"The powers to accuse, to arrest and to prosecute are the most fearsome conferred by our society. The abuse of those powers, historically, has been the very definition of tyranny."
By Ray Stern
By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
"But Bryant Wilkerson was not responsible for the accident."
Wilkerson will be sentenced for leaving the scene of the accident on May 6 — almost exactly two years after the collision. He's already served three months in jail. He spent one year on house arrest and has had another year of regular urine tests after that. Every one has been clean.
Several jurors have said they'll attend the sentencing. After sitting through three weeks of trial, they've chosen their side.
They're rooting for Bryant Wilkerson.
"The powers to accuse, to arrest and to prosecute are the most fearsome conferred by our society. The abuse of those powers, historically, has been the very definition of tyranny."
April 3, 2009OP-ED CONTRIBUTORProsecutors Gone Wild
By JOHN FARMERChatham, N.J.
THERE is both good news and bad in the Justice Department�s decision to move to dismiss all charges against former Senator Ted Stevens of Alaska, who had been convicted on seven felony counts of ethics violations. The good news is that Attorney General Eric Holder has done the right thing, acknowledging that his department�s Public Integrity Section, which handles corruption cases, committed egregious misconduct. The bad news is that the broader problem of prosecutorial excess remains unaddressed.
The Stevens case did not occur in a vacuum, and it should not be treated as an isolated instance. Take, as examples, just a few recent cases.
Last year, the City of New York paid $3.5 million to Shih-Wei Su, who had served nearly 13 years in prison on charges related to a shooting at a pool hall in Queens. Judge Guido Calabresi of the United States Court of Appeals for the Second Circuit found that �the prosecution knowingly elicited false testimony from a crucial witness.�
In the Duke University rape case of 2006, the reputations of several students were destroyed by a county district attorney pursuing political ambitions, and who was later disbarred and convicted of criminal contempt.
In 2007, the United States Court of Appeals for the Seventh Circuit took the extraordinary step of ordering the release of a convicted Wisconsin state employee during oral argument; it then reversed her federal conviction, which had been based on the government�s overreaching application of the �theft of honest services� corruption statute. She later said that the United States attorney, who had been appointed by President George W. Bush, offered her leniency if she would cooperate in a case against the governor, a Democrat in a tight re-election campaign.
In 2005, a veteran New Jersey county prosecutor was driven from office after it was leaked to the press that he was under federal investigation for obstruction of justice. No charges were ever filed.
In 2004, a federal judge threw out the convictions of two men accused of being part of a terrorist �sleeper cell� in Detroit after it was discovered that federal prosecutors had deliberately withheld potentially exculpatory evidence from the defense.
What�s going on here? Equally important, beyond the Stevens case, what can be done?
As the examples above show, prosecutorial misconduct takes many forms, from failing to disclose critical evidence to disclosing information illegally to the press to overreaching in the exercise of the prosecutor�s discretion. Underlying all of them is a frightening misconception of the role of the prosecutor.
That role is not to seek the maximum penalty at every turn, nor to put together an impressive statistical tally of convictions. It is not to use the emotional pain and personal ruin involved on all sides of a criminal case to advance one�s own career or personal agenda. Prosecutors do not even share the duty defense lawyers have of providing zealous representation. The prosecutor�s only duty is to seek justice. Period.
This duty is especially important in an age like ours, when the integrity of the criminal justice process is so frequently called into question.
The presumption of innocence vanishes, these days, with the publicity surrounding an accusation. Any criminal defense lawyer has seen firsthand the humiliation and fear experienced by defendants and their families. By contrast, the reputation of the accusing prosecutor rises commensurately, creating an enormous temptation to make the press conference an essential element of the prosecution.
Attorney General Holder has a lot on his plate, but I think only terrorism policy is equally important to issues surrounding the integrity of the justice system. His goal should be to restore the imperative that prosecutors seek justice, nothing more.
