Monday Morning Poll: The 2nd Annual Worst Prosecutor of the Year (WOPOTY) Award

Monday, December 22nd, 2008

Before you vote, check the brief(ish) summary for each candidate below. Also, even though he could probably put up a good fight to defend his title, in fairness to the other all-too-deserving candidates, I’ll take last year’s winner, Mississippi District Attorney Forrest Allgood, out of the running.  As with last year, this year’s nominees include transgressions committed this year, in prior years, and transgressions committed in prior years that just came to light this year.

Here are the nominees:

• U.S. Attorney Mary Beth Buchanan.

Last year’s WOPOTY runner-up is known for spending $12 million to put Tommy Chong in prison for nine months. She still hasn’t backed down from her shameful conviction of Dr. Bernard Rottschaefer, despite the fact that all five of the women she put on the stand to testify that he had improperly prescribed them painkillers have since been shown to have lied. Buchanan has also made a name for herself by bringing the first federal obscenity case in 20 years, putting a mentally ill woman in jail for obscene text she wrote on a website, and prosecuting two sad old men for wearing military honors they didn’t earn, a fine use of taxpayer dollars and the courts system. Hell, she even went after the Amish.

(See last year’s WOPOTY poll, or Buchanan’s Wikipedia page for more detail on these cases.)

In 2008, Buchanan continued her political persecution of Dr. Cyril Wecht, at one point sending FBI agents to interview (read: intimidate) the jurors who embarrassed her by refusing to convict him. In May, the Third Circuit Court of Appeals issued an indefinite stay in the case, preventing Buchanan from trying Wecht a second time. In early 2008, the House Judiciary Committee announced that it would begin an inquiry to see if the Wecht case was politically motivated, but announced in April it was unable to come to any conclusion, because the Justice Department refused to turn over documents from Buchanan’s office related to the case.

Buchanan’s big move this year was her announcement that she will refuse to resign at the end of the Bush administration, as U.S. attorneys customarily do. Hard to let go of power, eh Mary Beth?

• Mississippi Attorney General Jim Hood.

Over the last year, Mississippi’s top prosecutor has done as little as he can possibly get away with in looking into the damage done to that state’s criminal justice system by frequent prosecution witnesses “forensic odontologist” Dr. Michael West and disgraced medical examiner Dr. Steven Hayne. Hood never returned my calls when I sought comment for my article on Hayne in the November issue of reason. When the article and accompanying Wall Street Journal op-ed came out in October, he ignored both. Then, when two men convicted because of Hayne and West’s testimony were exonerated by DNA testing earlier this year, Hood played down the roles of both fraudulent “experts,” dismissing calls for a review of other cases in which either had given similarly questionable testimony.

When the Innocence Project then asked all of Mississippi’s DAs to turn over all of their cases files in which Hayne and/or West had testified, they refused, with Hood’s backing. Hood continued to publicly defend Hayne (though even he will no longer defend West), and called last year’s WOPOTY winner Forrest Allgood “a straight arrow.” For the record, four people Allgood has convicted of murder have now either been exonerated by DNA testing, or acquitted after being given a new trial. So far. Two spent time on death row.

Hood’s obstinacy likely stems from the fact that he himself was a former Mississippi DA who used Hayne in many (more likely, most) of his criminal cases. Admit there’s a problem, and he has to admit that many of his own convictions may be tainted, too.

Hood has also been an active plaintiff’s attorney, an area where Hayne has also made a lot of money. Hood has spent much of the last year fending off corruption allegations related to his relationship with bribery felon Dickie Scruggs, with one federal judge referring to Hood in a Scruggs-related opinion as a “so-called law enforcement official.” Hood has also come under scrutiny for outsourcing state lawsuits to private legal firms, who then reciprocate his referrals with campaign contributions. That, apparently, is all legal. It’s just sleazy.

• Virginia Commonwealth’s Attorney Paul Ebert.

Ebert was also a nominee last year. The Virginia Commonwealth’s Attorney made the list last year for refusing to look into massive public corruption on the part of Manassas Park, Virginia officials in the Rack ‘n’ Roll pool hall case. Ebert also faced a write-in campaign in his last election from a ham sandwich.

