Prosecutorial Conduct Exposed in Arizona
April 26, 2012 04:19:00 am
By Maurice Possley
John Thompson, exoneree and founder of Resurrection After Exoneration. Photo courtesy of the Innocence Project of New York
A coalition of innocence projects, legal experts and wrongly convicted defendants will announce today that a study of prosecutorial misconduct in Arizona from 2004 through 2008 found prosecutors committed error in 20 cases.
The coalition—which includes The Innocence Project of New York, along with Veritas Initiative, a policy and research arm of the Northern California Innocence Project, as well as Innocence Project New Orleans and Voices of Innocence—is convening in Arizona in the latest stop in a national tour aimed at exposing prosecutorial misconduct and initiating reform.
In 15 of the cases, the finding of error was deemed “harmless” and the convictions were upheld. In five of the cases, the errors were ruled to be “harmful” and the convictions were reversed.
During that same time period, three prosecutors were publicly disciplined by the State Bar of Arizona, but none of the prosecutors in the 20 cases found by Veritas were subject to any discipline.
One of those three prosecutors disciplined was Kenneth Peasley— once considered the most feared prosecutor in Pima County, Arizona, where he won conviction after conviction, some of which sent defendants to Death Row.
Peasley was disbarred in 2004 for knowingly allowing a detective to testify falsely in two capital murder trials—improper behavior that led to the release of a man from Death Row.
Eight years later, Peasley’s legacy as an unethical prosecutor continues to grow, even though he died in 2011.
‘Vindictive Prosecution’
In September 2011, a federal judge set aside the 1997 murder conviction of Khalil Rushdan, ruling the conviction was the product of a “vindictive prosecution” engineered by Peasley.
Even though prosecutorial misconduct in state and federal courts has been the focus of studies and more vigorous reporting by the media in the past two years, Rushdan’s case is yet another that has flown under the radar of the public eye.
The case began on November 11, 1993, with the discovery of the body of Francisco Soto in the trunk of his car in Yuma, AZ.
Police began investigating, but had no leads until July 1994 when Yuma police detective Cesar Fazz tracked down Rushdan in Moreno Valley, CA believing he might know something about the murder.
Rushdan, who was then known as Leslie Leroy Rush, told Fazz that he had been the middle man in a narcotics transaction in Tucson on November 9, 1993, in which Soto was to sell cocaine to Dennis Sanford.
Rushdan told Fazz that after he introduced Sanford to Soto, he left to purchase baggies and baking soda. When he returned, he found Sanford and his companions carrying Soto’s body out of the apartment in a blanket.
Rushdan said he left when Sanford pointed a gun at him and threatened to kill him if he said anything about the murder.
He gave a recorded statement to Fazz and cooperated in the investigation of the murder, taking and passing a polygraph exam. He gave his gun to police for ballistics testing, which showed it was not the murder weapon.
As a result, Sanford was arrested and charged with first-degree murder.
Rushdan testified at Sanford’s preliminary examination and Sanford went to trial. Although Rushdan repeatedly told authorities that he feared for his life because of numerous death threats against him and his family, he received no protection and ultimately moved away from his home in California.
When Sanford went to trial, Rushdan could not be located and so his preliminary hearing testimony was introduced to the jury.
In the process of convincing the judge to allow the prosecution to introduce Rushdan’s preliminary hearing testimony in Sanford’s trial, Peasley repeatedly told the court and defense counsel that Rushdan had received no deal whatsoever in exchange for his testimony.
The testimony was not enough and Sanford was acquitted.
Fourteen months later, Peasley charged Rushdan with murder. Rushdan was convicted, largely on the basis of his testimony at the preliminary hearing and his statements to Fazz in California.
Again, in response to efforts to suppress Rushdan’s preliminary hearing testimony in Sanford’s case from being introduced against him at his own trial, Peasley took the position that Rushdan had never had any sort of a deal with the prosecution.
On April 21, 1997, Rushdan was sentenced to life in prison with possibility of parole after 25 years.
In 2001, attorneys Gregory Kuykendall and then-law student Amy Armstrong, working pro bono as part of the Arizona Justice Project, a volunteer organization dedicated to working on cases of wrongful conviction, began working on Rushdan’s case, first (unsuccessfully) in the Arizona state courts.
