SUNDAY EDITION | Prosecutor's office focus of criticism from defense attorneys, judges in recent months
Commonwealth's Attorney Tom Wine said while some mistakes have been made, there has been no intentional misconduct
Friday, September 12th 2014, 7:30 PM EDT
LOUISVILLE, Ky. (WDRB) -- Last year, a Jefferson County prosecutor told a judge in court that there was no 911 recording to turn over as evidence in the case of three men charged with receiving stolen property.
The prosecutor assured the judge and defense attorneys that she had personally spoken with Louisville Metro police to confirm the lack of a 911 call.
Neither of those statements turned out to be true.
An investigator for the defense discovered there was, in fact, a 911 call. And the prosecutor, Shameka O'Neil, who has since resigned, had apparently not spoken with police about getting it, according to defense attorneys.
O'Neil's blunder resulted in the accused men going free. Jefferson Circuit Court Judge Barry Willett dismissed the case in June, citing the prosecution's "outrageous conduct."
This is maybe the most egregious example but not the only mistake that prosecutors in Commonwealth's Attorney Tom Wine's office have made in the last year – mistakes that have at times benefited criminal defendants.
Most notably, the high-profile trial of accused murderer Dejuan Hammond fell apart in April after prosecutors failed to turn over key evidence -- a mistake Wine later admitted had been deliberate.
Earlier this year, the murder trial of Guy White was delayed and nearly dismissed because of what a defense attorney called "egregious" conduct by a prosecutor to lie and withhold key evidence.
Judge Mitch Perry said he was "frustrated" at the "very sloppy" work of the prosecutor, Bill Burt, and that he would have punished Burt had Burt not resigned from the prosecutor's office.
Wine's office agreed there had been "negligence" on Burt's part, but that it was not intentional.
The public defender's office, which represents the majority of felony defendants, said the recent mistakes exhibit a troubling pattern: the withholding of evidence.
"It is a huge concern in the criminal defense community and in our office in particular," said Jay Lambert, a division chief with the Louisville Public Defender's office, adding that stiffer penalties are needed for not turning over evidence.
In an interview this week, Wine defended his office, noting that while some mistakes have been made, only once has a judge found a prosecutor was guilty of intentional misconduct, and that case is under appeal. He said the office deals with thousands of cases -- and an enormous amount of documents, videos and other materials each year -- and in only a tiny percentage have there been problems.
"If you are going to hold us to be perfect, we're not going to make it," he said. "I will concede that. We are not perfect. But we are not unethical."
Wine, a longtime judge and former prosecutor before he was elected Commonwealth's Attorney in 2012, said he has talked about the issue with his staff and the office is developing a pre-trial checklist and a notification system that would remind prosecutors when certain evidence should be ready and turned over to the defense.
He also pointed out that he went to the police department last year and prompted them to implement a policy to provide prosecutors with a continually updated list of officers who are under investigation or were disciplined for something that could cause their credibility to be questioned at trial and could be considered exculpatory evidence for the defense.
"I don't ever want it on my conscience that someone was unfairly convicted," Wine said. "So far, I get a good night's sleep."
Under state law, prosecutors are required to turn over any evidence that may be favorable to the defense. And the United States Supreme Court has ruled that hiding evidence favorable to the defense violates a defendant's constitutional right to due process.
But over the last year, the defense bar and prosecution have bumped heads repeatedly over whether the commonwealth has been following the law.
Prosecutors have argued that the law doesn't call for them to turn over every single piece of paper developed in investigating a case, just evidence that is “exculpatory,” or may be of benefit to the defense.
But defense attorneys have said that much of the evidence being withheld is important and should have been provided.
Dan Goyette, head of the Louisville Public Defender's office, said prosecutors' failure to turn over evidence "is an ongoing problem in criminal cases. There seems to be a fundamental misunderstanding on the part of some prosecutors as to what constitutes exculpatory evidence … and when it must be turned over to the defense."
And in some cases, judges have agreed.
Last month, for example, on the eve of the trial for Eugene Baker and Dezuan Lester, charged in the Aug. 25, 2007 robbery and murder of Dominic Hudson, prosecutors turned over 37 pages of evidence.
Among the evidence were interviews of witnesses and potential alternate suspects, according to defense attorneys Krsna Tibbs and Mike Lemke.
In addition, the defense discovered there was a taped statement from what they called a "secret snitch" that was not provided and found by the defense only through "luck," Lemke said. This prompted a claim of misconduct and a request to dismiss the case.
Judge Brian Edwards denied that motion but agreed the evidence should have been provided, so he delayed the trial.
"In essence, I believe that the defendants today have been deprived of their opportunity to be properly prepared for trial," Edwards told both sides on Aug. 26.
Also last month, a trial for Joseph Cambron, accused of sex abuse, took a detour when defense attorneys accused prosecutors of misconduct for withholding evidence and allegedly tampering with a defense witness before his testimony.
Jefferson Circuit Court Judge Angela Bisig took the unusual step of allowing the defense to question Assistant Commonwealth's Attorney Alicia Gomez under oath as to what she said to the witness.