This year, Ebert has spent much of his time as the “special prosecutor” trying to send Ryan Frederick to prison. Frederick is facing capital murder charges for killing a police detective as a SWAT team was breaking into Frederick’s house in search of a major marijuana growing operation that they never found. Ebert is now trying to damn Frederick with evidence procured by police informants without admitting that those informants illegally broke into Frederick’s home to get that evidence, likely with the knowledge and consent of the police. At one point, Ebert actually tried to get the trial moved to a new venue. He argued that because the media and bloggers were uncovering facts and voicing opinions about the case (and public opinion subsequently began moving in Frederick’s favor as a result), the state “couldn’t get a fair trial” in Chesapeake. What he probably meant is that this case might be the first time someone in Frederick’s position will get something resembling a fair trial. And the state can’t have that.

• Assistant U.S. Attorney Brett Grayson.

Grayson was the antagonist in my reason investigative piece on the wrongful conviction of the Colomb family in Church Point, Louisiana. Here’s the gist: Grayson prosecuted a big drug dealer in Houston a few years ago. In doing so, however, he made liberal use of jailhouse informants, offering deals in exchange for testimony. One man who was indicted in that case but never tried, filed an explosive motion alleging some of Grayson’s witnesses were buying, selling, and trading information about cases in a perjury network inside a federal prison. The information allegedly being traded included photos of suspects, case summaries, and even grand jury testimony.

Grayson ignored the warnings, and several months later, started a case against the Colombs, based on decades-old, small-time drug charges the Colombs say were the result of racist persecution by local deputies; a questionable drug raid; and affidavits from 32 jailhouse snitches that they had sold huge quantities of cocaine to Colomb and her three sons. Any sensible look at the evidence would show it just wasn’t possible. The working class family lived in a modest home, drove cars in ill-repair, and the boys worked two and three jobs at once through most of high school, and just out of high school. Yet relying on the testimony of his sntiches, who had everything to gain by lying, Grayson insisted they were running tens of millions of dollars of cocaine through their home. At one point, one of the defense attorneys asked Grayson if he really believe the evidence he was putting on was true. He replied that it didn’t matter what he believed, it only mattered what the jury believed.

The Colombs were convicted. Grayson insisted they be imprisoned while awaiting sentencing, a move even the judge found “mean.” Ann Colomb nearly died in prison. Her son Danny sank into a deep depression. He missed most of his wife’s pregnancy. But while they the Colombs were waiting for possible 20-to-life sentences, Grayson’s case unraveled. Two federal inmates came forward alleging that, as in Grayson’s prior case, they witnessed mass information sharing going on among Grayson’s witnesses inside a federal prison. Inmates were trading photos, grand jury testimony, and case summaries, memorizing the information, then writing letters to Grayson promising to testify against the Colomb family in exchange for time off from their own sentences.

The charges were eventually dropped against the Colombs. The judge said that if Grayson wanted to bring the case again, he’d have to ask another U.S. attorney to conduct an extensive investigation into the way Grayson uses jailhouse snitches. Grayson chose to drop the case.

To my knowledge, there’s been no disciplinary action against Grayson for how he used jailhouse informants in the Colomb case. In fact, a few months after the Colombs were cleared, another U.S. attorney in Louisiana tried to use many of the same informants in another drug conspiracy case.

• Lake County Illinois Prosecutor Michael Mermel.

Mermel is the prosecutor in Lake County, Illinois who has come up with some interesting theories when DNA testing has, by most anyone else’s standard, exonerated one of his suspects. When DNA testing found semen in the body of an 11-year-old rape and murder victim that didn’t match Mermel’s supsect, Mermel argued that the girl was probably sexually active.

Mermel also dismissed DNA tests showing that the semen found in the underwear of a 68-year rape victim didn’t belong to the man convicted of that crime. Bernie Starks had been serving time for that rape since 1986. If the DNA had come from the woman’s vagina, Mermel argued at the time, “I would be standing over there advocating the side that the defense has in the case.”

Three years later, a missing rape kit from the case turned up. It included a vaginal swab from the woman which contained semen, and a DNA test on the semen again excluded Starks. Mermel again refused to concede, this time arguing that the woman must have had consensual sex with another man at about the same time of the rape.

Mermel’s most ridiculous dismissal of DNA testing to date, though, has to be the case of Jerry Hobbs, a man accused of killing his 8-year-old daughter and her friend.

When tests showed that the semen found in the mouth, rectum and vagina of Hobbs’ daughter came from someone other than Hobbs, Mermel still argued in favor of Hobbs’ guilt, positing that the semen could be explained by the fact that the girl often played in a woods where people have sex, even though the girl was found fully clothed.

• The Connecticut prosecutors who railroaded Julie Amero.

Just read here.

• Matt Shirk, public defender, 4th Judicial Circuit of Florida.

If these were acting awards, Shirk would win for “best performance by a prosecutor in the role of a public defender.” He gets nominated here despite not being an actual prosecutor for his sheer audacity.

