Pretty Girls And Prosecutorial Misconduct

How can anyone expect prosecutorial fairness in a culture like this?

Can a pretty white girl finally get people interested in prosecutorial misconduct? [UPDATE (11:15 a.m.): An earlier version of this story suggested the victim here was white. She’s actually half-Lebanese.]

A fantastic New York Times Magazine article by Emily Bazelon may tell us. If you care at all about how prosecutors should and should not act, and how rarely they are held responsible, please do not tl;dr this piece.

The article tells the tale of Noura Jackson, who was wrongly convicted of the 2005 murder of her mother. Jackson spent nine years in prison before the Tennessee Supreme Court reversed her conviction due to prosecutorial misconduct. The trial judge then released her immediately while the government decided whether to retry her.

Just kidding! He waited five months, assigned another DA’s office to the case, and still didn’t schedule her bail hearing. Then, recognizing that it had made a terrible mistake, the government finally dropped the charges, and Noura Jackson was finally freed.

Just kidding! They offered her an Alford plea to manslaughter, which she took because she wanted to get out of jail and have kids, and because nine damn years for something you didn’t do is long enough. She was released immediately.

Just kidding! She spent another year in jail because someone had wrongly computed her good-time credits.

Then she got out. (For real this time.)

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The story is incredibly sad, but it’s also numbingly familiar to anyone who follows Brady issues. Prosecutors withhold evidence. Court gets sort of mad, but not too mad, at prosecutors. Prosecutors suffer no consequences. Life of wrongly accused person ruined.

The best parts of the article are the ones that show how some prosecutors and judges think about their roles in the system.

Here, for example, is how the article describes the culture that the lead prosecutor, Amy Weirich, came up in as an assistant district attorney (emphasis mine):

When Amy Weirich learned to try cases in Shelby County in the 1990s, her office had a tradition called the Hammer Award: a commendation with a picture of a hammer, which supervisors or section chiefs typically taped on the office door of trial prosecutors who won big convictions or long sentences. When Weirich became the district attorney six years ago, she continued the Hammer Awards. I spoke to several former Shelby County prosecutors who told me that the reward structure fostered a win-at-all-costs mind-set, fueled by the belief that ‘‘everyone is guilty all the time,’’ as one put it. ‘‘The measure of your worth came down to the number of cases you tried and the outcomes,’’ another said. (They asked me not to use their names because they still work as lawyers in Memphis.) One year, the second former prosecutor told me, he dismissed the charges in multiple murder cases. ‘‘The evidence just didn’t support a conviction,’’ he said. ‘‘‘But no, I didn’t get credit from leadership. In fact, it hurt me. Doing your prosecutorial duty in that office is not considered helpful.’’ Weirich disagrees, saying ‘‘Every assistant is told to do the right thing every day for the right reasons.’’

Anyone who does criminal defense work has heard the expression “to a hammer, everything is a nail.” It’s one thing to say that; it’s another thing to make it actual office policy.

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Then there’s the story of how the missing Brady evidence was discovered –and then undiscovered (emphasis mine):

On appeal, a defense attorney and a prosecutor who was new to the case found a manila envelope in the files. It was labeled with a sticky note, which the lawyers said read something along the lines of ‘‘do not turn over to defense’’ and was signed with Weirich’s initials. When they later returned to the files to look inside the envelope, it was gone. In her testimony, Weirich denied knowing anything about the envelope. A Tennessee judge ruled last year that there was no reason to grant a new trial because the ‘‘unavailability’’ of any documents probably didn’t prevent Braswell from presenting an effective defense.

Isn’t it funny how these things tend to come out only after the trial? And how no one ever seems to get in trouble?

[UPDATE (8/5/2017, 4:50 p.m.):  An angry but astute reader pointed out to me that the manila-envelope allegations actually arose in a different murder case handled by Weirich, regarding a defendant named Vern Braswell. (He’s a black man, so see supra as to why you’ve probably never heard of him.) Weirich has denied those allegations, too.]

Finally, there’s the trial judge, who, as I mentioned before, refused to even hold a hearing on Noura Jackson’s bond after her conviction was reversed. Imagine that—this is a young woman whose conviction was obtained through unlawful means, and the judge won’t even hold a hearing to let her out of jail. What kind of person does that? What kind of human being believes that is the right thing to do? But did anything happen to the judge? Nope.

Now, to be fair, I do believe that the vast majority of prosecutors in this country try to be honest and do the right thing. And frankly, the better the defense is, the more they have to do that. Anyone who has ever been up against the D.C. Public Defender Service, the finest of its kind in the country, knows what I’m talking about. If you screw up and miss something, they will crucify you. But most people don’t get PDS.

I’m not saying that all prosecutors are bad. They’re not. What I am saying, though, is that when you have strong evidence of misconduct, as there appears to have been here, surely something must happen if things are ever going to change.

Take this gem from Weirich’s closing argument, for example:

In her final argument, Weirich stood facing Noura and raised the question the defense left unanswered by discouraging Noura from testifying. ‘‘Just tell us where you were!’’ she shouted, throwing up her hands in a gesture of impatience. ‘‘That’s all we are asking, Noura!’’

I am not making this up. Even a baby prosecutor — even a law student — knows you can’t comment on the defendant’s right to remain silent.

Weirich’s penalty, for that and everything else that happened in the case? A private reprimand. (Ah, to be a fly on the wall for that one.)

I’m a realist. I know that a New York Times Magazine article about the mistreatment of a pretty girl won’t actually change policy. And frankly, I don’t know what will. It might take a court rule or even legislation to do it, but who speaks for the wrongly accused? (I mean other than their lawyers.) This constituency doesn’t have a union, it doesn’t run ads, and it doesn’t tend to give political donations.

So bravo, Emily Bazelon, for showing people what happens in these cases. Let’s hope we don’t need too many more to make real change.

Oh, and Weirich? She’s clearly learned from this case and has dedicated herself and her office to making sure nothing like this ever happens again. At least I think that’s what she’s saying in this interview with a local TV station about Bazelon’s piece:

“I haven’t read it yet,” Weirich said. “Like I said, I saw the intent of this article was not to get the truth out, to get the full story about what prosecutors do.”

Weirich said the author of the magazine article had an agenda.

“To push an agenda of pro-crime, anti-police, anti-prosecutors,” she said.


Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.