One way to do that would be for Mr. Holder to forbid federal prosecutors to conduct press conferences to announce the filing of charges. The mischief done by statements like �The conduct would make Lincoln roll over in his grave,� as issued by the United States attorney in Chicago, Patrick Fitzgerald, in announcing the filing of a criminal complaint against Gov. Rod Blagojevich of Illinois, is almost incalculable. Save the rhetoric for the conviction; a simple press release setting forth the charges and reminding the public of the presumption of innocence will serve the interests of justice.
The attorney general could also seek clarity in the federal criminal statutes in order to narrow the potential for abuse of the prosecutor�s discretion. The �theft of honest services� statute � created in 1988 to counter a Supreme Court decision that politicians could not be convicted of depriving their constituents of "intangible rights" like good government and honest services � is notoriously vague, and thus prone to prosecutorial overreaching. As Judge Frank Easterbrook of the Seventh Circuit wrote in the Wisconsin case, �The idea that it is a federal crime for any official in state or local government to take account of political considerations when deciding how to spend money is preposterous.�
The Justice Department should commit to investigating all illegal disclosures of grand jury evidence and instances of courtroom misconduct, and to punish those responsible.
Above all, Mr. Holder should promote the idea that the prosecutor�s job, understood properly, is an end in itself, not a stepping stone to higher office. The powers to accuse, to arrest and to prosecute are the most fearsome conferred by our society. The abuse of those powers, historically, has been the very definition of tyranny. Accordingly, the attorney general should consider supporting a rule barring prosecutors from seeking higher office for two to five years after their tenure ends.
The motives underlying a decision to prosecute may rarely be beyond reproach, but they should always be above politics.
John Farmer, a lawyer, was the attorney general of New Jersey from 1999 to 2002.
Comment #1 hit the nail on the head. Before we get lost in trial details and attacks on Sarah, people need to read this:
"indeed, THANK GOD...this case was screwed from day one, and reeks of prosecutorial misconduct. Thats what its called when the prosecution knows they are trying a man for a crime he COULD NOT have committed..and its not like they put real effort into finding out the truth. They just assumed they had their guy and left it at that. Well, as it is their duty, and they obviously failed that duty and the oath they took, Im seriously beginning to wonder how Thomas isnt up for disbarment. Nifong ("Duke DA") got disbarred for doing much, much less by comparison. So, are we to believe that the standards in NC are THAT much different than here in Maricopa county? Does the bar lack the spine to actively pursue this? or are they in bed with thomas? these are serious questions that MUST be answered, otherwise the entire law system will suffer countless blowback from its own ineptitude and lack of consistancy.Comment by david saint on Apr 8th, 2009, 20:36 pm"
Stupid B****, she should have gotten. Anyone who drinks and drives deserves to die. And yes, I realize that sounds ignorant, but its better they get killed rather than someone innocent. And "FeFe" was killed due to her own irresponsibilty. Why would ANYONE get in a car with a drunk driver? Don't get me wrong, its sad that she is dead and she doesn't deserve it, but its her own fault for getting in the car.
Bryant Wilkerson was wrong for leaving the accident scene, even tho I would have done the same thing because u tend to panic and dont know what to do or want to get in trouble, but he doesn't even deserve anything he's gotten so far except the non guilty votes. I hope Laura Varker rotts in prison like the spoiled rotten b**** she is. And her parents too, since they support her!
The cover of the New Times exclaims "The Jury Agrees with FENSKE." Great job Fenske! Sarah -you worked very hard on this case and the jury thought that you were right - who needs an attorney, er, public defender.
IUD963s, if Fenske was focused on the story, there would be no need for your factual clarifications. You have been a very busy person filling in the holes in Fenske's coverage.
go back thru her stories on this and similar stories for the past year. she routinely mocks PDs, or at least attempts to.....because in the past she has even labeled anyone she finds to be a bad attorney as a PD....even if they are not. but that's fine. in an era where the real journalists are losing their newspapers, that leaves fake journalists like Fenske even worse off and less credible.