Shirk is a Republican who was elected public defender of the Florida circuit that includes the city of Jacksonville (Florida oddly and stupidly elects its head public defenders).  Shirk’s campaign was backed by the local chapter of the Fraternal Order of Police and he has never defended a homicide case—odd qualifications for the guy running for chief public defender, no?

Shirk’s campaign promises included a vow not to oppose funding cuts to the office he was running for, and a promise to squeeze as much money as possible out of indigent defendants, including a proposal to bill even acquitted defendants, should they later be able to put their lives back together, and find some employment.

Shirk also promised during the campaign not to make drastic changes to the staff of the public defender office. But before even taking office, he announced he’d be firing ten senior-level attorneys and three administrators.  He asked his predecessor, the man he beat, to be sure they were fired before Shirk took office.  He also misspelled several of the names of the people he wanted fired.

As it turns out, several of the fired attorneys Shirk fired worked on the high-profile case of Brenton Butler, a 16-year-old wrongly accused of the robbery and murder of an elderly tourist. The Butler case was a huge embarrassment for Jacksonville’s sheriff’s department. Trial testimony suggested Butler’s confession had been beaten out of him by detectives with the department. Butler’s case eventually became the subject of the Oscar-winning HBO documentary Murder on a Sunday Morning. The sheriff’s department apologized to Butler, and reopened its investigation into the murder.

You’d think the kind of attorneys who could expose that kind of injustice (and, of course, expose the fact that the tourist’s real killer was still on the loose) would be exactly the sort of people a public defender would want on his staff.

Pat McGuiness, one of the fired public defenders who worked on the Butler case, says Shirk hasn’t even had the time to interview or review the personnel files of the people he fired. McGuiness alleges that Shirk’s axing of some of the office’s most skilled and experienced attorneys was a favor, in exchange for the police support he received during the campaign.

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35 Responses to “Monday Morning Poll: The 2nd Annual Worst Prosecutor of the Year (WOPOTY) Award”

  1. #1 |  Burrow Owl | 

    Oh man.
    So many sleazeballs to choose from.
    Do we have to pick just one?

  2. #2 |  KBCraig | 

    +1, #1.

    If the list can be narrowed down to such egregious examples, there must be hundreds of “also-rans” out there committing everyday evil.

  3. #3 |  Andy Craig | 

    Some of them are way more evil with some of the death row stuff, but Mary Beth Buchanan surely wins for sheer pettiness.

  4. #4 |  icr | 

    I’m all for going after the Amish. If you give them on a pass on photos you have to give all Muslims a pass. Since I’m not a Truther (and I also think AIPAC will not lose its power anytime soon)
    I do think a certain percentage of Muslims are a serious threat.

    The Amish culture also tolerates/promotes animal cruelty. See numerous google hits.

  5. #5 |  Jason | 

    Mary Beth Buchanan: a colossal idiot.
    http://rightklik.blogspot.com/

  6. #6 |  james | 

    This op-ed from one of Buchanan’s former coworkers says it all:

    http://post-gazette.com/pg/07079/770820-109.stm

  7. #7 |  james | 

    Other articles on Buchanan’s tenure as U.S. Attorney:

    http://www.reason.com/news/show/122263.html
    http://www.post-gazette.com/pg/07079/770820-109.stm
    http://www.reason.com/blog/show/130413.html?success=1#lastpost
    http://en.wikipedia.org/wiki/Mary_Beth_Buchanan
    http://www.wpxi.com/news/13366676/detail.html
    http://www.post-gazette.com/pg/06326/740403-85.stm
    http://kdka.com/topstories/Brian.Wells.collar.2.389997.html
    http://www.brightcove.tv/title.jsp?title=1112812884&channel=570698209
    http://doctordeluca.com/Library/WOD/CriminalCriminalJustice08.pdf
    http://select.nytimes.com/2006/01/24/opinion/24tierney.html?_r=1
    http://www.pittsburghcitypaper.ws/gyrobase/Content?oid=oid%3A28537
    http://blogs.wsj.com/law/2008/09/12/location-privacy-gets-a-boost-in-pennsylvania-ruling/#comments
    http://blogs.wsj.com/law/2006/11/01/debating-the-thompson-memorandum/#comments
    http://blogs.wsj.com/law/2008/02/01/obscenity-prosecution-do-you-know-it-when-you-read-it/#comments

  8. #8 |  james | 

    It is speculated by some in Pittsburgh, an unsubstantiated rumor, that Buchanan wants to be appointed a federal judgeship.

