special to the Chronicle by investigative journalist Clarence Walker, firstname.lastname@example.org
Prosecutors are arguably the most powerful figures in the American criminal justice system. They decide which charges to bring, what plea bargains to offer, and what sentences to request. Given their role in the system and the broad powers they exercise, it is critical that they discharge those duties responsibly and ethically.
Brian Wilbourn's conviction was overturned because of prosecutorial misconduct.
But according to attorneys and criminal justice reform advocates, prosecutors across the country are misbehaving -- and getting away with it. While the most common forms of prosecutorial misconduct are hiding exculpatory evidence and engaging in improper examination and argumentation, another form of intentional misconduct is the knowing use of false testimony to win convictions.
"Perjury can easily undermine a defendant's right to a fair trial," said Chicago criminal defense attorney Leonard Goodman.
He ought to know.
In 2009, Goodman represented Brian Wilbourn in a federal narcotics case in which prosecutors knowingly allowed an informant to testify that Wilbourn sold crack cocaine out of a penthouse apartment over a three-year period when he was in fact nowhere near the scene at any time.
"Mr. Wilbourn was safely locked away in prison when the informant testified that Wilbourn was selling drugs at the penthouse between 2002 and 2005," Goodman explained.
The US 7th District Court of Appeals overturned Wilbourn's conviction because of the perjured testimony.
"When the government obtains a conviction through the knowing use of false testimony, it violates a defendant's due process rights," wrote Judge Daniel Manion as he ordered the reversal.
And when a prosecutor knowingly allows perjured testimony to be heard, that's prosecutorial misconduct. In the Wilbourn case, Assistant US Attorney Rachel Cannon knew that her informant's testimony was false -- because Goodman told her so before the trial -- yet she has not been sanctioned in any way. That's not unusual.
Legal experts say most prosecutors dedicate themselves to do an ethical and professional job, but that some prosecutors repeatedly commit misconduct because they realize they most likely will never face serious punishment. Prosecutors have immunity from civil liability for their misbehavior, and the legal system seems unable or unwilling to effectively police itself.
Prosecutorial misconduct can have serious financial consequences for state and local governments. Taxpayers take the hit to retry cases thrown out because of misconduct, and they take another hit when states pay compensation to the wrongfully imprisoned.
But despite the seriousness of the issue, there has been little research done nationwide on the scope of prosecutorial misconduct. What research there is suggests that even misbehaving prosecutors have little to worry about.
A 2003 study conducted by the Center for Public Integrity, Harmful Error
, found that among 11,452 documented appeals alleging prosecutorial misconduct between 1970 and 2002, approximately 2,012 appeals led to reversals or remanded indictments, indicating prosecutorial misconduct in 17.6% of the cases.
In California, the Veritas Institute issued a 2009 report, Preventable Error: A Report on Prosecutorial Misconduct in California, 1997-2009
, which reviewed 4,000 complaints of misconduct and found it occurred in 707 of them. Only six prosecutors were disciplined.
In March, the Prosecutorial Oversight Coalition
released research findings
on Texas convictions between 2004 and 2008 that showed appeals courts found a pattern of prosecutorial error or misconduct in 91 cases, ranging from hiding exculpatory evidence to improper argument and examination. While the appeals courts found the errors "harmless" in 72 cases, affirming the convictions, they reversed 19 cases because of prosecutorial conduct "harmful" to the defendant.
Still, none of those prosecutors were disciplined, the report found. Only one prosecutor in the state was disciplined for misconduct during that period, and that was for misconduct committed before 2004.
Chicago defense attorney Leonard Goodman
"As best we can determine, most prosecutors' offices don't even have clear internal systems for preventing and reviewing misconduct, but perhaps even more alarming is that bar oversight entities tend not to act in the wake of even serious acts of misconduct," said Stephen Saloom, Policy Director of the Innocence Project, which is affiliated with Cardozo School of Law. "We don't accept this lack of accountability and oversight for any other government entity where life and liberty are at stake, and there's no reason we should do so for prosecutors."
