Where Does She Go to Regain Her Reputation? Will the Prosecution Be Punished?

Sunday, September 16th, 2012

American prosecutors hold enormous amounts of authority and the courts have deferred to them at every step. Even when there is prosecutorial misconduct or when prosecutors bring cases to trial while knowing they have no evidence, they almost never are punished. Only the innocent, who often have to spend themselves into financial oblivion to defend themselves, are made to pay a price.

Last week, a West Virginia jury acquitted former teacher Autumn Rae Faulkner of having sex three times with a 15-year-old student. What is remarkable is the jury was out only for an hour before returning the acquittal, and anyone who has served on a jury knows that when someone is acquitted that quickly, jurors knew almost from the start that the prosecution had a false case.

In a blog post elsewhere, I bring up the question of what should happen to prosecutors who do this sort of thing? A judge earlier in the case had dismissed the original charges because prosecutors had illegally withheld exculpatory evidence, and for spite, the prosecution got a second set of indictments. Why? As far as I can tell, Steven Jory, the special prosecutor hired by the State of West Virginia to oversee the case, did it because he could do it. After all, Jory did not have to spend a dime of his own money while Faulkner and her family had to spend nearly all they had.

Because the U.S. Supreme Court has given prosecutors absolute immunity from lawsuits from private citizens, it is up to government authorities to discipline their own, and the government’s record in that department is abysmal. Defenders of the high court’s rulings say that prosecutors must be free to perform their jobs, and they should be free to make honest errors of judgment, even if the results are tragic.

Such a viewpoint is far to rosy for me. As Lord Acton famously wrote, “Power corrupts and absolute power corrupts absolutely.” In a just system, Faulkner should be free to sue Jory and his staff into oblivion, especially since there will be no disciplinary action from state officials. Jory’s recklessness and abuse of power in a case in which he not only had zero credible evidence, but also suborned perjury should have a better outcome than his going to the office the next day to see who next to prosecute.

In the meantime, Faulkner must pick up the pieces. She was accused of being a sexual predator, had her mug shot plastered throughout the media and the Internet, lost her teaching job, and was the subject of vile abuse from authorities, along with people who immediately assumed she was guilty. Even though the prosecution’s case was weak from the beginning, nonetheless she is the one who pays the price while the real lawbreakers are free to abuse both the law and innocent people again and again. If this is the best that the American system of “justice” can do, then it is a system that is not worth supporting and certainly not worth saving.

Update: The original prosecutor in the case, Richard T. Busch, was found to have engaged in misconduct that apparently was so bad that even West Virginia authorities no longer could cover for him. This website referred to Busch as a “congentital liar,” and The Record, West Virginia’s legal journal, reported last June that the “Lawyer Disciplinary Board, the prosecutorial arm of the state Supreme Court, filed a two-count statement of charges Feb. 13 against Richard T. Busch.”

The article is worth reading if only to see just how dishonest Busch really is. Randolph Circuit Judge Jaymie Godwin Wilfong finally acted against him after he lied to her in open court in the Faulkner case and in another one.

What is shocking to me, after reading this, is that the State of West Virginia continued to pursue criminal charges against Faulkner even though the state had no evidence other than the boy’s shifting claims of sex. Prosecutors should only bring charges when they themselves are absolutely convinced of the defendant’s guilt and the evidence is clear. Instead, West Virginia authorities continued to push the charges against Faulkner and ultimately ran into a brick wall, which jurors easily exposed.

Busch at the very least deserves to be disbarred and probably should be charged criminally. However, given the state of cronyism and corruption that infects West Virginia, I will be surprised if any real discipline is meted out to Busch at all.

William Anderson

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37 Responses to “Where Does She Go to Regain Her Reputation? Will the Prosecution Be Punished?”

  1. #1 |  Danny | 

    100% agree. I like arguing, but I think torts should be on the books in each state against prosecutors and police, with a different court handling them or a requirement of neighboring judicial districts to handle prosecutions. Just me, maybe.

  2. #2 |  Dave | 

    So many problems with our “justice system” , prosecutors should be limited in the influence they have over grand juries, and jury nullification should be understood by all.

  3. #3 |  Chris C. | 

    Unfortunately, having neighboring jurisdictions oversee things will be no different. “Professional courtesy” will still rule the day in nearly every instance. The problem is systemic, caused by the Supreme Court ruling noted in the post. And in the current judicial environment, prosecutors in general (there are some exceptions) seem to see themselves as philosopher-kings, smarter and more competent than the masses, and the only defense against chaos. Therefore they must be allowed to do as they please in order to “lock up the bad guys.” (Note: they define “bad guys” as anyone they indict.)