I see we have yet another reader who is journalistically- challenged. For the benefit of the attorney, Sarah Fenske was NOT bashing public defenders. Her point was that Wilkerson needed a public defender, and he got one...a pit bull who took his case to the hilt, and won. Rightfully so. Sarah understands and respects this. If she were bashing public defenders, as the "atttorney" suggests, she would have written "public defender finally gets one right!" Let's direct our scorn where it belongs, at the morally-bankrupt, miserable excuse we have as a county atttorney. He and Arpaio are living proof that ALL law enforcement administrators should be civil service, not elected. That's where the real travesty lies in this case.
I have serious concerns about the manner in which Sarah Fenske has chosen to cover this story.
Factually and legally speaking, Bryant Wilkerson's criminal case IS INHERENTLY a huge story. However, Fenske has decided that the story needed some extra color so she has been attacking the Office of the Public Defender in several of her articles.
Some blatant examples: In this story, Fenske commends the defense attorney be exclaiming - thank God for Michelle Carson. But then explains that Ms. Carson has been with the Public Defender's Office for four whole years - and all of those years as an attorney - as if Ms. Carson started off as a secretary and worked her way up the ladder until one day somebody handed her a Negligent Homicide file and promoted her to attorney, er, public defender. That is such bull shit and demeans the blood, sweat and tears that Ms. Carson and her team put into this case - two years worth.
In past editions, the New Times had to publish corrections to Fenske's journalistic shortcomings such as the time when she assumed a defense attorney from Casa Grande worked for the Public Defender's Office - which was untrue (oops). It was obvious that she was trying to add color to support her claim that the poor defendant was stuck with a public defender.
I am sick and tired of reading Fenkse's unnecessary attacks on the Office of the Public Defender, especially because it distracts from the significance of Mr. Wilkerson's sympathetic story and the shameful prosecution by the State of Arizona. I hope that the story of State v. Wilkerson has not ended. I have heard rumors that the television networks are looking into covering the matter. I just hope that Ms. Fenkse is off the case.
Has Fenske been a writer for the New Times this whole time or did she recently work her way up?
Steve. Don't write what you "think" happened. Here's what did happen. Wilkerson starts to slow, he never surrenders his lane, little Miss Varker sees the car in front of her braking, decides what the hell I don�t want to wait let me just pass, she crossed a set of double yellow lines and tries to pass, Wilkerson starts his u-turn and Varker hits him. Now lets think of this another way. Let�s say Wilkerson was slowing because a kid was crossing the road, Varker and her pass would have hit the kid. That is way when the car in front of you stops, you stop!! You don�t go �O the lane next to me is clear sure it�s on coming traffic, but let go to that lane to pass�. Varker caused this accident and Wilkerson was the fall guy.
Steve W., neither of those things happened. The only close witness to the event saw her slow for 3-5 seconds, then pass. She was on the opposite side of the road, across two sets of double yellow lines, before Wilkerson started his turn. This means she made the decision at least one second before the SUV started the movement.
Wow, I can see why the New Times never published his mug shot until now!
Anyway, the fact remains that the New Times, and its readers who believe everything they write, don't know what really happened that night.
The girl had a BAC of .09. 4 years ago, before they decided to arrest and haul off to jail anybody who had a sip of anything, that would have been just fine. It only takes 2 drinks for a young woman to reach that BAC that she was at. No way was she falling down drunk like Fenske wants you to believe. I don't believe Sarah Fenske that Ms. Varker tried to pass on a double yellow line because "she grew impatient." She would have just passed him in the other lanes when it was clear.
One of these 2 things happened:
- He pulled right in front of her SUV and she jerked the car into the other lane to try to avoid rear ending it.
- He pulled in front of her, she had enough time to brake, but she was distracted (meaning it was probably her fault.)
I don't think Wilkerson took off because he was afraid of white racist cops as Sarah Fenske claims. He took off because he thought he was at fault for pulling in front of them, and may have thought he would blow a .08 or more.
