How Commonwealth’s Attorney Paul B. Ebert Touched People

95 Responses

  1. Doug Burbidge says:

    "so he was no longer able to testify in Barber's favor at Barber's retrial." — I think this should be "Wolfe's", not "Barber's"?

  2. Sami says:

    So… all of this is on record, evidence of this conspiracy, and stuff.

    This is criminal, right?

    Why aren't charges brought? Why isn't someone just *suing* the fucker on Wolfe's behalf?

    Why is it so well-known that the system is this broken and people get angry and frustrated but don't seem to be doing anything about it?

  3. Dormammu says:

    I'm amazed that criminal prosecutions are still a state-controlled entity. After all, we let corporations run prisons, and we let them give tons of money to political campaigns–why not let them decide who is guilty and who is not? Think of how that would stimulate the economy!

  4. That Anonymous Coward says:

    Gee I wonder if the prosecutor has immunity…
    Perhaps it might be time to consider that when we give them power AND make them immune to abusing that power bad things happen.

    How many other cases in his long career have this same sort of "issue".
    How many people were put to death because he suppressed evidence?
    While this one case turns my stomach… he isn't a 1st yr prosecutor… How safe do Virginians feel tonight, knowing that innocents sit in jail and the guilty might be on the streets? That if this prosecutor decides they did it, he'll work tirelessly to convict them even if they are truly innocent.

  5. Jamie says:

    And some people wonder why the majesty of Justice isn't respected.

  6. Philosopherva says:

    This is no surprise. Jensen Soering. Thomas Haynsworth. Earl Washington. The list goes on. This is the principal, not the only reason, I have given up on the Republican Party.

    Truth is not optional.

  7. Mike says:

    @ TAC, I think part of the point of Ken's post is that this isn't viewed as "bad things happen," but rather as the system working.

  8. nlp says:

    I wish I could say I'm surprised by this.

  9. Curmudgeonly Ex-Clerk says:

    Philosopherva:

    Whatever complaints you have about the Republican Party, I think they are irrelevant here. Commonwealth Attorney Paul B. Ebert is a Democrat. The problems at issue do not appear to predominate within one party or the other, as near as I can tell.

  10. Jeff says:

    @Mike, you're right. This is "the system" working as those operating it intend for it to operate. The fact that that's complete anathema to any civilised person, including the men who wrote the Constitution, just shows the degree to which those "operators" are divorced from and alien to normal people.

    "Cui bono" remains the most useful question to ask about anything involving the "justice" system.

  11. En Passant says:

    Rather than having his portrait on the wall of a Virginia courthouse, Paul B. Ebert should be in federal prison.

    I'd settle for having his portrait on a "Wanted: dead or alive" poster at the post office.

  12. amoria says:

    @Philosopherva

    Tough-on-crime is a vote winner, no matter your political orientation, his conduct would probably win votes if he ran for office.

  13. max says:

    I am in awe of chutzpah of the Commonwealth of Virginia, the court cannot use the documents we hid from the Wolfe to prove that we hid them from the Wolfe because Wolfie's knowledge of them now is improper due to us hiding them from him.

  14. Jasper says:

    Jeff, you are not only wrong but obviously completely uninformed. In any system, there will be a certain level of abuse and corruption. It is the easy path to moan and complain about the abuses. The exception does not make the rule. The justice system in Virginia works exceedingly well. Abusive prosecutors are dealt with by the bar, the judges and the electorate. The people that make it work generally live in the same community that they serve. If you really knew these people you would know how the great majority of them are committed to doing their jobs correctly and protecting the rights of the accused as well as the rights of the victims.

  15. neverjaunty says:

    @Sami, likely someone would, if they could find a way to get around the absolute immunity given to prosecutors.

    The naivete of judges often astounds me. I understand that they are supposed to assume lawyers are all officers of the court who may be presumed to behave like adults, but time and time again I encounter judges who are shocked to see evidence of lawyers behaving badly – and who think a good scolding from the court, rather than concrete action such as sanctions or a finding of contempt, will shame these bad actors into changing their ways. I can only assume this problem is greatly magnified in the case of prosecutors, who, after all, are supposed to seek justice, not simply try to achieve a win.

  16. philosopherva says:

    Curmudgeonly Ex-Clerk
    You are, of course, quite right. It's just that I already hated Democrats. As a disillusioned idealist, I can now be equal in my contempt of power.

    “Tyranny is defined as that which is legal for the government but illegal for the citizenry.”
    ― Thomas Jefferson

  17. Stephen H says:

    @Jasper, you state that "abusive prosecutors are dealt with by the bar, the judges and the electorate". Seriously? The system protects its own, as shown by this article. Prosecutors don't pursue other prosecutors, in the same way that police don't pursue other police. Your assumption that "they're nice people" because you live in the same community comes across as naive – you don't know how nice they really are until you face them across a courtroom and hear things about yourself that you have never heard before and cannot believe the jury would possibly fall for.

    Have you looked at the conviction rate in US courts? The Department of Justice claims a 93% "success" rate for 2011. Texas has about an 84% rate – compared to Florida's 59%. Which state do you think is more likely to be employing "abusive prosecutors". And do you feel that those DoJ prosecutors are likely to be behaving ethically while convicting more than nine in ten of the people they take to a courtroom?

  18. Noscitur a sociis says:

    "How safe do Virginians feel tonight, knowing that innocents sit in jail and the guilty might be on the streets?"