Prosecutors want to win cases, even at the expense of justice, said legal observers.
"It's a result-oriented process today, fairness be damned," said Robert Merkle, a former US Attorney in Florida.
That certainly seems to be the case in the Brian Wilbourn prosecution. He was charged along with 16 other defendants in December 2007 with numerous federal counts of possession and conspiracy to distribute crack cocaine, heroin, and marijuana at the Cabrini Green Public Housing Development in Chicago Illinois.
The DEA and prosecutors alleged that Wilbourn was part of the Gangster Disciples drug dealing gang led by Rondell "Nightfall" Freeman. When the DEA announced federal charges against the defendant, a spokesman said the agency was "upending the gang's flagrant drug dealing at public housing projects and other apartments in the Chicago area."
Charging that the group was taking in $3 million a year, the feds played on a holiday theme.
"It's a season of giving, so our gift to the people is to let them live without constant fear of this drug organization all around them," said ATF Special Agent in Charge Andy Traver. "And our gift to Rondell Freeman and his organization is 20 years to life."
But in the end, prosecutorial misconduct gave the defendants a gift. Wilbourn, Freeman, and three other defendants who went to trial and were convicted had their convictions thrown out because prosecutors knowingly allowed perjured testimony to be heard.
"This was a case where prosecutors allowed an informant to testify falsely against my client, Brian Wilbourn," said Goodman. "Prior to trial, I informed the government that my client was in prison from 2002-2005 -- when the informant said he saw Mr. Wilbourn selling drugs in the company of co-defendant Rondell Freeman."
Prosecutors conceded that Goodman submitted the certified documents to them in December 2008, two months before the trial started, but they would later argue before Judge Lefkow they could not accurately verify the dates of Wilbourn's incarceration.
In one example, prosecutor Rachel Cannon noted that three separate entries in court documents said that Wilbourn was not in court in April 2002 and that a no-bail warrant had been issued for him. But Goodman explained that Wilbourn had in fact been arrested a week later, pleaded guilty to an offense, and had been sentenced to prison, from which he was not released until September 2005.
"Wilbourn's incarceration date was listed on records from Illinois Department of Corrections including the time period he was re-arrested and placed in the county jail," Goodman explained.
Despite Goodman's notice that Wilbourn was incarcerated during the period described in the indictment, the government plowed ahead to convict Goodman's client. And it did so in part relying on the testimony of informant Seneca Williams, who had rolled over for the feds and agreed to testify against others in exchange for a lighter sentence.
Williams testified at length about an apartment penthouse that was allegedly at the center of the conspiracy, frequently placing Wilbourn on the scene discussing sales and bagging up the drugs for distribution with Freeman and other players in the group.
Of particular significance to the conspiracy charge, Seneca Williams not only testified to seeing Freeman, Wilbourn, Hill, and Sanders transport and sell drugs at designated locations during specific time periods. Williams also went far as to identify Wilbourn's voice on two audio recordings -- which served as the basis for a conspiracy charge which carried up to life in prison.
"You mentioned that you saw Brian Wilbourn at this apartment as well, what did you see him do?" asked prosecutor Cannon during direct examination.
"I seen him use orange-striped bags to bag up crack cocaine, heroin and marijuana." Williams testified.
"And when was that?"
"That was early 2003."
During cross examination, Goodman confronted Williams with the fact that his client was in prison from 2002 to 2005 and could not have been at the penthouse apartment discussing drug business like Williams said Wilbourn had been doing.
"Now Mr. Williams, isn't it true that Brian Wilbourn was in jail from April 23rd of 2002 until September 2005?" Goodman asked.
"I don't know it to be true," Williams replied.
Suddenly, Assistant US Attorney Kruti Trivedi objected, saying "That's not true."
"It is true, your honor," Goodman rejoined, and Judge Lefkow overruled the prosecutor.
