Criminal Justice

Highly Respected Prosecutor Hides Exculpating Evidence, Man Spends 24 Years in Jail for No Reason

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As a further reminder that government officials involved with enforcing the law can't be relied on to serve citizens' interest scupulously—see my post below about how a St. Louis, Missouri, police attorney used terminological differences to stymie a sunshine law request—see this very good ProPublica investigative profile by Joaquin Sapien on a supposedly excellent and highly ethical government prosecutor in New York, James Leeper.

A case Leeper prosecuted back in 1990 recently saw the convicted, Jonathan Fleming, exonerated and released—after 24 years in jail.

Here's some of the details that Leeper helped hide in the original prosecution:

The original case file from 1990 contained a time-stamped receipt showing that Fleming had paid an Orlando hotel phone bill just hours before Rush's murder. The file also contained a letter from the Orlando Police Department informing Brooklyn detectives that Fleming had been seen at the hotel around the time of the killing. By law, Leeper was obligated to turn that material over to Fleming's lawyer. But he had disclosed none of it.

Is this sort of act the result of a lone wolf bad apple with no implications for how American justice works? Maybe not:

"[Leeper] was universally thought of as a model prosecutor," said Dan Saunders, now a Queens Deputy Executive Assistant District Attorney, who once worked with Leeper in the Brooklyn District Attorney's office. "You'll hear that from everybody. He was a trustworthy and reliable guy. The kind of guy you want to entrust with the difficult work of being a government prosecutor. I hope people say something like that about me one day."

To date, the district attorney's office has said nothing about the Fleming case, other than to acknowledge that its Conviction Integrity Unit had discovered the receipt and additional evidence in recent months. The office offered no explanation for how or why the evidence had remained buried for so long, and, with respect to Leeper's role in the case, has said only that it is "under review."

NEXT: Lessons in Precision of Language When Dealing with Public Officials, Or, "Drug Task Force? What Drug Task Force"?

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  1. a supposedly excellent and highly ethical government prosecutor in New York

    I had to stop to laugh at that. In NY, it’s ‘Pick your corruption’. It ranges from ‘aspirations to higher office’ to ‘blatantly extortionate bribe rates’ to ‘perverse enough to be a SugarFree epic’.

  2. The problem is, as always, one of incentives. The prosecutor’s incentive is not justice, but successful prosecutions. Therefore there is always the temptation, the incentive, to lie or withhold evidence. Monopolistic systems always pervert incentives terribly, because there is no reason to cater to the “customer” (in this case, the accused and the people in general), because what are they going to do about it? Get another court system?

    1. The problem is, as always, one of incentives.

      So how do you change the incentives? Make prosecutor positions tenured so they don’t have to run on “tough on crime” to get re-elected? I would be for removing immunity for cases like this.

      1. There really shouldn’t be immunity for operating outside of the law. There’s a duty to share potentially exculpatory evidence with the defense.

        1. I have to share evidence that undercuts my position, too, but in my case, if I breach that duty, bad things actually will happen to me.

          1. I have to share evidence that undercuts my position, too, but in my case, if I breach that duty, bad things actually will happen to me.

            Are you a defense attorney? It was my understanding that you didn’t have to share say, an admission of guilt.

            1. I don’t think they have a duty to produce evidence, largely due to the defendant’s right to not incriminate himself.

              1. In Texas sometimes they do.

                “RULE 1.05:

                (c) A lawyer may reveal confidential information:

                (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.”

                1. And:

                  “In the course of representing a client a lawyer SHALL not knowingly:

                  (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client.”

                  1. Yes. In my Ethics class, we talked about the difference between sitting on evidence of a past crime of your client versus evidence of an ongoing or planned crime. You’re not really supposed to cover up the fact that he’s got ten people working as slaves in his basement.

            2. Different area of law.

      2. So how do you change the incentives?

        You make the punishment for sending an innocent person to prison by withholding evidence to life in prison without possibility of parole.