    I don't think there's any question that the guilty person is in jail right now due to being convicted of the murder.

  19. Tylor says:

    @Noscitur – If your definition of guilty is defined as having been found guilty by a court of law, then I suppose you'd be correct. However, if your definition of guilty is "Committed the crime they are accused of" then what we have here is a case where the party in jail may not in fact be guilty given the circumstances by which he wound up in jail.

    If a person is not given the tools they have a right to in order to pursue a vigorous defense, then it becomes far too easy for "guilt" to be fabricated. Especially in cases like this where it seems facts are decided upon first, and then proof for those facts are found afterwards.

  20. Cat G says:

    Thank you, adversarial justice system. The legal system has come a long way, but it is still a trial by combat. No longer combat of arms and the will of the divine (thankfully), but about combat of words and procedure. Whomsoever can convince the Judge or the jury that their words are true, regardless of any facts, shall prevail. In the competitive, metric driven culture where only numbers matter, the humanity is lost as prosecutors strive for a high conviction rate. Because that can become a soundbite that may be used to further political or ideological goals of the people driving the bus.

    I really dislike metrics as a "performance measurement" for any kind of security or law enforcement role, because they are often divorced from reality. A higher conviction rate does not necessarily imply that justice has been done or that the attorney has performed appropriately and well. There are other factors in play, and while I may be naive in thinking that facts may be the most important, that is not how the system works.

    Facts, evidence, these things are irrelevant against the more important goal – winning the combat of words. On both sides of the court, but most often it seems that the Prosecutors not only chose the terrain for the battle, but the arms of the combatants.

    There's my cynicism for the morning. Time for coffee.

  21. Clownius says:

    @Noscitur a sociis

    Please tell me you just forgot the Sarcasm tag on this one……

  22. Jasper says:

    Stephen,
    Yes seriously. It is obvious from your response that you have no experience with the system you condemn. In Virginia prosecutors are elected by the people of a locality(city or county). So every four years any complaints that haven't otherwise been addressed by the judges or the bar can be trotted out for the people to consider. Your assumption that prosecutors don't pursue other prosecutors is pure guesswork. Have you seen any facts to substantiate that? My guesswork is that you do not and you are basing it on the equally flawed "police don't go after police" reasoning. By that same argument soldiers don't 'go after' other soldiers.

    If you would read the article and my post more carefully, you would see that I never claimed prosecutors were "nice people". Jeff suggested that they were somehow 'divorced' from normal people. His suggestion and yours seem to be an attempt to dehumanized prosecutors by claiming they are some elite minority pursuing their own hidden agenda. Absurd.

    Finally, the conviction rates you are concerned about do not suggest what you think they do. They do not, for example, weigh the final number of convictions against the number of reported crimes. They only measure the number of convictions per cases pursued. In other words, if someone has 10 charges of credit card fraud and makes a plea agreement to be convicted of 2 of those charges while the others are dropped that counts as a successful conviction, the other charges are not considered in the final talley. Also, most people are only charged after enough evidence is obtained to warrant a conviction. The number of 'borderline' cases is relatively small.

  23. Dan Weber says:

    I have a technical question about the legal process.

    To review: Barber, the "star witness" for the prosecution at Wolfe's first trial, is now pleading the Fifth. Meaning he won't be available for Wolfe's re-trial.

    My question: why is this bad for Wolfe? It is a new trial — the defense doesn't have to prove that the prosecutor made shit up at the first trial. That first trial is, in theory, completely gone. It's a new trial now. Both sides are starting from scratch. So it is, once again, entirely the state's burden to prove to a jury beyond a reasonable doubt that Wolfe did murder-for-hire. So what benefit would Barber be to Wolfe at this trial?

  24. Ken White says:

    My question: why is this bad for Wolfe? It is a new trial — the defense doesn't have to prove that the prosecutor made shit up at the first trial. That first trial is, in theory, completely gone. It's a new trial now. Both sides are starting from scratch. So it is, once again, entirely the state's burden to prove to a jury beyond a reasonable doubt that Wolfe did murder-for-hire. So what benefit would Barber be to Wolfe at this trial?

    Other than testifying that Wolfe had nothing to do with Barber's killing of the victim?

  25. Noscitur a sociis says:

    "@Noscitur a sociis

    Please tell me you just forgot the Sarcasm tag on this one……"

    Are you saying that the person who committed the murder is not currently in jail, after being sentenced for committing the murder?

  26. Kilroy says:

    So what is the better system? Is it just changing how prosecutors are chosen? The oath already provides for seeking justice, not convictions, and the system is in place to punish oath breakers, if it is only used.

    What needs to change other than removing the unethical culture of the office?

  27. Rompor says:

    @ Noscitur a sociis

    In this case, the individual who committed the crime (Barber) is in jail. However, that is not always the case where a conviction is false.

    E.g. Michael Morton, who was convicted and sentenced to death while the real killer was out on the street and, indeed, killed again.
    http://en.wikipedia.org/wiki/Michael_Morton_(criminal_justice)

  28. CJK Fossman says:

    @Noscitur

    Apparently you believe that found_guilty == did_it.

    If you trouble yourself to read Ken's post, you may find that expression not to be true in this case.

  29. CJK Fossman says:

    @Jasper

    Why did you leave out the part about prosecutors in Virginia riding on unicorns?