  9. #9 |  james | 

    Radley,

    You are not linking to your article on the Rottschaefer case. A shame. Your reason article is probably the most recent one out there

  10. #10 |  chance | 

    Rather than nominate Shirk, you should nominate the voters who elected him to that position. Electing a law-and-order, string-em-all-up-type prosecutor has a perverse sort of logic to it. Electing a -and-order, string-em-all-up-type public defender is madness.

  11. #11 |  Chris Grieb | 

    After looking at the list I can’t make a choice. They’re all very bad.

  12. #12 |  Marc | 

    I don’t mind Mary Beth’s refusal to resign, in fact it is the one thing I like about her. Force Obama to fire her, show that prosecutors serve at the discretion of the president and the naked politicization of the whole Gonzo affair. To me, the bigger problem with that scandal were the prosecutors who stayed on (Mary Beth being one), yet the democrats did nothing about that.

  13. #13 |  Big Chief | 

    What a rogue’s gallery of defenders of our justice system. It was tough to pick. I decided against Buchanan because her reign of terror is about to come to an end. I decided to go with Hood because he’s still in power and because he’s covering up for past sins. I’ve come to believe that those who cover up for others transgressions are worse than those who commit them because they allow them to continue.

  14. #14 |  Tedd Cruz | 

    Leaving out Andrew Thomas from Maricopa County is a huge oversight. This guy is dirty, all about self promotion, he hates Hispanics and is in bed with Joe Arpaio. I’d put his scumbaggery against these other scumbags any day.

  15. #15 |  Johnny Clamboat | 

    I’m with the Chief, Jim Hood. All the candidates are deserving; there are no losers, or should I say there are no winners.

  16. #16 |  Sean | 

    All of these jerks are equally bad, but I voted for Michael Mermel: As a father of two girls, if I was told the manner in which my daughter was killed, (and precisely how she was violated) it would absolutely wreck me emotionally. To then grind salt in the wound by moving forward with an obviously fallacious prosecution, to me means one of those very special rooms in Hell is being built for Mermel.

  17. #17 |  James | 

    One only needs to go and read the link about Dr. Bernard Rottschaefer for Ms. Buchanan. The fact that man was vilified by Buchanan in the press only to later read in court filings that she felt that the sex allegations were not proven or necessary to be proven is shocking. I’m sure the sex card did not bias anyone against the good doctor.

    Then after playing the sex card, one reads how Buchanan’s crack team of investigators overlooked the fact that all five complaining patient witnesses were still receiving the same medications (although in stronger dosages) from other physicians who independent to Dr. Rottschaefer confirmed the medical ailments that the patients claimed did not exist at trial.

    If that was not enough, the patients who claimed not to have the medical ailments sued Dr. Rottscahefer post trial for failing to properly treat the ailments that they claimed did not exist at his trial.

    It goes on and on. Radley’s coverage of the so-called physician expert, Dr. Douglas F. Clough, in the Rottschaefer is equally troubling. The guy did not know a thing about pain management and treatment of chronic pain, but it did not end there. The guy admitted under oath to post-dating controlled substance prescriptions at Dr. Rottschaefer’s trial. This very act is a clear violation of the CSA act for which Dr. Rottschaefer allegedly violated. Guess we need a criminal to be an expert on crimes in Buchanan’s courtroom.

    Of course, neither Rottschaefer’s lawyers or the prosecution pointed out to the judge or jury the error in Dr. Clough’s testimony, so the misconception on the standards of medicine stood. Now in court filings since, Mary Beth argues Dr. Rottschaefer is guilty solely because Dr. Clough did not like Dr. Rottschaefer’s practice and techniques.

    I don’t know about you, but I would rather have the guy that did not admit to breaking the law, Rottschaefer, be the standard then the guy who did, Clough.

    Alas, Dr. Rottschaefer spends his twilight of his life in jail and Buchanan goes on and on.

  18. #18 |  Michael Seebeck | 

    No mention of the guy who went after Don Siegelman?

  19. #19 |  Rock | 

    I think you mean WPOTY, not WOPOTY.
    Worst Prosecutor Of The Year = WPOTY

  20. #20 |  Bill | 

    http://www.wpxi.com/news/18337297/detail.html

    just odd

  21. #21 |  Andrew | 

    I voted for Mary Beth Buchanan, but to be honest, she should really be given the Worst Prosecutor Emeritus award, and someone else should be given a chance.

  22. #22 |  Cynical In CA | 

    All state prosecutors are evil. Evil, evil, evil.

