I had just finished reading a 2006 report written by Peter A. Joy, who is a Professor of Law and Director of the Criminal Justice Clinic, Washington University School of Law in St. Louis. This report was published in the Wisconsin Law Review on June 13th, 2006.
His report is entitled…
The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System.
It seems that as soon as I put this 29-page report down, and turned on the radio, a news report came on saying that the District Attorney in the Duke rape case had been disbarred.
A legal committee stated that Mr. Nifong had been disbarred because of his illegal and unethical actions. It was stated that there were many reasons for the disbarment, including the fact that the Nifong withheld material exculpatory evidence from the attorneys for the defendants.
When I first heard this on the radio I started to laugh. Then, after it sunk in, I started to get angry. The withholding of material exculpatory evidence from the defense by the district attorney is illegal. In legal terms it is called a Brady violation, and its progeny(s):
Brady v.Maryland, 373 U.S. 83,87-88(1963)
Kyles v.Whitley, 514 U.S. 419,436-37 and n.10(1995)
Barker v.Fleming, 423 F. 3d 1085,1094 9th Cir(2005)
United States v.Bagley, 473 U.S. 667,682(1985)
The reason(s) I started laughing when I first heard about this is because it took the case of three (3) rich white kids at Duke University to expose exactly what the withholding of material exculpatory evidence is, and why it’s so important and illegal for any district attorney to do.
It also once again showed the double standard in this so-called justice system for the rich, and the poor. No district attorney to my knowledge has ever been disbarred for withholding material exculpatory evidence from the attorneys of poor black people, or poor people of any skin color.
I got angry because district attorneys, damn near all of them, withholding material exculpatory evidence all the time from people like me and very little or nothing is said about it. Especially from the mainstream news media.
In my case, which I have been fighting for over 24 years as of this writing (since 1983), I or my legal team(s) did not know until 1998 that the district attorney in my case was withholding material exculpatory evidence. And when we found out, we couldn’t get it into any court.
Shortly before this state tried to execute me in 2004, we found out about another instance when the district attorney in my case withheld material exculpatory evidence. Since I received the stay of execution in 2004, my new legal team found out on its own about four (4) more instances of withholding of exculpatory material evidence by the district attorney.
My legal team uncovered this information without any discovery from the courts or help from the district attorney. Who knows how many more things have been withheld from my legal team by the district attorney? And guess what? The d.a. in this case has not been disbarred, nor will he be!
In Professor Peter A. Joy’s report he uses many different legal sources including Mr. Peter Neufeld & Mr. Barry Scheck of the Actual Innocence Project. They state that, “prosecutorial misconduct has been proven to be one of the most common factors that causes or contributes to wrongful convictions.”
Prosecutorial misconduct runs rampant throughout the criminal justice system, and does so because all prosecutors are immune from being sued or from being held accountable for their misconduct. Very few ever get disbarred for any reason, so if it wasn’t for the fact that those three (3) kids in North Carolina came from wealthy families, Nifong would never have been disbarred.
Most district attorneys are themselves middle or upper-middle class, and most of the people who they withhold evidence from and do other illegal things to are poor. Nifong made a mistake in the eyes of many and therefore had to be punished, made an example of.
Professor Joy’s report goes on to state, “after mistaken identification, the other most common factors leading to wrongful convictions in the first seventy 70) DNA exonerations were: serology inclusion (40) cases, police misconduct (38) cases, prosecutorial misconduct (34) cases, defective or fraudulent science (26) cases, bad lawyering (23) cases, microscopic hair comparison matches (21) cases, false witness testimony (17) cases, informants or lying jailhouse snitches (16) cases, and false confessions (15) cases.
All but the false confession issue can be found within my case, in fact all of these issues are in front of the 9th circuit court of appeals. I was given/granted ten (10) certificates of appealability on all of the issues found in Professor Joy’s report, and that I mentioned above.
The opening statement in Joy’s report states the following facts, or proven truths…
“With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious of cases.”
They have prosecuted black men, hiding the evidence the real killers were white.
They have prosecuted a wife, hiding evidence her husband committed suicide.
They have prosecuted parents, hiding evidence their daughter was killed by wild dogs.
They do it win. They do it because they won’t get punished. They have done it to defendants who came within hours of being executed, only to be exonerated.
They also lie, and do so without any fear of being charged with perjury. Not long ago, Scooter Libby was convicted of lying to a federal prosecutor. Before that Martha Stewart was convicted of lying to the federal government. Yet the district attorney(s) and the people who work for them and with them are very seldom if every charged with lying to anyone!