  30. Noscitur a sociis says:

    "My question: why is this bad for Wolfe? It is a new trial — the defense doesn't have to prove that the prosecutor made shit up at the first trial. That first trial is, in theory, completely gone. It's a new trial now. Both sides are starting from scratch. So it is, once again, entirely the state's burden to prove to a jury beyond a reasonable doubt that Wolfe did murder-for-hire. So what benefit would Barber be to Wolfe at this trial?"

    Unfortunately for Wolfe, both sides are not starting from scratch, since the first trial happened and Barber did provide incriminating testimony. Evidence Rules permit the introduction of an unavailable witness' sworn testimony at a prior proceeding if the party that the testimony was offered against was present and had an opportunity to cross-examine the witness about the issue. A witness asserting a Fifth Amendment privilege is considered unavailable for the purpose of this rule in Virginia. Boney v. Commonwealth, 432 S.E.2d 7, 10 (Va.App. 1993). So if Barber does in fact refuse to testify at a retrial, the prosecution will (presumably) seek to introduce his testimony from the first trial, which the jury obviously found persuasive. Wolfe will likely try to argue that he was not able to adequately cross-examine Barber the first time because of the discovery violations; I don't feel like researching the issue to develop an opinion on whether that's likely to be successful.

  31. Noscitur a sociis says:

    "If you trouble yourself to read Ken's post, you may find that expression not to be true in this case."

    Okay, I give up. Who do you think committed the murder, and what makes you think he's not in jail now after being convicted of the murder?

  32. Noscitur a sociis says:

    "In this case, the individual who committed the crime (Barber) is in jail. However, that is not always the case where a conviction is false."

    That is obviously true. It just seemed like a strange thing to bring up since it clearly is not the case here, and made me wonder whether the original poster actually understood what was going on.

  33. Dan Weber says:

    Ken, thanks. I missed that Barber killed the victim, and he could testify that he wasn't hired for it.

  34. Merl says:

    I'm one of those people who believe their should be a very high conviction rate. An aquittal means 1)the defendant was innocent, 2)There was insufficient evidence of the defendants guilt, or 3)there was serious misconduct resulting in mistrial/inadmissible evidence/etc. Any of those involve someone rights being violated and public monies being wasted. Unfortunately high conviction rates are in reality a sign of , well, serious misconduct and incompetence.

  35. SPQR says:

    Ken, I gave a friend of mine who practices criminal defense in Virginia a link to this piece.

    His response: "Ebert? That %$#@#$%$#@@#$% … "

    In other words, you got a new fan in Virginia.

  36. Carl says:

    Nice, a Democrat working for the government railroads someone, and a couple of bootbrains here manage to turn it into a gripe about Republicans and corporations.

  37. Dictatortot says:

    A huge part of the problem seems to be that prosecutors are judged, appointed, elected, and re-elected based on how many convictions they get, not on how many JUST convictions.

    As a prosecutor, it might be your job to pursue a criminal case handed to you even if the defendant is probably innocent, or has a reasonable defense. In such cases, your job is to prosecute the case ably and with integrity … but the ideal result would still be an acquittal. You need to ably present the state's strongest arguments for guilt, but they might be rightly adjudged insufficient. There's no shame in that for you, the prosecutor–quite the contrary. But a loss in court is considered a black mark on a lawyer's record, even if losing would be the only just, correct outcome of a particular case. Somehow, that has to change.

  38. MrSpkr says:

    Ken, is this a natural result of the politicization of the process? The popular election of judges, including criminal court judges, who want to claim to be tough ton crime? The election, in many places, of district attorneys who hire prosecutors, then place an immense amount of pressure on them to secure convictions in order to protect the politician during the next election cycle?

    Or is it simply corruption by a class that doesn't care against a group of folks powerless to defend against such tactics?

  39. CJK Fossman says:

    @Noscitur

    I should have said, "If I trouble myself to read carefully Ken's post, I would agree with you."

    But I didn't. Sorry.

  40. Matt says:

    So… there's a decision out there that says because he took a plea deal, Barber could actually be essentially subject to double jeopardy (now with Extra Death Penalty Fun!) if he doesn't take the Fifth? How does that work?

  41. NI says:

    If there's a Brady violation, there should be a per se rule that the criminal case should be dismissed with prejudice, on the same theory that illegally obtained evidence is inadmissible: It's the only kind of sanction that the prosecution might actually pay attention to.

  42. NI says:

    And I share Matt's question: How would it not be double jeopardy to charge Barber anew after he already took a plea deal?

  43. Dictatortot says:

    Unfortunately, MrSpkr, I'm guessing there's a reason why judges and DAs increasingly became elected and had to establish tough-on-crime bona fides–i.e., a previous system of appointed officials whose perceived malfeasance in the opposite direction might have made them reasonable countermeasures. Swinging pendulum, and all that.

  44. En Passant says:

    Dictatortot Feb 5, 2014 @9:43 am:

    As a prosecutor, it might be your job to pursue a criminal case handed to you even if the defendant is probably innocent, or has a reasonable defense.

    No. Most legal ethics codes hold that a prosecutor should not prosecute any person he does not believe to be guilty of the crimes charged. It is never the prosecutor's "job" to pursue a criminal case against a person he believes is "probably innocent".

  45. JRM says:

    Dan Weber/Ken:

    I think the idea that the prosecution shut Barber up to help their case is borderline nutty, and I think the idea that it actually helps their case is mistaken.