    More distinctions without differences courtesy of Radley Balko.

    It is high time to throw Rosemary’s baby out with the bathwater.

    Death to the State!

  23. #23 |  Helmut O' Hooligan | 

    Cynical:

    And if all of “them” are guilty, then no one is responsible!!??!!??!!??

    It is important to point out the difference between officials who are acting in a legal, constitutional and ethical fashion, and officials that are violating the oath of their offices. Holding these people accountable could save lives. That’s reality.

    Look, from our prior exchanges, I think I’ve made it clear that I’d put my neck on the line to defend your right to speak your mind, even if I don’t find your theory to be totally convincing. But, mere sloganeering isn’t going to persuade anyone that a philosophy as radical as anarchism could be anything but a disaster. Remember, most people are not anarchists. Many people still see anarchists wide-eyed as bomb throwers. I don’t believe that, but I’ve probably explored political theory more than most citizens

    Sledgehammer anarcho-rhetoric, combined with the behavior of too many self-styled “anarchists,” from the American “anarchists” of the early 20th century, to the Unabomber, to the feral youth of Greece–Who can act like the bigger savage? Ooh I can, I can! Let me toss a gas bomb! Let me smash an ATM! Wow, we’re really changing the world now…–guarantees that the average citizen will never see any redeeming value whatsoever in your ideology of choice.

    Maybe before we start throwing babies around, we can try to persuade our fellow citizens of the advantages of limiting state power and taking responsibility for more aspects of their lives. Radley’s blog is doing that, even if his take differs from your.

  24. #24 |  The Agitator » Blog Archive » Mary Beth’s Back | 

    [...] off her convincing victory in the 2008 WOPOTY poll, it looks like U.S. Attorney Mary Beth Buchanan plans to continue with her prosecution of [...]

  25. #25 |  asg | 

    It’s tough to pick out the one who exemplifies stupidity, venality, and malice all at the same time, but I voted for Amero’s prosecutors.

  26. #26 |  Kristen | 

    I would write in Patrick J. Fitzgerald, the U.S. attorney in Chicago — His preening and showboating in the Balgojevich case are a disgrace. He insists the governor is a terrible criminal, yet Fitzgerald is stonewalling the Illinois General Assembly’s impeachment inquiry — because HIS investigation comes first!

  27. #27 |  Cynical In CA | 

    “It is important to point out the difference between officials who are acting in a legal, constitutional and ethical fashion, and officials that are violating the oath of their offices. Holding these people accountable could save lives. That’s reality.

    Look, from our prior exchanges, I think I’ve made it clear that I’d put my neck on the line to defend your right to speak your mind, even if I don’t find your theory to be totally convincing. But, mere sloganeering isn’t going to persuade anyone that a philosophy as radical as anarchism could be anything but a disaster.”

    Look, Helmut, you know I respect you and all …

    /pulp fiction

    For fuck’s sake, let me throw a bomb every once in a while!

    :)

  28. #28 |  Helmut O' Hooligan | 

    “For fuck’s sake, let me throw a bomb every once in a while!”

    Well, as long as your speaking about verbal “incendiary devices,” I can live w/ that. I just thought I’d give you a pep talk. I’d expect the same from other Agitator readers.

  29. #29 |  Cynical In CA | 

    I know, I know man. I’m a sinner. All logic and no incendiary devices makes Cynical a dull poster.

  30. #30 |  BWM | 

    As I read each candidate’s profile I thought to myself, “This is the one. Couldn’t possible get any worse.”

    In each case I thought the same about the next candidate.

  31. #31 |  Caby Smith | 

    Wow… too hard to choose… so I voted for the one in my county…

  32. #32 |  John Peyton | 

    I don’t understand why Matt Shirk is on the list. He’s so beautiful. How could anything so pretty be so wrong?

  33. #33 |  James | 

    Actually Radley,

    Buchanan won both 2007 and 2008 polls. Check your links.

  34. #34 |  wAYNE | 

    lAKE COUNTY iLLINOIS Assist. State’s Attorney Michael Mermel who made the list as the 2nd worst attorney has again struck with putting a guy in jail yesterday for 20 months for shooting a stray dog on his back yard. The man thought it might be dangerous and had rabies.
    the man had a good record and worked for 35 years in a job . What a shame that Dogs are more important than humans.

  35. #35 |  The 2011 Worst Prosecutor of the Year Award | The Agitator | 

    [...] couple dozen paragraphs to an already-long post, I’ll just direct you to my write-ups for his 2008 and 2010 nominations. Read those, then read here, here, here, and here to see how Hood further [...]

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