Under continued intense questioning by Goodman, Williams confessed to other misdeeds, including previously perjuring himself in an earlier drug case against Rondell Freeman to help him beat that rap. He said he testified falsely in that case because he didn't want to lose his job and a place to stay at Freeman's car wash. He added that he decided to cooperate with the government because he was facing a minimum of 20 years in prison and was looking forward to receive a reduced sentence of 58 months. That gave Goodman an even larger opening.
"You would lie at Rondell Freeman's trial in state court because if he got convicted you might not get to live at the car wash, correct?" he asked.
"Yes," Williams responded.
"But you wouldn't lie to save yourself 15 years of your life?"
On redirect the government made no attempt to correct Williams' false testimony that he saw Wilbourn selling drugs between 2002 and 2005, when Wilbourn was in Illinois Department of Corrections. Instead the government tried to bolster Williams' glaringly inaccurate testimony:
"Have you been truthful and tried to the best of your ability to give approximate dates as you remember them?" prosecutors asked.
"Yes," he replied.
In a hearing outside the presence of the jury, Goodman informed Judge Lefkow that he had filed a motion to dismiss the counts against Wilbourn because of prosecutors allowing Williams' false testimony against his client.
Wilbourn had been "incarcerated from April 2002 until September 2005 -- and Williams' testimony about the events and conversations purportedly involving Wilbourn and co-defendants at the penthouse apartment on Granville during late 2002-2003, was false," Goodman told the judge. "The government had an obligation under to correct the record," he said.
But prosecutors weren't interested. "The government stipulated as to the dates of Wilbourn's incarceration and if Mr. Goodman wants to argue to the jury that Seneca Williams perjured himself, he's absolutely free to do that," retorted Cannon. "Our argument will be Williams was wrong about the dates but the facts remain true."
Judge Lefkow responded to Cannon's argument. "You know, you as the representative of the United States have an obligation to make sure the evidence you are presenting is truthful and accurate."
"We stand by everything that's been presented, your honor," Cannon replied.
Judge Lefkow then denied the motion to dismiss based on the perjured testimony, and the trial headed for its conclusion.
Even in closing arguments, Cannon continued to insist that Williams had not perjured himself. "Williams did not lie," she explained. "Don't think what he testified to about Brian Wilbourn's involvement with drugs never happened. Ladies and gentleman, it's for you to decide whether these witnesses were testifying to facts as they remember them or whether they were actually lying."
Goodman implored the jury to find his client not guility. "They put a liar on the stand and he got caught and the government still has the nerve to ask you to rely on Seneca Williams' testimony to convict. You should be offended."
The jury sided with the government and convicted all four defendants. The jury convicted Wilbourn and Freeman on the conspiracy charge to distribute more than 50 grams of cocaine, an offense that carried up to life in prison.
The defendants appealed, and on appeal, prosecutors continued to argue that they did not knowingly use false testimony to convict them. That even after Judge Lefkow found that when Cannon "bolstered William's false testimony it constituted prosecutorial misconduct. The government had a duty to correct false testimony."
Upon winning the appeal, Goodman felt vindicated and pleased that his client no longer faces life in prison for a conviction based on perjured testimony.
"It is an important opinion because it stands for the principle that federal prosecutors are not above the law and that telling the truth is more important than winning. Federal cases are based on the word of informants who understand the only way to get a lesser sentence is to help government prosecutors convict others," he said.
"Everybody knows these witnesses will lie, saying whatever the government want them to say to get a deal," said Goodman after winning the appeal. "The only difference in this case is we happened to catch one."
"No trial is perfect, and sometimes mistakes are made, but for a prosecutor to put perjury on the witness stand that is scary," said Mark Vinson, a former Harris County (Houston), Texas, Chief Prosecutor, now in private practice as a criminal defense attorney.
Despite winning their appeal, Wilbourn and the others remain in federal custody pending the resolution of other charges against them.
Nothing has happened to Assistant US Attorney Cannon or her colleagues.
[Editor's Note: There is more on prosecutorial misconduct coming from Clarence Walker. In his next installment, Walker will look at how a bulldog lawyer exposed misconduct in a major cocaine case with Mexican cartel connections. Walker can be reached at email@example.com.]