Reading that article, I don't think the jury decided Varker caused the accident. They just said not guilty because they were pissed that Varker wasn't being charged.
#18 Sean, your assessment of the situation in maricopa county is correct. Stop taking the public defender position of being attacked. They did a great job on the Wilkerson case. Wish they were available to the many others who need them. Can they be requested as public defenders for those sitting in prison who had terrible private attorneys??
About the young women and smart ass comment about a plea or trial, I take exception. This is a case which was improperly charged and should not have even been in court with a serious choice of plea bargain or trial, in a state with harsh mandatory minimum sentencing. the whole thing should never have been. the police can destroy your life if the charges are improperly written. they toss it to andrew thomas who tosses it to the overburdened courts and all could care less whose lives are destroyed and let the taxpayers foot the bill.
their attitude - taxpayers be damned.
PD's are lawyers. One of the many things this mystery man with the drunk daughter does not understand.
Okay, so you have no idea if the PD did as good as any other attorney. You are just mad, which is understandable. And I completely agree it is disgusting what is done to first-time offenders in this state. It is disgusting and a result of the crazy legislature and the crazy prosecutors....but not the PDs. You don't seem to understand that Thomas's "get tough" policies are railroading everyone, with very few exceptions. And the fact that plea is jammed down their throat at the beginning of a case is just another Thomas policy, which puts defendants and their attorneys in a tough position. But that is Thomas's conduct, not the attorney.
Also, the complaint that it was trial or a plea....what the heck else is there? You either eventually plead guilty or you go to trial to clear your name. There are not many other magic ways around it.
Sean, Unfortunately there was no awesome intervention. Maricopa county has created another "felon" and another tax burden. Also, the police report was not available to the family and not at the court hearing. How is that supposed to work?
The young woman's choice was a plea bargain or go to trial. The family could not afford a lawyer much less a trial. As a citizen watching how justice works in courts, I was very disappointed how quickly a young woman's life was shredded-first offense, no mercy or grace, convicted felon for an incident that did not have to lead to this outcome. Her future is threatened and the taxpayers and citizens lose what could have been a productive citizen. She is started down a path with her name in the system of one that is designed to fail her, the community and the taxpayers.
Who profits from this? That's where the dialog needs to go?
Do you think Doug Grant is wishing he was represented by Michelle Carson right about now? Many people think he was not guilty, he paid a ton of money, and got convicted anyway. Go figure.
Hey, Comment #12, so did your awesome intervention that got the pathetic PD off the case work? I mean, did this roofied girl end up getting a better deal? Did she win the trial? What happened?
Paid attorneys only give a shit if you have money. If you only have a few thousand, they will NEVER take you to trial and will FORCE you into a plea. Sure, there are lazy people in all jobs, but the PDs are not driven by the same perverse financial incentives as private attorneys.
And maybe that above persons example was a good plea. I would love to know of the actual charges and the actual plea, as opposed to wild rhetoric.
Not only are Maricopa County and the State of Arizona eating their young and destroying the state's future, as they fill their prison beds to collect the only income they have, coming from the Federal Government, they are disregarding the rights of individuals and the Constitution in their quest for power, money and political agenda. MCAO has politicized justice.
The DUI Billboards clearly spelled out by Maricopa County Andrew Thomas with his face plastered all over them was a complete contradiction to how the teen driver was handled who caused a death. It's deplorable but shows the hypocritical way justice is handled by Maricopa County Andrew Thomas and his office. He makes professionals in his office look very bad. Where is their collective voice? If they have nothing to say they are also complicit in the destruction of lives which they hold in their hands everyday. Where is their conscience or are they numbed by the sheer quantity of 40,000 felonies being "processed" in the MCSC system in one year??
All this needs independent investigation by the DOJ and US Attorneys.
INJUSTICE FOR ONE IS INJUSTICE FOR ALL.
