Clarence Walker is a Houston based journalist and investigator with a primary focus on the criminal justice system.
By Clarence Walker
“Prosecutors are arguably the most powerful figures in the American Criminal Justice System,” according to a recent report by The Justice Project. Prosecutors decide which charges to bring, what plea bargains to offer, and what sentences to request. These decisions deeply impact the lives of defendants, victims, their respective families, and the general public.
“Given the special duties of prosecutors and the broad power they exercise in the criminal justice system, it is critical for prosecutors to discharge their duties responsibly and ethically,” writes the Justice Project.
Truth and justice shall always prevail in a court of law. Yet, at times, truth and justice seem shallow.
According to lawyers and criminal justice advocates, the intentional use of false testimony by prosecutors is rampant throughout the U.S. justice system. Law defines perjury as an instance when a person deliberately lies under oath. In drug cases or any other court proceedings, blatant “perjury can easily undermine a defendant’s right to a fair trial,” according to Chicago criminal defense attorney Leonard Goodman.
Goodman should know.
In 2009, Goodman represented Brian Wilbourn in a federal narcotics case in which the prosecutors knowingly allowed an informant to testify that Wilbourn was slinging dope to addicts at a Penthouse Apartment rented by co-defendant Rondell Freeman. In reality, Wilbourn was not anywhere close to the specific location on the dates specified in the indictment.
Goodman had solid proof that his client was elsewhere. “Mr. Wilbourn was safely locked away in prison when the informant testified that Wilbourn was selling drugs at the Penthouse between 2002-2005,” Goodman said.
“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,” Goodman now says after the Federal 7th Circuit overturned Wilbourn’s conviction.
In reversing Wilbourn’s conviction, Judge Daniel A. Manion stated, “When the government obtains a conviction through the knowing use of false testimony, it violates a defendant’s due process rights.”
Even if a person is absolutely guilty of a crime but convicted on perjury, this grave error violates the “Bill of Rights” and thus creates an unconstitutional conviction.
“It’s a result-oriented process today, fairness be damned,” says Robert
Merkle, a former U.S. Attorney in Florida.
“No trial is perfect and sometimes mistakes are made but for a prosecutor to put perjury on the witness stand, that is scary,” says Mark Vinson, a former Harris County (Houston Texas) Chief Prosecutor now in private practice as a criminal defense attorney.
Legal experts say that most prosecutors are dedicated to performing ethically and professionally, but many prosecutors repeatedly commit misconduct because they realize they most likely will never face serious punishment.
Prosecutorial misconduct has serious financial consequences. County governments spend “hundreds of millions” in taxpayer dollars to retry cases in which prosecutors contributed to faulty convictions.
Few statistics are available documenting nationwide prosecutorial misconduct,
and there have only been a handful of instances where prosecutors were actually sanctioned for such conduct.
Based on extensive research, the author of this report discovered the following information on prosecutorial misconduct:
(1) A study conducted by the Center of Public Integrity found 11,452 documented appeals alleging prosecutorial misconduct between 1970 and 2002. Approximately 2,012 appeals led to reversals or remanded indictments.
(2) Out of 4,000 cases reviewed in California from 1997-2009, 707 cases of prosecutorial misconduct were found. Only 6 prosecutors were disciplined.
(3) A study of Texas convictions indicated that 91 cases since 2004 illustrate a pattern of prosecutorial misconduct. None of the Texas prosecutors were disciplined.
“This lack of accountability promotes the problematic culture that plagues prosecutors’ offices and can easily contribute to wrongful convictions,” the Justice research concluded.
What it really boils down to is that there are prosecutors with a “win-at-all-costs” mentality.
The following story highlights part one of a two-part “Drug War” series detailing prosecutorial misconduct in U.S. drug trials.
Case File #1: Brian Wilbourn
Location: Chicago, Illinois
Case# 07-CR-00843 & No# 09-4043
Judge: Joan Lefkow
Timeline: December 2007-2009
Defendant Brian Wilbourn was charged along with 16 other defendants with possession and conspiracy to distribute crack cocaine, heroin and marijuana at the Cabrini Green Public Housing Development in Chicago Illinois.
The DEA alleged that Wilbourn was part of the Gangster Disciples drug-dealing street gang. Rondell “Nightfall” Freeman was pegged as the ringleader of this faction of the Gangster Disciples street gang.
Wilbourn and three co-defendants were convicted by a jury on “eight out of nine counts” including a charge of conspiracy that carried 20 years to life in prison.
