Even when the consequences of prosecutorial misconduct are extreme, the misconduct itself usually goes undiscovered and unpunished. It’s not only a problem of prosecutors playing gatekeeper to the very information needed to establish misconduct, but also the fact that even when courts find egregious misconduct, prosecutors responsible for the misconduct are rarely sanctioned, and most often, go unnamed. In many instances, if evidence of misconduct does see the light of day, it may be ten, twenty, or even thirty years later, when the will or inclination to investigate and hold the prosecutor accountable may have diminished. Courts typically respond by making an observation about the regrettable misconduct but ultimately finding it “harmless error” – in a best case scenario, offering a remedy in sentencing or conviction affected. What we don’t ever seem to see is a judicial finding of prosecutorial misconduct leading to sanctions or professional consequences for the attorneys who commit the misconduct.
A powerful example can be found in a ruling from earlier this year: the Eighth Circuit Court of Appeals ruling and subsequent exoneration of Tina Jimerson and John Brown, Jr, two people wrongly sentenced to life who had served 26 years each at the time they were released. The unanimous decision affirms a federal district court’s earlier ruling and reveals a shocking tale of brazen prosecutorial misconduct by cops and then-deputy prosecutor Robin Wynne, now an Associate Justice on the Arkansas State Supreme Court. The opinion elaborates on how Wynne and law enforcement not only failed to turn over exculpatory evidence to the defense, including the existence of a jailhouse snitch, but also acted in concert to destroy evidence critical to the defense’s case, such as a recorded confession of Jimerson’s and Brown’s co-defendant. The three-judge panel wrote:
Although the substance of the recording is not entirely clear, what the recording contained appears to be significant enough that law enforcement and the prosecution worked together to intentionally conceal its existence from the defense. The intent is demonstrated in several ways…Taken together, the uncontroverted evidence establishes bad faith.
Some of the more notable misconduct by law enforcement (then-Dallas County Sheriff Ford, then-Chief of Police Ronnie Pool, and then-deputy prosecutor Wynne) in the case against Jimerson and Brown Jr. include:
Failure to disclose the use of a jailhouse snitch (a form of misconduct we’ve examined at length here and here);Failure to disclose a deal with a jailhouse snitch whose pending felony drug charges were dismissed in exchange for the snitch obtaining and recording a co-defendant’s confession;Acting in concert to not only conceal the contents of the recorded confession but that the recording ever took place;An undisclosed photo lineup;Destruction of a recorded confession;Untruthful answers to defense counsel’s discovery requests;A witness who has testified to the inaccuracy of the state’s notes about his comments;
And many other issues.
In response to both Jimerson’s and Brown’s claims, the State argued a timeliness defense, asserting that both Jimerson and Brown failed to exercise due diligence in bringing forward their claims. In the 23-page-opinion, the Court of Appeals tore apart most of the State’s timeliness argument, especially when it came to concealment and destruction of the recording in Brown’s case:
While evidence is “new” if it was not available at the time of trial through the exercise of due diligence, due diligence does not require a defendant to root out information that the State has kept hidden. The State cannot play “hide and seek” with information it was required to disclose and then accuse defense counsel of lacking due diligence. Due diligence does not require defense counsel to possess psychic abilities and discover potentially favorable evidence during trial that the State chose to conceal, particularly when defense counsel specifically requested disclosure of the evidence now at issue.
We’ve written before at Open File about the problematic nature of the due diligence requirement and how it erodes the intended framework set forth in Brady. However, as we have before in other cases, we’re heartened to see the Eighth Circuit refuse the State’s effort to shift the burden of discovery to the defendant.
Despite the court’s vindication of Jimerson’s and Brown’s claims of grave and extensive misconduct, and the ultimate reversal of their convictions and subsequent exonerations, the Court of Appeals makes no mention of consequences. It’s astonishing that the punishment-obsessed American criminal justice system can find illegal violations of due-process rights which resulted in two, possibly three, people being wrongfully convicted and incarcerated for almost three decades and just leave it at that, with no sense that justice requires repercussions for Wynne . In fact, the Court’s ruling doesn’t even refer to Wynne by name and instead refers to him as “deputy prosecutor”.
Meanwhile, another defendant whose life was also impacted by the same misconduct, Charlie Vaughn, continues to serve life despite the fact that he may have intellectual disability. Vaughn was placed in special education classes until he left school in the 9th grade, unable to read or write. Potentially coerced into a false confession by a jailhouse snitch, Vaughn remains in prison and continues to seek his own reversal in court. Vaughn’s case is another example of how uniquely vulnerable people with intellectual disabilities can be to coerced, false confessions and other unethical tactics. This was also demonstrated in Michael Dassey’s case featured in the show Making a Murderer, which drew outrage and attention to the circumstances surrounding confession.
Per usual, though, Justice Wynne faces zero consequences as he continues to serve on the state’s highest court. So far, according to a thorough and well-explained account by Linda Satter in the Arkansas Democrat-Gazette published after the Court of Appeals decision was announced, neither the state’s bar nor the state’s judicial oversight committee charged with investigating this kind of misconduct are looking into the case. They could, since there appears to be no statute of limitations on looking into actions taken before joining the bench. Wynne’s actions are deeply troubling. And separate from the issue of accountability and fairness, the judicial finding of his misconduct also throws his other and future cases into question. Knowing what he did in Jimenson and Brown’s cases, one cannot help but ask, can any of his rulings about Brady be trusted?
In a reality that sees virtually all courts stacked with prosecutors, prosecutorial accountability is more urgent than ever. It is not enough to overturn convictions based on misconduct. Until prosecutors see significant professional consequences and sanctions for their misdeeds, we will continue to see prosecutorial misconduct that stole the lives of Tina Jimerson, John Brown and possibly Charlie Vaughn as well as the lives of those who love them. Until the system learns to impose consequences and de-incentivize misconduct, it will continue to infect cases of all kinds and we will see the same prosecutors who commit misconduct promoted to the highest posts and judiciary positions.