Writ of Habeas Corpus
In 2005, they went to federal court where they filed a writ of habeas corpus, contending that Rushdan was the victim of a vindictive prosecution by Peasley.
They argued that Fazz had given “explicit and implied” assurances to Rushdan that he and his family would be protected from retaliation and that he would not be prosecuted.
On September 21, 2011, 10 years after Kuykendall and Armstrong—by then an attorney—started their research, U.S. District Judge Frank Zapata granted the writ and ordered Peasley to be retried or released. The ruling came two weeks after Peasley died.
Peasley, the court found, wanted Rushdan as a witness, but did not want to grant him immunity or any kind of deal for his testimony because he would have been required to disclose that information to Sanford’s defense attorney.
Peasley testified during the habeas proceedings that he had an “understanding” with Rushdan that “as long as he cooperated and came to the preliminary hearing, which he did, and came to trial, which he didn’t, that he was going to be a witness and go home.
If he failed to cooperate, didn’t show up at the preliminary hearing or didn’t show up at trial, then bad things were going to happen to him.”
Zapata found that “in Peasley’s mind,” he had an agreement with Rushdan, but that it was not written.
“By gaming the situation as he admittedly did, Peasley positioned himself to get what he needed without giving up anything,” Zapata ruled. “Peasley…did not want to lose the tactical advantage of not having a written agreement.”
At Rushdan’s trial, Peasley countered defense claims that there had been an agreement not to prosecute him by telling the jury in closing argument, “There is absolutely no evidence whatsoever that there was any kind of an agreement that was ever made in this case.”
Zapata ruled, “Here, by playing fast-and-loose with the truth and a man’s constitutional rights, Peasley lost his star witness and Sanford walked out of court a free man.”
He found that the only “plausible explanation” for charging Rushdan with the murder—even though he was not the gunman, but only a middleman in a drug deal that went bad—was because he was “seeking vindication for Rushdan’s decision not to testify against Sanford” at trial.
Peasley and Fazz “walked a fine line with Rushdan and the court system,” the judge ruled. “Their game involved the manipulation of people and the twisting of the truth.”
After the judge ruled, Pima County prosecutors decided not appeal the judge’s order and Rushdan was freed a few days before Christmas last year.
“One of the most striking things was the profound conviction that Peasley and his compatriots at the Pima County Attorney’s Office maintained that Peasley had done nothing wrong, even after being confronted with uncontested and uncontestable evidence of what he had done,” Kuykendall said in an interview.
“At the hearing in federal court, no legal wizardry took place—Peasley simply explained to the judge that it was his role to enforce his ‘understanding’ with Rushdan, regardless of the obviousness to the rest of us – including the judge – of the multiple illegalities that had to occur for his secret deal to be enforced,” Kuykendall said.
Among those at the prosecutorial misconduct conference on Thursday night in Phoenix will be John Thompson, whose case, Connick v. Thompson, was the inspiration for the national tour.
Thompson was wrongfully convicted of murder in New Orleans and sent to Death Row. He spent 18 years in prison, coming within two weeks of execution, before evidence was discovered that proved his innocence.
That evidence had been suppressed by prosecutors. After Thompson was exonerated, he sued the Orleans Parish District Attorney’s office and won a $14 million judgment. But in 2011, the U.S. Supreme Court, in a controversial split decision, set the judgment aside, saying the prosecution was immune from damages.
“Prosecutors have tremendous power over our lives,” said Larry Hammond, one of the moderators of the event and founder of the Arizona Justice Project.
“While the vast majority do an admirable job under difficult circumstances, some commit intentional misconduct that leads to grave injustices like in the case of Mr. Thompson,” he said.
“Now that the Supreme Court has made it extremely difficult to sue prosecutors civilly, we need to develop systems of accountability for dealing with those prosecutors who violate their legal and ethical obligations.”
The conference comes just days after the Arizona Supreme Court disbarred former Maricopa County Attorney Andrew Thomas and one of his former deputies and suspended another former deputy for six months.
On April 11, the court found that the former prosecutors had conspired with Maricopa County Sheriff Joe Arpaio to bring wrongful indictments against their political opponents, including judges, and conducted improper investigations from 2006 to 2010, when Thomas resigned as county attorney. An analysis by the Arizona Republic News estimates that the actions have cost taxpayers in the county more than $10 million.
91 Texas Cases
Earlier this month, Veritas and the innocence projects released the results of a similar study in Texas.