  4. #4 |  Shelly Stow | 

    It really gives one pause to wonder. Very few cases are taken to trial. Even innocent defendants take a plea under threat of the long sentence that is assured if a trial produces a guilty verdict, which, given the reversal of the innocent-until-proven-guilty caveat when it comes to accusations of a sexual nature, a defendant is easily terrified into believing.
    I wonder how many innocent people sit in prison or walk around as registered sex offenders on probation because they took a plea when the prosecutor’s case was the equivalent of this one–not worth the paper it was written on.

  5. #5 |  Danny | 

    The different court overseeing police and prosecutorial misconduct was the ideal system of checks and balances… Perhaps run by ACLU type people. The power to convict misdemeanors and felonies and sole job is their tactics on them. In a state that does this, there will be better relations between society and law enforcement. Doggycide would be a crime. Cutting off audio or visual would be a crime…etc…….. But yes, Chris C, trusting them to regulate themselves WILL NOT WORK, or it already would.

  6. #6 |  Dave Krueger | 

    Why is it the people who so vehemently complain about corporate protections shielding company officers from liability never seem to have anything to say about the immunity granted to government officials?

    For that matter, it’s pretty rare that ANYONE complains about government immunity regardless of how they feel about corporate limits to liability.

  7. #7 |  John C. Randolph | 

    Giving impunity to government apparatchiks, no matter what crimes they commit, is a very dangerous business. There comes a point where the people’s patience is exhausted, confidence in the law evaporates, and violence ensues.

  8. #8 |  FN | 

    Prosecutor misbehavior is only part of the problem. Even if a prosecutor makes an honest mistake, the defendant can – and often will – be financially ruined. This alone is a powerful tool of coercion in a prosecutor’s arsenal. Why should the defendant have to pay his legal costs if acquitted? In some other countries, it is the norm that the state pays his legal bills in that case. Why not in the US?

  9. #9 |  Burgers Allday | 

    i think the real answer is to punish the accuser

  10. #10 |  William Anderson | 

    Keep in mind that the “official” accuser is the State of West Virginia. Yes, the prosecution and police can claim that a 15-year-old who probably was not very good at lying led them astray and convinced all of them that this terrible, terrible thing had happened.

    In the real world, however, I suspect that the prosecution knew that the kid was lying but because there had been so much publicity and because the state already had gone out on the limb to demonize Faulkner, that prosecutors believed the safe way out was to take it to trial. When a jury takes just an hour to acquit, as I wrote in the post, it is obvious that there was no credible evidence backing the state’s case.

    Notice that the prosecution used the absence of DNA as “proof” that there was sexual misconduct, and that its refusal to take a DNA sample of Faulkner was spun into “she didn’t let us do it” nonsense. It is the easiest thing in the world to get a court order for a DNA sample, and in my view, the only reason the prosecution didn’t do it was because it knew what the outcome would be.

    Likewise, had there been real-live sexual activity, the only DNA that would have mattered in the front seat of Faulkner’s car would have been that of the boy, not Autumn. If one sits in the front seat of one’s car, surely sooner or later there will be an own DNA sample. So, my guess is that the real problem was that the prosecution could not find DNA of the boy, so they decided to spin a nonexistent circumstance.

  11. #11 |  Mike T | 

    In a just system, Faulkner should be free to sue Jory and his staff into oblivion, especially since there will be no disciplinary action from state officials.

    In a just system, Jory and his staff would face an all but summary imprisonment for the full term that the defendant would serve. It would not be a literal summary imprisonment, but rather the system would simply disregard all intent and other matters unrelated to the cold hard facts that they brought a demonstrably, laughably-easy-to-prove malicious prosecution case on a series of extremely serious felony charges. In a just system, such a case would be so cut-and-dry that a defense attorney for Jory would be a waste of money; it would simply not be possible to mount a credible defense against those charges due to the facts present.

    One of the problems, though, that we face here is that to some extent the US Constitution itself poses some barriers to this system. One of which is that it doesn’t sufficiently define what due process and cruel and unusual punishments mean. It takes no imagination to see a “As you have done unto the defendant, so shall it be done unto you” law struck down on those grounds. The “enlightened” courts and legal establishment would consider it cruel and barbaric to sentence a prosecutor to execution for bringing a capital murder case that is either unprovable or malicious.

  12. #12 |  Mike T | 

    #5,

    Why is it the people who so vehemently complain about corporate protections shielding company officers from liability never seem to have anything to say about the immunity granted to government officials?

    Two reasons, IMO:

    1. Ignorance, willful or otherwise; often due to an obsession with corporate “power.”

    2. A number of them actually look up to guys like Eliot Spitzer and Rudy Giuliani who made their careers in part on breaking the rules to “get the job done.”

  13. #13 |  C. S. P. Schofield | 

    Question; Has the Supreme Court struck down any actual legislation intended to curb Prosecutorial immunity, or have its rulings been made in an absence of such legislation?

