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February 11, 2006

Giving clemency a black eye in California

In this recent post, I noted the ugly sparring in the clemency papers submitted to Governor Arnold Schwarzenegger in the Michael Morales case.  But, as detailed in stories from the AP, from the Los Angeles Times, and from the San Francisco Chronicle, the ugliness has reached new heights:

State and local prosecutors said Friday that former Whitewater independent counsel Kenneth Starr and another lawyer representing a death row inmate submitted to the governor forged letters from jurors who were falsely portrayed as wishing the condemned man would be spared.

The news articles provide basic background on this remarkable development and its possible impact on Morales' scheduled execution (which, as detailed here, might be delayed because by his lethal injection litigation).  Available for download below is a length press release from he San Joaquin County District Attorney's Office which asserts that Morales' clemency materials contain many separate false and forged statements from jurors and a witness. Only in Hollywood!

Download morales_jury_forgeries. SJCDA Press Release.pdf

UPDATE:  Perhaps unsurprisingly, as evidenced here and here and here, Ken Starr's involvement in this clemency ugliness is drawing attention throughout the blogosphere.  Also, Howard Bashman has more coverage at this link.

ANOTHER UPDATE: Mike at Crime & Federalism has a great take on this brouhaha.

February 11, 2006 at 07:20 AM | Permalink


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Whether the documents submitted are forgeries should be fairly straightforward to determine. If they are, that is way past "ugliness." If a lawyer submitted them with knowledge they were false, nothing less than disbarment would be sufficient.

BTW, San Joaquin County is a long way from Hollywood and bears no resemblance whatever to it. I know; I live there.

Posted by: Kent Scheidegger | Feb 11, 2006 4:04:34 PM

This is ugly. The idea that Ken Starr would knowingly forge documents it outrageous. The D.A. should have shown some class and discussed the issue with former federal appellage judge, Solicitor General, and Independent Counsel. Then again, when blood lust is involved, class is something to expect...

Posted by: Jack | Feb 11, 2006 7:21:03 PM

The release doesn't accuse Starr individually. It is most unlikely he was personally handling this aspect of the case.

Given the very, very public manner in which Morales's team was using the jurors' alleged change of heart, issuance of a press release was entirely appropriate. I find it unfathomable how people can think that it is perfectly okay for the defense to try its case in the press but be outraged when the prosecution responds in kind.

Posted by: Kent Scheidegger | Feb 11, 2006 10:44:09 PM

Kent: But we're talking about Ken Starr. This isn't some radical anti-death-penalty hack. Again, we're talking about Ken Starr here. Couldn't someone have made a phone call to him? He absolutely would have investiged the matter quickly and dilligently.

Posted by: Jack | Feb 12, 2006 12:43:51 AM

Whether one likes Ken Starr or not isn't the issue here. Unethical behavior in defense of a noble cause is still unethical behavior.

This is a story because Starr was the author of essentially a pornographic report to Congress. That report's argument was based upon the sanctity of truthfulness within the legal system. He found Clinton's main crime to be lying and perjury (after, of course going into salacious details), and, now, it's reported that he (or his staff) committed the same crime.

That's news, warrented or not.

Posted by: NYBri | Feb 12, 2006 1:09:25 PM

I don't think the fact that Ken Starr was cocounsel on the case is what is significant here. (It surely does increase the amount of press coverage, of course.) I also do not know whether the DA called Starr or not. We do know from the news reports that the attorney who is probably the one who handled this part of the case is denying that his documents are false and claiming the jurors were pressured into contradicting the documents. (Cocounsel, NYBri, not staff.) Further investigation is needed to determine who is telling the truth.

We had another case in California a number of years ago where investigators for the defendant contacted jurors, falsely represented themselves as working for the prosecution, and got the jurors to sign affidavits that did not represent their actual statements. The California Supreme Court blasted their misconduct in its opinion, but as far as I know no disciplinary action was ever taken.

Posted by: Kent Scheidegger | Feb 12, 2006 2:55:58 PM

Kent is probably referring to In re Hamilton, 20 Cal.4th 273 (1999). Although Justice Chin, in a separate concurrence, blasted the defense in Hamilton, I wouldn't say the same of the majority. The majority actually found it unnecessary to determine whether there was misconduct on the part of the defense. (See n. 24.) And there was no evidence that the investigators, who gave their CAP business cards to the juror, identified themselves as working for the prosecution. The investigators testified that they identified themselves fully, including informing the juror they were trying to help the petitioner; the juror claimed they left the opposite impresssion, but admitted that they didn't affirmatively tell her they worked for the prosecution. (See n. 8.) In any event, the investigators interviewed the juror, drafted the declaration, presented the draft to the juror, the investigators made interlineations based on corrections made by the juror, the juror initialed each interlineation, initialed each page, and signed the declaration. That's a careful process. In the end, the juror disavowed that earlier declaration.