    They came in very hard to Barber. It appears by all accounts that Barber was a critical witness for the murder – no Barber, no viable murder charge.

    Best argument for deliberate shutting up of Barber: I don't know Virginia law, but given Crawford, Barber's sworn prior testimony might come in, and then anything impeaching that (inclusive of his recantation.)

    But that strikes me as a very hard case to make without a live witness – and at this point, with a live witness.

    Given the manner in which they approached Barber, they were clearly trying to get him to say what they wanted him to say. (The plea to religious sensibilities is disfavored under California law; again, I don't know Virginia law.)

    Note on the case in general: I'm not keen on the name-and-shame all the time; some things are done in court publicly that may be errant, but not really "misconduct" in the usual use of the word.

    IMO, Brady violations are fundamentally different because they are hard to discover. (In this case, they were very hard to discover, and they appear severe.) People who commit Brady violations should be shamed, and shamed hard. When the rate of discovery is low, the sanction must be high to deter. Brady goes to the core of the process.

  46. Chris says:

    My question: why is this bad for Wolfe? It is a new trial — the defense doesn't have to prove that the prosecutor made shit up at the first trial. That first trial is, in theory, completely gone. It's a new trial now. Both sides are starting from scratch. So it is, once again, entirely the state's burden to prove to a jury beyond a reasonable doubt that Wolfe did murder-for-hire. So what benefit would Barber be to Wolfe at this trial?

    The defense explains this in their petition for cert before SCOTUS:

    [...] the Commonwealth has made clear that it intends to provide petitioner with the same constitutionally deficient trial he had before, relying on literally the same tainted evidence that caused his first conviction to be vacated. For instance, even though the Commonwealth has made Barber unavailable to testify, the special prosecutor has said that he intends to read to the jury a transcript of the perjured testimony Barber presented at the 2002 trial—the same testimony that petitioner was unable to cross-examine and impeach effectively in 2002 because the prosecutors withheld exculpatory evidence. Pet. App. 151a–152a. Even though the withheld evidence has now been disclosed, petitioner cannot use it because he cannot cross-examine a cold transcript.

    Basically, if they retry the guy, he is prohibited from introducing any evidence that the original guy recanted. Furthermore, it appears that he can't even use the evidence that the original testimony was coerced — the precise evidence the withholding of which was grounds for vacation of his conviction.

    So, due to the rules of evidence, the prosecutor winds up getting to use evidence that has already been judged false and the defense can't use any of it. The jury won't get to hear anything but the confession, so they won't really have any choice but to re-convict.

    However, it doesn't appear that their is anything prohibiting them from re-appealing, where the evidence could be introduced and the conviction re-vacated. Indeed, the defense points this out in the petition:

    It creates a world where a determined, disobedient prosecutor can conduct successive unfair trials of the same defendant, each separated from the other by an intervening grant of habeas relief.

    IANAL, but the folks who wrote the petition for cert sure are. Of course, you have to take it with a grain of salt cause it's written by one side, but it paints a fairly grim picture for the accused. Hopefully SCOTUS will pick it up. It looks like there's a circuit split on it (though the prosecution disagrees, I certainly can't tell) so the chances aren't quite zero.

    (Docs available via SCOTUSblog.)

  47. Tony says:

    Perhaps the simplest solution for Wolfe is to make an allegation against (insert name) that he was hired to commit (insert crime) and in doing so he will be offered a reduced sentence of time served for his unimpeachable testimony. I believe jailhouse lingo refers to it as the allegation snowball protocol.

  48. Lokiwi says:

    @Matt

    If you read the Simple Justice post, he has an explanation. Basically, the state threatened to revoke his plea agreement by arguing that he had not lived up to the terms.

    From the decision that Virginia should not be able to retry him: "In response, the prosecutors made the same threats they had made in 2002. In particular, they showed Barber a highlighted copy of Ricketts v. Adamson, 483 U.S. 1 (1987), which they had brought with them, and told Barber that under Ricketts his previous plea deal could be undone if he did not cooperate. They made clear to Barber that if he did not revert to his original trial testimony, he could face new capital murder charges."

  49. Dictatortot says:

    Most legal ethics codes hold that a prosecutor should not prosecute any person he does not believe to be guilty of the crimes charged. It is never the prosecutor's "job" to pursue a criminal case against a person he believes is "probably innocent".

    I'm very glad to hear it! But still, aren't prosecutors pretty much judged on wins/losses, with no consideration of whether a win would have been the proper outcome? If so, that seems to send a message to DAs and prosecutors that they're there solely to get convictions, the truth be damned.

  50. Cat G. says:

    Dictatortot:

    Most legal ethics codes hold that a prosecutor should not prosecute any person he does not believe to be guilty of the crimes charged. It is never the prosecutor's "job" to pursue a criminal case against a person he believes is "probably innocent".

    I'm very glad to hear it! But still, aren't prosecutors pretty much judged on wins/losses, with no consideration of whether a win would have been the proper outcome? If so, that seems to send a message to DAs and prosecutors that they're there solely to get convictions, the truth be damned.

    And this is why I abhor metrics as performance measures in legal and law enforcement arenas. Yes, conviction rates are a form of measuring successful prosecutions. But that doesn't mean that they are good prosecutions. Or that Justice or Truth are even in the building.

