtroom reprimand wasn't out of the ordinary.
"If you haven't been yelled at by a judge or admonished at some juncture in
your career as a litigator representing the government in court, then you
haven't been to court much," she said in a deposition. Rodriguez-Coss said the
judge's criticism was "unjustified."
The judge who ruled on her lawsuit pointed to how Rodriguez-Coss's behavior had
"caught the attention of not just 1, but 2 federal judges."
Rodriguez-Coss resigned from the Capital Case Section in May 2014 after
accepting a position in the Connecticut U.S. attorney's office as deputy chief
of the national security and major crimes unit.
An examination of court records shows Rodriguez-Coss's alleged misconduct
hasn't been limited to cases involving the death penalty team. More than a
decade earlier, before she joined the Capital Case Section, the 1st Circuit
found "bad behavior" in her handling of a drug case. She failed to disclose key
details of a deal with a cooperating witness, the court found, and her closing
argument undercut the constitutional presumption of innocence.
"This conduct is blameworthy and the government should take steps to see that
it does not recur," the 1st Circuit ruled, although the panel determined that
her actions didn't entitle the defendant to a new trial. They did not name her
in the published opinion.
"Again, we do not approve of the prosecution's conduct; we hold only that it
does not provide a basis for reversal," the opinion stated.
Rodriguez-Coss said she notified the Justice Department about the 1st Circuit
ruling at the time and was later "cleared of any misconduct during an internal
investigation."
In an ongoing intellectual property theft case in Connecticut, defense
attorneys have accused Rodriguez-Coss and her team of "multiple and serious
violations," such as failing to turn over FBI interview reports. The judge
currently is considering a motion for a new trial based on allegations of
prosecutorial misconduct.
(source: theintercept.com)
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