"Absolute Immunity": The Deadliest Weapon in the Prosecutor's Arsenalby William Norman Grigg
“Prosecutors are rewarded for winning at all costs, they have no incentive to seek the truth rather than a conviction, and they are entirely unaccountable when they pervert justice in pursuit of victory,” observes Idaho resident John T. Bujak. “People shouldn't believe that their innocence provides any protection. The question isn't whether you have done anything wrong, but whether the criminal justice system is going to target you – and once you're in that system, you face prohibitive odds of emerging from it without being hurt.”
This familiar complaint was voiced by an apparently unlikely plaintiff: From January 2009 until October 2010, Bujak was the elected District Attorney for Canyon County, the second-largest in Idaho.
Bujak has spent a considerable portion of the past four years in court on the other end of the government's prisoner-manufacturing apparatus, acting as his own defense counsel in multiple trials involving charges of embezzlement and bankruptcy fraud. He is five-for-five as his own defense attorney, a record that testifies of either his considerable skill as an advocate, the poverty of the charges against him, the depth of the enmity he has inspired within the Canyon County justice system, or perhaps all three.
“My experiences illustrate the reality of prosecutorial over-reach, and the ease with which people can find themselves in court facing prison time and financial ruin over charges that have no merit,” Bujak told me during a quiet meeting in a Nampa coffee shop in the company of his wife, Crystalee. “That's why about ninety percent of the people who face federal charges accept a deal in exchange for foregoing their right to a trial. They're terrified, which is understandable, and if they wind up with a public defender they'll be fed into a plea-bargaining machine. And prosecutors know that the key to career advancement is to win convictions. This is especially true of elected prosecutors, such as district attorneys. Early in my career, one of my mentors told me that no DA ever lost a re-election campaign for being too tough on crime – and the public assumes that a high conviction rate offers the best measure of a DA's toughness.”
Bujak's outspoken criticism of his former profession might be seen by some as a product of his own recent travails. There is reason to believe that his ouster by what he calls –with little originality, but considerable vehemence – the “Good Old Boy Network” was prompted by some principled stands he took in pursuit of official accountability.
Alone among Idaho's 44 district attorneys, Bujak endorsed the “Uniform Post-Conviction Procedure Act,” which was created with input from the Innocence Project. That measure states that for any conviction in which identity was the key question, and “fingerprint or forensic DNA test results demonstrate, in light of all admissible evidence, that the petitioner is not the person who committed the offense, the court shall order the appropriate relief,” which can be overturning the conviction and ordering a new trial.
“When that bill was introduced in the Legislature, the Idaho Prosecuting Attorneys Association met and determined that they would not support it,” Bujak recounted to me. That’s a group that includes not only the District Attorneys, but hundreds of deputy prosecutors and assistant prosecutors state-wide. “I was the only member of the IPAA who endorsed the bill, because I believe that truth shouldn't have an expiration date,” Bujak recalled.
Bujak’s collaboration with the Innocence Project began shortly after he entered office in 2009. In defiance of the tribal impulses of the prosecutorial class, Bujak agreed to review the conviction of Sarah Pearce, who spent 11 years in prison for her supposed role in the horrific gang-beating and attempted murder of Linda LeBrane.
The case was cleared by the Canyon County DA's office years before Bujak's election, but in reviewing the files he became convinced that “an injustice had been done.” Significantly, one of his first personnel decisions as Canyon County DA was to ask for the resignation of Deputy DA Virginia Bond, who had prosecuted the case. Whatever else can be said about Bujak’s short-lived career as Canyon County DA, it is indisputable that his decision to reopen that case made him a lot of enemies very quickly.
Linda LeBrane, a middle-aged woman from Washington, was driving east on I-84 near Caldwell in June 2000 when she was forced off the road by a vehicle carrying three men and a young woman. The strangers dragged LeBrane from her car and demanded that she give them drugs and money. The victim eagerly surrendered all the money in her possession – a total of forty dollars and a credit card – while pleading for her life.