  51. Nowan says:

    Yet another reason why we need some mechanism for the public to be able to bring a case to enforce 18 U.S.C. § 242.

  52. Ryan says:

    It continually astounds me that the American system permits convictions to be maintained when disclosure is incomplete – particularly when its northern neighbor routinely sees cases sent for retrial or dismissed outright over disclosure matters (see R v. Stinchcombe if interested).

  53. Jasper says:

    Convictions are NOT an effective method of measuring successful prosecutions. It is an artificial number that only impresses the uninformed, aka the general public. A prosecutor's job is to seek justice. That is accomplished as often as not by the case being simply dropped.

  54. Jules says:

    Noscitur: do you mean the fellow who pleaded down by naming an innocent guy as the main conspirator?

    Anyway, prosecutors do not necessarily look for the "guilty", they look for the most likely to be convicted. Most of the time, that's the actual person of interest. Sometimes though, there is a poor SOB aka The Fall Guy.

  55. Matthew Cline says:

    Basically, if they retry the guy, he is prohibited from introducing any evidence that the original guy recanted. Furthermore, it appears that he can't even use the evidence that the original testimony was coerced — the precise evidence the withholding of which was grounds for vacation of his conviction.

    Wait, but then the new trial will be pretty much identical to the first trial, so what would the point be in doing it a second time?

  56. Steve says:

    Jasper, you stated "Abusive prosecutors are dealt with by the bar, the judges and the electorate." So I have one question: in what percent of cases in which a court in Virginia has overturned a conviction due to prosecutorial misconduct has the prosecutor in question had their license suspended, been fully disbarred, or served jail time? Because if it's anything less than 100%, I'd say that abusive prosecutors are not dealt with by the bar or by judges.

  57. Ken White says:

    @Jasper:

    Abusive prosecutors are dealt with by the bar, the judges and the electorate.

    Bullshit.

  58. scripophily says:

    Comments about these stories fall into two camps: passing outrage about the prosecutorial misconduct or arbitrary dismissal of the story as an aberration. Neither camp offers any suggestions about reform or actions that can be taken to remedy the situation. I might when go so far as to point out that Ken and other authors on this blog (I'm looking at you Clark) offer thoughts on how to remedy these problems with our legal system. I read these stories and despair for this great country of ours. But the beauty of our country is that we have a system that can be changed provided sufficient outrage or through grassroots action. So in cases of obvious prosecutorial misconduct what is the fix, and how do we go about implementing it?

  59. Matt says:

    Lokiwi, yeah, I read that, I just didn't understand it – I get the desire to have some method for dealing with guys who didn't live up to their plea deal, but this seems like it's really really dancing into double jeopardy territory.

    Ken, any chance you can comment on this part?

  60. NI says:

    Matt, I agree with you that this at least smells like double jeopardy, but there's a huge piece of missing information: I don't know what Barber's plea deal actually required since I haven't read it. Does it require that he cooperate with prosecutors in perpetuity, or does it merely require that he cooperate at Wolfe's original trial? Also, if I were the prosecutor, I wouldn't want Barber to testify again regardless of what he'd say. If he says Wolfe did it, then he gets impeached with all of his prior inconsistent statements and gets asked about prosecutorial coercion. If he says Wolfe didn't do it, then there's no case against Wolfe. But as I understand it, without Barber there's not much of a case against Wolfe regardless.

    The other thing is that given Barber has now served 15 years of his plea-bargained sentence, I'm not at all sure a judge would allow the state to try to revoke his plea deal anyway. It strikes me as a little late for that.

  61. NI says:

    scripophily, here's the thing: A defense attorney who misled the court, violated the canons of ethics, suborned perjury, or engaged in any of the other conduct one reads about prosecutors engaged in with depressing regularity, would, just for starters, be lucky to keep his license. He would also be looking at some pretty serious economic sanctions and maybe even jail time for contempt, depending on just how pissed off the judge was.

    I don't know how lawyer discipline works in Virginia, but if I were a federal judge faced with Justin-Wolfe-like prosecutorial misconduct, I would immediately issue a show cause order directing the prosecutors involved to show cause why their licenses to practice in the federal courts should not immediately be suspended. Federal judges have the power to do that. I would also impose heavy sanctions and order them be paid by the prosecutors personally. One or two well publicized cases like that and the problem would at least be greatly reduced, if not go away entirely.

  62. Trent says:

    scripophily,

    The solution in my mind is a policy allowing immunity to be breached in Brady violations (and maybe some other areas as well), which is where the prosecutor withheld evidence from the defense.

    As soon as a prosecutor can be sued personally for violating peoples rights I can guarantee with certainty that the number of incidents of such will go WAY down. I support the same thing with cops, they should lose immunity where they've deliberately breached someones rights. Our only remedy to these types of abuses currently is criminal trials and more often than not it's completely ineffective. But allow victims to go after the prosecutors/cops assets and I personally believe you'll see a massive reduction in incidents. The trick here would be balancing the loss of immunity so that someone doesn't lose it for honest mistakes were there wasn't intent. Some of the lawyers should comment but I believe balancing losing immunity in a fair and just way would be VERY hard. People make mistakes and attributing motive later is very difficult.

  63. Jasper says:

    Steve,
    Cases overturned for prosecutorial misconduct are rare in Virginia. Bar complaints almost automatically arise from those situations. Please consult the Virginia State Bar if you are truly curious as to the outcomes. In any event, I'm sure you will continue to say abusive prosecutors aren't dealt with regardless of the statistics.