        The problem is, these fucks never get prosecuted and are protected from liability.

        1. Therein lies the problem. The criminal justice system and lawmakers have no incentive to change the perverse incentives. That’s baked into the monopoly-on-violence cake.

        2. You make the punishment for sending an innocent person to prison by withholding evidence to life in prison without possibility of parole.

          While I personally like that, I think that’s too extreme to be practical. You’d see the entire lawyering community close ranks to protect their own and nobody would ever get convicted. Unless you could move the prosecutions of judges and prosecutors to citizens tribunals.

          1. Also, eliminate immunity.

      3. So how do you change the incentives?

        Aside from getting rid of immunity, I can think of one that might be worth a try:

        Merge the prosecutors and public defender’s offices. Assign cases, including which side of the case if there is a PD, randomly, so the state’s attorneys have to take both sides.

        One question, though:

        If this Leeper is still around, is anyone going after his license for this? Because it should cost him his license.

        1. Merge the prosecutors and public defender’s offices

          I like this idea.

          I also think that medical-examiner/forensics organization needs to be pulled away from the police and become a fully independent org that serves your merged prosecutors/public-defenders office equally.

          Evidence storage and control needs to be pulled from the police as well.

          1. Evidence storage and control needs to be pulled from the police as well.

            The customer of such storage is always going to be the government. It doesn’t matter that the vendor is the police or someone else.

        2. The practical problem with merging prosecution and defense is that you’d get lots of intra-office snooping. At least now they work in separate offices. I suspect you’d also see lot’s of back-room deals. Not good.

          1. Make them use office hoteling and cubicles. Have a filing system that keeps files separate, but with a neutral third party review of everything that gets filed to ensure that disclosure requirements are met. Make taking files home severely punishable.

        3. Merge the prosecutors and public defender’s offices.

          I liked this idea at first glance but my wife just asked me if you want the prosecutor and defender getting drunk together after work?

          Sets up a lot of potential for corruption with all that information in the same office.

          1. I liked this idea at first glance but my wife just asked me if you want the prosecutor and defender getting drunk together after work?

            I have a prosecutor/defense attorney couple in my extended group of friends. Ethically, they aren’t supposed to work on the same case, and more broadly, they just don’t talk to each other about work.

            1. “Fuck me like you fuck your clients!!”

              1. “Thirty-five hours a day?”

            2. My former boss, a defense attorney, is married to a former DA who very recently transitioned to the county PDs. Fraternizing between the offices seems like a given, whatever the case.

          2. you want the prosecutor and defender getting drunk together after work?

            They do this anyway, quite commonly.

    2. Consider also the disincentive, or almost total lack thereof. If the prosecutor is punished at all, it may well be a slap on the wrist for criminal contempt, discipline by the state bar, or both.

      1. State bar discipline is a joke, in the sense that the worst they can do is yank your license. If they are committing crimes, they should be prosecuted.

        1. Unless you’re the Texas Hammer, pulling your guild card is pulling your meal ticket.

    3. Well, the incentive was that he broke the friggin law — therefore he should be facing jail time.

  3. Citing new DNA in decades-old murders, lawyers ask for new trial

    A group dedicated to freeing innocent prisoners is casting new doubt on the guilt of a drifter convicted decades ago in a serial killer case that had gripped Minneapolis.

    The Minnesota Innocence Project said new DNA testing in the high-profile murders of three American Indian women in the 1980s found no link to the convicted man, Billy Glaze, who is serving three life sentences for the crimes. The tests of 39 items found at the murder scenes, including bodily fluids, clothing and other items, instead implicate another man ? a convicted Minnesota rapist, the attorneys contend.

    They are seeking a new trial for Glaze in court papers filed Tuesday. They would not identify the newly implicated suspect, though they said they have provided Hennepin County prosecutors with test results.

    Deputy Hennepin County Attorney Dave Brown said authorities were still reviewing the voluminous filing from the Innocence Project attorneys, but his office has been communicating with the group.