A young woman from a good home had something slipped into a drink and found herself upon wakening in a local jail with bruises. She did not remember what happened but the police filed an assault report against HER! Witnesses said the police handled her roughly. Would that report been filed by them first to protect themselves against charges against them? We would find out later, that is a common practice among police to protect themselves first from litigation.
Litigation = big money for lawyers.
Then on to court ---about the PD (public defender), I have witnessed one PD encouraging a naive young woman who had just turned 18 to take a plea bargain prior to walking into court. He also would not allow me to be there to witness what he was telling his naive "client". Why?
I witnessed the PD churn her life away in the courtroom in less than 5 minutes, as the clock flipping cards flipped away, as she was being timed. The PD also would not let me speak on the young woman's behalf. The judge noticed this as I raised my hand and he allowed me to speak.
The young woman did raise an objection to the way she was handled and she dismissed the PD after the judge gave her the option. He replaced with another one.
We had to wait hours and as we sat in the court I witnessed PD #1 handle another case of an female inmate from Estrella jail in her stripes. Once again, was throwing her life away with lies. But the judge did ask the inmate to read what the PD had written and it was lies, so the inmate stated so. The judge, PD and inmate went off to a side desk to discuss this. I wonder if my presence in the courtroom and asking to speak made a difference. These lives were being shredded in front of eyes. PD#1 was unethical in incompetent, obviously his day job with zero conscience about what he was doing. PD#2 seemed to care about her client and gave more credible advice. I believe the young woman should have gone to trial but she could not afford. After we left court, she drove off to begin her first day in college.
What are we doing to our young people who have not been prepared or educated in how to protect themselves from the force of the government that comes at you with the full force of the government and their felony counts? The PD discusses this blithely with a smile and speaks softly about how good a plea bargain is. I knew better that day. This young woman was railroaded. I'll follow what happens to her, now that will always be on her record as she tries to get a job.
After that experience and others I followed, I was surprised Sarah gave credit to Bryant Wilkerson's PD. He got lucky! We know there are some great public defenders who work hard with limited resources, while MCAO acts as if they have unlimited resources wasting taxpayers money on senseless cases while destroying lives, families, children's lives and their future. We all give credit to Bryant Wilkerson's public defenders and so does Sarah, since I called in to check our concerns for the mishandling of this case by the MCAO after reading about it.
We are grateful to New Times to cover these stories of flagrant abuse of power, lack of ethics or integrity. And the prosecutors stand in court saying who lacks credibility as they are working to get their conviction. The ones who lack credibility are those prosecutors in the MCAO, over and over and over again. Who is going to step in and stop the misconduct in that office?
Maricopa county and Arizona are eating their young.
Whatever. Look thru her record on this case, including mocking the PD's office for being some sort of bumbling fools. I hate Thomas as much as anyone, but Fenske underminds Thomas's biggest opponents. Those PDs can do more to stop Thomas than some dumb fake journalist.
Wrong again. She compared Wilkerson's PD to Varker's top-dollar law firm and the results speak for themselves. Her point was that Varker's daddy paid a whole lot of money to save his little princess' butt, but Wilkerson was defended at taxpayer expense. The case never should have gone as far as it did, thereby saving us all money.
What is Sarah Fenske's problem with Public Defenders. She bashes PDs all the time, then this guy gets off BECAUSE OF HER ATTORNEY and she says "thank god for the jury"....then later adds a bit of condescending appreciation for the PD. PDs are on the front lines of the Thomas battle and take him to task WAY more than the private attorneys that won't do anything unless there is money involved. Yet, Ms. Fenske treats the PDs like they are crap. Fenske is a disgrace.
If anyone mistakenly thinks Sarah wrote with a big slant, she didn't. What she reported is right on point. The Sheriff's Department officers did their best to file a fair, unbiased investigation. The problem lies with the County Attorney. He is supposedly so hard on DUI he placed billboards all around the county promising to put convicted DUI offenders' pictures on his website. The pamphlet he had distributed in the Arizona Republic had, on page nine, in bold letters, "It is a crime for anyone under the age of 21 to be in possession of any spiritous liquor." Yet, Laura Varker )BAC 0.80) was fully protected and sheltered from harm, while Wilkerson was hounded right until the end.This, to my way of thinking, smacks of Chicago during the Capone era. Perhaps the Attorney General or the FBI should look into this case to see what really happened.