When the DEA announced federal charges against the defendants in December
2007, an agent said, “they were upending the gang’s flagrant drug dealing at public housing projects and other apartments in the Chicago area.”
Making reference to the upcoming Christmas holiday, Andy Traver, an ATF special agent in charge, cracked, “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. And our gift to Rondell Freeman and his organization is 20 years to life.”
In a twist of ironic justice, Rondell Freeman and his co-defendants did in fact get a gift. The Illinois 7th Circuit reversed the convictions of Freeman, Wilbourn, Daniel Hill, Adam Sanders, and another defendant — the only five out of 16 to have their cases tried by a jury.
“This was a case where prosecutors allowed an informant to testify falsely against my client Brian Wilbourn,” says Chicago attorney Leonard 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.”
Despite Goodman’s alert that Wilbourn was incarcerated during the time period described in the indictment, the government plowed ahead in order to convict Goodman’s client.
Prosecutors conceded that Goodman submitted the certified documents to them in December 2008, two months before the trial started. However, the prosecutors later argued before Judge Lefkow that they could not accurately verify the dates of Wilbourn’s incarceration.
At trial, the prosecutors relied in part on informant Senecca Williams. Williams made a deal with the Feds – he would testify against the defendants in exchange for 5 years off of his sentence.
Attorney Goodman told the Chicago Tribune, “Everybody knows these witnesses will lie, saying whatever the government wants them to say to get a deal. The only difference in this case is we happened to catch one.”
Senecca Williams testified at length about the Penthouse, claiming that Wilbourn discussed sales and bagged up the drugs for distribution with Freeman and other players in the group.
Although two other informants testified for the government, neither informant could tie Wilbourn to the Penthouse Apartment.
Attorney Goodman cross-examined Senecca Williams on March 4, 2009. Goodman confronted Williams with the fact that his client was in prison from 2002-2005 and could not have been at the Penthouse Apartment discussing drug business like Williams said.
“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, U.S. Attorney Kruti Trivedi, objected and said, “That’s not true.” Defense Goodman appealed to the judge. “It is true, your honor.”
Judge Lefkow overruled the prosecutor.
Under intense questioning by Goodman, Williams confessed other misdeeds. Williams admitted that he once lied under oath in State Court around 2005 or 2006 to help Rondell Freeman beat a drug case.
Goodman questioned Williams:
(Q) “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?”
(Q) “But you wouldn’t lie to save yourself 15 years of your life?”
The government made no attempt to correct Williams’ false testimony. Instead, the government bolstered Williams’ glaringly inaccurate testimony:
(Q) “Have you been truthful and tried the best of your ability to give approximate dates as you remember them?”
Attorney Goodman informed Judge Lefkow that he filed a motion to dismiss the counts against Wilbourn due to Senecca Williams’ false testimony.
“The government had an obligation under Napue vs Illinois (360 U.S. 264, 269, 79) to correct the record,” Goodman told the judge.
U.S. Attorney Rachel Cannon stated, “the government stipulated as to the dates of Wilbourn’s incarceration and if Mr. Goodman wants to argue to the jury that Senecca Williams perjured himself, he’s absolutely free to do that. 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.”
Surprisingly, Cannon replied, “We stand by everything that’s been presented, your honor.”
Judge Lefkow denied Goodman’s motion to dismiss the charges against
During closing, Assistant U.S.Attorney Rachel Cannon asked the jury
to find Brian Wilbourn and the other defendants guility: “Williams did not lie,” Cannon explained, “Don’t think what he testified to about Brian Wilbourn’s involvement with drugs never happened.”
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 Senecca Williams’ testimony to convict. You should be offended.”
Unfortunately the jury sided with the government and convicted all four defendants including Wilbourn.
On appeal, the government argued they did not knowingly use false testimony to convict the defendants. In reversing the convictions, Judge Lefkow made a finding that when Assistant U.S. Attorney Rachel Cannon “bolstered William’s false testimony it constituted prosecutorial misconduct.”
“Under Napue vs Illinois, the government had a duty to correct false testimony,” Lefkow opined.
All four defendants still remain in custody at the Metropolitan Correctional Center in Illinois pending a court date to resolve the related lesser drug charges.
Attorney Goodman felt rejoiced that his client no longer faced a life sentence.
“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.”
Next installment: How a bulldog lawyer exposed the entire court as a liar in a major cocaine case with connections to a Mexican Drug Cartel.
Investigative journalist Clarence Walker can be reached by email, email@example.com.