    Ken,
    Your pithy remark again demonstrates your lack of understanding of the process in Virginia. Is the basis of your knowledge your reading of an Internet blog entry and looking at one court opinion? (eye roll )

  64. SPQR says:

    Yeah, what Ken said.

  65. Noscitur a sociis says:

    "And I share Matt's question: How would it not be double jeopardy to charge Barber anew after he already took a plea deal?"

    In cooperation agreements of this kind, the defendant typically is required to agree to testify truthfully and completely at any subsequent court proceeding, and acknowledges that failure to do so will permit prosecution to rescind the agreement and restore the status quo ante.

  66. Clownius says:

    We had an article not to long ago about false confessions didn't we? Alarm bells are ringing here.

    It strikes me the cops already put words into this guys (Barbers) mouth so his whole confession should go out the window as untrustworthy, possibly coerced and most certainly tainted.

    In which case the fair response would be a retrial of both with the confession not even being allowed to be mentioned. Im not sure the prosecution would like that as its more than possible both are found not guilty but its the only fair solution in my opinion.

    Better than possibly letting an innocent man continue to suffer is to risk freeing a guilty one after hes served 15 years.

    @ Jasper good luck sparing with Ken. I believe hes more than up to the challenge.

  67. Cat G. says:

    Jasper –

    It is not wise to make the assumption that Ken, who writes this blog, is unfamiliar with Bar associations and their normal actions with regards to lawyers.

    It really, really isn't. I mean, it's not like he's a well respected practicing criminal defense attorney that started as a prosecutor.

  68. Jasper says:

    Cat,

    I'm glad you have such a high regard for his position. It's too bad that he's full of it. I don't claim to know how other states deal with these issues but I've been doing criminal defense work in Virginia for close to 20 years. It's easy to sit on the sidelines and snipe. If Ken is an attorney, fine, he just doesn't sound like one that practices in Virginia. I've seen bad prosecutors over the years but not one of them that couldn't be handled by taking him to task in front of the local judge, the bar or even just going to his or her boss. I've also seen plenty of defense attorneys get manhandled by prosecutors and then go an whine about it to their friends instead of standing up to them in court. It looks to me like the easy way out for an incompetent defense counsel is to blame the big bad prosecutor.

  69. Ken White says:

    Jasper, I'm sure you can link us, then, to the Virginia State Bar materials showing Mr. Ebert being disciplined. Or other Virginia prosecutors being disciplined upon findings that they withheld Brady evidence. Or studies showing that Virginia is an exception to the nationwide trend of prosecutors not being disciplined by state bars even when called out by courts for misconduct.

    I've demonstrated — if nothing else — that Paul Ebert got honored after courts found that he had ruthlessly violated the rights of a defendant. You've offered only hot air.

    Cite?

  70. J says:

    Once upon a long-ago time, I considered pursuing a career in law. I find it engaging, and my analytical thought patterns would likely be well-suited for it.

    But shit like this just pisses me off, and I don't think it would be healthy for me to do a high-rise dive into such a stress-pool.

    I'll stay in my own corner, tinkering with other things. Doing any more is outside my reach. Love it, but need to keep it at arms-length.

  71. Jasper says:

    Ken,

    I'm not going to do a research project for you. If you want names then look up Eileen Addison, Commonwealth Attorney for York County. She had a complaint filed on her for withholding exculpatory evidence. She was reprimanded by the bar and subsequently lost her re-election bid. Caroline County CA Tony Spencer disciplined by the bar for gather information under false pretenses. Williamsburg CA Nate Green is facing ethics charges, and various assistant prosecutors across the state are as well.

    I don't know what kind of law you practice. I am in the courthouse doing battle most days. We don't waste time conducting studies and filing reports for every time an issue comes up with a prosecutor. The best way to resolve the matter is to haul them in front of the judge and put them on the spot. My point is that it's easy for someone to sit in their nice office in some distant state and complain about how terrible things are in Virginia.

    And finally, you showed that Ebert was honored. Big deal. He was honored for being in his job for 43 years. He wasn't getting a medal for Christian purity and charity. I don't know Ebert. He sure isn't loved by the defense bar. But are you trying to say that when someone does something improper that they should not receive recognition for other actions? Maybe we should be discussing Woody Allen getting an Oscar.

  72. Piedmont Prosecutor says:

    I'm a once-and-current prosecutor in Virginia who practiced as a defense attorney in Prince William County. As for bar discipline, Jasper mentions some prominent examples (the VA Lawyer Register doesn't publish whether a disciplined attorney is a CA), although as a whole, it's rare for any attorney in VA to be disciplined for criminal law practice issues other than untimely filing or the odd Brady violation.

    Having practiced on one side or the other in about a dozen jurisdictions, I never had a sense that there was large-scale withholding of evidence. Most places have open-file discovery (or at least, mostly open). VA doesn't require prosecutors to grant discovery beyond the defendant's criminal history, his statements to state agents, and any exculpatory evidence. There were a few over-zealous and unethical prosecutors, but given VA's right of trial de novo for district court cases in circuit court and supervision by senior attorneys, it hasn't been a big problem from what I've seen and heard from other prosecutors.