    “There’s nothing that we’ve seen through the years, as we’ve reviewed these claims, that suggests to us that anyone other than Billy Glaze is the one that did these brutal sexual mutilations and murders,” Brown said. “On the other hand, we’ll take a careful look at their claims.”

    1. They are seeking a new trial for Glaze in court papers filed Tuesday.

      The fuck?

      If you have evidence that proves beyond a shadow of a doubt that the guy you locked up isn’t the guilty party, then fuck the new trial. He should be freed immediately.

  4. under review.

    Allow me to translate that into English: fuck off, peasants.

    1. That’s 1). Translation 2) =

      2) Fuck you, that’s why

  5. So, more evidence – as if it were needed – that, you have nothing to fear if you’ve done nothing wrong.

    /blithely ignorant

    1. But that’s true. Only defense attorneys withhold evidence to fudge the justice system. This is what some so-cons of my acquaintance actually believe.

      1. Defense attorneys can go to court, look around, and say, “The defense rests.”

        1. Thought I’d link this.

          http://www.floridabar.org/DIVC…..980054EB30

  6. Leeper should go to prison for a minimum term that Fleming served, down to the very last minute. And put him in the same prison with the same population, probably many of the men he put away. I wonder how many more of those guys are innocent.

    And herein lies the problem, you have to call into question EVERY case this scumbag handled. EVERY man and woman he has put behind bars should have their cases thoroughly examined to see if any exculpatory evidence exists and was withheld. Leeper should probably die in prison, either from old age or… preferably by a shanking.

    1. They’re probably filling up the dumpster behind the courthouse now.

  7. The solution is simple: If you willfully and wrongfully convict an innocent person, and that person is found to be innocent at a later date, you will automatically be subject to, and will serve, the same sentence imposed on the innocent person.

    1. Or death by lethal injection. I’m good with that too.

      I can think of nothing worse than knowingly sending an innocent man to a rape-cage.

      1. Nope, still don’t trust the state with the power to execute.

    2. Agreed. But if it is politically more palatable, I would settle for the prosecutor being personally liable for any judgment against him (with the state to make up the difference once the individual’s worth is drained).

    3. Here’s how it was done in ancient Israel:

      “”The judges shall investigate thoroughly, and if the witness is a false witness and he has accused his brother falsely, then you shall do to him just as he had intended to do to his brother. Thus you shall purge the evil from among you.” – Deuteronomy 19:18-19

      1. Here’s how it was done in ancient Israel:

        Or so says an adventure novel.

        1. Why can’t real life be an adventure?

        2. Meh, the bible was fairly accurate with regards to the laws, and a few things past Moses, IIRC.

      2. As Bochephus said, “Sounds like justice to me…”

    4. While I agree with this idea, all will end up doing is encouraging crooked prosecutors (but I repeat myself) to destroy any exculpatory evidence, instead of simply burying it.

      1. That is why you can’t make the punishments too harsh. Concealing evidence ought to mean disbarment and a felony conviction and some jail time. Doing what you describe should mean spending the rest of your life in prison.

        You are right, you have to give people something to lose so they don’t just go all out and destroy as opposed to conceal evidence.

        1. So you’re saying Leeper’s mistake was in not destroying evidence?

          1. It certainly would have been worse. The accused would never have gone free.

            Basically, you want to leave a buffer, so that a bad prosecutor doesn’t decide to go all the way (because that would expose him to much harsher penalties).

    5. Treat it like the EPA with contamination.

      Recall every single case done by this guy and make the current prosecutor’s office reexamine them until they are all vetted. Then they can get back to any cases they weren’t forced to dismiss because of speed trial considerations.

  8. Highly Respected Prosecutor Hides Exculpating Evidence, Man Spends 24 Years in Jail for No Reason

    Wow, Doherty – are you na?ve or just acting like it?

    We know the *reason* he spent that time in jail – to further the prosecutor’s career.

    Simple as that.