  14. #14 |  Constitution Day Jumpstart | 

    [...] This post at The Agitator uses the example of a West Virginia teacher, acquitted of sexual assault charges after a retrial, to question prosecutorial immunity and wonder how the woman can piece her life back together. [...]

  15. #15 |  Yizmo Gizmo | 

    I wonder how many innocent people sit in prison or walk around as registered sex offenders on probation because they took a plea when the prosecutor’s case was the equivalent of this one–not worth the paper it was written on…

    Given that 1 person in 350 in the US is on this gov’t sanctioned Shit list, I’d say the number would be pretty damn high….

  16. #16 |  Bill Wells | 

    #8 |  William Anderson

    In my prosecution, the girl also was unable to tell the same story twice in a row, and the prosecutor–and my federal “defender”–both failed to get the results of the girl’s sexual assault examination. As in the case you cite, the prosecutor had no concern with truth. The only difference is that my lawyer had no interest in defending me, and coerced me into pleading guilty. See An Illegal Prosecution in my blog. (I have one more major post yet to write, in which I discuss the evidence against me.)

    #13 |  C. S. P. Schofield

    To the best of my knowledge, there are no laws concerning prosecutorial immunity. The key Supreme Court case is Imbler v. Pachtman, 424 U.S. 409 (1976).

  17. #17 |  Boyd Durkin | 

    Because the U.S. Supreme Court has given prosecutors absolute immunity from lawsuits from private citizens…

    …we know that the US has a ruling elite immune from any laws and a peasant class that really has no rights.

    I invite everyone else to post how they would finish that sentence.

  18. #18 |  Boyd Durkin | 

    Why is it the people who so vehemently complain about corporate protections shielding company officers from liability never seem to have anything to say about the immunity granted to government officials?

    You mean Democrats? I think we can be honest with each other. It’s because Democrats are just 1 of 2 gangs running the country and they both gin up sparkly distractions to keep people fooled.

  19. #19 |  Bill Wells | 

    It’s been awhile since I read Imbler but if memory serves, the Supreme Court did not give prosecutors immunity; prosecutors always had immunity and Imbler merely ruled that they still did.

  20. #20 |  C. S. P. Schofield | 

    Bill Wells,

    Thank you for clarifying that for me. I wondered because if the Court had struck down a law intended to limit immunity, that would indicate a higher set of hurdles we would have to clear to reign this in.

    So, second question; has anybody attempted to get legislation passed that would limit prosecutorial immunity? If so, what happened to it? If not, why not?

  21. #21 |  marie | 

    I wonder how many innocent people sit in prison or walk around as registered sex offenders on probation because they took a plea when the prosecutor’s case was the equivalent of this one–not worth the paper it was written on…

    The prosecutor doesn’t need a good case–he doesn’t even need a mediocre case most of the time. Threatening the defendant with a mandatory minimum sentence is all that’s necessary. Such a tiny portion of cases ever go to trial–those are the only cases where the prosecution really needs to prove anything.

    Dave makes an excellent point about jury nullification.

  22. #22 |  Meiczyslaw | 

    I don’t know if this is true in this case, but my firearms safety teacher (a former police officer) warned me that, should I shoot anyone, I’d be going to court even if the D.A. knew the shooting was justified.

    Not because they were out to get me (though that happens), but because a “not guilty” verdict would end the case. (Protect me from double jeopardy, etc.) In some cases, the prosecution needs the “not guilty” verdict as much as the “guilty” one.

    One wonders if the continued prosecution was necessary to solidify the case against Busch, and to make it easier for Faulkner to receive restitution.

    (If my assumption is true, this leads to a second observation: that our system is screwed up enough that “innocent until proven guilty” isn’t really enforced.)

  23. #23 |  Bill Wells | 

    My recollection is that the idea that government agents have immunity is an old one going back to common law. However, statutory law overrides common law, so it would seem that there is no legal impediment to stripping them of immunity. Making that happen is another matter….

  24. #24 |  ru | 

    Did anyone else find it disturbing in the report on the West Virginia Record that it appears that Steve Jory, the special prosecutor who pursued this travesty that was started by Richard Busch, was the DEFENSE counsel in the first trial for which Wilfong filed complaints with the ODC against Busch?

    So Jory, having been on the receiving end of Busch’s deceptions, was tapped to investigate whether or not the case against Faulkner had any merit. And he pursued it?! I guess merit is determined by who signs your paycheck.

  25. #25 |  Mr Lizard | 

    I’ve been pondering the idea of replacing the entire judicial branch with an artificial intelligence, complete with T-800 enforcers strictly tasked with police and prosecutorial oversight.

