How do deputy prosecutors sleep at night, when they are charged by their elected bosses to rack up as many warm bodies in prison as possible, to overlook exculpatory evidence, to cull only those facts from a case that lead to conviction, and ignore all others?
Sure, it's their living. But after putting guilty people away year after year, it must make it difficult when they actually come across someone wrongfully convicted. You'd think they'd have the stones to admit the state effed up. But like they say, any prosecutor can convict a guilty person. It takes a real crackerjack to send an innocent person to prison. And keep 'em there.
Enter Deputy Maricopa County Attorney Gerald R. Grant, who is currently representing County Attorney Andrew Thomas' office in the case of Courtney Bisbee. As I detailed in an October cover story last year, Bisbee was falsely accused and convicted of child molestation in 2006, and is now serving an 11 year sentence in Goodyear's Perryville prison. Bisbee's case was riddled with police errors and prosecutorial gaffes. And in the time since her bench trial before Judge Warren Granville, a key prosecution witness has recanted his testimony.
There was also a separate civil case where the girlfriend of Bisbee's accuser -- Jon Valles --swore under oath that the teen admitted to her that he lied about a relationship with Bisbee. Valles and his mother withered under questioning during civil depositions. The transcripts on this civil matter, which was settled for a very minor amount, are a creepy read. You suddenly see how easily someone who's innocent can be set up by those bearing false witness.
An absence of physical evidence marked the criminal case. There was evidence that could have determined with absolute certainty Bisbee's guilt or innocence. But the state chose not to collect it. The County Attorney's office wanted steamroll Bisbee into its win column. This was done, as Bisbee's Post Conviction Relief Petition alleges in some detail, with the assistance of an ineffective defense counsel.
Grant's been at the C.A.'s office since 1991, a "seasoned" vet by any measure. Still, I detect a little unnerved annoyance in his approach to Bisbee's PCR. Perhaps oddest is his need to respond to a letter from Bisbee to the judge overseeing her PCR complaint, the Honorable Gary Donahoe.
See, it's one of those legal niceties that when one side asks for an extension to file their response to a motion, the other side does not object. That is, unless someone is really going overboard. So it's understandable that Bisbee's lawyer Ulises Ferragut did not want to rock the boat when the state asked for more time to respond to Bisbee's PCR filing.
That PCR, filed late last year, is a humdinger, by the way. It includes affidavits from high-profile folks such as Alan Simpson, the lawyer that helped spring falsely convicted murderer Ray Krone from Arizona's death row; Dr. James Wood, an expert in the forensic interviewing of children, who testified in the Jon Stoll case in Bakersfield, CA, and helped free that innocent man; and Dr.Richard Ofshe, an expert in false confessions, who testified in Arkansas' West Memphis Three trial, the subject of two documentaries.
But if Ferragut was willing to make the concession on the state's request for more time, Bisbee was not. She made it clear to her counsel that she objected -- particularly since the County Attorney's office has been in possession of exculpatory testimony in her case since early 2007, and has done nothing. The C.A.'s office has not acted, even though they have an ethical obligation to do so. Prosecutors are officers of the court, and they have a duty to seek justice.
Bisbee pointed this out in a letter to the court dated January 3, explaining why she opposed the extension.
"I should no longer have to pay the price for the Maricopa County Attorney's Office deliberate indifference to the new evidence of innocence in my case," wrote Bisbee,"as well as them ignoring their professional obligations for the past two years, and then have them come to this court, and falsely state that they have just received the materials to review."
Judge Donahoe granted the state's request for more time on January 9, nonetheless. But apparently, deputy county attorney Grant felt Bisbee's January 3 letter so potentially compelling, that it necessitated a response. Bisbee had documented that the state had this new, exculpatory material for at least two years. Several sources are on record as having forwarded this evidence to the County Attorney, including the Scottsdale Police Department.
All Grant could do was pooh-pooh a recantation by one of the states key witnesses.
"Recanting witnesses are not uncommon in criminal cases," sniffed Grant, "and Arizona's courts have long been skeptical of claims based on such testimony."
Um, but not when the recantation comes from a witness who was crucial to the original prosecutor's case. Remember, there's no physical evidence in Bisbee's case: Just the testimony of supposed witnesses, such as the accuser's brother, Nik Valles, who now says his brother lied,and that he was coerced by his mother to perjure himself.
Paul Kittredge, the state's prosecutor in Bisbee's case in 2006, stressed the importance of Nik Valles' testimony in his closing remarks.
"When you look at the credibility of the witnesses who testified to this court," Kittredge explained during his summation, "two people basically stood out in the state's mind. First would be Nik Valles..."
Yet now we're supposed to ignore Nik Valles' sworn affidavit recanting his testimony, even though the state felt that testimony was crucial to its case at the time.
Grant never addresses the other evidence extant. The civil testimony of Sarah Babcock, who very credibly testified that Jon Valles, Bisbee's teenage accuser, confided to her that he lied about he and Bisbee fondling each other. Nor does Grant mention Samantha Strandhagen, who overheard admissions from other witnesses in the case that nothing happened between Bisbee and Jon Valles. And Grant never gets into the self-impeaching statements made by Jon Valles and his mother under oath during the civil hearings.
Rather, Grant belittles Bisbee, referring to her "hyperbole" at one point. But if Bisbee's "hyperbole" were so obvious, Grant would have no need for this bit of ad hominem.
Finally, Grant pretends as if new American Bar Association Rules don't exist by stating that "Bisbee has cited no section of the ABA Standards of Criminal Justice Relating to the Prosecution Function which imposes such a duty."
Grant knows better, and so, presumably, does Judge Donahoe. So who is Grant convincing? Himself? Some invisible audience that might be reading his riposte?
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor's jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
In the words of Professor Stephen Saltzburg, the guy who drafted the new rules, "Prosecutors are obligated to rectify wrongful convictions."
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Grant could have argued that these new rules are unimportant as the State Bar of Arizona has yet to adopt them. But he didn't do that. He said Bisbee didn't cite chapter and verse, so to speak. Interestingly, Grant requested another extension on January 22, and received it from Judge Donahoe. His next deadline is March 2.
Which brings me back to my original question: Just how do you manage to sleep at night, knowing that you may be blocking the release of an innocent woman through perpetual procrastination? A bucketful of Sominex? A pitcher of warm milk and a turkey sandwich? A gallon or so of cough syrup?
Perhaps it also helps to lack what some of us non-lawyers refer to as a conscience...