Numerous
national studies have shown the U.S. has a serious and unchecked problem with
prosecutorial misconduct; instances where prosecutors and district attorneys
ignore evidence, or worse, present fabricated evidence and look the other way
at witness perjury, all for the sake of winning a conviction. The New York
Times has labeled the problem “rampant.’ There are plenty of reasons to
question whether prosecutorial misconduct is at work in the life prison
sentence of Richard J. Wershe, Jr.
Innocent until proven guilty. That’s a quaint concept of
law. We like to kid ourselves it is the bedrock of criminal prosecution in this
country. In truth, prosecutors faced with a roaring river of criminal cases
large and small, believe just the opposite. Once charges are filed the
prosecution assumes the defendant must
be guilty and far too many are willing to suppress evidence or testimony which
may show otherwise. When you’re up to
your ass in alligators it’s hard to remember your original objective was to the
drain the swamp, blah, blah, blah.
The U.S. Supreme Court ruled in Brady-v-Maryland, a 1963 case, that prosecutors must provide
the defense with any exculpatory evidence (evidence favorable to the defense
version of the case) that could materially affect a verdict or sentence. In
other words, if investigators find evidence or witnesses who may cast doubt on
the guilt of the defendant, the prosecution is bound by law to turn it over to
the defense which may use it to challenge the prosecution’s case.
In 2014 Alex Kozinski, the chief judge of the United States
Court of Appeals for the Ninth Circuit (California and several western states),
issued a harsh indictment of prosecutorial failure to follow the Supreme Court
ruling regarding "Brady" material.
“There is an epidemic of Brady violations abroad in the
land,” Judge Kozinski wrote in dissent in a criminal case up for appeal. “Only
judges can put a stop to it.” Unfortunately, most judges don’t put a stop to
it. Sometimes the judge is part of the problem.
Exhibit A is the Wayne County, Michigan Prosecutor’s office
in a narcotics case eerily similar to the Rick Wershe case.
Prosecutor Kym Worthy’s former top drug prosecutor, Karen
Plants, pleaded guilty to misconduct in office and was sentenced to six months
in jail in a suburban Inkster drug case. Plants admitted she allowed an
informant and two police officers to lie at a 2005 trial about a 103-pound
cocaine seizure. She said it was to protect the informant’s safety but she conceded
in 2006 that "allowing false statements is wrong."
There’s more.
The Wayne County judge on the case, Mary Waterstone, privately
agreed with Assistant Prosecutor Plants to conceal the identity of the paid
police informant in the cocaine case and to allow the police officers to
lie—commit perjury—a felony, when they testified in court. In other words, the
judge was in on deceiving the defense attorneys in the case. Waterstone was
charged with four felonies but the cases against her were tossed by the
Michigan Court of Appeals. She passed away in 2014 at the age of 74.
There’s more.
The scheme for how to pull this off, according to the
judge, came from Timothy Baughman, the head of the appeals unit of the Wayne
County Prosecutor’s office.
Assistant Wayne County Prosecutor Timothy Baughman. A county judge said he provided advice on how to evade the law against witness perjury. (Michigan Bar Association photo.) |
It is a puzzling thing but Baughman is frankly deified by
the legal community. He’s been called “the appellate guru” and “the Oracle of
Delphi.” In the aftermath of the Inkster case scandal the late Judge Waterstone told an
attorney general’s investigator: "...When Tim Baughman speaks, judges
listen, defense attorneys listen, police officers listen.”
In addition to “guru” and “oracle” perhaps the legal
community might consider describing him as “counselor on how to evade the laws
on perjury.”
Judge Waterstone told the investigator she considered
seeking the advice of Judge Timothy Kenny, the chief of the Wayne County
Circuit Court criminal division. But before she had a chance to speak with
Judge Kenny, Karen Plants was in her chambers telling her Assistant Wayne
County Prosecutor Timothy Baughman suggested a way to conceal the perjury; the
plan was to hold a “sealed” hearing in chambers about the perjured testimony.
Presumably, defense attorneys wouldn’t be invited to participate—a blatant violation
of criminal legal procedure. The Baughman plan, as it was described, was to
hide the fact of the perjured testimony in a sealed conversation between the
judge and Assistant Prosecuting Attorney Plants that would only be revealed if
the defendants were convicted and defense attorneys somehow decided to bring up
the issue on appeal. In other words, the judge says she relied on the advice of
the “appellate guru” the “oracle” on how to break the law about perjury and get
away with it.
Baughman, for his part, told various reporters he couldn’t
comment when all of this became
known in 2009. You bet he couldn’t comment.
Baughman was on a slippery slope, one manure-caked shoe away from getting
charged himself. But the Michigan Attorney General and the rest of the legal
community didn’t really want to go there because Baughman is
What did Wayne County Prosecutor Kym Worthy, that great
champion of justice, do about Baughman? Nothing. He’s still the chief of her
appellate unit.
There’s more.
What did the Michigan Attorney Discipline Board do about
Baughman’s advice on how to cover up perjury? Nothing. This is the same
watchdog group that will investigate and charge attorneys for stealing a dime
from a client. The Michigan Attorney Discipline Board is a part of the Michigan
Attorney Grievance Commission. According to their Web site: “The Attorney
Grievance Commission (AGC) is the investigative and prosecutorial arm of the
Michigan Supreme Court for allegations of attorney misconduct. The AGC serves
to maintain and promote the integrity of the Bar and to protect the public, the
courts, and the legal profession.” Uh huh. Unless you have Yoda-like status as
the “guru” and “oracle” of appellate law, as Baughman does.
There’s more.
Timothy Baughman just happens to be the point man in Kym
Worthy’s relentless battle to keep Richard J. Wershe, Jr. in prison until he
dies. The fact Wershe is the last remaining Michigan drug lifer who was charged as a
juvenile doesn’t matter to the vendetta-driven Wayne County Prosecutor. Wershe embarrassed
Coleman Young, the patron saint of black politics in Wayne County and he
exposed drug corruption in the Detroit Police Department to the detested FBI.
Wayne County Prosecutor Kym Worthy (Detroit Free Press photo) |
Baughman is pulling out all the stops to keep Wershe from
getting a sentence reduction. He’s doing so with the blessing of his boss,
justice-minded Kym Worthy. You may remember, her office admitted to me in
response to a Freedom of Information Act request that they have nothing to
support the years-old claim that Wershe is a menace to society. “The records do
not exist,” they told me. Anyone with a true sense of justice would have the
courage to do a thorough and publicly open review of the Wershe case, the
factual assumption behind the argument for keeping him in prison forever.
Does any of this matter to Baughman or Worthy? Is it possible there has been prosecutorial misconduct in the Wershe case? The battles
in the appellate courts against re-sentencing Rick Wershe, Jr. speak for themselves. Timothy Baughman and Kym Worthy
can be accused of a lot of things. Ethics, integrity and a sense of justice
aren’t among them.