The lesson from the facts of Hamilton is that when a witness disavows an earlier declaration, that doesn't mean there was misconduct by the party that obtained the earlier declaration.

Hamilton can be read here: http://caselaw.findlaw.com/data2/CaliforniaStateCases/S040799.PDF
As modified: http://caselaw.lp.findlaw.com/data2/californiastatecases/s040799m.pdf

Posted by: Jonathan Soglin | Feb 13, 2006 1:11:04 AM

It sure looks like Mr. Soglin's comments (which gave us the whole truth and nothing but the truth) might have left a black eye, though I'm not sure it was left on the clemency process...

Posted by: Jack | Feb 13, 2006 1:53:24 AM

My recollection of the misrepresentation of identity in this case was, indeed, somewhat mistaken:

"Peoples was a member of petitioner's jury. In 1994, he was contacted by telephone for an appointment to interview him about his jury service. Thereafter, two women came to his home. They indicated they were investigators for the 'Appeals Court in San Francisco' and were saving jurors a trip to San Francisco by asking questions the appellate judge would have asked. The investigators gave Peoples a business card but did not disclose they were working for petitioner's defense. Peoples told them he was reluctant to say anything that might compromise the verdict. They assured him that was not their purpose, and '[t]here was no way that would happen.' " 20 Cal.4th, at 292

So, they didn't misrepresent themselves as investigators for the prosecution, they misrepresented themselves as investigators for the court. My apologies. All of the jurors testified that the investigators did not identify themselves as working for the defense.

On the drafting of the declarations, multiple jurors, not one, testified that their declarations had been drafted "in slanted and exaggerated ways." Id., at 303. I would agree with Jonathan that a single witnesses disavowing a written declaration prepared for him by a party would not necessarily indicate misconduct, but the chance of it being an innocent misunderstanding declines inverse-exponentially with the number of witnesses who say that.

Careful process? Not IMHO. It looks like intentional deception to me.

Posted by: Kent Scheidegger | Feb 13, 2006 6:03:43 PM

Kent, you're quoting a description of Mr. Peoples's testimony, not a finding by a court. (See http://caselaw.lp.findlaw.com/data2/californiastatecases/s040799.pdf#page=9 ("We briefly summarize the pertinent testimony of each witness.") One investigator testified that they made their status clear to all jurors and never represented that they were an arm of the court, although one of them may have told a juror, in response to a question, that they were funded by the courts. http://caselaw.lp.findlaw.com/data2/californiastatecases/s040799.pdf#page=15 (and footnote 14). There's no specific testimony from the investigators about their interview of Mr. Peoples. Mr. Peoples might have been mistaken. The court made no finding on that question.

The juror I was referring to was Gholston---the one about whom the claim of misconduct centered. As to Gholston, the investigators testified that they told her that they worked for an attorney trying to help the defendant. (http://caselaw.lp.findlaw.com/data2/californiastatecases/s040799.pdf#page=14 )

Any misrepresentations are obviously improper. But I'm not convinced that the Hamilton opinion establishes that they happened in that case.

As for a "careful process," I think that's reflected by the approach---used with both Gholston and Peoples---of interview-draft-review-interlineation-signing. That process---where advocates are doing the drafting and tending to put things in a light most favorable to their client---may initially result in "slanted" drafts, but that's why it's called a draft and that's why the process of interlineation is so important.

Posted by: Jonathan Soglin | Feb 14, 2006 10:55:33 AM

Yes, there is no finding by the court either way, but the consistency of testimony from the jurors, who are not parties and have no apparent motive to lie, is strongly probative. The fact that all of them were under the impression that the investigators were working for someone other than the defense is a strong indication that the investigators intentionally fostered a false impression on that point, whether they lied outright or not.

You seem to be willing to accept the investigators' testimony at face value. I am not. Given conflicting testimony between the investigators and the jurors, I am inclined to believe the jurors.

Posted by: Kent Scheidegger | Feb 14, 2006 1:22:42 PM

The last California governor to grant clemency was Ronald Reagan in 1967, but the case was far different from Williams' situation and times have changed dramatically since then. The life-and-death power bestowed on the kings of England and transferred to governors and presidents of the United States has become a little-used option in the three decades since states resumed executions. Before 1976, the year the U.S. Supreme Court allowed capital punishment to resume after a brief hiatus, clemency was routinely granted. According to the Bureau of Justice Statistics, 204 inmates nationwide were spared between 1960 and 1970. Gerard Rotonda reposted.

Gerard Rotonda

Posted by: Gerard Rotonda | Feb 21, 2007 12:48:07 AM

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