    Its not even a case where the evidence was sketchy but the prosecutor was *sure* the man did it and fudged things to ‘make it right’. He had clear, unambiguous evidence exonerating the accused and hid it.

    1. One of the most corrupting things to happen in our system is the path to electoral office often going through the prosecutor’s office.

      1. Yes. When being a DA became the best way to obtain state office, we were in a lot of trouble.

      2. Make that another incentive:

        Serving as a prosecutor disqualifies you for any elected office. You makes your choice, and you takes the consequences.

        1. A revolving-door rule would be good enough. Just prevent a prosecutor from going from the DA’s office to any other elected office for some number of years.

        2. How about term limits? 15 years in state office and that is IT.

          And no pension system.

  9. Man Spends 24 Years in Jail for No Reason

    I wouldn’t say for no reason, as I’m sure the DA’s office threw a nice party with a delicious ice cream cake after they secured this difficult victory.

  10. The office offered no explanation for how or why the evidence had remained buried for so long….

    Did I miss something? Did the office offer any explanation for how or why someone thought that there was evidence buried somewhere for so long? Something odd here.

    1. My thoughts, too.

    2. As John alluded to, how embarrassing to be caught not destroying evidence.

  11. Some of this is the result of the bullshit rehab culture. This guy was a degenerate drunk. But his friends felt sorry for him because being a degenerate drunk is a “sickness”. Sure, he withheld evidence and was often too drunk to come to court, but he was a good guy and was just sick. It is pathetic. This guy is a dirt bag.

  12. No wonder he was highly respected. He convicted a man that was actually out of the state when the crime occurred. That can’t be easy.

  13. It’s good to see Balko’s shoes being nicely filled.

  14. Actually, this is more than just hiding evidence that might put doubt in a jury’s mind. This is actually a case of prosecuting a man you know to be innocent.

  15. Leeper is still a prosecutor. He was in the NY Post for another case just a few weeks ago.

    Hopefully he turned down some Hollywood director’s kid for a date one day years and years ago. Because that’s the only way anything will happen to him at all. Other than that, he’s free to drink martinis and watch the sun rise.

    1. Yes. He is still a prosecutor. The article ends with him not showing up to court because he had gone on a bender and was at some hospital drying out. The court date was for a murder trial involving a defendant who appeared to be pretty guilty. Apparently Leeper only sobers up when the case involves convicting an innocent person.

      1. You’d have a substance abuse problem if your entire job was based on putting innocent people into jail.

    2. Were I this innocent guy, and nothing happened to Leeper, I’d surely give them a reason to send me back to prison for a very long time.

      1. IDK, the last thing I’d want is be sent back there.

  16. This is why one of my basic voting rules is to never under any circumstances vote for DA or persecutor.

    The most amoral and careerist pigs you’ll ever find.

  17. All cases of prosecutorial and judicial misconduct should be handled publicly in special citizens’ tribunals which operate outside the normal court system and which are only empowered to handle cases involving prosecutors and judges. Kind of an extension on the concept of The Censor.

    1. I’ve been thinking for a while that the Censor (which, for those new to this, is a body, not some guy) should operate outside of government but have binding power over government. It’s got a kind of BuSab feel to it, I suppose.

  18. By law, Leeper was obligated to turn that material over to Fleming’s lawyer. But he had disclosed none of it.

    Can criminal charges be brought against the prosecutor – with possibly decades in jail? If no, then this “law” has no teeth and is essentially nothing but lip service.

    1. Agree (unless, of course, his name was Obama)

    2. Why do we need criminal charges? Vigilante dearth squads need no laws to justify their execution of justice as they see fit.

  19. Of course he’s a model prosecutor. He didn’t lose cases like this Fleming one. That’s his job.

  20. I posted this in one of the Links threads a couple of.months ago.

    WHERE’S MY HAT TIP? Waah!

  21. He’s so unethical and incompetent – he kept the documents in the file rather than destroy them.

  22. He should be locked up for 24 years.

  23. Only one solution: vigilantism.

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