Swap the drivers. Keep all other circumstances the same. What do you think the prosecutor's action plan would be?
Good news from Maricopa County for a change! Many thanks to the jury for acting like a responsible jury! It's nice to see that occasionally juries actually do what they are supposed to and don't vote for guilt because they don't like the guy, as seems to have happened in the Doug Grant case also mentioned in this issue.
It really is a shame that the girl who caused all of this got a day in jail. I'm pretty sure if I was drinking underage and killed someone, I would have more than a day's jail time. I don't even think that's the minimum for DUI anymore, is it? Didn't it go to 10 days, with 2 days mandatory? I don't really think this is a race issue as much as I think it's a money issue. That bitch has some money somewhere that went to the Andy Thomas re-election fund.
Andrew Thomas' office makes the state prosecutors in Russia and Ukraine look like pillars of jurisprudence. Why do you fools keep reelecting him and his chief henchman, Arpaio?
Prosecuting the Innocent is what Andrew Thomas is all about. Lisa Aubuchoun is known for talking to ex-spouses, known enemies of those charged to get "dirt" when there is none. The State Bar of Arizona should have stepped in a long time ago. Dennis Wilenchik will probably become a poster child for the Bar to hang all Andy's sins on.Thomas has charged so many innocent people and cost all of us thousands of dollars, as we are forced to defend ourselves against trumped up charges. The State Bar of Arizona will look at any legitimate claim. It must violate an ethical standard and they do not handle monetary claims.There address is:STATE BAR OF ARIZONA4201 N. 24th Street Suite 200Phoenix, Arizona 85016Their phone number is 602-252-4804.In my case I actually had a probable cause hearing and a judge dismissed the charges. Ms. Aubuchoun said to the prosecutor she did not care what the f'ing judge said she would bring charges again. I then went in front of a grand jury and again they were dropped. These people are heartless. The entire time Ms. Aubuchoun was conversing with my ex-husband. He had absolutely nothing to do with my case. His wife did go to college with Mr.Thomas. Her family did contribute to Mr. Thomas's campaign. The County Attorney's office is a dirty political cesspool. When Mr. Thomas resigns we the public need to keep him and his team out of office. The County Supervisors have more than Don Stapley to worry about with Mr. Thomas in office. The money they are holding for the Sheriff they should give back to those of wrongly prosecuted by a manical county attorney who should pay people for the intentional mistakes made by his office. Of course that would require accountability from this County Attorney. he has never admitted he has made a mistake. Ms. Aubuchoun thinks everyone is guilty...facts be damned!
Can regular citizens file complaints with the Bar against Thomas and the attorneys who insisted on taking this case to trial? Someone should. This is just nuts.
when i read the news online that bryant was found not guilty i actually woke my wife up clapping and whooping. i think the jury did a fantastic job of seeing thru the dog an pony show put on by the prosecution. lady justice still has a few breaths left. thank god!
indeed, THANK GOD...this case was screwed from day one, and reeks of prosecutorial misconduct. Thats what its called when the prosecution knows they are trying a man for a crime he COULD NOT have committed..and its not like they put real effort into finding out the truth. They just assumed they had their guy and left it at that. Well, as it is their duty, and they obviously failed that duty and the oath they took, Im seriously beginning to wonder how Thomas isnt up for disbarment. Nifong ("Duke DA") got disbarred for doing much, much less by comparison. So, are we to believe that the standards in NC are THAT much different than here in Maricopa county? Does the bar lack the spine to actively pursue this? or are they in bed with thomas? these are serious questions that MUST be answered, otherwise the entire law system will suffer countless blowback from its own ineptitude and lack of consistancy.