The Veritas Initiative uncovered judicial findings of prosecutorial misconduct in 91 Texas criminal cases between 2004 and 2008. Courts upheld the conviction in 72 of the cases, finding the conduct was “harmless.” In 19 cases, the court found the error “harmful” and reversed the conviction.
Similar to Arizona, no prosecutors in those cases were disciplined for their misconduct.
A study of criminal cases in the state of New York from 2004 to 2008 found that prosecutors committed error in 151 cases. The courts upheld the conviction in 114 of, finding the errors “harmless.”
In 35 cases, the court found the errors “harmful” and reversed the conviction. From 2004 until November 2011, only three prosecutors were disciplined by New York grievance committees for misconduct—none of it for the misconduct found by the courts in the 151 cases.
Veritas also has released two reports in California identifying more than 800 court findings of prosecutor misconduct from 1997 through 2010.
Further research will be revealed later this year in Pennsylvania, California and Louisiana.
“The fact that it is so difficult to document the scope of the problem speaks volumes about the lack of accountability for prosecutors,” said Cookie Ridolfi, professor at Santa Clara University School of Law and Executive Director of the Northern California Innocence Project and the Veritas Initiative.
“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.”
Maurice Possley is a Pulitzer-Prize winning journalist who formerly worked as an investigative researcher for the Northern California Innocence Project’s Veritas Initiative. He welcomes comments from readers.
Additional research by Cathleen Possley, an investigative journalist based in California.
Posted by Maria Caldero
Thursday, May 03, 2012 12:19
Outrageous behavior of prison profiteers! I recall reading of prosecutors framing a young man who was cleared after decades in prison. The prosecutors argument against being punished is that it is their job to get convictions!
The young Back man had just graduated from high school with a college scholarship—a real accomplishment back then in his racist Midwestern state. The guilty man is believe to be a leading citizen who has since died. Outrageous!
Posted by Franz Kurz
Monday, April 30, 2012 03:25
More significant cases are awaiting to be presented. For example OR case of Diane Downs.
http://www.manipulatedtrial.de/DD_I_start.htm + http://www.dianedowns.com/
Juvenile Court Judge Gregory Foote took these children from Diane Downs and their grandparents and placed them in questionable state care. There they stayed until a year later that self-same Judge Foote had been transferred to the Criminal Court and thereupon took on that criminal case as his first case on his new job, although it represented a conflict of interest, and a violation of the legal integrity of a civilized country.
A further incredible facet of this case was the consequent adoption of these children by Attorney Fred Hugi, who was prosecuting this case, and whose wife could not have children. Moreover, this involves the only eye witness to the crime, Christie Downs, who at the time of the crime was eight years old, and who testified against her mother after what must be assumed to have been brainwashing by the authorities.
LCDA Pat Horton, Fred Hugi’s boss, known in the [drug] scene as “Snortin’ Horton” had an obvious interest in eliminating Diane Downs and had found out about it: “James Claire Haynes was paid $25,000 by then LCDA Horton to shoot the Downs family.” This was an event that originated in the drug scene and ended in criminal behavior on the part of state jurists.
Posted by Denise Rotheimer
Thursday, April 26, 2012 08:19
Malicious prosecution is such a huge issue that has affected my family and me, both as a victim of a violent crime and as the wrongfully accused. In each instance I filed a federal suit and have not been able to retain legal counsel. Lawyers I have spoken with know prosecutors are immune with very few exceptions and even in cases where those exceptions exists, these same lawyers know that the chance of having a judge rule in favor of the Plaintiff is very slim. The lawyers I have spoken with were right. In both federal complaints the judge granted the defendants’ (prosecutors) motion to dismiss. One case is on appeal and the other one requires an amended complaint. Sadly, those who are injured by prosecutors find themselves without legal remedy to punish their wrongdoer simply because of the role of the wrongdoer and nothing to do with the law. Since the law doesn’t apply to prosecutors victims don’t have protection of the law and their crusade in federal court may turn out just as futile as their experience in the criminal justice system to seek justice. With that said, I will not give up on either federal complaint until I exhaust all access to the courts and legal remedies to hold “our” malicious prosecutors liable, pro se.
Posted by Khalil Rushdan
Thursday, April 26, 2012 02:48
That was a nice article and alot of people don’t understand how many prosecutors are breaking the same laws they are sworn to protect.