Barbara Shelly

Prosecutors who hide evidence harm justice

Updated: 2013-11-13T00:09:26Z

By BARBARA SHELLY

The Kansas City Star

A prosecutor’s failure to disclose evidence to the defense resulted in a guilty verdict “not worthy of confidence,” a Missouri appeals court panel declared this week. With that finding, judges overturned Ryan Ferguson’s second-degree murder conviction in a case that had stunned Columbia.

Four days earlier, a prosecutor in Randolph County, Mo., notified the court he was closing the state’s case against Reginald Griffin, whose murder conviction was also vacated because prosecutors had withheld evidence from the defense. The decision essentially exonerates Griffin of a 1983 prison murder.

Earlier this year, the Missouri Supreme Court overturned the conviction of Mark Woodworth for the 1990 murder of a Chillicothe neighbor. The reason: Prosecutors didn’t let the defense see crucial evidence.

Sound like a pattern? Defense attorneys say it happens too frequently.

“We have a number of exonerated individuals in the Kansas City area,” said Cyndy Short, one of Griffin’s attorneys. “I would say for the majority of them, withholding exculpatory evidence was a factor in their release.”

“To me, it’s epidemic,” said Woodworth’s attorney, Bob Ramsey. “A long time ago I had to take the approach that these guys can’t be trusted, because winning is everything.”

The Ferguson case illustrates how a defendant’s fate might turn on evidence that prosecutors keep under wraps.

Ferguson was 19 in 2004 when he and a former friend were charged with the 2001 murder of Kent Heitholt, sports editor of the Columbia Daily Tribune.

No physical evidence placed either defendant in the parking lot where Heitholt’s body was found. The only eyewitness presented at trial was a janitor who’d been working at the Tribune building and who had seen two men near Heitholt’s body. Though he at first told investigators he hadn’t gotten a good look, he later said he recognized Ferguson and his friend when he saw their pictures in a newspaper his wife sent to him while he was in prison on a parole violation.

What thejury wasn’t told — because the defense didn’t know — is that the janitor’s wife told investigators she hadn’t sent her husband the newspaper he spoke of. As the appeals panel noted, the defense could have used that information to undermine the janitor’s credibility. (He has since recanted his story.)

Ferguson’s lawyers should have had that chance.

Prosecutor misconduct isn’t confined to Missouri, although we have seen severe examples of it here. Lawyers say it’s possible more cases come to light in Missouri because judges on the higher courts are willing to look closely at defendants’ claims. For the sake of fairness, we should be thankful for that.

But by the time a case gets to a court for review, a world of damage has been done.

Ferguson has spent nine years in prison. Woodworth was locked up for 17 years.

Griffin was a young man serving time for assault when he was wrongly charged with the 1983 murder of a fellow inmate. Prosecutors withheld from his attorneys a report stating that prison guards had confiscated a possible murder weapon, a sharpened screwdriver, from another prisoner. Now 53, Griffin spent most of his adult life behind bars, some of it on death row because prosecutors gave erroneous information about his criminal record at his trial.

Defense lawyers who act badly risk being sanctioned by their profession, Prosecutors seldom face consequences for misconduct. They are immune from civil liability, and bar associations rarely investigate them for violating legal canons. Defense lawyers are hesitant to press complaints against them for fear of losing leverage for future clients.

And by the time egregious incidents come to light, many prosecutors have moved on, some to bigger things. Kenny Hulshof, whose conduct as an assistant Missouri attorney general has resulted in multiple overturned convictions and harsh criticism from judges, followed up his prosecutorial career with six terms in the U.S. Congress.

Nothing will change until the legal fraternity steps up. Judges must report prosecutorial misconduct to the bar, which must in turn treat the complaints as the serious matters they are.

Accountability for prosecutors won’t help wronged defendants reclaim their lost years. But it might impress upon others that winning is not the same as justice. Sometimes it’s exactly the reverse.

To reach Barbara Shelly, call 816-234-4594 or send email to bshelly@kcstar.com. Follow her at Twitter.com/bshelly.

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