More Prosecutorial Misconduct May Chill Recanted Testimony

It was nice to see the NY Times editorial today focusing on the pervasive misconduct by prosecutors around the country, especially detailing an egregious case in Louisiana. Unfortunately, the editorial did not mention the decision by New Orleans District Attorney Leon Cannizzaro to pursue perjury charges against two men whose recanted testimony resulted in the murder conviction of Jerome Morgan being vacated 20 years after he was found guilty. Morgan had maintained his innocence throughout and his conviction was vacated in 2014 with the help of the Innocence Project who uncovered a 911 call that was withheld by from the defense by prosecutors that made it virtually impossible for Morgan to have been the killer. That, along with the recanted of the testimony of the two main witnesses, Hakim Shabazz and Kevin Johnson, who claimed they were coerced by police, led to Morgan’s conviction being vacated.

Of course, that did not sit well with the DA and his office continued to pursue a retrial of Morgan until the Louisiana Supreme Court ruled last month that the prior testimony from Shabazz and Johnson could only be used if the two agreed to testify again. Without just the original testimony, the case could not go forward.  But that still did not stop DA Cannizzaro – on Friday, he decided to charge both Shabazz and Johnson with perjury, saying that they either perjured themselves in the original trial in 1994 or when they recanted their testimony in 2013, which is undoubtedly true. But both men were only 16 years old in 1994 and maintain that their testimony was coerced by police. And with the revelation that exculpatory evidence was withheld from the defense, it seems pretty clear that it might be more proper to investigate what really happened during the case in 1994.  But, no, Cannizzaro is going after these two witnesses now and ignoring the misconduct by law enforcement back then.

It is hard to know what kind of chilling effect this could have on other witnesses who come forward to recant testimony years after a trial.  It is certainly not an uncommon occurrence as people get older and grapple with their consciences, especially if their testimony was coerced by police or prosecutors which is sadly also not an uncommon occurrence. It would be a shame to see those people remain silent and continue to hide the truth simply due to the fear of a perjury trial. Regardless of what DAs like Mr. Cannizzaro think, the purpose of law enforcement and the criminal justice system is to get to the truth, not to perpetuate past mistakes.

Unfortunately, the Times’ recommendation of federal oversight of offices where prosecutorial misconduct has occurred seems like pretty weak tea.  The point is to make sure misconduct does not happen, not to monitor the situation after the fact. If you ever want to see how prosecutorial malfeasance can rip apart the fabric of a community, I suggest you watch the ESPN’s 30 for 30 story on the Duke lacrosse scandal.  Despite cell records showing the three men charged could not have been physically present when the crime supposedly took place, the DA suppressed exculpatory DNA evidence and twisted those results to imply positive matches. The DA, Mike Nifong, was eventually disbarred but served only one day in jail – a pitiful show of justice for someone who nearly destroyed a community and the lives of three young men.  I continue to believe that the only way to stop this behavior is to mete out some serious punishment for law enforcement officials engaged in misconduct, including disbarment and, more importantly, significant time in jail. It will not stop otherwise.