  73. Anonymous Coward says:

    This story makes me sick. Such injustice exists in my own home and I am powerless to do anything about it. People of this kind are in need of a Count of Monte Cristo style revenge plot (That is to say, one where their own sins are brought to the surface to become their downfall. I don't mean violence)

  74. Anonymous Coward says:

    @Jasper,

    But are you trying to say that when someone does something improper that they should not receive recognition for other actions?

    I can't say what Ken thinks, but I say YES. Prosecutors should not receive any recognition for being a prosecutor if they have used that position to commit civil rights violations.

    Woody Allen managing to escape justice doesn't make it right. I might also add that unlike Mr. Ebert, there is no documented proof that he actually committed any crimes.

  75. Jasper says:

    >>>>Woody Allen managing to escape justice doesn't make it right. I might also add that unlike Mr. Ebert, there is no documented proof that he actually committed any crimes

    You mean other than an eyewitness, of course.

  76. Jasper,

    Ebert knowingly imprisoned an innocent man. How is he different than Ariel Castro?

  77. Jasper says:

    Claude,

    If you are not already in Virginia, please move here. I need you as a juror in my upcoming jury trials. The ability to determine that someone is innocent just from reading a blogpost is what I look for in jurors. However, I think you might find that the case is still going on even though it has jumped around in the appellate courts for a while.

  78. Ken White says:

    Thanks for your contributions, Jasper.

    Say. Is that your real name?

  79. gramps says:

    This Jasper fellow has a certain Carl David Ceder air about him. Has anyone seen the two of them together at the same time? Jasper does use a lot of complete sentences and his use of language seems better than CDC, not that that is a gold-standard. VA and TX are not that close together (unless I've missed something lately) so its probably not attributable to the water… Just sayin'.

  80. Aaron says:

    @Jasper, if Ebert thought the man guilty, does that then justify him withholding exculpatory evidence and coercing a man to lie under oath? Do you consider these morally correct so long as he thinks the bastard did it? Do you consider these morally correct even if the bastard did it but there is reasonable doubt under the circumstances and given the exculpatory evidence?

    Also, most of all, how do you feel about Ebert's not having an "open-case file" policy, because that might allow defendants to defend themselves? This last certainly suggests that he makes a habit of withholding exculpatory evidence.

  81. Jasper says:

    Aaron,
    Those are some good philosophical questions. Suffice it to say that I am not concerned about the morality of Eberts actions. I deal with law not philosophy. My clients have rights that I try to protect. Prosecutors have ethical duties and obligations. If I worried about morality I probably wouldn't want to sit next to most of my clients.

    I actually prefer a 'closed file' policy particularly for more serious cases. It gives the prosecution less wiggle room when it comes to discovery and I have documentation of everything I receive. Even with a so-called 'open file' the prosecution can hide something if they want to. In my experience 'open' or 'closed' doesn't determine whether the prosecution is ethical or not.

  82. Jesse from Tulsa says:

    A Defense of Woody Allen's Oscar, on logical grounds:

    Woody Allen was accused of crimes and was not convicted of said crimes (specifically, accusations of sexual abuse of a step daughter that came up during a divorce/custody battle). Woody Allen won an award relating to his acting/producing abilities. He did not win an award for his his treatment of step children or as a humanitarian.

    The prosecutor in question has admitted to violating the constitutional rights of defendants by manufacturing cases against them and withholding evidence that tends to prove they are innocent. By his own admission he regularly withholds evidence if he thinks it will help the defendant. The prosecutor in question won an award FOR THAT WORK. It was the very job that he has admitted he was doing in violation of the US Constitution for which he received his "honors."

    So you see, even IF the allegations against Woody Allen were proven, his award his wholly unrelated to said allegations. A person can be a heinous individual and still be an actor worthy of an award.

    Whereas a person who engages in an activity in a fraudulent or criminal manner should never be rewarded with a meritorious award for such actions. Lance Armstrong lost his Tour wins. Everywhere John Calipari has coached has had their accomplishments stripped. And no one is handing the guys at Enron business ethics awards.

    So, if someone hands Lance a "clean athlete award", if Kentucky hands Calipari a "you have never ever ignored NCAA rules" award, or if the guys at Enron start teaching business Ethics at the Chicago school… AND no one has a problem with this. Then we have a comparison.

    Otherwise, we have a failure of logic.

  83. Erica says:

    It's so awful it shouldn't be funny, but I really did laugh out loud when I read Ebert's "We can't disclose info to the defendant because he might defend himself with it" justification.

  84. Doctor X says:

    Excellent article!

  85. Personanongrata says:

    How many others have been "touched" by the deprivations of Paul B. Ebert?

  86. Personanongrata says:

    Oops, that should read:

    How many others have been "touched" by the depravations of Paul B. Ebert?