The assailants beat and stabbed LeBrane; one of them struck her in the head with a baseball bat. They left – but came back in a few minutes to set her car on fire. This actually proved to be her salvation: The flames attracted the attention of two young men who found LeBrane dying on the ground. She survived the attack, but was psychologically shattered by the experience.
Two years later, three suspects were arrested, one of whom, Kenneth Wurdeman, confessed to his role in the hideous crime. Investigators still hadn't found the woman who participated in the assault, who was described as a short, petite, very pretty young Hispanic woman who spoke both English and Spanish. Detective Wayne Christie, an investigator with the Canyon County Sheriff's Office, interrogated a young woman named Erica Curiel, who fit the description perfectly. She was released after reportedly passing a polygraph examination. Christie protested that decision, and was quickly given what could be considered a punitive transfer to jail duty.
For reasons that have never been adequately explained, the investigation focused on a 17-year-old girl named Sarah Pearce, who was in a Job Corps program following a narcotics conviction. A jailhouse informant claimed that Pearce “ran with” one of the suspects, and that dubious assertion was the only thing connecting her to the crime.
Unlike the suspect described by LeBrane, Pearce was a Tomboyish, red-haired, freckle-faced Anglo who spoke no Spanish and stood 5'6” tall – more than a half-foot taller than the female attacker. Importantly, Pearce was taller than LeBrane, who said that the female “ringleader”
was shorter than herself.
The descriptions offered by LeBrane and eyewitnesses who had seen the attackers either before or after the assault were an uncanny match for the three male suspects who were eventually tracked down. However, Pearce was a very poor fit with the description provided for the female. In two suspect lineups, LeBrane identified women other than Pearce as the female assailant. The other witnesses were told by the deputy conducting the line-up that one of the subjects was a “person of interest.” That statement effectively discredited the identification, since it destroyed the double-blind nature of the exercise.
One eyewitness also recalled that before being shown the subjects, a photo of Sarah Pearce was shown on a video screen – a tactic seemingly calculated to produce a sense of recognition and, therefore, a false identification. After Pearce was arrested and placed in a lineup. Detective Robert Miles, who took over from Wayne Christie as the lead investigator, told LeBrane to choose the subject who “most closely resembled” the female perpetrator – which means that her selection of Sarah Pearce was essentially useless.
During Pearce's trial in 2003, confessed perpetrator Kenneth Wurdeman insisted that she was not the woman who had participated in the crime. The trial judge refused to permit an expert witness for the defense, BSU psychology professor Dr. Charles Honts, to offer a critical examination of the methods used by the Canyon County Sheriff's Office in conducting the suspect lineups. Despite the fact that Pearce was too tall, of the wrong ethnicity, spoke no Spanish, and had an alibi, she was convicted of six felonies – including attempted murder – and sentenced to a term of 15 years to life in prison.
Over the next five years, Pearce filed several appeals, all of which were rejected. Her case would have remained buried if it hadn’t been resurrected by Ginny Hatch, a BSU graduate student volunteering with the Innocence Project.
With the exception of LeBrane herself, every eyewitness contacted by Innocence Project investigators recanted his testimony identifying Pearce as the female perpetrator. Wayne Christie, who has since retired from the Canyon County Sheriff’s Office, discovered an official report stating that Curiel had actually failed the polygraph examination – a fact that was not admissible as evidence against her, but would have been useful to the defense. Prosecutor Virginia Bond withheld that knowledge from Pearce’s defense counsel, most likely because it would have been used to raise questions about the Sheriff’s curious eagerness to ignore a much better suspect in the case.
As reported in a recent installment of NBC’s Dateline program, the Innocence Project was also able to document that following the attempted murder, Erica Curiel and her accomplices had paid a visit to the Riveras, a Caldwell family of long acquaintance, in order to wash their hands and dispose of their bloody clothing. Since the parents had come to the United States without official permission, and some of the sons were familiar with the inside of a cell, the entire family was vulnerable.
After years of refusing to cooperate with the Innocence Project’s investigation, the family – in keeping with the father’s dying wish – explained that prosecutor Virginia Bond had intimidated them into silence about their experience with Curiel, threatening to ruin their lives if they disclosed what they had seen and heard.
