Sunday, February 28, 2016

Prosecutorial Misconduct: When the Good Guys are the Bad Guys

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.

Former Assistant Prosecutor Karen Plants and former Wayne County Circuit judge, the late Mary Waterstone. They were caught in a scheme to use perjured testimony to gain convictions in a big drug 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
the “oracle” and appellate “guru” don’tcha know. In Wayne County and Michigan criminal justice, some people are untouchable.  

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.

Richard J. Wershe, Jr. in court last September. If the Wayne County Prosecutor's Office had standards of integrity and justice, they would encourage a full and open review of the facts and falsehoods of his life prison sentence. Instead they are waging an epic battle to keep him in prison for the rest of his life. (AP Photo)

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.


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