In a recent post about prosecutorial misconduct, we opened with this question: Why do some prosecutors engage in misconduct? The Answer: Because they can.
Why? Prosecutors have little, if any, concern that they will be punished, personally or professionally, or that their conviction disturbed by an appellate court if their bad deeds are discovered. It is a sordid feature of our criminal justice system about which we have often lamented.
In research for this particular post, we came across similar sentiments expressed by Marvin Schechter, a defense attorney and chairman of the criminal justice section of the New York State Bar Association. In a personal letter published last year in the New York Criminal Law newsletter (Summer 2012), Schechter observed: “It’s an insidious system. Prosecutors engage in misconduct because they can get away with it.” Schechter added: “Assistant district attorneys do not emerge from law school with a genetic disposition to hiding Brady material. Instead this is something which is learned and taught.”
We agree. Prosecutorial misconduct is learned behavior, made skilled through practice, and resorted to by a career desire to be on the winning side, regardless of the consequences—“convict at any costs.” We’ve seen more than our share of it throughout Texas at both the state and Federal level.
But when a prosecutor engages in misconduct that leads to the death penalty, this conduct becomes patently criminal for which the prosecutor should be disbarred or prosecuted. There should be no “get out of jail” free pass for these kinds of professionally unscrupulous prosecutors.
Take the case of Terrance Williams, for example. This African-American native of Philadelphia, Pennsylvania was scheduled for execution last October 3rd. At the time he had spent 27 years on death row.
In January1984, Williams, then 17, killed 50-year-old Herbert Hamilton by repeatedly stabbing him and beating him with a baseball bat. There appears to be not doubt about that. Six months later Williams, then 18, killed Amos Norwood with a tire iron. He was tried first for the first degree murder of Hamilton but was convicted of lesser third degree murder and sentenced to a term of 27 years. He was then convicted and sentenced to death for the Norwood murder.
In September 1984 the Philadelphia Inquirer reported that Williams “did not fit the mold of a typical street criminal. He was a bright, talented college student, former star quarterback of the Germantown High School football team. His friends, teachers, coaches and neighbors could not believe that he would be involved in murder, or any sordid activity.”
But Williams did have a sordid history. He was repeatedly beaten by his mother and an alcoholic stepfather. At the age of six, he became the victim of horrific sexual abuse by a neighbor and was repeatedly sexually abused by a male teacher when he was in his early teens. At age 16, he was gang-raped in a state juvenile detention center. Two of the older men who sexually abused Williams when he was a teenager were Herbert Hamilton and Amos Norwood—both of whom enjoyed a prominent social status in Philadelphia. Liliana Segura, in September 2, 2012 article in The Nation, said Hamilton a “devoted supporter of the Ben Franklin High School basketball team, a man who bought warm-up suits for the players and ‘bought a van to shuttle the team to and from games.’ But he ‘also often invited youths he met through sports to his West Philadelphia apartment to join him, according to police, in homosexual activity.’” Williams was one of those boys who spent a lot of time at Hamilton’s apartment.
At age 13, Williams met and began a sexual relationship with Norwood who, according to Segura, was often “’cruel and physically abusive.’” Segura added that at a post-conviction hearing in the late 1990s “family, friends and teachers attested to the [Norwood] abuse, and a trio of mental health experts would describe [Williams] as ‘suffering from extreme mental or emotional disturbance when he killed Norwood.’ (Court filings describe how Norwood raped Williams in a parking lot the night before he was killed.)”
It was Williams’ impoverished background that prompted the jury in the Hamilton murder case to return a third degree murder verdict. Assistant district attorney Andrea Foulkes prosecuted the case. Known as an aggressive “win at any cost” prosecutor, Foulkes was determined not to let Williams’ history of sexual abuse, particularly those acts committed by Norwood, be heard by the jury that would hear the Norwood murder case. She withheld the evidence and provided defense counsel only with “sanitized” witness statements given to the police. Williams’ defense attorney casually accepted the prosecution’s case, and has since been permanently disbarred from the practice of law.
The Norwood jury returned the death penalty verdict demanded by Foulkes. One of the jurors at the time told the local press, “we were glad we did it” (referring to the death penalty verdict.) Years later after the depth of Williams’ sexual abuse became known, five of those jurors said that while they would have still found him guilty, they would not have voted for the death penalty had they known about the sexual abuse.
Just days before he faced his October 3 execution date, state district court Judge M. Teresa Sarmina issued a blistering opinion that accused Foulkes, who is now a Assistant U.S. Attorney, of “playing fast and loose” with the truth which prompted the judge to find that “the suppression [of the sexual abuse in Williams’ case] was closer to willful” than inadvertent. Judge Sarmina charged that Foulkes “had no problem disregarding her ethical obligations” in a desire to win the death penalty verdict she demanded.
While the judge allowed Williams’ conviction to stand, she ordered a new penalty phase hearing with a new jury to hear all the mitigating evidence, including the rape of Williams by Norwood the night before Williams killed him.
Newly-elected reform District Attorney Seth Williams did what so many “tough on crime” prosecutors do, and staunchly defended Foulkes, announcing he was appealing Judge Sarmina’s ruling to the Pennsylvania Supreme Court. The U.S. Attorney’s Office was mum about Foulkes’ ethical breach. The State Bar had nothing to say either.
In effect, Foulkes used her position of “trust” to deliberately push for the death penalty in Williams’ case when she had evidence that would have made the death penalty less likely, a blatant Brady violation. She was willing to use sacred state resources and power to kill a man. Still, she remains a respected Assistant U.S. Attorney prosecuting Federal cases; cases in which she is trusted to disclose potentially exculpatory(favorable) evidence to the defendants, cases which now beg for closer scrutiny.
Worse yet, Pennsylvania Gov. Tom Corbett, also an attorney, signed Williams’ death warrant and is determined to see him put to death.
Corbett, as Pennsylvania’s attorney general, was implicitly involved in the Penn State/Jerry Sandusky case. His “law and order” political stock has cratered since evidence surfaced in the early stages of the “Sandusky scandal” that he did little, or nothing, to investigate allegations that Sandusky had sexually abused young boys. Critics charge that Corbett, along with ranking Penn State officials, was actually complicit in Sandusky’s pedophilia by refusing to investigate allegations of Sandusky’s abuse of young boys years before the sexual abuse “scandal” broke.
Put simply, Gov. Corbett, as attorney general, failed to protect young boys from Sandusky’s sexual abuse and today, as governor, is trying to execute a victim of child sexual abuse in an effort to shore up his “law and order” credentials.
We have no respect for these kinds of public officials. At a minimum, Foulkes’ behavior demands State Bar scrutiny. And DA Williams, rather than shielding Foulkes, should conduct a criminal investigation to determine if any laws were violated when she willfully withheld mitigation evidence in the Terrance Williams case or when she participated in the post-conviction process that sought to end his struggle for successful appeal.