  87. Cathy says:

    Commonwealth Attorney Paul Ebert has watched out for the common good. Look at the case of the individual killed and yet determined "self-defense" re: Cheese Burger-n-Paradise case. Individuals had been harassed for weeks by each other (the police should have been notified but weren't and violence ensued) – Mr. Ebert (and Mr. Conway, and the CWA's office) determined the killing was self-defense. Attorney Morrough (sp) handling Mr. Wolfe's new trial has also done the same in cases wherein a person was killed – but had been harassed. There have been cases wherein individuals were killed (very sad, and GOD bless, and PEACE for the people who have died, and their family members and friends – and PEACE for people in prisons and their families/friends) – but the reality of it is…Mr. Ebert, Mr. Conway and the new Prosecutor – would not be retrying or have tried in the first place Justin Wolfe – if they did not have the evidence that he was guilty. Does this deserve the death penalty – people have different opinions on this subject matter. That is not the subject matter of this blog. If one really thinks about it – Mr. Wolfe, a death row inmate, has "technically" in prison terms, been "safer" as a death row inmate, than as a inmate "in the system". Now, in 2014 let a "jury of his peers" determine Mr. Wolfe's fate at his new trial. But no wrong doing has been done by the prosecutors. Imagine, trying to care for, and keep safe, an entire community. Thank you to these public servants who with their lawyerly knowledge could have made millions in Top 10 Law Firms – chose to protect you, me, and ours. It must be an end-ending burden, as most of us screw up, but are not a "threat to society" – but killing is a different matter. These gentlemen have been, are and in their defense (not that they need it) are making sure our communities are safe. Thank you.

  88. Cathy says:

    PS – what does the name of this blog "PopeHat" mean? It is one letter short of "hate" with the name "Pope" in front of it. I've never blogged, chat roomed before – but this bashing of public servants (possibly including the Pope??-not sure on this) – is really unacceptable. Try being any type of public servant – "nothing is ever enough" and you "can't make all the people happy all of this time". But technically Pope(hat), Prosecutor, Criminal Attorney, "the truth is the truth is the truth." Truth cannot be changed. PSS GOD Bless all victims. Shame on me for inadvertently leaving victims out in my first (and now this my second and last blog). GOD bless all victims and their families. GOD Bless and let them be blest all of our public servants. GOD Bless all public servants who also happen to have their own agenda – but that is not going on here in Wolfe's case – just look at past actions. PSSS – no one should "hat(e)" anyone – takes up too much energy, and not good for society/community/common good.

  89. Ken White says:

    Cathy, you sound pretty much the way I would expect someone to sound who defends the government breaking the law.

  90. That Anonymous Coward says:

    @Cathy the very poorly acted shill.
    "Truth cannot be changed."
    The truth is the man you are defending violated the law and denied other due process. You seem to think his crime is acceptable, yet others deserve much harsher treatment because there has to be a case.
    What if the case only exists because of the evidence and coerced testimony?
    You should hope no one with power and access takes a dislike to you, and gets people to testify that you were seen dealing meth to small children and then filming them engaged in sex acts. Because then someone might file a case against you, and if they file it – it must be real and you will spend your short time in prison before word gets out you are a child molester.
    But go on tell me how this person who is supposed to uphold the law can violate it for the greater good to railroad someone to jail for a crime they did not commit. Tell me how he is such a bad man they were unable to arrest and charge him for what they THINK he might have done so they created a case from lies. Tell me you feel safer, and I'll pray that you never become a target of those men who will break the law just to get someone they think deserves it.

  91. Joe Pullen says:

    Ken,

    I'm not going to do a research project for you.

    @Jasper,

    Ken's not asking you to do a research project for him, he's asking you to back up your statements with supporting evidence. You know. . . . like lawyers do.

  92. eigenperson says:

    PS – what does the name of this blog "PopeHat" mean? It is one letter short of "hate" with the name "Pope" in front of it. I've never blogged, chat roomed before – but this bashing of public servants (possibly including the Pope??-not sure on this) – is really unacceptable.

    You know, Cathy, if you take the letters in "PopeHat" and combine them with the letters in "Cathy" you get "The Apathy Cop." I really think you should stop bashing public servants — especially cops — in that way.

    PS: You also get "Happy to Cheat." But more disturbingly, by adding a mere solitary "N", you get the dread name of the "Hate Patch Pony" who has haunted our dreams of late.

  93. Jasper says:

    Joe,
    You were so busy making a snide comment, you missed the boat. Lawyers use evidence, logical reasoning and common sense. The evidence you missed is eye-witness evidence, the near 20 year experience of a practicing attorney. If all you want is Internet links, then all you get is hearsay. Strangely, you don't seem disturbed that the bulk of the article is based on a judicial opinion. That's just what some judge says. Supposedly he has heard proper courtroom evidence, but if you don't know the judge and the prejudices he brings with him how can you weigh what he says? I guess you believe a judge never makes a mistake or a public official like a judge always speaks the truth. You read this article and want to start questioning the integrity of the process, that's fine, but you stopped halfway and decided to take one side as the gospel.

  94. perlhaqr says:

    Goddamn, Ken. I don't know exactly how you season your bait, but when you go fishing for statists, you land 'em!

  95. Rajani Isa says:

    but the reality of it is…Mr. Ebert, Mr. Conway and the new Prosecutor – would not be retrying or have tried in the first place Justin Wolfe – if they did not have the evidence that he was guilty.

    @Cathy If they had evidence, where is it?

    It could simply be that they wanted to get Wolfe, a drug dealer (based on what Ken noted above) off the streets in any way they could. That's why they went after Al Capone so hard for the crime they could prove.

    But we don't know that. Not only that but as far as we can tell, Wolfe is innocent of the crime he was convicted of. We won't know it because – since it was not known at the time they mentioned Wolfe to Barber first AND stated they wouldn't kill Barber if he said Wolfe had him do it – the defense had no reason to ask about it. For all we know, Wolfe flipped Paul Ebert or one of the investigators off in traffic one day and he held a grudge.