When Prosecutors Withhold Information, Innocent People Go To Prison—or Worse.
Part II of the video series on the trials of California inmate Kenneth Clair.
When it comes to deciding what evidence a jury should hear when deciding innocence or guilt, the American criminal justice system entrusts prosecutors with extraordinary power.
Kenneth Clair has spent more than three decades in prison for the rape and murder of a young woman in Orange County, California. But he's been seeking a retrial since ever since private eye C.J. Ford uncovered the fact that the county DA had tested DNA evidence found on the scene and that it didn't match Clair. Read and watch more on the details of the case in part I of this video series.
But the DNA testing isn't the only piece of information the county withheld in this case. Prosecutors failed to disclose that the county had offered deals or incentives to multiple witnesses who testified against Clair.
Withholding favorable information isn't a problem limited to the Clair case. Orange County Assistant Public Defender made a name for himself by exposing the fact that county prosecutors regularly recruit jailhouse informants to solicit confessions from their fellow inmates in exchange for reduced sentences and then testify in court—all without revealing the nature of the payoff to the jury.
"The key issue with incentives is playing by the rules," says Sanders. "If you're going to give an incentive, be up front about it. Disclose it to the defense, and let judges and jurors know what's going on. That's the only way you're going to get a fair trial. If you play games with that, you risk, very much, the prospect of people being wrongfully incarcerated."
Jailhouse informants don't play a role in the Clair case, but Sanders believes that there are serious problems with at least two witnesses. The first is Pauline Flores, Clair's ex-girlfriend who supposedly caught Clair confessing on tape. Clair can be heard telling Flores the police "can't prove a motherf—king thing, not unless you open your motherf—king mouth," but he stops short of actually admitting to the crime and outright denies it later on in the same recording. Regardless of the credibility issues with the tape, Sanders says that it's a problem that prosecutors and Flores denied to the jury that she received anything in return for her cooperation. It was only decades later that she admitted that the police took care of an outstanding warrant in return for her wearing a wire.
The other problematic witness is Margaret Hessling, who testified that a distinctive piece of jewelry belonging to the victim went missing on the night of the murder. Prosecutors failed to disclose the fact that Hessling was in the midst of a felony welfare fraud case that the DA downgraded to a misdemeanor only 13 days after the court sentenced Clair to death.
Sanders points the finger at the prosecutor in Clair's case, a man named Michael Jacobs, as someone with a pattern of withholding important information. Jacobs ran the county's homicide unit for years and most likely presided over hundreds of cases, all of which Sanders believes need to be reexamined. But evidence disclosure problems aren't limited to just one prosecutor or one county. One team of researchers believe it pervades the American criminal justice system.
Kathleen "Cookie" Ridolfi is a law professor at Santa Clara University and co-author of a national study on evidence disclosure. Ridolfi and her colleagues examined about 5,000 cases and found 620 cases where prosecutors withheld favorable evidence. Judges ruled that the withheld evidence only constituted a violation of the law in 22 of those cases.
"Courts are just OK with prosecutors withholding evidence, and that's really troubling," says Ridolfi. "Because we know from post-conviction analysis of DNA cases that the withholding of favorable evidence is a key cause of wrongful conviction."
Another trend the researchers uncovered was that prosecutors were most likely to withhold evidence in death penalty cases.
"The fact that prosecutors have so much at stake in a serious case, their motivation may be a little bit greater to cross the line," says Ridolfi.
And it's not only that the cheating gets worse as the stakes get higher, but it appears that the prosecutors who cheat once tend to do it again and again. Ridolfi found in California that a third of prosecutorial misconduct cases were against prosecutors whom courts had found guilty of misconduct before without facing discipline.
In the case of Kenneth Clair, who lost when facing a prosecutor who purposely withheld information in multiple cases over the years, Sanders believes there are lingering questions that only fresh examination of the evidence can address.
"What else wasn't turned over?" asks Sanders. "In a case like Clair, the right outcome, at the very minimum, is to give him a new trial."
The 9th U.S. Circuit Court of Appeals overturned Kenneth Clair's death sentence earlier this year for murky reasons unrelated to evidence disclosure. He continues to serve a life sentence and is seeking a new trial.
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Produced by Zach Weissmueller. Music by Kai Engel. Approximately 10 minutes.