For example, the chief deputy district attorney in my case named John P. Kochis lied in federal court about my case, and the withholding of material exculpatory evidence. When he helped wrongfully convict me in 1985 he wasn’t a chief, he was just a plain d.a., now he’s a chief! Mr. Kochis gave the federal district court a bizarre and factually unsupported theory concerning the discovery of a bloodstained blue shirt that was found by a woman in 1983and picked up as evidence by the San Bernardino county sheriff’s department, and then disappeared! Chief Kochis said that there never was a blue bloodstained shirt found and picked up, despite the fact that the woman came and testified to this fact, and there is a police report which was made about this incident.
Chief Kochis also knew about the disposition report proving that the bloody coveralls destroyed by Deputy Eckley in 1983 were not done so accidentally as Eckley claimed. The Chief knew about the disposition report, he did not turn it over to my trial attorney, nor did he say anything about it in 1983, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 2000, 01, 02, 03, 04, or anytime since. It was an investigator from my legal team which found the disposition report on microfilm at the San Bernardino sheriff’s department in 1998. 13 years after my conviction! The disposition report was needed then to impeach Deputy Eckley, and show the truth as to why he destroyed those coveralls.
But this district attorney, like the others, does his dirt in the name of justice, and doesn’t worry about being punished by the justice system!
The Chief knew about all of the constitutional violations that have been found to have taken place within this case, even though he and the state are fighting in court to say that these violations didn’t happen.
Besides the constitutional violations, the Chief also knew about the tampering of evidence, contamination of evidence, planting of evidence, destruction of evidence, the tampering of witnesses, the altered and unreliable testimony, the perjured testimony of police, and every other thing which was proven in order to get me a stay of execution in 2004.
He knew, and we know he knew. After all, the chief knows everything, that’s why he’s the chief! In 1999 Daniel Gregonis, who is the criminalist in the county of San Bernardino, removed evidence from the evidence room which was DNA tested in 2001. Gregonis testified that he removed this evidence because the chief told him to. What Gregonis and the chief never told the court or anyone else was that Gregonis also removed my saliva and possibly whole blood sample that was taken from me after my arrest and kept all of it out for 24 hours in 1999. As the saying goes, the rest is history. This chief deputy district attorney named John P. Kochis has had his hands in every aspect of this case. Yet he will not be disbarred for any of the illegal things that the law firm of Orrick, Herrington & Sutcliffe LLP have proven in court that he has done in this case! In fact, he was going to attend my murder at the hands of this prison on February 10th, 2004.
While the chief was telling Gregonis to remove evidence from the evidence room in 1999 in my case, Chicago Tribune reporters Ken Armstrong and Maurice Possley were producing a five-part series reporting on their national study of approximately eleven thousand court rulings over thirty-six (36) years in which they found 381 defendants who had their homicide convictions reversed due to prosecutorial misconduct.
In all cases where a person who was sent to death row, or prison, and were later exonerated were sent to prison in the first place by the district attorney. Who, may I add, is the closest thing to a god in this country. This person has the real power to decide who lives and who dies, and if they are wrong for any reason, so what? That person may still end up dead and that district attorney will go right ahead and do the same thing to someone else!
History has shown us this, yet too many people refuse to believe history even when it repeats itself. So many people want to believe in this broken down criminal justice system, and the people who are running it. They close their eyes to the truth about this system, their system…
If the district attorney was a doctor and he made as many mistakes in diagnosing his patients, or operating on them, it’s safe to say that he wouldn’t be a doctor anymore. Well, maybe a prison doctor. The same can be said for just about every other profession.
So the question needs to be asked, and answered, as to why these district attorneys are held to a different standard, or not held to any standard.
One of the parents of the defendants in the Duke rape case said that they hope what the district attorney did to their child in that case will never be done to anyone else’s child!! I heart that!!!
Another one stated that they now know just how easy it is for the district attorney to take away or change a person’s life for the worse. Different things like this were being said by these people for the first time in their lives, and that’s because when the very same thing that happened to their families by the district attorney was being done to others, especially poor black people in North Carolina, it was okay! It was justice! It was the criminal justice system at its very best!
Now the people who were involved in the Duke rape case as victims of the district attorney know what poor people of all races, cultures, colors have been saying for a very long time. Yet our please and voices were and still are to a large degree falling on deaf ears!
But common sense says that if the district attorney will do it to those people, he damn sure will do it to everyone else, and probably has! District attorneys like most other politicians use the same type of tactics no matter where they are. They share the same information and do the same thing, and this is why people all across this country are being exonerated by the same methods. The same type of thing was used to put them all in, and for the most part it’s the same type of things that is getting them all out!
It’s time to rein in these district attorneys and start to hold them accountable for what they have done and are doing, because it is no justice that they are serving. All they are doing is destroying lives, lives of people on both sides of the law, and they don’t really care about either. All they care about is winning!
In Struggle From Death Row
San Quentin Prison
Kevin Cooper