Supreme Court has opportunity to revisit prosecutor misconduct

Last month, I wrote about a new effort to bring some public attention to the problem of prosecutor misconduct. Yesterday at The Atlantic, Andrew Cohen pointed out that the Supreme Court now has the opportunity to take up the case Wolfe v. Clarke, which he describes as . . .

 . . . a case about state prosecutors getting caught hiding exculpatory evidence, and getting scolded for it by the federal courts, and then violating the federal court order sanctioning them by threatening a witness and spoiling the retrial of a man they helped to wrongly convict. It is a case where prosecutors did all of this, right up to the brief they filed with the justices, without an evident shred of public contrition for their improper conduct.

The Wolfe case is really an outrage, although the issue before the Court is whether prosecutors can try the defendant again, not holding them personally accountable for their misconduct. Cohen’s post has more, and you can read yet more about it from Ken White at Popehat or from the anonymous blogger Gideon at A Public Defender.

Paul S. Ebert
Former Prince William County Commonwealth Attorney Paul S. Ebert in 2003. (AP Photo/Lawrence Jackson/POOL)

But I want to add a bit about Paul Ebert, the prosecutor at the heart of the case. Ebert served as the Commonwealth’s Attorney (chief prosecutor) for Prince William County, Virginia, for over 40 years. (He is now retired.) In that time, he claims to have sent more people to death row than any prosecutor in the country. (I’m not sure that’s true. He has lots of competition for that claim.) In that same time, he never brought a single indictment against a police officer.

One case I covered closely that Ebert prosecuted was the murder trial of Ryan Frederick, who shot a Chesapeake, Virginia, police detective during a botched drug raid on Frederick’s home. Here’s a summary I wrote in 2011 of Ebert’s performance in that case:

In 2008 and 2009, Ebert was the special prosecutor in the Ryan Frederick case. Frederick shot and killed Chesapeake, Virginia Det. Jarrod Shivers during a drug raid on Frederick’s home. Frederick had no prior criminal record, and says he thought he was being robbed. Which is credible, given that police informants had broken into Frederick’s home days earlier to obtain probable cause for the raid, part of a possible pattern of illegality among police informants Ebert found unimportant.

Ebert tried Frederick for capital murder. He attempted to change the venue, arguing that bloggers and Internet writers had made it difficult for the state to get a fair trial. He told jurors Frederick was a pot-crazed killer, then sought to exclude video of Frederick’s post-raid interviews at the police station, where a clearly despondent Frederick bursts into tears and vomits upon being told that he had killed a cop. Best of all, Ebert put on the stand a perfectly-named jailhouse snitch named Jamal Skeeter who claimed that during their one hour per day of rec time at the jail, Frederick repeatedly boasted about killing Shivers and mocked Shivers’ widow. Skeeter was so utterly devoid of credibility, fellow Virginia State’s Attorney Earle Mobley made the admirable and rare move of speaking up in mid-trial to say that he and other area prosecutors had determined Skeeter was a professional liar, and had stopped using him years ago. You’d think that’s something a prosecutor might look into before using a witness to help put a man in prison for the rest of his life.

Ebert is a great example of just how inept the courts and bar associations are at disciplining bad prosecutors. As White points out, in 2011 — a point by which his actions in both cases were well-known — Ebert was honored with a painted portrait put on permanent display at the Prince William County courthouse. That he continued to get reelected even after all of this illustrates how the political process also fails to punish them. A few years ago, some Virginia residents were so fed up with Ebert’s ability to run unopposed, or with only token opposition, they drafted a ham sandwich to run against him (based on the old axiom that most allegedly-independent grand juries would indict a ham sandwich if a prosecutor requested it).

*    *    *

SOMEWHAT RELATED: There is at least some good news in the world of prosecutorial misconduct. The West Virginia Supreme Court recently upheld (PDF) a three-year suspension of the law license of a former prosecutor found to have withheld exculpatory evidence in an embezzlement case.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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