  26. #26 |  John | 

    I was falsely accused of child molestation some years ago, and what I have read in both the articles and in many of the replies is all too sadly similar to my case. The police investigator “lost” important files, but the prosecution insisted on continuing the case. When I produced a stack of documentation and an extensive eyewitness list to disprove the allegations and their timeframes, requested as part of the discovery motions, the prosecutor told me it would “not be necessary” for me to copy what I had–and within 24 hours the prosecution amended the charges, covering a 3-month span (including the days my accusers were interviewed by the investigators!). The prosecution objected to my taking a polygraph under any circumstances. The results? I remain on my state’s sex offender registry, the result of a plea bargain that my own attorney at the time, among others, pressured me to take. It was a nolo plea, or jail, he said–no other options existed.
    Prosecutors due to rampant ambition, to maintain the attitude and appearance of being “tough on crime”, or to enjoy a “power trip”, have really hurt more people than they help. Many twist the principle that they are public servants all out of recognition. Many indulge in activities that violate–and pervert–the Bill of Rights. Think of former prosecutor Mike Nifong and his actions in the Duke University lacrosse players’ case.
    Harvard law professor and political conservative William Stuntz sent his final book to the publishers shortly before his death last year. The Collapse of American Criminal Justice studied the last 50-odd years of this country’s justice system, and issued a scathing, damning indictment. Chief among his findings is the incredible power and influence prosecutors have gained, far out of proportion to what Stuntz and others believe right. There is too much focus and reliance on procedure, and no substantive limits on what can be criminalized and on what punishments can be meted out. In such an environment prosecutors more often than not take advantage of all opportunities, even if defendants, innocent or guilty, get legally screwed in the process.
    Change is needed, including limits on “good-faith immunity”, and ways to make investigators and prosecutors more accountable to “We, the People.”

  27. #27 |  croaker | 

    I would go beyond jury nullification.

    I would give petit juries the power to act as grand jury in situations like this, where the case is so bogus that the people involved need to be brought up on charges.

  28. #28 |  John C. Randolph | 

    I like Croaker’s idea. I like it very, very much.

    -jcr

  29. #29 |  Ed | 

    The prosecutor represents the state. The judge represents the state. Whenever a prosecutor is involved in a court case there is a conflict of interest. Use it and spread the word for others.

  30. #30 |  EBL | 

    The short term solution is to make a high bar for lawsuits for prosecutors who act in bad faith. That will glean out frivolous suits. But make that bar one that if met the judge does not have the discretion to toss.

  31. #31 |  Karl | 

    Teen: Ex-teacher wanted to marry me (September 13, 2012)
    http://www.theintermountain.com/page/content.detail/id/555439.html
    From the article: The student testified that he and (his female teacher) had sex on two subsequent occasions – the first of which happened Feb. 1, 2009, Super Bowl Sunday, at (her) house. The student claimed that (she) was at Journeez Bar with several other teachers, when she went into the bathroom to call him to make plans to meet up…(The teacher) sometimes sent the alleged victim text messages as early as 5 or 6 a.m. and continued to text him throughout the school day when she was teaching and he was in class – for instance, sending him as many as 150 text messages during school hours Dec. 10, 2008. Karl’s comment: This case was previously reported and the teacher was acquitted after this article about her trial based upon a “he said-she said” defense, but the testimony reveals a lot.
    http://www.insectman.us/exodus-mandate-wv/news-2012.htm

  32. #32 |  Mike T | 

    I would give petit juries the power to act as grand jury in situations like this, where the case is so bogus that the people involved need to be brought up on charges.

    I would go a few steps further:

    1. I would reduce the role of the judge exclusively to that of legal adviser to the jury.

    2. I would authorize the jury to ask the judge if any conduct uncovered in court is possibly criminal. Acting upon the judge’s explanation of the law covering the behavior in question, the jury would be authorized to expand the scope of the trial to include any participant whose behavior was suspected to be criminal. This would include police and prosecutors.

    3. I would almost completely abolish the ability of the superior courts to alter or throw out a jury conviction and sentence.

  33. #33 |  Danny | 

    Mike T forgot informants and questions about their reward for testifying. But I like it Croaker, etc. all..

  34. #34 |  Articles for the Mid-Week » Scott Lazarowitz's Blog | 

    [...] William Anderson: Where Does She Go to Regain Her Reputation? Will the Prosecution Be Punished? [...]

  35. #35 |  Weird Willy | 

    “I wonder how many innocent people sit in prison or walk around as registered sex offenders on probation because they took a plea when the prosecutor’s case was the equivalent of this one–not worth the paper it was written on.”

    An old Trial Ad professor of mine estimated that number in the “thousands;” undoubtedly he was right.

  36. #36 |  theCL Report: Beginning to See Daylight | 

    [...] Where Does She Go to Regain Her Reputation? Will the Prosecution Be Punished? [...]

  37. #37 |  xxx | 

    she sent this kid 1500 text messages, sometimes 80-100 a day

    does not make her guilty, but she is a moron as a teacher to be doing this

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