Ms. Bond, who is now a criminal defense attorney in Payette, denies threatening the Riveras. Bujak, her former boss, told NBC that he believes the Rivera family’s account.
Last year, Pearce filed a petition for a new trial. On several occasions the Canyon County Court scheduled hearings, only to postpone them without explanation. Last March, DA Bryan Taylor, Bujak’s successor, offered Pearce a cynical and sadistic deal: She could either accept an early release from prison (after more than 11 years in prison) and strict probation for the balance of her 15-year sentence, or spend an interminable time in prison in the hope that the courts would eventually grant her a new trial.
This proposal, Bujak pointed out to me, is typical of the tactics used by prosecutors in both plea bargain and post-conviction negotiations.
“Nearly all convictions are secured through plea bargains, often involving people who are in pre-trial detention with very limited means to defend themselves,” he observes. “So prosecutors exploit the dynamics of a person’s understandable desire to get out of jail and avoid prison. And when they’re dealing with post-conviction challenges, they are in an even stronger position.”
If Pearce had pursued a new trial and acquittal, she would almost certainly have spent additional years – perhaps even decades – in prison. One condition of parole was that she admit her guilt, which she will not do.
Knowing that she was dealing with people equipped with inexhaustible resources and bottomless reserves of malice, Pearce accepted Taylor’s offer and was released from prison in March. This allowed Taylor, an individual possessed of the pettiness and vindictiveness one would expect from someone in his profession, to sneer that “the only truly innocent person in this sad story of senseless violence is Linda LeBrane…. Today’s hearing closes the book on the question of Sarah Pearce’s guilt – which has been proven beyond a reasonable doubt and to the satisfaction of a jury of her peers.”
Peace remains a convicted felon under a form of house arrest. Additionally, she is required to pay LeBrane $50,000 in restitution through monthly increments of fifty dollars, and faces the prospect of being sent back to prison for a parole violation if she misses three payments.
It’s clear that Taylor and his comrades at the Canyon County Sheriff’s Office are eager to seize on any excuse to return Pearce to prison, where she may share the company of Erica Curiel. Several years ago, Curiel was convicted on narcotics charges. She was briefly paroled before returning to prison after assaulting her mother. Despite – or perhaps because of – the fact that the Innocence Project has done all of the necessary legwork to build a case against Curiel, neither the DA nor the Sheriff’s Office has shown any interest in re-opening the case – since this would mean vindicating Pearce and exposing themselves to liability.
“One of the really nasty things about our current system is the fact that post-conviction appeals are civil motions, which means that an innocently convicted person can be compelled to admit guilt in order to receive relief,” Bujak observes. “This becomes an important risk management tool, because an admission of the plaintiff's innocence would result in huge liabilities for the government responsible.”
He holds out the hope that at some point a “strong judiciary” would bring about reform by “exposing the state to liability” in cases of false conviction. However, judges have an institutional incentive to limit accountability.
“Both judges and prosecutors enjoy `absolute immunity' for their official conduct,” points out Bujak. “They are not personally liable for their official misconduct, which means that they have no flesh over the fire, so to speak.” Judges – especially those elected to their positions – are almost universally disinclined to compel prosecutors to carry out their duty under the Supreme Court's Brady v. Maryland ruling by providing potentially exculpatory evidence to the defense.
Although it is both an ethics violation and a crime for a prosecutor to withhold evidence, it is all but impossible to find an example of a post-conviction case in which a prosecutor has been sanctioned for such behavior. This is why, in the words of Judge Alex Kozinski of the Ninth Circuit Court of Appeals, we are seeing an “epidemic” of Brady violations nation-wide.
Last December, a panel from the Ninth Circuit Court refused to hear the appeal of Kenneth Olsen, who had been convicted by a federal jury of “knowingly developing a biological agent for use as a weapon.” That conviction rested on two pillars, each of which was fractured at its base and thoroughly compromised within.