Gomez admitted she spoke with the witness about his testimony, telling him not to mention certain topics while on the stand. But Gomez testified she simply made sure the witness knew the attorneys needed to discuss the information before he told jurors.
Defense attorney Sarah Clay claimed Gomez "intentionally" tried to bias a defense witness, telling him the defendant was planning on suing him and failing to turn over exculpatory evidence she learned from the witness.
Bisig said she has not seen a similar issue before and probably would have declared a mistrial, but the defense did not ask for that.
The judge found Gomez' actions "inappropriate" but said that dismissing the case was too harsh of a penalty. Instead, she forbid Gomez from questioning the witness she had spoken with and allowed the defense to ask the witness in front of jurors about the incident. The jury later acquitted Cambron.
Wine said there was no prosecutorial misconduct in the case but agreed that Gomez went too far in her statements to the witness as to what he could say.
"She learned a lesson from that," Wine said of Gomez, adding that he has used the incident as an example for the rest of the office on what can be said to witnesses before they testify.
And in another case from last month, a defense attorney filed a motion accusing the Commonwealth's Attorney's office of vindictively prosecuting a woman because she had refused to talk with police about her boyfriend's alleged involvement in a murder. A judge has not ruled yet.
The defense attorney in that case, Ryan Vantrease, a former prosecutor, said the problems of withholding evidence seem to be happening more frequently than they did in the past, though he wasn't sure why.
"It appears to be the prevailing culture that it is the opinion of many prosecutors that certain items defense attorneys would view as exculpatory are not things they have to turn over," he said. "It's them interpreting the rules in a way that allows them not to disclose evidence."
During one particular court hearing, Judge Barry Willett said he gets motions from some prosecutors saying they don't have to provide a standard "bill of particulars" – a detailed, formal statement of charges that the defense requests -- because "it is a fishing expedition."
Asked about that, Wine said he knows some prosecutors feel they shouldn't have to file a bill of particulars, but he expects his staff to turn it over.
"I want to make sure our prosecutors are properly trained, I want to make sure defendants get a fair trial, I want to make sure the public has its day in court," Wine said. "It's a big responsibility and I accept it. If I fail in that, then I'll do whatever I need to do to make sure it doesn't happen again."
And some attorneys who spoke with WDRB say Wine's office has been diligent in providing evidence and even going further than the law requires.
"In my dealings with the office, they make every effort to turn over information," said defense attorney Brian Butler. "I have never had a situation under Wine where I felt they purposefully misinformed or misled me. Ever."
Defense attorney Mike Lemke, who made a misconduct motion against prosecutors in a murder case last month, still defended Wine as an "honorable person."
"I don't think it's his agenda to hide evidence," Lemke said of Wine.
He said, however, there may be a problem with prosecutors not knowing they are responsible for checking with police officers to make sure they have everything the officer has found in the case.
"Ultimately," Lemke said, "that is (Wine's) responsibility."
Lambert, an official with the public defender's office, acknowledged the office also had issues with the previous Commonwealth's Attorney, Dave Stengel, in properly getting evidence. One theory as to why the issue is popping up so much lately, he said, is because judges and defense attorneys are more attuned to it because of the highly publicized issues in the Hammond case.
Hammond is accused of orchestrating the slaying of 31-year-old Troya Sheckles in March 2009 because she had agreed to testify that she witnessed Hammond's brother, Lloyd, murder her boyfriend. There have been three failed attempts to try the case.
In April, five days into Hammond's second trial, prosecutors turned over to the defense a summary of an interview with his former girlfriend, Princess Bolin, in which she provided him an alibi for the murder. The information, never before seen by the defense, caused a mistrial. A co-defendant, Steven Pettway, was convicted and sentenced to 55 years in prison last year. Attorneys for Pettway have asked for a new trial based on prosecutorial misconduct for failing to turn over the Bolin interview, which also mentions Pettway.
In July, Wine testified that his office had "clearly" concealed the interview and didn't turn it over to the defense, though he did not know the reasoning behind the decision. The former prosecutor involved, Tom Van De Rostyne, testified he was trying to protect a witness.
Defense attorneys in the case called for more transparency from the office, an investigation into how it happened and an investigation into all of Van De Rostyne's cases.
Wine said an investigation was conducted into Van De Rostyne's still pending cases and "no irregularities" were found.
An investigation into what happened with the Bolin interview is still ongoing, he said.
Ted Shouse, an attorney, for Hammond, pointed out that not only has there been no announcement on the results of that investigation, but the office has been found to have withheld evidence twice more since then.
Most recently, Bisig criticized prosecutors for not turning over evidence about a jailhouse informant until a third trial was supposed to begin. Prosecutors knew about the informant since April but didn't tell the judge or defense about it until the defense attorney pointed it out before the trial, which was postponed.
"They lied to Judge Bisig all summer long when they came into court again and again and said there was no more evidence to turn over in the case," Shouse said. "It's offensive."
While some errors have been made, Wine said Bisig has found no prosecutorial misconduct has occurred in the Hammond case.
"We are going to make mistakes," Wine said of his office overall. "But we are not going to engage in misconduct."
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