The first was an extensive – one might say “Orwellian” – review of Olsen's online activity. Within the 20,000 pages of records obtained by the Feds could be found a number of searches related to such topics as “How to Kill,” “Silent Death,” “Getting Even,” “death by poison,” and similar subjects.
The second pillar of the federal case against Olsen was “expert” testimony from Arnold Melnikoff, a forensic scientist with the Washington State Police, who insisted that a bottle of allergy pills found among Olsen's effects had been “spiked” with ricin, a deadly poison that can be made quite easily and with little expense.
Olsen's defense counsel observed, correctly, that there was considerable evidence that Melnikoff “handled and extensively manipulated” the pills before delivering them to the FBI, which confirmed his findings. Melnikoff admitted that he had unceremoniously dumped the pills onto a laboratory bench that had been contaminated with ricin. This meant that it was impossible to determine if the ricin had been insinuated into the pills, or if the pills had merely acquired a patina of the toxin after being spread on Melnikoff's contaminated work station.
At the time of the Olsen trial, Melnikoff was being investigated by the Washington State Police for “misconduct involving courtroom testimony and/or case analysis” in his previous role as head of the Montana State Crime Laboratory. An inept hair sample analysis carried out by Melnikoff led to the wrongful conviction of Jimmy Ray Bromgard, who spent 15 years in prison for supposedly raping an 8-year-old girl before he was exonerated by a DNA analysis. Washington State's investigation discovered two more wrongful convictions in Melnikoff’s background, which led to his termination. An appellate court ruled that he was “incompetent and [had] committed gross misconduct.”
The Assistant US Attorney in charge of prosecuting Kenneth Olsen was aware of the investigation into Melnikoff's job performance, and the existence of a Washington State Police report documenting his egregious and habitual misconduct. Instead of providing this information to the defense, as he was required to under Brady, the prosecutor committed misprison of perjury by allowing the examiner's defense attorney to misrepresent the investigation on the witness stand. The singularly incurious trial judge ruled that Olsen's defense attorney would not be allowed to cross-examine Melnikoff – who at the time had been placed on administrative leave in Washington – regarding the investigation into his professional conduct.
“As a result,” summarized Judge Kozinski in a justifiably caustic dissent, “the government introduced the spiked allergy pills and the jury heard Melnikoff's testimony, all without ever being informed of these serious doubts about their reliability.”
As Kozinski observed, the prosecutor “stood before the district judge and uttered falsehoods about the WSP investigation [into Melnikoff's misconduct].” This matters not, insisted the Ninth Circuit Court majority, since that the jury might have convicted Olsen solely on the basis of the material provided through government scrutiny of his extensive internet activity – which did not yield evidence of actual intent to commit a criminal act against any identified individual.
The court's ruling against Olsen “is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice,” wrote Kozinski. “It effectively announces that the prosecution need not provide exculpatory or impeaching evidence so long as it’s possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here.”
“Some prosecutors don't care about Brady,” Kozinski concludes, “because courts don't make them care.” And the behavior of the prosecutor in the Olsen case is hardly “a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors' offices across the country..... Brady violations have reached epidemic proportions in recent years.”
Bujak, who is pursuing a quixotic gubernatorial campaign as a Libertarian candidate, is agitating for enactment of a bill that would deprive prosecutors and judges of “absolute immunity” and make them personally liable – both civilly and criminally – for misconduct resulting in an unjust conviction.
“There simply cannot be power without accountability,” Bujak maintains. “We’ve been living under a system in which prosecutors ruin the lives of innocent people with impunity. They punish those who dare to insist on their right to a trial, conceal evidence without professional or personal consequence, and then require wrongfully convicted people to prolong the fiction of their guilt in order to protect the people who had sent them to prison. This isn’t going to change unless the people who administer the law are forced to live under it.”
Bujak readily concedes that there is no discernible appetite in the Idaho Legislature to enact a prosecutorial accountability law. With his professional background and formidable skills as an advocate, Bujak could find other ways to do badly needed damage to a system in which prosecutors enjoy a conviction rate higher than that achieved by their predecessors in Josef Stalin’s Soviet Union.
William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program. Follow him on Twitter.
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